MCC Pacific Vales

National Labor Relations Board - Board Decisions

Sep 11, 1979

244 N.L.R.B. 931 (N.L.R.B. 1979)

MCC PACIFIC VALVES
MCC Pacific Valves, a unit of Mark Controls Corpo-
ration and International Association of Machinists
& Aerospace Workers, District Lodge 94, Local
Lodge 1235, AFL-CIO. Cases 21-CA-15129, 21-
CA-15569, and 21-CA-16010
September 11, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELL.O
On October 30, 1978, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs.
Respondent filed cross-exceptions and a brief in sup-
port of the Decision of the Administrative Law Judge
and of its cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(3) of the
Act by terminating unreinstated strikers upon their
refusal to accept, after their unconditional offer to
return to work, job offers which were not substan-
tially equivalent to the jobs which they occupied prior
to the strike. In addition, we also agree with the Ad-
ministrative Law Judge's finding that Respondent
violated Section 8(a)(3) by requiring employee Duane
Hay to sign a voluntary termination slip in order to
receive fully earned vacation pay.
The Administrative Law Judge also concluded that
Respondent violated the Act when it counted the I
month which the employees actually spent on strike
as time "away from the job" for purposes of applying
a contractual "loss of seniority" provision to strikers
returned to work more than a year after the strike
ended. However, the General Counsel and the Charg-
ing Party have excepted to the failure of the Adminis-
trative Law Judge to find that the actual application
of the "loss of seniority" provision is itself a violation
of the Act, since those employees who returned to
work more than a year after the strike ended were
treated as new employees, with full loss of their previ-
ously earned seniority. Additionally, the General
Counsel and the Charging Party have excepted to the
failure of the Administrative Law Judge to find that
Respondent violated the Act by posting job vacancies
for bidding by, and filling those vacancies with, em-
ployees currently on its payroll in preference to unre-
instated strikers awaiting recall. We find merit in
these exceptions.
In February 19761 Respondent and the Union be-
gan negotiating for a new contract. However, they
were unsuccessful in reaching an agreement, and,
upon the expiration of the old contract, the Union
engaged in an economic strike which lasted tbr I
month. After the Union made an unconditional offer
to return to work on behalf of the striking employees,
Respondent returned approximately two-thirds of the
strikers to work. In the meantime, the parties resumed
their negotiations and finally reached agreement on a
new contract at the end of June. At that same time
the parties executed a strike settlement agreement.
During the course of the strike Respondent hired
approximately 108 strike replacements. At the con-
clusion of the strike the Union made an uncondi-
tional offer to return to work on behalf of the striking
employees. Immediately upon receipt of this offer,
Respondent ceased hiring new employees as replace-
ments and returned approximately 90 percent of the
returning strikers to their former prestrike positions.
The Administrative Law Judge determined that Re-
spondent and the Union agreed to return the strikers
to work "if, as, and where needed." and. pursuant to
that agreement, a number of strikers were returned to
classifications different from those they occupied
prior to the strike. Respondent reached a full comple-
ment of employees sometime during the first week of
June.
Shortly after the strike ended Respondent began
posting jobs for bidding by employees then on the
payroll, including permanent strike replacements and
reinstated strikers. At the time those jobs were posted.
there remained a number of strikers who had not yet
been reinstated and who were, in fact, qualified to
perform the posted jobs. However, some posted jobs
were not offered to unreinstated strikers at all, and
others were offered to them only if there were no suc-
cessful bidders on those jobs from within the plant.
Additionally, in a number of cases. unreinstated strik-
ers who were not offered the initial jobs that were
posted were, instead, invited to bid on jobs which
arose as a result of a so-called chain reaction effect, as
follows: An opening or vacancy occurs which is
posted for bidding within the plant. Employees then
on the payroll bid in an upward fashion, that is, first
on the posted job, then for the job which is vacated
'All dates are in 1976. unless otherwise indicated
244 NLRB No. 138
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the employee who obtains the posted job, and so
on. Because of this chain reaction, a job at the lowest
end of the classification scale finally becomes open.
Respondent invited unreinstated strikers to bid on the
job that finally became open when the dust of upward
mobility had settled, rather than on the first job
which was posted.
This chain reaction effect is best illustrated by the
following situation. Respondent hired Robert Marut,
a strike replacement, as a forklift operator. Marut
voluntarily terminated his employment on August 20,
and, the next day Respondent posted a job vacancy
for a forklift operator. On August 30, employee Ray
Eaton transferred to the position of forklift operator,
although he had been hired by Respondent as a box-
er.2 On September 13 Eaton's boxer position was
posted and then filled by Lee Axton, also a boxer,
who was a striker awaiting reinstatement. James Gil-
bert and Joe Galaz, both of whom were forklift op-
erators, testified that the job vacancy for the forklift
operator position was not offered to either of them,
although they were qualified for the job and although
neither of them had yet been reinstated.' They were
not even offered a chance to bid on the boxer job.
Respondent contended that, during the course of
the strike, it had changed the nature of the product it
manufactured and altered its production methods ac-
cordingly. Because of these changes, Respondent
found itself with an excess of skills in those job classi-
fications working on the phased-out product and a
shortage of skills in those job classifications working
on the product which Respondent had decided to
manufacture. Therefore, Respondent argues, it was in
need of internal restructuring to put employees then
on the payroll into job classifications where the work
was required. Additionally, Respondent claimed that
its need for restructuring was further heightened by
the fact that a number of strikers had not been re-
turned to their prestrike positions. Considering all
these factors, Respondent decided that it needed to
reorganize and "reshuffle" the employees then on its
payroll, rather than to hire additional employees.
Thus, Respondent claims that the jobs it posted were
actually not new job openings and that it was not
adding new people to the payroll. To further its ob-
jective, Respondent put into effect those sections from
2 The boxer job vacated by Eaton was in a lower labor grade than the
forklift operator position.
3 Shop Steward Tovar saw the posting, and, recalling Gilbert as a forklift
operator who had not yet been reinstated, attempted to file a grievance on
behalf of Gilbert. This grievance was refused by Respondent, apparently on
the grounds that those not yet reinstated were, as stated to Tovar, "on the
outside ... they're out. They've been permanently replaced ... " Respon-
dent saw no need to offer these former strikers either reinstatement or a
chance to bid on job vacancies. The contention of Respondent in its brief
that the Union acquiesced in this procedure is not substantiated.
the expired contract and, later, the new contract,
which outlined the procedure to be followed for pro-
motions and transfers.4
Counsel for the General Counsel sought to con-
tinue with testimony concerning similar chain reac-
tion instances that bypassed qualified former strikers,
but this was deemed unnecessary by the Administra-
tive Law Judge, who observed that, if counsel thought
he had shown one instance, that should suffice, and
then sagely commented, "A little bit of violation is a
whole lot of violation."
In his Decision, the Administrative Law Judge saw
this case as one of balancing the relative equities be-
tween the rights of unreinstated strikers, who by law
remain employees on a preferential hiring list, and
the rights of those employees who are currently work-
ing and on the payroll at a time when Respondent
had a full complement of employees. The Adminis-
trative Law Judge concluded that preference to those
on the payroll was justified.5
The Administrative Law Judge accepted Respon-
dent's claim that it needed to restructure internally as
a legitimate and substantial business justification. Ini-
tially, the Administrative Law Judge concluded that
Respondent was following the procedure as set forth
in the contract, the pertinent provisions of which have
previously been referred to. Additionally, the Admin-
istrative Law Judge emphasized that Respondent was
not adding additional people to its payroll.6 He then
visualized that, if those employees on the payroll were
not so preferred to those employees awaiting recall,
Respondent would be required to fill each posted job
which arose after June 1976 with a qualified unrein-
stated striker, a requirement which would entail ei-
' Both contracts contained identical language regarding promotions and
transfers: "In case of increase of force, or when a new job is created, or a
vacancy develops in a department, the opportunity shall be first granted to
those employees of that department who are capable of filling same. Qualifi-
cations. Seniority and Physical Fitness to do the work shall be the determin-
ing factors."
'The Administrative Law Judge in so finding referred, at fn. 13 of his
Decision, to United Aircraft Corporation (Pratt & Whitnev Division), 192
NLRB 382 (1971), and the holding of the Second Circuit Court of Appeals
that inasmuch as that company was not required to either lay off or promote
an apprentice and recall a striker to the same position, the promotion of
apprentices did not breach the strike settlement agreement. However, the
court has remanded to the Board the related issue of whether the promotion
and transfer of active employees in the face of unreplaced economic strikers
is a violation of Sec. 8(aX3) of the Act. Additionally, the court remanded to
the United States District Court for the Distnct of Connecticut the issue of
whether these same transfers and promotions violated the strike settlement
agreement. Lodges 743 and 1746, International Association of Machinists and
Aerospace Workers, AFL-CIO v. United Aircraft Corporation, 534 F.2d 422
(2d Cir. 1975). On December 13, 1978, the district court granted the Union's
motion to confirm the judgment of the circuit court regarding the promo-
tions, which, as carried out, violated the strike settlement agreement. As to
the transfers, the parties on remand agreed that there was no issue as to the
validity of those transfers. Lodge 743, International Association of Machinists.
AFL-CIO v. United Aircraft Corporation, 100 LRRM 2446. 85 LC 11 1.075
(D.C.Conn., 1978).
6 Respondent was adding some employees with skills not possessed by the
unreinstated strikers.
932
MCC PACIFIC VALVES
ther overemployment or actual displacement of em-
ployees entitled to remain on the job. Accordingly,
considering all the circumstances, the Administrative
Law Judge concluded that Respondent had not vio-
lated the Act by not offering initial job vacancies to
strikers awaiting reinstatement.
We do not agree with the Administrative Law
Judge's conclusions in this regard. It is, of course, well
settled that an economic striker is entitled to full rein-
statement to his former job or to a substantially
equivalent job upon an unconditional offer to return
to work.7 Although an employer has the right not to
discharge those replacements to make room for re-
turning strikers,8 an employer must, when and if a job
becomes available for which a striker is qualified, of-
fer that job to an economic striker. An employer may
refuse to reinstate a striker only if it shows substantial
and legitimate business reasons for doing so.
In Laidlaw, the Board held that "economic strikers
who unconditionally apply for reinstatement at a
time when their positions are filled by permanent re-
placements: (I) remain employees: and (2) are enti-
tled to full reinstatement upon the departure of re-
placements"9 unless they have acquired other
employment or the employer can show business justi-
fication. In its brief, Respondent would have the
Board read Laidlaw as "weighing the rights of strik-
ing employees against the rights of the company to
hire new employees." While Laidlaw did involve that
particular fact situation, there is nothing in the
Board's decision to suggest that the principles ex-
pressed there were limited on the facts. It is quite
clear from Laidlaw that, as a general proposition,
unreinstated strikers are entitled to an offer of jobs
when those jobs are relinquished by permanent re-
placements.
In enforcing the Board's decision, the court of ap-
peals stated, 414 F.2d at 105:
The legitimate business reason for not discharg-
ing replacements in order to reinstate strikers,
mentioned in Mackay and Fleetwood,'o did not
authorize denying the Laidlaw strikers reinstate-
ment after the replacements had for one reason
or another departed from their jobs subsequent
to the strike's termination....
Laidlaw argues that the Board's decision "cre-
ates in perpetuity a vested interest of an em-
'See N.L.R.B. v. Fleetwood Trailer Co. Inc.. 389 U.S. 375 (1967):
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967); and The Laidla.
Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). cert.
denied 397 U.S. 920 (1970).
' N.LR.B. v. Mackay Radio Telegraph Co.. 304 U.S. 333 (1938).
9171 NLRB at 1370.
10This legitimate business reason was the employer's need to assure re-
placements of permanent employment In order to insure the labor force
necessary to continue operations during the strike.
plo.ee in the job, or any substantially equivalent
job, he held when he first went on strike." It
asks: "When does a striker's right to reinstate-
ment expire, if ever?" The answer to this argu-
ment is that here the employer refused to con-
sider reinstatement only days after the strikers
applied and vacancies occurred. In these circum-
stances, the Board was not required to determine
what the impact of the passage of time or inabil-
ity to notify applicants of vacancies might have
on the employer's duty to honor applications for
reinstatement.''
In Crossroadv Chevrolert, I-(..2 the Board found
that the employer had violated the Act when it failed
to return an unreinstated striker to his former job
upon the departure of the strike replacement occupy-
ing that job. Morandini, a dispatcher, went out on
strike and was replaced by a newly hired employee
named Reed. When Reed quit, he was replaced by an
employee then on the payroll named McKriel.
McKriel was subsequently found to be unsuited for
the dispatcher job, and he was returned to the job he
occupied prior to the transfer. It was only upon
McKriel's transfer back to his original job that the
employer offered Morandini the dispatcher job. The
Board agreed with the Administrative Law Judge's
finding that a vacancy was created on the date that
Reed quit the dispatcher job, and that, therefore. the
employer was required, under Laidlaw, to reinstate
Morandini to the dispatcher job rather than to trans-
fer an employee then on the payroll into the job."
In the present case it is clear that at least some job
vacancies occurred because of the departure of strike
replacements from those jobs, as in the case noted
previously where strike replacement Robert Marut
vacated a forklift operator position. In opening those
jobs for bidding, and in filling them, Respondent was
not entitled to prefer strike replacements then on the
payroll to qualified strikers awaiting reinstatement."
Respondent could not bypass qualified unreinstated
strikers by waiting to make a job offer to them only if
there were no successful bidders from among the ac-
11 It is noteworthy that the court concluded its opinion hb referring io the
importance of protecting the statutors right of Laidlaw's emploxees as one
that "outweighs the fact that the company may have relied on a prior Board
rule or policy." and by stating that "complete sindication o emplosee rights
should take precedence over the employer's reliance on prior Board l1sa
' 233 NLRB 728 (1977).
i The Administratise Law Judge indicated that. in the cricuntan. c, de-
scribed. the fact that the employer paid McKriel less mone, than It had paid
Reed was no defense to an allegation that the employer had slolated Sec
8a(3) of the Act. A defense would be made out only if the employer first
offered the job to the striker at the lower rate and showed an "overrlding
economic need" to save money by paying the lower rate.
" Of course. Loidlaw makes it clear that an employer may not hire ne,
employees in preference to qualified unreinstated strikers
933
DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD
tive strike replacements ' nor could it wait until the
chair reaction effect had run its course befbre offering
the "final" job to a striker awaiting recall. Respon-
dent was obligated to offer the initial job vacancies
created by the departure of strike replacements to
unreinstated, qualified strikers.
As noted previously, Respondent claims that it had
"legitimate" and "substantial" business reasons for its
actions. Respondent particularly relies on an "ex-
treme imbalance in production that had been created
during the strike period," as well as on the fact that a
number of strikers had not been returned to their pre-
strike positions. Respondent also contended that a
contractually required revision in job classifications
reflected changed labor needs. Respondent contends
that these reasons all gave rise to its "primary task" of
getting employees then on the payroll into those jobs
where their skills could be best utilized. However,
these asserted reasons, particularly with respect to the
production imbalance, are incredibly general and are
unsupported by either specific facts or documentary
evidence, due in part, perhaps, to the fact that the
strike lasted only I month. In addition, the record
shows that any changes in job classifications were
minimal at best. Personnel Manager Brumm testified,
for example, that "[w]e no longer use radial drill and
gang drill classifications. They are merely drill opera-
tors C, B or A." Lengthy questioning of Vice Pres-
ident of Manufacturing Parker comparing job classifi-
cations under the old and new systems produced a
comparable response. Out of approximately 74 job
classifications, only a very few had been eliminated,
while other classifications admittedly had substantial
equivalents in the new system.
Respondent also claimed that it was following pro-
cedures set out in both the expired and new contracts.
However, like the loss of seniority provision more
fully discussed at a later point in this decision, the
clause behind which Respondent seeks its refuge was
not discussed in the context of a post-strike situation,
even though the new contract was then being negoti-
ated in such a context.
Moreover, Respondent asserts that within-plant
posting was contemplated by the strike settlement
agreement executed simultaneously with the new con-
tract. That agreement was prepared wholly by Re-
spondent and it is admitted that no negotiations took
place with respect to its terms. In it Respondent
agreed to take no reprisals against strikers, provided
" We recognize that not every job opening is one that an unreinstaled
striker, though qualified, is entitled to fill. There may be circumstances, for
example. in which the rights of unreinstated strikers may conflict with the
nghts of those strikers who have been reinstated or even with the rights of
permanent striker replacements However, we find it unnecessary under the
circumstances of this case to reach and pass on these issues.
that "the continuation of employment of permanent
strike replacements by the company and the resulting
lack of reinstatement of certain employees to their old
jobs by reason of such continued employment tand
commitments. shall not be considered a violation of
this agreement." (Emphasis supplied.) Respondent in-
terprets the reference to "commitments" as meaning
that strike replacements were to have the right to bid
on jobs posted pursuant to the collective-bargaining
contract. if this were the intent, not only is the con-
tract ambiguous, and not only does it not serve to
create in strike replacements rights superior to those
held by unreinstated strikers, it was obviously not.
nor could it have been, understood by the Union to
accomplish what Respondent, apparently on its own,
hoped that it would accomplish. '6
Accordingly, guided by legal precedent which pro-
tects the rights of unreinstated strikers and having
rejected Respondent's business justification defense.
we find that Respondent has violated Section 8(a)(3)
of the Act by denying initial job vacancies, created as
replacements departed, to qualified strikers awaiting
reinstatement in preference to strike replacements
then on the payroll.'7
Additionally, we find that Respondent violated the
Act when it applied a contractual "loss of seniority"
provision in such a manner to cause the loss of previ-
ously earned seniority to strikers who were returned
to work more than a year after the strike ended.
The contract provision relevant to our discussion
herein is found in article IX, section 4. entitled "Loss
of seniority." It provides, in pertinent part, that "[s]e-
niority shall be lost and continuous service broken by
. .[ain employee not performing any work for any
reason ... for the period of one ( I ) year, except those
employees who have been granted an illness leave of
absence as a result of a work-incurred injury or ill-
ness."
Hi We would read this provision of the strike settlement agreement as im-
plying that discontinuance of employment of a permanent replacement would
necessarily redound to the benefit of unreinstated strikers. Respondent has.
in our view, applied the agreement in a discriminatory fashion. See Laher
Spring & Electric Car Corp., 192 NLRB 464 (1971), where the strike settle-
ment agreement cut off reinstatement rights after 6 months. The Board.
without considering the validity of the agreement, found discriminators
"manipulation by Ithe employerl of the settlement agreement to accomplish
8(a)3) discrimination against strikers." 192 NLRB at 465.) The Board thus
refused to "accord the literal terms of the agreement final and determinative
weight." The Board went on to say: "The policies of the Act would hardly be
effectuated by our deferring to an agreement, the terms of which have been
utilized by [the employer] in a manner as to cloak discrimination against
strikers." (192 NLRB at 466.) Though the "scheme" is not as pervasive in the
case before us, the principle is the same.
' In our Order. we shall provide that Respondent offer reinstatement and
backpay to the appropriate forklift operator, either James Gilbert or Joe
Galaz. Inasmuch as the Administrative Law Judge prevented counsel for the
General Counsel from showing if other unreinstated strikers were similarl)
denied initial job vacancies. we shall leave that for the compliance stage of
this proceeding. If other unreinstated strikers are found to have been dis-
cnminated against in the same manner, the shall be offered reinstatement
and backpay.
034
MCC PACIFIC VALVES
Six strikers were returned to work by Respondent
more than a year after the strike ended (these employ-
ees had, of course, been off the payroll for this time).
Applying the terms of the "loss of seniority" provi-
sion, Respondent treated them as if they were new
employees, with full loss of previously earned senior-
ity; i.e., they lost all past employment credit towards
their pension and vacation rights and other fringe
benefits.
It was Respondent's claim that denying full senior-
ity to those six employees was mandated by the clear
and unmistakable language of the contract. However,
the testimony of Albert Sax, business representative,
and Gary Jones, steward, revealed that the "loss of
seniority" clause was never discussed by the parties in
the context of time lost because of a strike.
The Administrative Law Judge noted that. al-
though Section 7 rights could be waived or limited,
there are some rights "that are so inherently basic to
the purpose of the Act" that the parties are not enti-
tled to place limits on them. Finding his purpose to be
one of striking a balance between conflicting interests.
the Administrative Law Judge concluded that, where,
as here, the parties had been unmistakably clear in
expressing their intent, he was bound by "elementary
principles of contract interpretation." Following these
tenets, the Administrative Law Judge found that the
language used by the parties in the "loss of seniority"
provision could not have been more unambiguous.
Furthermore, determining that the parties "must be
presumed to have agreed to the numerous variables
to which such broad and all inclusive language would
apply" and noting that the clause includes only lim-
ited exceptions to the general language, the Adminis-
trative Law Judge concluded that the clause must be
given effect as it was drafted by the parties. Accord-
ingly, he found no violation of the Act in Respon-
dent's application of the clause, with its resultant loss
of seniority, to those strikers who were reinstated
more than a year after the strike ended. However, he
did find that it would be destructive of employees'
Section 7 rights to consider as time spent away from
the job the time which the employees actually spent
on strike. Therefore, the Administrative Law Judge
concluded that Respondent violated the Act only to
the extent that it applied the "loss of seniority" provi-
sion to employees who returned to work between
March 16 and April 16, 1977.18
We do not agree with the Administrative Law
Judge's conclusions in this regard. As noted earlier in
this Decision, an economic striker is entitled to full
reinstatement to his former job or to a substantially
equivalent job upon an unconditional offer to return
to work.
it The strike was carried on in the same time period in 1976.
The offer of a substantially equivalent job made to
a returning economic striker not only has reference to
the nature of the job offered, but "must also permit
the employees to earn the same wages and benefits as
before and to receive credit for accmulated seniorityv.
[Emphasis supplied.]""'9 The Board in Lidlaw found
that the employer violated the Act when it took ac-
tion similar to that taken by Respondent here. There.
an economic striker was told his prestrike job had
been filled and that, it he were to be reemployed, it
would be as a new employee. Subsequently, when a
vacancy occurred in his classification, the striker was
offered the job at his former rate of pay, but was
informed he would otherwise be treated as a new em-
ployee, with full loss of seniority and vacation rights.
The Board determined that the employer had vio-
lated Section 8(a)(3) of the Act inasmuch as its offer
to the returning employee "with less than rights ac-
corded by full reinstatement (such as denial of senior-
ity) was wholly unrelated to any of its economic
needs, could only penalize [the employee] tor engag-
ing in concerted activity, land] was inherently de-
structive of employee interests .. . 20
Respondent contends, however. that. by agreeing
to the "loss of seniority" provision, the Union agreed
to waive or limit the seniority rights of all employees,
including economic strikers. Respondent relies on
United Aircraft Corporation (Pratt & 14h'inev Divi-
sion),2L where an employer and the union negotiated
the terms of a strike settlement agreement which lim-
ited the recall and reinstatement rights of economic
strikers. The Board decided that it would accept such
an agreement so long as
the period fixed by agreement for the reinstate-
ment of economic strikers is not unreasonably
short, is not intended to be discriminatory, or
misused by either party with the object of ac-
complishing a discriminatory objective, was not
insisted upon by the employer in order to under-
mine the status of the bargaining representative,
and was the result of good-faith collective bar-
gaining .... 22
The General Counsel calls to our attention the
Board's decision in Roegelein Provision Company.23 In
recalling economic strikers and thereafter denying to
them vacation benefits, the employer applied a vaca-
tion provision contained in a newly negotiated collec-
I H. A F. Binch Co. Plant of the Native Laces and Terxile Diviur, ,,
Indian Head Inc.. 188 NLRB 720. 725 (1971). See also Decaturvill Spolr,-
wear Co.. Inc., 205 NLRB 824 (19731. and Globe Molded Plastics Conmpam.
Inc., 204 NLRB 1041 (1973).
20171 NLRB at 1368.
21 192 NLRB 382 (1971). See also discussion at fn 5, iupral
"1 Id at 388.
"181 NLRB 578 (1970).
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive-bargaining contract. The clause provided that
"[a]n employee who has been absent from work for
any reason for as many as two hundred (200) hours
. . .shall not be entitled to a vacation." The clause
specifically stated that military reserve duty and jury
duty would not be counted as time absent. It was
shown that the meaning and scope of this clause was
discussed throughly during the contract negotiations,
with both sides making proposals and granting con-
cessions.
The Board determined that the employer had law-
fully denied vacation benefits to certain employees, its
action being the "lawful implementation of a right
understood to have been acquired through the collec-
tive-bargaining process."2 4 The Board specifically
noted that the union knew that the vacation clause
would adversely affect striking employees, since that
very effect was "inescapably in issue during the bar-
gaining which led to its incorporation in the final con-
tract.""5 The Board concluded that the final negoti-
ated provision was unambiguous and, since it was
obtained through good-faith collective bargaining,
could not be said to be destructive of important em-
ployee rights.
The most compelling aspect of both United Aircraft
and Roegelein is the Board's emphasis on the collec-
tive-bargaining process as the method of obtaining a
limitation on the rights of employees. Both the strike
settlement agreement and the vacation clause resulted
from informed, good-faith negotiations. However, we
cannot say that the loss of seniority provision in the
instant case, which purports to limit or, more
strongly, to terminate the rights of employees, was
obtained through the same process. Respondent as-
serts that the clause was, in fact, negotiated and, to a
certain extent, that is true. But there is no evidence on
this record to show that the curtailment of seniority
rights of economic strikers is a right "understood to
have been acquired [by Respondent] through the col-
lective-bargaining process." The contract itself is si-
lent as to the impact of this clause on returning strik-
ers. The phrase "for any reason" has not been
explained as having reference to strike time. In fact,
the testimony reveals that the clause was intended to
refer to such things as layoffs and medical leave. Ap-
plication of the clause to time lost because of a strike
was never discussed by the parties. Accordingly, it is
not possible to conclude that the "scope and mean-
ing" of this clause was ever at issue during bargain-
ing. Consequently, we cannot agree with Respondent
that the loss of seniority provision should be equated
with either the strike settlement agreement of United
Id. at 580.
2 Id. at 580.
Aircraft or the vacation clause of Roegelein and we
shall not find it effective to curtail the seniority rights
of recalled economic strikers.2 6
Therefore, in the absence of any substantial and
legitimate business reasons for its actions and in the
absence of any valid agreement limiting the rights of
returning economic strikers, we find that Respondent
has violated Section 8(a)(3) and (1) of the Act by
treating recalled economic strikers as new employees
and by refusing to credit them with seniority for their
prior service." Additionally, we find, as alleged in the
complaint, that Respondent has violated Section
8(a)(5) by unilaterally terminating the seniority rights
of recalled economic strikers without bargaining with
the Union.28
CONCLUSIONS OF LAW
1. Respondent MCC Pacific Valves, a unit of Mark
Controls Corporation, is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The International Association of Machinists &
Aerospace Workers, District Lodge 94, Local Lodge
1235, AFL CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of
the Act when it terminated unreinstated strikers Eric
Newell, Patrick Reilly, and Richard Price, because
each of them declined to accept reinstatement job of-
fers which were not substantially equivalent to their
respective jobs held immediately betbre the strike oc-
curred.
4. Respondent violated Section 8(a)(1) and (3) of
the Act when it required Duane Hay to sign a volun-
tary termination form in order to receive his fully
earned vacation pay.
5. Respondent violated Section 8(a)(1) and (3) of
the Act when it failed to offer initial job vacancies
26This case is unlike Western Steel Casting Compawny. 233 NLRB 71
(1977), where the parties agreed to apply a job classification seniority provi-
sion in their contract as being the proper manner in which strikers were to be
recalled. Although the record did not cleatly reveal whether the parties actu-
ally discussed the method of recall during their contract negotiations, it was
clear that the seniority clause "was the product of give and take at the
bargaining table" and that the parties expressly agreed that the clause would
be applied to the strike situation then present. There is no such agreement to
the application of the loss of seniority provision here, though we have found
that the clause itself, though not its implications, was the result of good-faith
bargaining.
27 We further find that there has been no clear and unmistakable waiver by
the Union of the strikers' rights to their accumulated seniority. It is incon-
ceivable to us that such important employee rights could be waived in the
absence of any evidence that the Union "consciously yielded" its interest in
the matter. See Rockwell-Standard Corporation, 166 NLRB 124 (1967). And,
we have recently stated that it is also inconceivable that a party to an agree-
ment could waive something which was "not even proposed at the time of'
the alleged waiver." GTE Automatic Electric Incorporated 240 NLRB 297
(1979).
t2 Cf. Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973).
936
M1('( PA('I FI(' VAI.VES
created by the departure of strike replacements to
qualified strikers awaiting reinstatement in preference
to strike replacements then on the payroll.
6. Respondent violated Section 8(a)(1) and (3) of
the Act when it refused to reemploy recalled eco-
nomic strikers except as new employees and when it
refused to credit them with seniority for their prior
service. thereby threatening them, because of their
concerted activities, with the loss of rights and privi-
leges previously enjoyed.
7. Respondent violated Section 8(a)(5) and (1) of
the Act when it unilaterally terminated the seniority
rights of recalled economic strikers in the foregoing
fashion without first notifying or bargaining with the
Union.
8. Respondent has not, except as specifically found
above, violated the Act as alleged in the complaint.
TIHE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Inasmuch as Respondent has failed to reinstate cer-
tain strikers to initial job vacancies, we shall order
that Respondent offer reinstatement to those strikers
where appropriate. Respondent shall also make those
strikers whole for any loss of pay they may have suf-
fered by reason of Respondent's discrimination
against them, such payment to be made in accord-
ance with F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).29
Because of the actions taken by the Administrative
Law Judge at the hearing to deny the General Coun-
sel's offer of proof, we shall leave to the compliance
stage of this proceeding any further showing that em-
ployees other than James Gilbert or Joe Galaz were
improperly denied reinstatement. Upon such a show-
ing, Respondent shall make those employees whole in
the manner described immediately above. However,
we shall order that Respondent now offer reinstate-
ment and backpay to the appropriate forklift opera-
tor, either James Gilbert or Joe Galaz, with respect to
the August 1976 opening, the other to be given appro-
priate consideration for subsequent openings.
Inasmuch as Respondent has refused to credit re-
called economic strikers with seniority for their prior
service, we shall order that Respondent fully reinstate
Lionel Craig, Don Grass, Larry Perret, Cliff Nichols,
Joseph Ramacher, and Mildred Nichols, credit them
with seniority for prior service by restoring them to
2
See, generally. Isis Plumbing Heating Co., 138 NLRB 716 (1962).
the place on the seniority list where they would have
been but for Respondent's unlawful conduct against
them, and make them whole for an, loss of benefits
caused by such unlawful conduct.
We shall also order Respondent to bargain with the
Union concerning any proposed modification to or
termination of the seniority rights of recalled eco-
nomic strikers.
ORDER
Pursuant to Section 0I(c) of the National Labor
Relations Act, as amended. the National Labor Rela-
tions Board hereby orders that the Respondent. MCC
Pacific Valves, a unit of Mark Controls Corporation,
Long Beach, California, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Terminating employees because thex refuse to
accept reinstatement to jobs that are not substantiall3
equivalent to the position or jobs held immediately
prior to engaging in a lawful strike.
(b) Requiring unreinstated striker employees to
voluntarily terminate their jobs in order to obtain
their fully earned vacation pay.
(c) Refusing to offer initial job vacancies created
by the departure of strike replacements to qualified
unreinstated strikers in preference to strike replace-
ments on the payroll.
(d) Refusing to reemploy recalled economic strik-
ers except as new employees and refusing to credit
them with seniority for their prior service.
(e) Unilaterally terminating or modifying the se-
niority rights of recalled economic strikers without
bargaining with the Union.
(f) In any like or related manner interfering with.,
restraining, or coercing employees in the exercise of
any of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Immediately advise employees Newell, Reille.
Price, and Hay of their reinstatement to the preferen-
tial hiring list: and, if conditions prevail as outlined in
that section of the Administrative Law Judge's Deci-
sion entitled "The Remedy," said employees shall be
offered immediate reinstatement and made whole for
lost earnings in the manner, and for the period of
time, indicated therein.
(b) Offer to the appropriate forklift operator. either
James Gilbert or Joe Galaz. reinstatement and hack-
pay in the manner set forth in the section of this De-
cision and Order entitled "The Remedy." In addition.
Respondent shall offer reinstatement and backpay to
any other unreinstated strikers who, at the compli-
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance stage of this proceeding, are discovered to have
been denied an offer to initial job vacancies, in the
manner set forth in the section of this Decision and
Order entitled "he Remedy."
(c) Fully reinstate Lionel Craig, Don Grass, Larry
Perret, Cliff Nichols. Joseph Ramacher, and Mildred
Nichols, credit them with seniority for prior service
by restoring them to the place on the seniority list
where they would have been but for Respondent's
unlawful conduct against them, and make them
whole for any loss of benefits, in the manner set forth
in the section of this Decision and Order entitled
"The Remedy."
(d) Bargain with the Union over any subsequent
modification or termination of seniority rights of re-
called economic strikers.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Post at its Long Beach, California, facility cop-
ies of the attached notice marked "Appendix." 30 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
0 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Rela:ions Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and we have been ordered to
post this notice to our employees.
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive of their choice
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities ex-
cept to the extent that the employees' bargain-
ing representative and employer may have a
collective-bargaining agreement which im-
poses a lawful requirement that employees be-
come union members.
WE WILL NOT terminate employees who may
elect to decline offers or reinstatement to jobs
that are something less than substantially equiv-
alent to the jobs which they held immediately
before engaging in a lawful strike.
WE WILL NOT require that unreinstated striker
employees voluntarily terminate their jobs in or-
der to obtain their fully earned vacation pay.
WE WILL NOT decline to offer initial job vacan-
cies created by the departure of strike replace-
ments to qualified strikers awaiting reinstate-
ment in preference to strike replacements on the
payroll.
WE WILL NOT refuse to reemploy recalled eco-
nomic strikers except as new employees and WE
WILL NOT refuse to credit them with seniority for
their prior service.
WE WILL NOT modify or terminate the senior-
ity rights of recalled economic strikers without
first bargaining with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed to them
by the Act.
WE WILL reinstate employees Eric Newell,
Patrick Reilley, Richard Price, and Duane Hay
to their rightful positions on the preferential hire
list, and shall offer them reinstatement and back-
pay with interest, if certain conditions and re-
quirements are found to exist.
WE WILL offer reinstatement and backpay,
with interest, to either James Gilbert or Joe
Galaz, and to other unreinstated strikers who
were unlawfully denied an offer of initial job va-
cancies created by the departure of strike re-
placements, because we preferred strike replace-
ments then on the payroll.
WE WILL fully reinstate employees Lionel
Craig, Don Grass, Larry Perret, Cliff Nichols,
Joseph Ramacher, and Mildred Nichols, credit
them with seniority for prior service by restoring
938
MCC PACIFIC VALVES
them to their rightful places on the seniority list.
and we wil.l. make them whole for any loss of
benefits which they may have suffered by reason
of being denied their previously earned seniority,
with interest thereon.
WE WIL. bargain with the Union over any
proposed modification or termination of the se-
niority rights of recalled economic strikers.
MCC PACIFIC VALVES. A UNIT OF MARK
CONTROLS CORPORAIIO)N
DECISION
STATEMFNT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard by me in Los Angeles, California, on April 25.
26, and 27, 1978, pursuant to an amended order consolidat-
ing cases, amended consolidated complaint, and amended
notice of hearing issued on January 18, 1978, alleging that
MCC Pacific Valves, a unit of Mark Controls Corporation'
(herein Respondent) engaged in unfair labor practices
within the meaning of Section 8(aX1). (3). and (5) of the
National Labor Relations Act, as amended (herein the
Act). Respondent's answer filed April 17, 1978, acknowl-
edged certain requisite jurisdictional data, but denied that
Respondent had committed any of the alleged unfair labor
practices.
At the hearing all parties were represented by counsel.
The parties were given full opportunity to examine and
cross-examine witnesses, to introduce relevant evidence and
to file briefs. Excellent briefs were received from the Gen-
eral Counsel, the Charging Party, and Respondent and
have been carefully considered.
Upon the entire record in this case, including the briefs
and my careful observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has been a cor-
poration engaged in the manufacture and wholesale of
pipeline valves and related equipment. Respondent main-
tains a facility located at 3201 Walnut Avenue, Long
Beach, California, and in the course of its business opera-
tions annually manufactures, sells, and ships from its Long
Beach facility products valued in excess of $50,000 directly
to customers located outside the State of California. Re-
spondent admits, and I herewith find, that at all times ma-
terial herein it has been an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
I The correct name of Respondent is reflected in conformance with a mo-
tion made and granted during the course of the trial.
II. HE .LABOR OR(iANIAII()ON
Respondent admits, and I herwith find, the International
Association of Machinists and Aerospace Workers, District
Lodge 94. Local Lodge 1235. AFL CIO (herein the !Union)
to be, and at all times material herein to have been a lahor
organization within the meaning of Section 2(5) of the Act.
II. I lE AL.E(EI) t NFAI R IAB(R IRA ( IS
A. The Issues
(I) The overriding issue herein concerns the relative
rights of unreinstated strikers is-a-i.s employees on the
payroll at a point in time after Respondent has attained a
full complement of employees.
(2) What did the parties agree to with regard to jobs
which the strikers would be offered?
(3) And, did the parties agree to waive (or contract
away) the employees' right to "substantial and equivalent"
job reinstatement?
(4) Is the labor management contract language covering
"loss of seniority" applicable to unreinstate strikers?
(5) Did Respondent violate the Act in requiring em-
ployee Duane Hay to "voluntarily" resign before granting
him his vacation pay?
(6) Was the discharge of P. Kearns for legal cause?
B. The Evidence
The parties agreed that: All production and maintenance
employees. including truckdrivers and leadmen. employed
by Respondent at its facility located at 3201 Walnut Ave-
nue. Long Beach, California: excluding all office clerical
employees, production expediters. professional employees.
watchmen, guards. and supervisors as defined in the Act.,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
The evidence established that the Union has been the bar-
gaining representative of a majority of the employees in the
heretofore described appropriate bargaining unit since
1965.2
The Union and Respondent began negotiating for a suc-
cessor contract on February 10, 1976.' The parties were
unsuccessful in reaching a new contract agreement and, fol-
lowing expiration of the 1973-76 agreement at midnight on
March 15. the Union engaged in an economic strike with all
employees-some 327-participating initially.' Respondent
sought to continue operations during the strike and was
aided in doing so by a number of initial strikers deciding to
cross the picket line, pressing into action secretaries, clerks.
2 This from the undisputed testimony of Albert Sax who was involved in
organizing the employees in 1964. The current labor management contract Is
dated June 29. 1976. and is to remain effective through June 29. 1979 (see
G.C. Exh. 7). The labor agreement which immediately preceded the current
agreement covered the period from March 16. 1973. through March 15. 1976
(see G.C. Exh. 2).
3 All dates hereinafter shall refer to the calendar ear 1976. unless other-
wise indicated.
'This figure obtained from G.C Exh. 21. There was never a contention
made that the strike was anything other than economic.
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervisors and the hiring of' approximately 108 perma-
nent replacements during the period of' the strike.'
The strike ended when the fllowing telegram bearing a
date of April 15 w a; sent to the Respondent by the striking
union:
All employees on the payroll as of close of business
March 15. 1976 covered by recently expired bargaining
agreement unconditionally offered to return to work
effective immediately. Kindly advise George apinsky,
secretary-treasurer L.ocal Lodge 1235, 726 Elm Ave-
nue, Long Beach, California, 90813. phone 437-0621 as
to identity of all employees who are being offered job
opportunities at the present time. Such employees will
be immediately notified and made available for work.
As to employees for whom work opportunities are not
immediately available, such employees will await work
opportunities. We expect that such employees will be
recalled from a preferential hiring list as job opportuni-
ties arise. Undersigned union requests negotiation
meeting at the earliest time available to company and
it is expected that negotiations will continue until mu-
tually satisfactory collective-bargaining agreement is
reached. With reference to job reinstatement it is ex-
pected that the Company will direct all contacts to
George Lapinsky in order that reinstatement of em-
ployees immediately and in the future will be facili-
tated. Be advised that effective immediately all strike
action is being terminated.
George Rusnak, Business Manager
District Lodge No. 94, IAMAW AFL-CIO
The Respondent Company replied to the Union's uncon-
ditional offer to return to work in the following manner by
telegram dated April 15:
Please be advised that employees members of your
union will be returned to work under prevailing condi-
tions of employment to the extent of positions avail-
able. In order to insure an orderly return to work your
representative Lapinsky will be notified in due course
as to the name and time of return of each needed em-
ployee. No employee repeat no employee shall return
to work until company notice has been given.
Please be advised that the prevailing conditions of
employment encompass among others the following: I.
A company health and welfare plan: 2. No contribu-
tions to the IAM pension trust; 3. A new labor grade
structure: and 4. Other conditions established to meet
operating exigencies.
As to current conditions the Company is prepared to
continue negotiations on such conditions and all other
matters but such conditions will continue until new
provisions are negotiated.
As soon as details of the return to work have been
developed in my office I will be available to the next
The figure of 108 was stipulated to by the parties during the hearing as
the approximate figure. See G.C. Exh. 22 for a list of the names and dates of
hire of each permanent replacement.
negotiation meeting. I will advise on Monday April 19.
1976, as to the earliest date for such negotiations.
James L. Kelley
Director of Industrial Relations
On April 19 the Union replied to the Company's tele-
gram in the following manner:
Reference your telegram dated April 15. 1976 be ad-
vised as fllows:
I. All employees offer unconditionally to return to
work as and when job opportunities are available.
2. Union expects that all communications to em-
ployees relative to job opportunities present and in the
future will be made through George Lapinsky Machin-
ist Local Lodge 1235. 726 Elm Avenue, Long Beach,
CA 437 -0621. He will accordingly notify all employees
being offered job opportunities and will facilitate their
immediate return to work in accordance with Compa-
ny's offer.
3. Union objects to Company's instituting of its own
health and welfare plan. While such proposal was ten-
dered by the Union it was on condition that overall
union proposal be accepted. Union believes that any'
change of health and welfare plan be subject to collec-
tive bargaining.
4. Union objects to instituting of new labor grade
structure and other conditions as outlined in your tele-
gram. Any revision in labor grades or other conditions
must be properly subject to collective bargaining pro-
cess. While all bargaining unit employees are prepar-
ing to return to work immediately as outlined above
union reserves the right to protest through NLRB the
above unilateral changes company contemplates.'
Respondent began immediately to recall strikers; as of
the first week of June it had recalled approximately 213
striking employees.7 The parties stipulated that following
receipt of the Union's unconditional offer to return to work,
Respondent ceased hiring new employees as permanent re-
placements and that as strikers were recalled, approxi-
mately 90 percent of them were placed in their former job
or a job very similar, but that a number of employees were
placed in different jobs., The evidence also establishes that
Respondent reached a full complement of employees the
first week in June.
Meanwhile the parties were continuing their negotiations
in an effort to conclude a contract and were successful in
reaching agreement on June 24 on contract terms which
were then ratified by the Union and executed by all parties
on June 29.
During this period of resumed contract negotiations, the
Company continued its "prevailing conditions of employ-
' Copies of the telegrams exchanged are found in the record as G. C. Exhs.
4, 5. and 6.
7The figure of approximately 213 was stipulated to during the hearing.
G.C. Exhs. 21 shows the names, classifications, and date of hire of those
employees on the Company payroll immediately before the strike-327.
G.C. Exh. 23 shows the name, classification, and reinstatement date of all
strikers for the period from April 15, 1976. until April 1
9 7
8 total 251.
8 See Resp. Exh. 9 which indicates that 39 reinstated strikers were either
returned to a different job or on a different shift.
940
MCC PACIFIC VALVES
ment" as stated in its telegram of April 15 (G.C. Exh. 5).
Presumably, however, these matters were subject to full dis-
cussion in the resumed negotiation as expressed by the
Company in its telegram, because there was no evidence to
the contrary. Also consistent with their telegram of April
19. the Union filed unfair labor practice charges (and
amended charges-the last dated May 17) against Respon-
dent alleging 8(a)(), (3), and (5) violations which were dis-
missed by the Regional Director in a letter dated June 4.
The Regional Director's action was sustained by the Office
of Appeals. General Counsel's Washington, D.C.. office, by
letter dated June 30 (see Resp. Exhs. I through 6).
At the same time the new contract agreement was signed.
a strike settlement agreement was executed (G.C. Exh. 8).
The most relevant part of the settlement agreement, as it
relates to this case, is contained in numbered paragraph 2,
quoted below:
2. District 94 and Local Number 1235 agree that
they will take no reprisal or recriminatory measures
against any person by reason of said person having
worked for the company during the strike commencing
March 16, 1976 and further agree that any employee
who engages in reprisals or recriminatory measures
against any person who worked for the company dur-
ing said strike will be subject to discharge by the com-
pany without recourse to the grievance and arbitration
procedure of the collective-bargaining agreement (ex-
cept to the extent of establishing the fact of engaging in
such activities) and further, the company agrees that it
will take no reprisals or recriminatory measures
against any employee for having engaged in said
strike; provided, however, that the continuation of em-
ployment of permanent strike replacements by the
company and the resulting lack of reinstatement of cer-
tain employees to their old jobs by reason of such contin-
ued employment and commitments shall not be consid-
ered a violation of this agreement. [Emphasis
supplied.]
In the newly executed agreement (G.C. Exh. 7). the fol-
lowing language can be found in article IX entitled SE-
NIORITY:
Section 4. Loss of seniority.
Seniority shall be lost and continuous service broken
by:
(f) An employee not performing any work for any
reason for the company within the bargaining unit for
the period of one (1) year, except those employees who
have been granted an illness leave of absence as a re-
sult of a work-incurred injury or illness at Pacific
Valves, Inc., an employee having a minimum of one ( I )
year seniority within the bargaining unit who are
transferred to a position outside of the bargaining unit
after June 29. 1976 shall forfeit all subsequent bargain-
ing unit seniority after thirty (30) days in such position,
however they shall retain all bargaining unit seniority
acquired thereto.
Albert Sax-who had been closely involved in the first
contract agreement negotiated between the parties-testi-
fied that "loss of seniority" was never discussed in connec-
tion with time lost from the job because of a strike. G(ar\
Jones, who participated in the current contract negotiations
on behalf of the Union. related that the language of the
current agreement was never discussed in terms of time off
the job following a strike.
At the hearing, the parties stipulated that the following
named individuals were employed by Respondent on
March 15. that they went out on strike on or about that
date, and that they were first returned to work bN Respon-
dent on the dates shown, but with full "loss of seniority:"
L. Craig
D. Grass
L. Perret
C. Nichols
J. Ramacher
M. Nichols
July 13, 1977
May 26. 1977
October 10. 1977
June 23. 1977
June 2, 1977
October 3. 1977
In addition to the above stipulation. there .as also undis-
puted testimony that the "loss of seniority" included, as it
normally would, the loss of all employment credit fbr pur-
poses of asserting pension rights, vacation rights. or other
similar fringe benefits. In other words, those strikers whom
the Company had not recalled or reinstated within a I-'ear
period were treated as if they were new employees.
There were numerous witnesses who testified that they
had been employed by Respondent prior to March 15 in
various different classifications: that each of them went on
strike on March 16: and each of them identified jobs con-
tained on Resp. Exh. 8 (which reflects jobs that were posted
for the period between June 9 and May 27. 1977) for which
they were fully qualified. or had actually worked in belore
the strike.9 Their testimony was not directly disputed, al-
though Respondent presented convincing evidence that
there had been substantial change in the job classification
system between the old and new contracts. (See, for exam-
ple, the prevailing condition numbered 3 in Respondent's
telegram to the Union: or compare the job classifications as
set forth in Appendix A of the old contract-GCC. Exh. 2 --
with Appendix A as set forth in the new contract CG.C.
Exh. 8.)
There were a few unreinstated strikers that testified re-
garding circumstances affecting each of them personally
that did not fit into the general mold. or pattern, of what
has heretofore been related, and their situations shall be
separately considered hereinafter.
I There would seem to be little to be gained by a detailed recitatiin of each
of these witnesses' undisputed testimony. Suffice it to say that the evidence is
clear that there was one or more jobs posted between the period of June 9
and May 27. 1977, for which the following named individuals were quahfied:
Patrick Reilley, gang drill operator: James Gilbert, forklift operator: George
Floyd, radial drill operator and inspector trainee: James Martin. ball salve
machinist; Lionel Craig. drill operator "c": Harry Woods. arehouseman.
Duane Hay. parts storage-tow motor operator; Joe Galaz. forklift operator:
Richard Price. automatic welder trainee; Thomas Bauman. receiving clerk-
forklift operator: Allen Myers, parts storage-tow motor operator; Larry Per-
ret, warehouseman: Joseph Ramacher. drill operator; Don Gravs. grinder
and NC tape drill and mill operator; Mildred .N'lchols. H and D ring opera-
lor; Clifford Nichols, grinder and machine operator. Those indis iduals whose
last names have been underscored were eventually reinstated. but with "loss
of seniority" because of having been off the payroll for more than I ear.
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eric Newell
Eric Newell testified that he was first employed by Re-
spondent in Septeilber or October 1973 as an automatic
turret lathe trainee. He continued to work throughout his
entire period of employment with Respondent on the same
machine, and at the time of the strike was classified in labor
grade VII. In November he was contacted by Bob Brumm,
the personnel manager, and told that there was a janitor's
job available in labor grade I (under the old contract it
would have been labor grade 111). Not only was the job
offer in a lower labor grade classification, but it was sub-
stantially different in duties and would have paid approxi-
mately $1 per hour less than he had been making immedi-
ately before the strike. Newell testified that he advised
Brumm that he would like to return to work for Respon-
dent, but that he was not interested in accepting a job as a
janitor. Newell was then advised that unless he accepted the
job as a janitor that he would be terminated. A few days
later he received notice of termination through the mail (see
G.C. Exh. 17).
Patrick Reilley
Patrick Reilley testified that he was first employed by
Respondent in October 1965 and that at the time of the
strike he was a gang drill operator on the day shift. In July
he received information through the union official, Mr.
Lapinsky, that the Company was interested in having him
return to work, and that he should get in touch with the
Company. He talked to Bob Brumm and learned that he
was being reinstated, but that he would be working on the
second shift rather than the first shift. Working on the sec-
ond shift presented a particular personal family problem
because Mrs. Reilley also worked. Reilley explained to Bob
Brumm that it would not be possible for him to return to
work on the second shift. Reilley asked if he would be fired
if he did not return to the job that was being offered and
was advised that he would not. However, in late September
Reilley received a termination slip (G.C. Exh. 18) which
was marked "discharged due to failure to accept offer of
work." A few days later Reilley testified that he was con-
tacted by Bob Brumm's secretary and advised that he
"shouldn't worry about the pink slip and that he had been
reinstated to the recall list, and that they would be getting
in touch with him, and that was the end of it." Reilley
testified that he was never again contacted by the Com-
pany.' 0
Duane Hay
Duane Hay testified that he was first employed by Re-
spondent in June 1973 as a chipman. For a period of time
he worked in the large valve assembly, and at the time of
the strike he was working in the parts and storage depart-
ment which included the daily use of the towmotor. Hay
testified that he was not called for reinstatement following
0
See Mooresville Cotton Mills v. N.LR.B., I10 F.2d 179. 182-184 (4th
Cir. 1940),. showing that an offer of work on a different shif is not a substan-
tial equivalent job offer. Also Alcan Cable West. 214 NLRB 236 (1974).
the Union's unconditional offer to return to work. He testi-
fied that in July he went to the personnel office and there
talked to Miss Debbie Pollock. explaining that he would
like to obtain his vacation pay, because he needed it in
order to go out of the state to look for work. Miss Pollock
required that Hay sign a voluntary termination form before
he could receive his earned vacation pay. At the time he
picked up his check, he was given a payroll change fbrm
which indicated that he had voluntarily terminated, "mov-
ing to Idaho to find a job." (See G.C. Exh. 19.) Hay further
testified that he was informed by his father, who was then
working for the Respondent, that vacation paychecks were
mailed to all people who had them coming, a couple of
weeks after Hay had been required to sign the termination
form. Being unsuccessful in finding work in Idaho, Hay
testified that he returned after approximately 5 weeks and
again applied for work (sometime in October). but he has
never heard from Respondent.
Richard Price
Price was first employed in April 1974 as a discker. At
the time of the strike he was an automatic welder trainee
earning $5.27 per hour. In June or July 1977 he was offered
a job as an assembler which he declined, but stated he was
interested in reinstatement as a welder trainee (see G.C.
Exh. 20). He has not been contacted again by Respondent.
Patrick Kearns
Patrick Kearns testified that he was first employed by
Respondent in September 1971 as a radial drill operator.
He was a radial drill operator earning $5.56 an hour at the
time of the strike. During the period between July 19 and
April 17, 1977, Respondent's Exhibit 8 reflects that there
were a number of radial and gang drill operator jobs posted
for bidding, but Kearns has never been contacted to return
to work. On cross-examination Kearns acknowledged that
he was arrested while serving on the picket line for posses-
sion of illegal weapons and resisting arrest. Kearns testified
that he was involved in a fight with the arresting officers.
but that the resisting arrest charge was dropped and that he
pleaded guilty to the illegal possession of weapons on the
picket line. Mr. Larry Parker, vice president of Respondent,
testified that at a meeting attended by Gary Jones and John
Pettitt for the Union, and Jim Kelley and Parker for Re-
spondent, held sometime around the first part of Septem-
ber, that the union representatives inquired about Kearns'
status. Kelley explained, "that he [Kearns] had been ar-
rested for misconduct on the picket line and terminated,
and that he was no longer on any list for reinstatement."
Parker further testified that Pettitt replied that he under-
stood. James Kelley, the industrial relations director, cor-
roborated Parker's testimony regarding the Kearns' inci-
dent and further related that to the best of his knowledge
Kearns was never directly notified because he assumed that
the discussion with the Union's chief steward and the busi-
ness agent would be sufficient. Although Gary Jones was
recalled to the witness stand as a rebuttal witness, he did
not deny or contradict the testimony of Parker and Kelley
regarding Kearns.
942
MCC PACIFIC VAL.VES
Respondent explained through its vice president of
manufacturing, Larry Parker, that during this period of
time in which its differences with the Union occurred, the
Company was undergoing a substantial change in its gen-
eral concept of business: that the Company was gradually
phasing out of the small valve and valve parts business and
was going more and more into the large valve manutactur-
ing business. It was becoming a job shop and would go
more and more into an engineered product. Their engineer-
ing marketing department had greatly expanded and a mul-
timillion dollar facility had been built to accomodate the
change. The effect of this manufacturing change was to de-
crease the lot sizes-instead of manufacturing 150 to 500
parts in a run, they were manufacturing only two or three.
This change in business philosophy required two new con-
cepts: (1) maximum flexibility to meet a changing produc-
tion requirement in a brand new kind of business: and (2)
an opportunity for those employees who express an interest
to expand their skills. Parker explained that the change in
operations and the sudden reinstatement of a large number
of strikers resulted in an excess of skills in the job classifica-
tions working on the small parts and a shortage of skills in
the job classifications working on the larger valves. In addi-
tion, there were new machines that had been installed im-
mediately before and during the period of the strike. This
resulted in a general imbalance of employees and skills re-
quired.
James Kelley, the industrial relations director, testified
that new employees that were hired during the period of the
strike were "advised that they were being hired as perma-
nent employees, and, as such, they would have the same
benefits that were available to any permanent employee
and in the event, and when we did get a collective bargain-
ing agreement, that they would continue to have the same
employment rights and privileges as those employees who
would be returning from the strike would have. They were
permanent employees." Kelley also testified that immedi-
ately upon receipt of the Union's telegram offering to return
to work that no new strike replacements were hired. (This
was also stipulated to by the General Counsel.) Kelley fur-
ther stated that the employees were returned to work on the
basis of their skills and as and when the employees were
needed; that the Company cooperated completely and
worked through Mr. Lapinsky of the Union as they were
requested. Kelley testified that the strike settlement agree-
ment had been prepared by Respondent, and that it was
accepted and signed by the Union without any extensive
discussion. There was no testimony from any company wit-
ness tending to show that article IX, section 4. paragraph
(f) regarding "loss of seniority" in either the expired or
currently effective labor management agreement was ever
discussed in terms of time lost because of a legal strike.
Kelley testified that after the first week in June their proce-
dure in filling jobs was changed because they had reached a
full complement of employees. Kelley stated that at that
point Respondent stopped reinstating strikers because they
determined that there was no longer any need for additions
to the payroll and "about the only thing we had to do at
that point was that we had to start restructuring internally.
We had people there, but we had people in the wrong clas-
sifications. We had to get people into the classifications
where the work was required. And as this came down, we
then put into effect the contract language from the pre, ious
contract in regard to the promotions and transfer of people.
which was the bidding procedure." After the new contract
was signed (G.C. Exh. 7)1. the procedure in the new contract
was followed.
Kelley acknowledged that if a job were offered to a
striker and he refused, that he was terminated. When asked
why, he explained. "we had an agreement with the union
that employees would unconditionally return to work who
we needed, when we needed them. as as we needed them.
and we proceeded along that line, and whenever an em-
ployee came in and said. 'hey. I don't want that job.' he was
setting a condition, and that was a violation of the agree-
ment that we had between us and the Union. and we termi-
nated the employees at that time." Kelle\ further acknowl-
edged that after March 15 1977. that any and all
unreinstated strikers had their seniority rights terminated
but their reinstatement rights were unaffected and the
were retained on a preferential hire list.
Analysis and Conclusions
(I ) Unreinstated strikers v. employees on payroll
Resolution of this conflict is to be found in the language
of the Court and Board cases as contained in five leading
cases primarily concerned with the reinstatement of strik-
ers.
Under Section 2(3) of the Act an emploNee who goes out
on strike retains his status as an employee until he obtains
other regular and substantially equivalent emplo ment.'
Thus, when a strike ends and the striker offers to return to
work, an employer who refuses to reinstate the striker ,o-
lates the Act unless the employer can sustain its burden of
showing that it had a substantial and legitimate business
justification for its action. Flehetwood Trailer Co., supr-i at
379. The Supreme Court delineated the rights of a striker
replacement when in the MacKaov case supra at 345 346 it
stated:
Although section 13 provides. "Nothing in this Act
shall be construed so as to interfere with or impede or
diminish in any way the right to strike." it does not
follow that an employer, guilty of no act denounced b
the statute. has lost the right to protect and continue
his business by supplying places left vacant bs strikers.
And he is not bound to discharge those hired to fill the
places of strikers, upon the election of the latter to
N.LR.B. v. MacKAs Radio & Telephone Co., 304 U.S. 333 (1938).
N.L.R.B. v. Great Dane Trailers, 388 U.S. 26 1967): N.L R R . Iv Fleetwood
Trailer Co.. 389 U.S. 379 (1961); Laidla% Corp v I R B, 414 F.2d 99 (71h
Cir. 1969), cert. denied 397 US. 920 (1970); nited Airlralf (rp, 192
NLRB 382 (1972), remanded 534 F.2d 422 (2d Clr 1975)
'' The section states in relevant part: The term "employee" shall include
any employee, and shall not be limited to the employees of a particular
employer, unless the Act explicitly states oitherwise. and shall include an>
individual whose work has ceased as a consequence of, or in connection
with, an) current labor dispute or because or an5 unfair labor practice. and
who has not obtained an> other regular and substantially equis:alenl emplo>-
mernt ..
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resume their employment in order to create places for
them.7 The assurance by respondent to those who ac-
cepted employment during the strike that if they so
desired their places might be permanent was not an
unfair labor practice nor was it such to reinstate only
so many of the strikers as there were vacant places to
he filled.
7 Compare NL. R.B v. Bell Oil& Gas Co., 91 F.2d 509.
Thus, we are called upon in this case to balance the rela-
tive equities as between unreinstated strikers who by law
remain employees on a preferential hiring list against the
rights of those employees who are currently working and on
the payroll at a point in time when Respondent has a full
complement of employees.
The credited and undisputed testimony of Larry Parker,
as supported and substantiated by Respondent's Exhibit 7,
clearly establishes that Respondent reached a full comple-
ment of employees in the month of' June. From that point
forward until August 1977 there was a gradual decline in
employment of more than 17 percent, and in August there
were only 247 employees on Respondent's payroll. The par-
ties hereto stipulated that Respondent ceased hiring striker
replacements (or new employees) immediately upon receipt
of the Union's unconditional offer to return to work. Parker
further testified that by June, because of the extreme imbal-
ance in production that had been created during the strike
period, their primary task was one of getting people as-
signed who were then on the payroll to those job classifica-
tions where their skills could be best utilized. Under these
circumstances Respondent was not discriminating against
or interfering with any of the rights of the unreinstated em-
ployees as set forth in the Act, but the Employer has shown
"legitimate and substantial business justification" for its
course of conduct. As the numerous jobs were being bid
and employees on the payroll were being shuffled in accord-
ance with their job skills, the Employer was following the
procedure as set forth in the collective-bargaining agree-
ment and was not adding any additional people to the payroll.
If the Respondent-Employer, under the circumstances of
this case, were required to fill each of the "posted jobs" that
occurred after June with an unreinstated employee with
adequate skills to fulfill the particular job being posted, it
would result in either an excessive number of employees on
the payroll or the displacement of an employee who had a
legal right to be retained on the payroll. In reshuffling and
reassigning those employees on the payroll, Respondent
was "adapting to changes in business conditions or seeking
to improve efficiency" as suggested by the Board in its brief
to the court in Fleetwood, supra, would be a proper justifica-
tion for refusal to reinstate strikers. As the Court said in
United Aircraft, supra at 442, "No case insofar as we are
aware, has required an employer to layoff its active employ-
ees so as to make room for strikers. And any such approach
would be fundamentally inconsistent with an employer's
right to hire permanent replacement for strikers and retain
the replacements after the strike while the strikers remain
out of work." Both the Charging Party and the General
Counsel have cited Fire Alert Company, 207 NLRB 885
(1973), which I find to be inapposite. The Fire Alert case
was concerned with the hiring of new employees in prefer-
ence to qualified unreinstated strikers. I find and hold that
the Company's posting and filling of skilled and semiskilled
jobs with employees then on the payroll in preference to
unreinstated strikers who may have been equally well quali-
fied was not violative of any rights of the unreinstated em-
ployees.'
(2) The recall of strikers
Respondent looks to the language of the Union's uncon-
ditional offer to return to work (G.C. Exh. 4), the strike
settlement agreement language (G.C. Exh. 8) and the lan-
guage of the Board in United AircraJi Corp., supra, to justify
its manner of reinstating strikers and the termination of
those strikers who refused reinstatement offers at jobs other
than something substantially equivalent to what they had
been working at immediately prior to the strike. Respon-
dent points to the Board's language at page 386 of United
Aircratl Corp., which reads as fbllows: "The Board is
charged with the exclusive responsibility of vindicating the
public policy as defined by Section I of the Act. It follows
that the Board is not bound by any private adjustment of
rights guaranteed by the Act. But it does not also follow
because the Board is not required to place its imprimatur
upon private adjustments of statutory rights, it may not in
the exercise of its discretion accept a particular private ad-
justment as conforming to the policy of the Act and there-
fore deserving of approval by the Board." Respondent then
contends that its reinstatement procedure was pursuant to
an agreement that deserves Board approval.
There is also evidence in the record indicating that at
least one responsible union official was of the opinion that
reinstating strikers if, as, and where needed,--even though
the jobs offered might not be substantially equivalent-was
in keeping with the parties agreement regarding the return
of strikers to work. While at least 90 percent of the employ-
ees were returned to their same or substantially equivalent
jobs there were at least 39 strikers who were reinstated to
different jobs or returned to different shifts (see Resp. Exh.
9). Respondent acknowledged, however, that if a striker
employee was offered an opportunity to return to work to a
job or shift that was different from that held immediately
before the strike and he declined, he was then terminated.
I am of the opinion that the Respondent Company's in-
terpretation of the Union's use of the word unconditional
was legally erroneous. When a union unconditionally offers
" Compare the Second Circuit Court's language in United Aircraf, supra,
regarding a matter involved in a District Court 301 suit between the same
parties that had been consolidated with the NLRB case involving the same
strike situation: "A similar analysis governs promotions to apprentices to
jobs for which registered strikers were awaiting recall. As found by the Dis-
trict Court, promotion to a bargaining unit job was the culmination of a 3-
year contractual period of training during which the apprentice became cer-
tified in a particular skill. 299 F.Supp at 923. The Union has appealed the
ruling that these promotions did not violate the agreements. The Company
was not obligated to layoff the apprentice after the completion of his period
of training on account of the unsettled production conditions created by the
strike. Nor was it obligated to promote the apprentice and recall a striker to
the same position, resulting in a surplus of employees. Accordingly. we af-
firm the finding that promotions of apprentices did not breach the agree-
ments."
1J See the testimony of John Pettitt.
944
MCC PACIFIC VAI.VES
to return to work following a strike, it is not as expressed
by Respondent's witness Kelley unconditionally placing
itself in the position of a conquered nation subject to terms
dictated, but rather is merely saying, "We are no longer
attaching any of those economic demands which caused us
to strike to our offer to return. We will return to work with-
out those conditions for which we struck being resolved,
and will seek to resolve them at the bargaining table while
we continue working." The use of the word unconditional
means nothing more than that.
The exchange of telegrams between the parties, as well as
the strike settlement agreement, seems to clearly express the
intent that the Company would reinstate strikers if, as, and
where needed. And John Pettitt, a knowledgeable and expe-
rienced union employee who engaged in the entire negotia-
tions, acknowledged during cross-examination that the
manner in which the employees had been recalled and rein-
stated had been in accordance with the Union's uncondi-
tional offer to return to work. But there is absolutely noth-
ing contained in the understanding as testified to by the
witnesses, the exchange of telegrams, or the strike settle-
ment agreement that gives the Respondent freedom to termi-
nate an employee who is unwilling to accept something less
than "substantially equivalent" employment. The Supreme
Court has made clear that "the status of the striker as an
employee continues until he has obtained 'other regular and
substantially equivalent employment.' "'5 And the Board
has dismissed complaints alleging employers to have vio-
lated the Act where the Respondent employer had failed to
offer jobs arising in classifications substantially less than
that occupied by the unreinstated striker."6 While I find that
the parties hereto did intend and did make an agreement to
return strikers if, as, and where needed, and I further find
that such an agreement was perfectly legal, nevertheless I
can find nothing therein which gave Respondent the au-
thority to terminate an employee, because the individual
was unwilling to accept something substantially less than
equivalent employment. To hold otherwise would inher-
ently weaken a fundamental employee right which is clearly
spelled out in the Act. I shall find that Respondent violated
the Act when employees were terminated because they de-
clined job offers that were substantially less than they had
held immediately prior to the strike.'
(3) Loss of seniority
Respondent acknowledges that after an employee was off
the payroll for a total of I year and was thereafter reinstat-
N. L. R.B. v. Fleetwood Trailer Co.. supra.
'1 New Era Electric Cooperative, 217 NLRB 477 (1975).
7 While the Company admitted that it was its practice to terminate striker
employees who refused a job offer of reinstatement, the proof only showed
that this happened to three striker employees-Eric Newell, Patnck Reilley,.
and Richard Price. Harry Woods had another job and was going to school
when he was offered reinstatement. I conclude from his testimony he was not
interested in returning to work for Respondent. Joe Galaz had obtained
"substantially equivalent employment" elsewhere. Yong Chol Yi was told he
would be terminated and thus accepted something less than a "substantially
equivalent" job. but has since been promoted to a higher classification than
he held before the strike. Allen Myers and Thomas Bauman were sent tele-
grams offering reinstatement in September 1977, but each had moved with-
out notifying Respondent of his current address.
ed, that he was treated as if he were a new emploee. I'he
parties stipulated that this happened to a number of rein-
stated strikers who were not recalled or reinstated until atf-
ter they had been off the payroll for more than a ecar.'
Respondent argues that the "loss of seniorilt"' lir em-
ployees who were off the payroll for a period of I ear was
fully justified by the unmistakable and clear language
found in article IX. section 4, subparagraph f wherein it is
stated that "An employee not performing an' wsork /f,' aon
reason for the Company within the bargaining unit for the
period of I year except those employees who hae been
granted an illness leave of absence as a result of work in-
curred injury or illness ... " shall lost all seniorit% . This
argument is countered by the General Counsel who accu-
rately contends that the language contained in the "loss of
seniority"' section was never discussed with reference to a
strike situation and thus was never intended to include time
away from work because of a legal strike. Not necessarily
controlling, but of interest, was the testimony of' Gar
Jones-a steward for 8 years-who stated that, while he
had not filed a grievance for those reinstated strikers who
were reinstated with loss of seniority after being ofl the
payroll for 1 year, he would have processed a grievance if
Respondent had reinstated an employee with "loss of se-
niority" that had snot been off the payroll for a full ear.
In Mastro Plastic Corp. v. N.L. R.B.. 350 U.S. 270 (1)55).
the Supreme Court held that the waiver of the "right to
strike" did not embrace a waiver of the right to strike
"against unlawful practices destructive of the foundation on
which collective bargaining must rest." And again in
N.L.R.B. v. Magnavo.x Co., 415 U.S. 322 (1973). the Su-
preme Court agreed with the Board's view that a labor
management contract banning the distribution of union lit-
erature or the solicitation of union support by employees at
the plant during nonworking time may constitute an inter-
ference with the employees' Section 7 rights. Thus there are
some rights that are so inherently basic to the purpose of
the Act that the contracting parties are not privileged to
place limits on these rights. However, as the Court said in
the Magnavox case, supra, "It is the Board's function to
strike a balance among conflicting legitimate interests
which will affect national labor policy, including those who
support versus those who oppose the union."20 This is a case
in which a balance between conflicting legitimate interests
should be struck. While I am not unmindful of the faict that
the Board is not normally bound by the technical rules of
contract law in construing labor-management agreements.''
nevertheless, in this instance where the language is so un-
mistakably clear in expressing the intent of the parties, I am
bound to follow elementary principles of contract interpre-
tation. Construction of a contract cannot be resorted to un-
1 This occurred to reinstated sinking employees L. Craig. D (irass,
Perret, C. Nichols J. Ramacher. and M Nichols.
9 It should be made clear that while the employees who were off the
payroll for a period of I year were onl) offered reinstatement with "loss of
seniority," nevertheless they were retained on the preferential hire list or a
longer period of time.
2Citing N L R.B. v Truck Driver Local Union No 449 e a, 353 1 S
87, 96 (1956).
2; Lazano Enterprises v L RB., 327 F.2d 814 (1945).
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
less the contract is ambiguous. 2 And courts will not con-
strue a contract in conflict with plain and accepted meaning
of language used.? The language used by the parties in the
contract could not have been more simple or unambigu-
ous not performing any wsork for an reason fbr I year. The
parties must be presumed to have agreed to the numerous
variables to which such broad and all inclusive language
would apply. and thereafter they listed those limited excep-
tions which they wished to be excluded from the broad all-
inclusive language previously set forth. Clearly, the most
elementary application of contract law dictates that we give
effect to the language as drafted by the parties.
However, the right to strike is rooted in our constitution
as well as specifically provided for in the Act, and it would
be inherently destructive of an employee's Section 7 rights
if we were to include that period of time of actual striking
as any part of the I-year period of being off the job.24 Strik-
ing such a balance will give full credit to explicit language
of the contract without doing violence to a Union's right to
engage in an economic strike. I hold, therefore, that Re-
spondent's application of the "loss of seniority" provision of
the contract was an unfair labor practice only to the extent
that it may have been applied to employees who were rein-
stated between March 16, 1977, and April 16, 1977."
(4) Miscellaneous
Duane Hay was required to sign a voluntary termination
form in order to obtain his earned vacation pay. Hay was
hired in June 1973. Thus, in June 1976-absent the strike
and assuming his continued employment-he would have
fully earned and been entitled to 2 week's vacation with
pay. Hay did not request his vacation pay until after his
anniversary date. While the contract vacation language dif-
fered between the recently expired contract (G.C. Exh. 2)
when compared with the existing contract (G.C. Exh. 7),
the relevant and applicable positions provide for 2 weeks,
or 80 hours, vacation pay after 2 years of employment.
There is also provision made for pro rata payments to be
made in the event a full year's services are not rendered. 26
Duane Hay was an unreinstated striker and as such was
entitled to the status of an employee. His vacation had been
fully earned and accrued as of the date he requested it. To
require that he sign a voluntary termination form in order
to obtain his fully earned vacation pay was clearly discrimi-
natory and there can be "no doubt but that the discrimina-
1 Golden Gate Bridge d Highway Dist. of California v. U.S., 125 F.2d 872,
cert. denied 316 U.S. 700 (1942).
23 Welsbach Engineering & Management Corp. v. Commissioner of Internal
Revenue, 140 F.2d 584 (3d Cir. 1944), cert. denied 322 U.S. 751 (1945).
24 The "loss of seniority" language contained herein is not unusual to la-
bor-management agreements. Suppose, for example, the Union was actually
on strike for a period of I year. Unless the actual striking time is not counted
as part of the period "off the job," all of the strikers' reinstatement rights
would be lost and an inherent principle and fundamental concept of the Act
destroyed.
"2The strike was ended on April 15, 1966. There was no evidence pre-
sented at the hearing to prove that there was anyone reinstated between the
periods of March 16. 1977, and April 16, 1977, but this could have occurred
because Respondent admitted that as of March 16, 1977, it regarded all
unreinstated strikers as being subject to the application of article IX, section
4, subparagraph f.
2
6 See article XII of each of the contracts.
tion was capable of discouraging membership in a labor
organization within the meaning of the statute."2 7 More-
over, the discriminatory treatment accorded Hay was made
even more obvious when approximately 2 weeks after Hay
requested his vacation pay and was required to sign a ter-
mination form, the Company made vacation payments to
all other employees in a similar situation without requiring
the voluntary termination forms to he signed. Nor was
there any need for the General Counsel to prove antiunion
motivation, because as the Supreme Court has said. "Some
conduct is so inherently destructive of employee interest
that it may be deemed proscribed without need for proof of
an underlying improper motive."28 I find and hold Respon-
dent to have violated Section 8(a)(1) and (3) of the Act
when it required Duane Hay to sign a termination form
before granting him his fully earned vacation pay. 2?
The evidence regarding Patrick Kearns is not seriously
disputed. Kearns was first employed by Respondent in Sep-
tember 1971 and held a job as a radial drill operator, earn-
ing $5.56 an hour at the time of the strike. Kearns had
formerly served as a union steward and participated in the
strike. He admitted having a billy club and a sap in his
possession while walking on the picket line. After being
warned by the security guards that the possession of such
weapons was a felony and they should be removed, he per-
sisted in retaining them while on the picket line. The police
were called, a scuffle ensued, and it was necessary for
Kearns to be carried away by three policemen. In the crimi-
nal court action that followed, Kearns pleaded guilty to the
possession of illegal weapons, and the charge of resisting
arrest was dropped. Because of this conduct, Kearns was
officially terminated on the company records, but he was
never officially advised. °0 The Supreme Court dealt with
this problem in Ohio Calcium3 1 wherein it stated, "We are of
the opinion that to require Respondent to reinstate or reem-
ploy strikers who were in the picket line and who admit-
tedly had rocks in their hands, would not be conducive to
the promotion of industrial peace, but would be punitive
action rather than the remedial action contemplated by the
Act and would encourage violence in labor disputes." In
this instance the "weapons" involved were much more dan-
gerous than those considered by the Supreme Court, their
possession was contrary to state law, and the pugnacious
attitude of Kearns toward the law-enforcing officers unmis-
takably warrants a finding of picket-line misconduct, justi-
fying a refusal to reemploy.
CONCLUSIONS OF LAW
1. Respondent MCC Pacific Valves, a unit of Mark Con-
trols Corporation, is an employer engaged in commerce
within the meaning of Section 2(2)., (6). and (7) of the Act.
21 N. L.R.B. v. Great Dane railers, supra at 32.
2 Id. p. 33.
29See Knurh Bros., Inc., 229 NLRB 1204 (1977).
30 The testimony that the union officials were fully informed as to Kearns'
status was undenied and is herewith fully credited. Moreover, there is infor-
mation in the record to the effect that Kearns indirectly had full knowledge
of his status as a result of information furnished to the State of California in
connection with Kearns' application for unemployment compensation.
While it may have been better employee relations to have formally advised
Kearns of his employment status, I do not regard the failure to do so as a
fatal defect in effectuating his termination.
3: N L. R B v. Ohio Calcium Co.. 306 U.S. 240 11939).
946
MC( PACIFIC VALVES
2. The International Association of Machinists & Aero-
space Workers. District Lodge 94, Local Lodge 1235, AFL
CIO. is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent violated Section 8(a)( ) and (3) of the Act
when it terminated unreinstated strikers Eric Newell, Pat-
rick Reilley. and Richard Price because each of them de-
clined to accept reinstatement job offers which were not
substantially equivalent to their respective jobs held imme-
diately before the strike occurred.
4. Respondent violated Section 8(a)( 1) and (3) of the Act
when it required Duane Hay to sign a voluntary termina-
tion form in order to receive his fully earned vacation pay.
5. Respondent violated Section 8(a)( I) and (3) of the Act
when it counted the striking period as part of the I year
"away from the job." for purposes of' administrating the
"loss of seniority" portion of the labor agreement.
6. Respondent has not, except as specifically found in
paragraphs immediately above numbered 3. 4. and 5, vio-
lated the Act as alleged in the complaint.
THE REME)DY
I shall require that the termination notices given Eric
Newell, Patrick Reilley. and Richard Price be expunged
from the Company's records and each employee respec-
tively notified that he has been fully reinstated to the prefer-
ential hire list; and in the event any new employee that mav
have been hired after April 16. 1976, is currently occupying
a job substantially equivalent to that held bh Newell. Reil-
ley. or Price. respectively. immediately before the strike.
that job shall be offered to Newell. Reilley. and/or Price.
respectively. with backpay plus interest from the date said
new employee first occupied the substantially equivalent
position. The same remedial treatment shall be accorded
Duane Ifay, and in addition, he shall be given a preferred
position on the preferential hire list and offered the first
available job for which he may be qualified even though it
may be something less than "substantially equivalent" to
the position held immediately prior to the strike. because
there is no evidence in the record that he vwould not he
accepted something less than a "substantially equivalent"
position had he not been forced to voluntarily terminate.
Any backpay and interest thereon which may be due under
the conclusions of law and remedy reached herein shall be
computed in the manner prescribed in F. II. It'oolworth
Conpaunv, 90 NLRB 289 (1950), and Florida Steel Corpora-
tiOn, 231 NLRB 651 (1977).1
[Recommended Order omitted from publication.]
"2See, generally. Isis Plumbing Heaing Co., 138 NLtRB 716 (1962)
947