Pielli Cable Corp.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1538 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1538
Pirelli Cable Corporation and International Brother-
hood of Electrical Workers, Local Union 2236,
AFL–CIO, CLC and H. Dean Simpson. Cases
11–CA–15987, 11–CA–16121, 11–CA–16149, 11–
CA–16300, 11–CA–16365, 11–CA–16475, 11–
CA–16536, 11–CA–16670, 11–CA–16708, 11–
CA–16727, 11–CA–16754, 11–CA–16844, and
11–CA–16160
August 31, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On June 18, 1997, the National Labor Relations Board
issued its Decision and Order in this proceeding.1 The
Board found, in agreement with the judge, inter alia, that
the Respondent violated the National Labor Relations
Act by threatening its employees with loss of their jobs if
they went on strike, that the threat was a contributing
cause of the employees’ May 5, 1994 strike, and that the
Respondent violated the Act by failing to reinstate the
unfair labor practice strikers upon their unconditional
offer to return to work. In light of these findings, the
Board found it unnecessary to consider the judge’s “al-
ternative unfair labor practice findings that are based on
the assumption that the strike was an economic strike.”2
On March 31, 1998, the United States Court of Ap-
peals for the Fourth Circuit issued its decision in this
case, enforcing in part and remanding in part the Board’s
Order.3 The court rejected the Board’s finding that the
Respondent threatened its employees with job loss, and,
therefore, did not agree that the strike was an unfair labor
practice strike. The court remanded the case to the Board
“for reconsideration of the administrative law judge’s
numerous alternative holdings based upon the initial
conclusion that the strike was an economic strike.”4
On November 30, 1998, the Board informed the par-
ties that it had accepted the court’s remand and invited
the parties to file statements of position on the issues
raised by the remand. The General Counsel, the Re-
spondent, and the Charging Party Union filed statements
of position.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have reviewed the entire record, including the par-
ties’ statements of position, in light of the court’s re-
mand, which the Board accepts as the law of the case.
As explained below, we have decided to affirm the
judge’s findings in part, reverse in part, and remand two
issues for further hearing.
1 323 NLRB 1009. The Board’s decision consolidated Cases 11–
CA–15987, et al. (Pirelli I) with Cases 11–CA–16670, et al. (Pirelli II).
2 Id.
3 141 F.3d 503 (1998).
4 Id. at 519. The court also found, contrary to the Board, that the Re-
spondent had not violated Sec. 8(a)(5) by withdrawing recognition from
the Union or by implementing changes in terms and conditions of em-
ployment.
A. Background
The Respondent has recognized and bargained with the
Union as the representative of its production and mainte-
nance employees since 1967. In March 1994,5 the parties
began negotiations for a new contract. On April 20, the
Respondent sent a letter to its employees informing them
that they could lose their jobs if they went on strike.6 On
May 5, the employees commenced a strike. The Re-
spondent continued its plant operations by hiring re-
placement workers, and by utilizing nonunit employees
and strikers who crossed the picket line to return to work.
At the time of the strike, employee James McCord was
on disability leave and was receiving workers’ compen-
sation benefits as the result of a job-related injury. The
Respondent classified McCord as a striker and canceled
his workers’ compensation benefits.7
The strike ended on June 20, when the Union made an
unconditional offer to return to work on behalf of all
striking employees. The Respondent informed the Union
that all jobs were filled at that time and that the strikers
would not be returned to work immediately, but would
be placed on a preferential hiring list. The parties signed
a strike settlement agreement providing that strikers
would be placed on a preferential hiring list in order of
their seniority and returned to work “[a]s openings oc-
cur.”
On June 21 the Respondent sent former strikers a letter
requesting that they advise the Respondent of their desire
and availability for reinstatement as a condition prece-
dent to their placement on the preferential hiring list.
The Respondent’s letter also stated, “If we have not re-
ceived your response by [June 29], we will assume that
you have no interest in reemployment and do not wish to
be included on the preferential hiring list.”
Despite the strike settlement agreement, the Respon-
dent filled jobs which arose after the strike ended by
posting them for bidding by replacement workers and
other employees working in the plant before it offered
the jobs to strikers on the preferential hiring list. The
Respondent also terminated strikers because, it claims,
they had obtained other jobs.
Shortly after the strike ended, Plant Manager Kelley,
speaking to replacement workers, stated that workers at a
nearby plant had unionized and that the owner closed the
plant and “kept it tied up in court so long that he eventu-
ally had to pay some of the grand-kids because the peo-
5 All subsequent dates are in 1994 unless otherwise indicated.
6 The court reversed the Board’s finding that this letter constituted an
unlawful threat.
7 After the strike ended, the Respondent refused to return McCord to
work, even though he had secured a doctor’s release. The court af-
firmed the Board’s finding that the Respondent violated Sec. 8(a)(3) by
removing McCord from his disability status, by canceling his benefits,
and by discharging him.
331 NLRB No. 158
PIRELLI CABLE CORP. 1539
ple had died.” Kelley assured the replacement workers
that the Respondent would do the same thing.8
In September, employee Thompson-Hanlon told Kel-
ley that she had seen job openings, which the Respondent
should have offered to two union officials. Kelley told
her that the Respondent would not recall those particular
employees.9 In an October 21 memorandum to all plant
management, Acting Human Relations Manager Drig-
gers discussed the matter of filling vacancies from the
preferential hire list. The memorandum stated:

As you all know we are currently involved in
litigation with I.B.E.W. on the issue of recognizing
the Union. Our defense in this case will include an
analysis of those on the preferential hiring list and
the part they would play in a decertification vote.
This same type of analysis is being done when
vacancies occur, and we have to make a decision on
who to recall from the list. We will not always un-
derstand the choices we will have to make but rest
assured we are acting on the best legal advice avail-
able.
B. Analysis
As noted, we previously found it unnecessary to pass
on the judge’s alternative findings, which were based on
the complaint allegations that the May 5 strike was an
economic strike. In light of the court’s remand, however,
we must now pass on those findings.
1. The Pirelli I complaint alleges, and the judge found,
that the Respondent’s June 21 letter to the former strikers
violated the Act. As stated above, that letter required
employees, as a condition precedent to their placement
on the preferential hiring list, to state whether they
wished to be placed on the preferential hiring list or
whether they had found other employment. This letter
was sent just 1 day after the Respondent signed an
agreement with the Union providing that the former
strikers would be placed on a preferential hiring list.
It is well established that an employer’s procedure “de-
signed to extinguish the preferential hiring rights of
strikers,” is “inherently destructive of employee rights”
and unlawful, unless the employer can prove “legitimate
and substantial business justifications” for its actions.
Giddings & Lewis, Inc. v. NLRB, 710 F.2d 1280, 1285
(7th Cir. 1983). Here, we find that the Respondent has
failed to demonstrate that it had legitimate and substan-
tial business justifications for requiring the requested
information from the unreinstated strikers as a condition
for making reinstatement offers to them.10 Therefore, in

8 The court affirmed the Board’s finding that Kelley’s threat to “drag
this case out” violated Sec. 8(a)(1).
9 The court affirmed the Board’s finding that Kelley’s statement that
union officials would not be recalled because of their participation in
the strike violated Sec. 8(a)(1).
10 In fact, the Respondent’s briefs to the Board make no claim of
business justification. In its statement of position, the Respondent
simply states that the judge’s summary conclusion regarding the June
agreement with the judge, we conclude that the Respon-
dent violated Section 8(a)(1) of the Act by conditioning
the reinstatement of economic strikers on their submis-
sion of a letter advising the Respondent of their desire
and availability for reinstatement. Alaska Pulp Corp.,
300 NLRB 232 (1990), enfd. 944 F.2d 909 (9th Cir.
1991).
2. The Pirelli I complaint alleges, and the judge found,
that the Respondent violated the Act by filling job va-
cancies through an internal bid procedure rather than by
recalling unreinstated economic strikers, thereby denying
them their Laidlaw11 rights.
The strike ended on June 20. The parties’ strike set-
tlement agreement provided as follows:

All employees who have remained on strike through
Noon today, June 20, 1994, shall be placed, in the order
of their seniority, on a preferential hiring list, behind
the eight (8) employees who have already been placed
on that list. As openings occur employees shall be re-
turned in the order of their placement on that list and in
accordance with their qualifications to perform the
work available.

The record shows that between June 20, 1994, and
April 10, 1995, the Respondent posted approximately 68
jobs on the plant bulletin board for bid by employees
working inside the plant. There were approximately 155
strikers on the preferential hiring list, 85 of whom per-
formed the posted jobs before the strike. In general, the
Respondent did not offer the posted jobs to the strikers
on the preferential hiring list. The Respondent did not
even permit the unreinstated strikers to bid on the posted
jobs.
In defense of its conduct, the Respondent presents
what it terms a “waiver argument” based on the strike
settlement agreement. Specifically, the Respondent con-
tends that “the parties agreed that the economic strikers
would be returned to work before new employees were
hired,” but that “internal vacancies would be filled from
among existing employees.” Thus, the Respondent as-
serts, the Union “relinquish[ed] Laidlaw bidding rights.”
In California Distribution Centers, 308 NLRB 64, 64
(1992) (citing Laidlaw), we noted:

It has long been held under Board law that eco-
nomic strikers who unconditionally apply for rein-
statement when their positions are filled by perma-
nent replacements are entitled to full reinstatement
on the departure of the replacements or when sub-
stantially equivalent jobs for which they are quali-
fied become available, unless the employer can sus-
tain its burden of proof that the failure to offer them

21 letter must be rejected. The Respondent’s exceptions brief makes no
argument about this issue.
11 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1540
reinstatement was for legitimate and substantial
business reasons.

In MCC Pacific Valves, 244 NLRB 931 (1979), sup-
plemental decision 253 NLRB 414 (1980), enfd. in part
mem. 665 F.2d 1053 (9th Cir. 1981), as here, the facts
showed that at the conclusion of an economic strike, the
respondent posted jobs for bidding by employees then on
the payroll. At the time these jobs were posted, there
remained a number of strikers who had not yet been rein-
stated. However, some posted jobs were not offered to
unreinstated strikers at all, and others were offered to
them only if there were no successful bidders on those
jobs from within the plant. Reversing the administrative
law judge, the Board held that when job vacancies occur
because of the departure of strike replacements and the
employer posts those jobs for bidding, the employer is
“not entitled to prefer strike replacements then on the
payroll to qualified strikers awaiting reinstatement.” 244
NLRB at 933 (emphasis in original).
It is well established that waiver of rights under the
Act must be “clear and unmistakable.” Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). Here,
this standard clearly was not met. There is nothing in the
strike settlement agreement itself or the testimony in the
record establishing that the Union “clearly and unmis-
takably” waived the employees’ rights under Laidlaw
and MCC Pacific Valves. Thus, we find no merit in the
Respondent’s waiver argument.
The Respondent also argues that the record does not
show how many of the 68 job postings constituted Laid-
law “vacancies” to which a striker must be recalled. The
Respondent states that “[w]hile a few of the bid an-
nouncements indicated that someone was being replaced,
most of the postings and announcements simply indi-
cated the posting of a job without indicating whether a
replacement was leaving.” Given the present state of the
record, the Respondent asserts that the complaint allega-
tions regarding the bidding system should be dismissed
or, “[a]t the very least,” remanded to the judge to reopen
the record and take further evidence. The General Coun-
sel, on the other hand, “submits that Respondent violated
Section 8(a)(3) of the Act each and every time it posted a
job for bid without recalling an unreinstated striker to fill
said job.”
Under Laidlaw, an economic striker’s entitlement to
reinstatement is contingent upon the existence of a job
vacancy. Bancroft Cap Co., 245 NLRB 547 fn. 1 (1979).
“A genuine job vacancy, commonly known as a ‘Laidlaw
vacancy,’ may arise when, for example, the company
expands its workforce or discharges a particular em-
ployee, or when an employee quits or otherwise leaves
the company.” NLRB v. Delta-Macon Brick & Tile Co.,
943 F.2d 567, 572 (5th Cir. 1991) (emphasis added). A
Laidlaw vacancy is not created, however, when an em-
ployer temporarily transfers an employee from one de-
partment to another or merely “reshuffles” its workforce.
Textron, Inc., 257 NLRB 1, 4 (1981), enfd. in relevant
part 687 F.2d 1240, 1243–1244 (8th Cir. 1982). It is the
General Counsel’s burden to establish the existence of a
Laidlaw vacancy. Aqua-Chem, Inc., 288 NLRB 1108,
1110 fn. 6 (1988), enfd. 910 F.2d 1487 (7th Cir. 1990),
petition for rehearing denied 922 F.2d 403 (7th Cir.
1991).
Having carefully considered the entire record, includ-
ing the judge’s decision, we find, as the Respondent con-
cedes, that at least some of the 68 job postings repre-
sented vacancies created by the departure of strike re-
placements. In filling these vacancies, the Respondent
“was not entitled to prefer strike replacements then on
the payroll to qualified strikers awaiting reinstatement.”
MCC Pacific Valves, supra, 244 NLRB at 933 (emphasis
in original). Rather, the “Respondent was obligated to
offer the initial job vacancies created by the departure of
strike replacements to unreinstated, qualified strikers.”
Id. at 934 (emphasis in original). Accord: Textron, Inc.
v. NLRB, 687 F.2d 1240, 1246–1247 (8th Cir. 1982) (cit-
ing MCC Pacific Valves with approval and holding that
vacancies “must not be preferentially offered to cur-
rently-working personnel”). The Respondent has failed
to establish legitimate and substantial business justifica-
tions for its conduct. Therefore, in accordance with
MCC Pacific Valves, we find that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by filling job
vacancies through an internal bid procedure rather than
by recalling unreinstated economic strikers.
The Respondent is correct, however, that the record
does not show the extent of this violation, i.e., exactly
how many of the 68 job postings represented vacancies
within the meaning of Laidlaw.12 Therefore, in agree-
ment with the Respondent’s alternative position, we shall
remand this complaint allegation to the judge for further
hearing.13
3. The Pirelli I complaint alleges, and the judge found,
that the Respondent violated the Act by failing to recall

12 Every job posting does not necessarily represent a Laidlaw va-
cancy. For example, let us suppose that a strike replacement resigned
his position, and the job was one that an unreinstated striker was enti-
tled to under Laidlaw. Instead of recalling the striker, the employer
posted the job for bidding by employees on the payroll. Employees
then bid in an upward fashion, that is, first on the posted job, then for
the job vacated by the employee who obtained the posted job, and so
on. See MCC Pacific Valves, supra, 244 NLRB at 931–932. In this
example, there are multiple job postings but only the initial posting is a
true Laidlaw vacancy, because if the employer had offered that position
to the unreinstated striker, as it was required to do under Laidlaw, the
other vacancies would not have occurred.
13 For the same reason, we shall also remand the related complaint
allegation that the Respondent violated the Act by failing and refusing
“to provide qualified unreinstated strikers an opportunity to bid on job
vacancies.”
On remand, after receiving further evidence, the judge should de-
termine which of the 68 job postings represented Laidlaw vacancies
and identify the striker who would have been reinstated to that vacancy
or permitted to bid on it.
PIRELLI CABLE CORP. 1541
Ricky Ferguson to a vacant CV operator job and failing
to recall William Riley Jr. to a vacant die control job.
Both were the most senior employees in their job posi-
tions on the preferential hiring list at the time the Re-
spondent posted the jobs for bid. We find, in agreement
with the judge, that the Respondent violated Section
8(a)(3) and (1) of the Act by failing to recall Ferguson
and Riley.
4. The Pirelli I complaint alleges that the Respondent
violated the Act by removing Samuel Fleming and John
Wilson from the preferential hire list. The judge found
that on May 5 the Respondent discharged these employ-
ees after hearing rumors that Fleming had obtained an-
other job and that Wilson had opened a gas station. Both
employees had worked as electronic technicians for
many years. At the time the Respondent discharged
them, there were vacancies for electronic technicians.
The Respondent did not contact either employee before
discharging them.
The Board has held that, in order to cancel the recall
rights of economic strikers, an employer must show that
the striker attained regular and substantially equivalent
employment and that the striker unequivocally intended
to abandon his employment with the employer.
Marchese Metal Industries, 313 NLRB 1022, 1028–1031
(1994) (emphasis added). The Respondent failed to re-
but credited testimony from both employees that their
“new” jobs were not substantially equivalent to their
former jobs with the Respondent.14 The Respondent also
failed to show that either employee intended to abandon
his job with the Respondent.
We find, accordingly, in agreement with the judge, that
the Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Fleming and Wilson.15
5. The Pirelli II complaint alleges, and the record
shows, that the Respondent failed to place strikers How-
ard Gray and James Cannady on the preferential hiring
list and failed to recall them. The Respondent claims
that since neither employee returned its June 21 letter
requiring employees to advise the Respondent of their
desire to return to work it did not place their names on
the preferential hiring list.16 We have found that the Re-

14 Fleming testified that the poststrike job he obtained is substan-
tially different from his electronic technician job with the Respondent,
i.e., he works the night shift instead of the day shift, works fewer over-
time hours, has no pension plan, and pays more for health insurance.
Wilson testified that he did not earn as much in his gas station business
as he had with the Respondent.
15 Without significant discussion, the judge also found in Pirelli I
that the Respondent violated Sec. 8(a)(3) by withdrawing job openings
if they were not filled by replacement employees, by combining jobs,
by using supervisors to perform bargaining unit work, and by eliminat-
ing 20 positions without business justification. We find that there is
insufficient evidence in the record to support these 8(a)(3) findings and,
therefore, we reverse them.
16 It appears that neither Cannady or Gray received the June 21 let-
ter. This is, however, irrelevant to our disposition of this complaint
allegation.
spondent violated the Act by requiring former strikers to
return a letter indicating their desire to return to work for
the Respondent. It follows that the Respondent could not
penalize an employee for not returning the letter.
We find, therefore, that by failing to place Gray and
Cannady on the preferential hire list the Respondent ter-
minated their preferential recall rights in violation of
Section 8(a)(3) and (1) of the Act.
6. The Pirelli II complaint alleges that the Respondent
discharged and failed to recall 23 named strikers.17 The
Respondent asserts that it removed these strikers from
the preferential hiring list because they had obtained in-
terim employment. As we stated previously, it is the
Respondent’s burden to prove that a striker has obtained
regular and substantially equivalent employment with
another employer and intended to abandon employment
with the former employer. Marchese Metal Industries,
313 NLRB at 1028–1031. See also Alaska Pulp Corp.,
326 NLRB 522 (1998).
The record shows that at the time the 23 strikers were
discharged the Respondent did not know whether the
strikers had obtained regular and substantially equivalent
employment with another employer or whether the strik-
ers intended to abandon employment with the Respon-
dent. The Respondent’s human resources manager, Wil-
lene Driggers, testified that her superiors instructed her
to delete from the preferential hiring list strikers who had
obtained any regular employment. Accordingly, she
terminated each of the strikers because she learned that
they had secured interim employment, admittedly with-
out making inquiries into the nature of the interim em-
ployment. Driggers also admitted that she terminated the
strikers without regard to whether they intended to aban-
don their employment with the Respondent. In fact, each
of the terminated strikers notified the Respondent that
they had not abandoned their desire to return to work for
the Respondent. Driggers testified that she did not ter-
minate a striker until a vacancy occurred which the
striker was entitled to fill on the basis of his qualifica-
tions and seniority on the preferential hiring list.
The judge found that the Respondent terminated these
employees’ reinstatement rights without regard to
whether they had obtained substantially equivalent em-
ployment, that the Respondent engaged in this conduct in
order to rid itself of the strikers, and that the Respondent
failed to demonstrate any legitimate business justification
for the terminations. We agree. We also find, based on
Driggers’ own testimony, that when these employees
were terminated vacancies existed to which they were
entitled to be reinstated under Laidlaw. Thus, we con-
clude that the Respondent violated Section 8(a)(3) and
17 The names of 22 of these strikers are listed in Conclusion of Law
8. With respect to the 23rd employee, Charles Tinch, see fn. 18, below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1542
(1) by discriminatorily terminating and failing to recall
these employees from the preferential hiring list.18
7. The Pirelli II complaint alleges that the Respondent
employed temporary employees to avoid recalling unre-
instated economic strikers.
Shortly after the Respondent removed former striker
Walter Anderson from the preferential hiring list on the
ground that he had obtained another job, the Respondent
told him that he would be rehired if he went to a tempo-
rary staffing service. Anderson complied with the Re-
spondent’s request and the Respondent rehired him as a
temporary employee. Two days later, the Respondent
rehired him as a new employee, without his previous
seniority. The Respondent also rehired Larry Gray19 and
Andy Bannister20 as new employees without seniority
through the temporary employment agency. The Re-
spondent failed to establish legitimate and substantial
business justifications for its conduct.
We agree with the General Counsel and the judge that
the Respondent’s use of the temporary staffing service to
obtain the services of Anderson, Gray, and Bannister as
new employees was a subterfuge designed to avoid re-
calling them in accordance with their reinstatement rights
under Laidlaw. Accordingly, we find that the Respon-
dent, by employing Anderson, Gray, and Bannister
through a temporary employment agency as new em-
ployees instead of recalling them from the preferential
hiring list, violated Section 8(a)(3) and (1) of the Act.21
CONCLUSIONS OF LAW
1. The Respondent, Pirelli Cable Corporation, is an
employer within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Electrical Workers,
Local Union 2236, AFL–CIO, CLC is a labor organiza-
tion within the meaning of Section 2(5) of the Act.

18 Charles Tinch is not included in our remedy for this violation be-
cause the court reversed the Board’s finding that he was unlawfully
discharged.
19 Gray had also been removed from the preferential hiring list on the
grounds that he had obtained another job.
20 Bannister remained on the preferential hiring list.
21 The judge also found that the Respondent violated Sec. 8(a)(3) and
(1) by discriminating against “all other employees whom it failed to
recall by . . . its use of a temporary employment agency” to fill posi-
tions that it should have offered to the unreinstated economic strikers.
323 NLRB at 1027. We agree with the judge and shall extend remedial
relief to employees similarly situated to Anderson, Gray, and Bannister.
Thus, it is well established that “both named and unnamed discrimina-
tees are entitled to a reinstatement and make-whole remedy in a situa-
tion, as here, where the General Counsel has alleged and proven dis-
crimination against a defined and easily identifiable class of employ-
ees.” Morton Metal Works, 310 NLRB 195 (1993), enfd. 9 F.3d 108
(6th Cir. 1993); accord: Grand Rapids Press, 325 NLRB 915 (1998),
enfd. mem. 208 F.3d 214 (6th Cir. 2000). In this case, the defined and
easily identifiable class consists of unreinstated economic strikers who
the Respondent employed through a temporary employment agency as
new employees instead of recalling them from the preferential hiring
list. The identity of these individuals shall be ascertained at the com-
pliance stage. Morton Metal, supra, and Grand Rapids, supra.
3. The Respondent violated Section 8(a)(1) of the Act
by conditioning the reinstatement of economic strikers
on their submission of a letter advising the Respondent
of their desire and availability for reinstatement.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act by filling job vacancies through an internal bid
procedure rather than by recalling unreinstated economic
strikers.
5. The Respondent violated Section 8(a)(3) and (1) of
the Act by failing to reinstate Ricky Ferguson and Wil-
liam Riley Jr.
6. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging John Wilson and Samuel Flem-
ing.
7. The Respondent violated Section 8(a)(3) and (1) of
the Act by terminating the preferential recall rights of
Howard Gray and James Cannady.
8. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging and failing to recall Franklin
Page, Mark Anderson, Samuel Brownlee, Larry Gray,
Winston D. Sparks, Stanley Chiles, Robert Prince, Timo-
thy D. Sparks, Kevin Sellers, Rhett Simpson, Wesley
Gibson, Kim Ashley, Lonnie Thompson, Melvin Ashley,
James Oliver Jr., James O. Coleman, Eugene V. Gray,
Bobby Lee Paul, Dexter R. Harris, R. Bernard Freeman,
Robert F. Donaldson, and Johnny Slay.
9. The Respondent violated Section 8(a)(3) and (1) of
the Act by employing Walter Anderson, Larry Gray, and
Andy Bannister through a temporary employment agency
as new employees instead of recalling them from the
preferential hiring list.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
We shall order the Respondent to offer all those em-
ployees listed below immediate and full reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges. We shall further order the Respondent to make
these employees whole for any loss of earnings and other
benefits they may have suffered as a result of the Re-
spondent’s discrimination against them, less interim
earnings during the period. Backpay shall be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987):

Mark Anderson Larry Gray
Walter Anderson Dexter R. Harris
PIRELLI CABLE CORP. 1543
Kim Ashley James Oliver Jr.
Melvin Ashley Franklin Page
Andy Bannister Bobby Lee Paul
Samuel Brownlee Robert Prince
James Cannady William Riley Jr.
Stanley Chiles Kevin Sellers
James O. Coleman Rhett Simpson
Robert F. Donaldson Johnny Slay
Ricky Ferguson Timothy D. Sparks
Samuel Fleming Winston D. Sparks
R. Bernard Freeman Lonnie Thompson
Wesley Gibson John Wilson
Eugene V. Gray Howard Gray

We shall also order the Respondent to remove from its
files any references to its unlawful actions against the
employees listed above and to notify them, in writing,
that it has done so.
ORDER
The National Labor Relations Board orders that the
Respondent, Pirelli Cable Corporation, Abbeville, South
Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Conditioning the reinstatement of economic strik-
ers on their submission of a letter advising the Respon-
dent of their desire and availability for reinstatement, and
terminating the preferential recall rights of employees
who failed to submit that letter.
(b) Filling job vacancies through an internal bid proce-
dure rather than by recalling unreinstated economic strik-
ers.
(c) Failing to recall unreinstated economic strikers to
their former or substantially equivalent positions when
vacancies exist in those positions.
(d) Discharging unreinstated economic strikers or ter-
minating their preferential recall rights without regard to
whether they had obtained substantially equivalent em-
ployment.
(e) Employing unreinstated economic strikers through
a temporary employment agency as new employees in-
stead of recalling them from the preferential hiring list.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
the following employees listed below full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges:

Mark Anderson Larry Gray
Walter Anderson Dexter R. Harris
Kim Ashley James Oliver Jr.
Melvin Ashley Franklin Page
Andy Bannister Bobby Lee Paul
Samuel Brownlee Robert Prince
James Cannady William Riley Jr.
Stanley Chiles Kevin Sellers
James O. Coleman Rhett Simpson
Robert F. Donaldson Johnny Slay
Ricky Ferguson Timothy D. Sparks
Samuel Fleming Winston D. Sparks
R. Bernard Freeman Lonnie Thompson
Wesley Gibson John Wilson
Eugene V. Gray Howard Gray

(b) Make the employees listed above whole for any
loss of earnings and other benefits they may have suf-
fered as a result of the Respondent’s discrimination
against them, in the manner set forth in the remedy sec-
tion of this decision.
(c) Offer those unreinstated economic strikers who the
Respondent employed through a temporary employment
agency instead of recalling them from the preferential
hiring list immediate and full reinstatement to their for-
mer positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy
section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful actions
against the following employees listed below and within
3 days thereafter, notify each of them in writing that this
has been done and that these actions will not be used
against them in any way:

Mark Anderson Larry Gray
Walter Anderson Dexter R. Harris
Kim Ashley James Oliver Jr.
Melvin Ashley Franklin Page
Andy Bannister Bobby Lee Paul
Samuel Brownlee Robert Prince
James Cannady William Riley Jr.
Stanley Chiles Kevin Sellers
James O. Coleman Rhett Simpson
Robert F. Donaldson Johnny Slay
Ricky Ferguson Timothy D. Sparks
Samuel Fleming Winston D. Sparks
R. Bernard Freeman Lonnie Thompson
Wesley Gibson John Wilson
Eugene V. Gray Howard Gray

(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1544
(f) Within 14 days after service by the Region, post at
its Abbeville, South Carolina facilities, copies of the at-
tached notice marked “Appendix.”22 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since April 28,
1994.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the record in this
proceeding be reopened and that the allegations of para-
graphs 19(c) and (d) of the Pirelli I complaint that the
Respondent “filled job vacancies through an internal bid
procedure rather than by recalling unreinstated economic
strikers” and that the Respondent “failed and refused to
provide qualified unreinstated economic strikers an op-
portunity to bid on job vacancies” be remanded to Judge
Cullen for further appropriate action in accordance with
this Supplemental Decision and Order. The judge shall
prepare and serve on the parties a supplemental decision
containing findings of fact, conclusions of law, and a
recommended Order in light of the Board’s remand.
Following service of the supplemental decision on the
parties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT condition the reinstatement of eco-
nomic strikers on their submission of a letter advising us

22 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
of their desire and availability for reinstatement and WE
WILL NOT terminate the preferential recall rights of
employees who failed to submit that letter.
WE WILL NOT fill job vacancies through an internal
bid procedure rather than by recalling unreinstated eco-
nomic strikers.
WE WILL NOT fail or refuse to recall unreinstated
economic strikers to their former or substantially equiva-
lent positions when vacancies exist in those positions.
WE WILL NOT discharge unreinstated economic
strikers or terminate their preferential recall rights with-
out regard to whether they had obtained substantially
equivalent employment.
WE WILL NOT employ unreinstated economic strikers
through a temporary employment agency as new em-
ployees instead of recalling them from the preferential
hiring list.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer the following employees listed below full
reinstatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges:

Mark Anderson Larry Gray
Walter Anderson Dexter R. Harris
Kim Ashley James Oliver, Jr.
Melvin Ashley Franklin Page
Andy Bannister Bobby Lee Paul
Samuel Brownlee Robert Prince
James Cannady William Riley Jr.
Stanley Chiles Kevin Sellers
James O. Coleman Rhett Simpson
Robert F. Donaldson Johnny Slay
Ricky Ferguson Timothy D. Sparks
Samuel Fleming Winston D. Sparks
R. Bernard Freeman Lonnie Thompson
Wesley Gibson John Wilson
Eugene V. Gray Howard Gray

WE WILL make the employees listed above whole for
any loss of earnings and other benefits they may have
suffered as a result of our discrimination against them, in
the manner set forth in the remedy section of the Board’s
decision.
WE WILL offer those unreinstated economic strikers
who we employed through a temporary employment
agency instead of recalling them from the preferential
hiring list immediate and full reinstatement to their for-
mer positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
PIRELLI CABLE CORP. 1545
tion against them, in the manner set forth in the remedy
section of the Board’s decision.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful actions taken against the following employees listed
below and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
these actions will not be used against them in any way:

Mark Anderson Larry Gray
Walter Anderson Dexter R. Harris
Kim Ashley James Oliver Jr.
Melvin Ashley Franklin Page
Andy Bannister Bobby Lee Paul
Samuel Brownlee Robert Prince
James Cannady William Riley Jr.
Stanley Chiles Kevin Sellers
James O. Coleman Rhett Simpson
Robert F. Donaldson Johnny Slay
Ricky Ferguson Timothy D. Sparks
Samuel Fleming Winston D. Sparks
R. Bernard Freeman Lonnie Thompson
Wesley Gibson John Wilson
Eugene V. Gray Howard Gray

PIRELLI CABLE CORPORATION