Teledyne Still-Man

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 982 (N.L.R.B. 1990)

982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Teledyne Industries , Inc., d/b/a Teledyne Still-Man
and Adelle Starnes and Marvin Earl Bates and
Denver Loftis and Anna Key. Cases 10-CA-
22021, 10-CA-22160-20, 10-CA-22284, and
10-CA-22319
June 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 14, 1987, Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The complaint alleges that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by unlaw-
fully refusing to consider the four Charging Par-
ties-Adelle Starnes, Marvin Earl Bates, Denver
Loftis, and Anna Key-for reinstatement after they
abandoned an economic strike against the Respond-
ent and made unconditional offers to return to
work. The Respondent asserts, however, that the
individuals did not make timely offers to return to
work and therefore are not entitled to reinstate-
ment.
The operative facts, which are set forth in fur-
ther detail in the judge's decision, are essentially
undisputed. On February 1, 1984, the Union began
an economic strike against the Respondent. During
the course of the strike, the Respondent notified
the strikers that it intended to hire permanent re-
placements and by September 5, 1984, all strikers
had been permanently replaced. On that date, the
Respondent established a rehire priority list on
which it placed the names of strikers as they of-
fered unconditionally to return to work.' As job
vacancies have become available, the Respondent
has recalled, chronologically, qualified employees
from the list to fill the vacancies.2
On April 4, 1985, a decertification election was
held and the unit employees voted to decertify the
Union. The Board certified the results of the elec-
tion on April 8, 1985. Immediately after the decer-
tification election, the Union told the Respondent
I The lawfulness of the rehire priority list is not to dispute
2 The Respondent has not reached the four Charging Parties' names on
the rehire list At the time of the hearing, there were approximately 138
employees listed above the Charging Parties on the list
that the strike was over. Although strikers, includ-
ing the Charging Parties, had been very active in
picketing at the plant prior to the April 4 election,
there have been no picketing activities since that
date.
On April 7, 1985, the Union called a membership
meeting to distribute to those present copies of a
union prepared letter that the strikers could indi-
vidually send to the Respondent if they desired to
make unconditional offers to return to work.3 Al-
though the Union had a list of the names and ad-
dresses of all its members, it did not mail to its
membership copies of the letter. Neither did the
Union make an offer to the Respondent on behalf
of the striking employees to return to work.
During April 1985, approximately 154 names
were added to the rehire list. After that month, 14
individuals were added to the rehire list. The Re-
spondent added the names of the Charging Parties
to its rehire list on the days that they made their
unconditional offers to return to work. Thus, Bates'
name was added to the list on October 15, 1985,
Starnes' name was added on November 20, 1985,
Loftis' name was added on January 9, 1987, and
Key's name was added on January 24, 1987.4 On
its most recent rehire list, however, the Respondent
has noted next to the names of the Charging Par-
ties (and other individuals who made unconditional
offers to return to work after October 8, 1985), that
the names were added to the list more than 6
months after the strike ended.
Beginning in October 1985, and thereafter at 6-
month intervals, the Respondent sent letters to ev-
eryone on the rehire list, including the Charging
Parties, asking them to notify the Respondent of
their continuing interest in employment with the
Respondent by returning a form indicating their
desire to remain on the rehire list and updating
their addresses and telephone numbers. Although
the Respondent has placed the Charging Parties'
names on the rehire list and requested that they, as
other strikers, update their status on the list, the
Respondent's personnel director testified that the
Respondent does not intend to consider any em-
ployee for reinstatement who made an uncondition-
al offer to return to work more than 6 months after
the strike ended.5
In finding that the Respondent's conduct violat-
ed the Act, the judge initially concluded that the
3 Approximately 125 strikers attended the membership meeting. The
record does not indicate whether any of the Charging Parties attended
the meeting
4 Starnes', Bates', Loftis', and Key's names are listed chronologically
correct on the rehire priority list
5 No evidence was offered indicating that the Respondent informed the
Charging Parties of this decision
298 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 983
approximately 80 individuals who did not make
unconditional offers to return to work immediately
after the decertification election was held remained
on strike against the "Zepondent. Although recog-
nizing that the Union informed the Respondent on
April 4 that the strike was over, and that after that
day no picketing or other outward manifestations
of a strike occurred, the judge reasoned that be-
cause the Union had just lost the decertification
election it was unable to speak in a representative
capacity for the Respondent's employees and there-
fore did not have the authority to end the strike.
The judge further reasoned that because a strike
exists when employees withhold their services in a
manner that interferes with their employer's oper-
ations, and that but for the Respondent's hiring of
strike replacements, the continued withholding of
services by the 80 employees who did not make
unconditional offers to return to work would have
continued to interfere with the Respondent's oper-
ations to the same degree after April 4 as before
that date, the employees not making offers to
return to works remained on strike.6
Apart from his finding that various employees
remained on strike after April 4, the judge found
that no unequivocal evidence was presented show-
ing that the Charging Parties, either personally or
through any representative, ever indicated that
they had abandoned all interest in continuing their
employment with the Respondent. The judge rea-
soned that the mere passage of time between the
Union's claim that the strike was over and the
Charging Parties' offers to return to work did not
constitute unequivocal evidence that the Charging
Parties had abandoned any interest in future em-
ployment with the Respondent such as to relieve
the Respondent of its obligation to consider them
for reinstatement. The judge finally concluded that,
assuming arguendo, that the Charging Parties'
offers to return to work were untimely, the Re-
spondent, by subsequent actions, had waived its
right to assert such claim. 'Thus, the judge reasoned
that the Respondent's conduct in treating the
Charging Parties like all other persons on the
rehire list, i.e., sending them letters to update their
addresses and asking them, to express a continued
interest in remaining on the list, constituted a
waiver of the Respondent's position that the
Charging Parties did not timely add their names to
the list.
The Respondent excepts to the judge's decision,
asserting initially that the strike was over when the
Union, so informed the Respondent, as found by
Administrative Law Judge Roth in a companion
case, Teledyne Still-Man, 295 NLRB 161 (1989).
The Respondent further asserts that by placing the
Charging Parties on the rehire list it did not waive
its right to assert that they made untimely offers to
return to work. The Respondent argues that its ac-
tions were consistent with its practice of placing all
strikers making unconditional offers to return to
work on the rehire list and postponing an actual re-
instatement decision until those strikers reached the
top of the rehire list and a position opened up that
they were qualified to fill-a practice upheld by
Judge Roth in the companion case.
The Respondent finally asserts that economic
strikers' reinstatement rights, as set forth in Laidlaw
Corp.,7 require that strikers timely perfect such
rights in order to be considered for reinstatement.
In making this argument, the Respondent asserts
that because unfair labor practice strikers are re-
quired to exercise their right to reinstatement
within a reasonable time after a strike ceases to be
current, see Crosby Chemicals, 105 NLRB 152, 154
(1953), economic strikers should likewise be re-
quired to perfect their Laidlaw rights within a rea-
sonable period-that reasonable period being the
10(b) 180-day period set forth in Section 10(b) of
the Act. Thus, the Respondent asserts that the fail-
ure to make an unconditional offer to return to
work within 6 months after the conclusion of a
strike automatically evidences an abandoned inter-
est in continuing employment with the Respondent
and therefore justifies the Respondent's refusal to
consider the Charging Parties for reinstatement.
We find merit in the Respondent's exceptions to
the extent that they assert that the strike was over
in April 1985; however, like the judge, we find that
the Charging Parties' failure to make unconditional
offers to return to work within 6 months after the
strike's conclusion does not justify the Respond-
ent's refusal to consider the Charging Parties for
reinstatement.
The Union commenced an economic strike
against the Respondent in February 1984.
Throughout the course of the strike, the Union was
present on the picket line and was actively in-
volved in strike activities." Thus, it is clear that, at
all times, the strike was a union-organized strike.
Consequently, calling off the strike was an internal
union matter, and the Union's failure to obtain a
6 The judge also found that, in light of the large number of stokers
who did not immediately offer to return to work, the Respondent could
not reasonably conclude that all employees considered the strike to have
ended'
7 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970).
8 See Teledyne Still-Man, supra, for further background on the strike
activities. In that case , we affirmed the judge's finding that the stoke
ended in April 1985
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
majority of votes in the decertification election in
no way affected its authority to call off the strike.9
The Union decided to terminate the strike imme-
diately after the decertification election. Consistent
with that decision, the Union called a meeting of
strikers to notify them of how they should proceed
in making unconditional offers to return to work.
No evidence was presented suggesting that the
strikers, despite the Union's decision, wished to
continue the strike. Indeed, the fact that after April
4, 1985, there was no picketing at the Respondent's
facility nor any other outward manifestations of
strike activity indicates that the strikers were in
agreement with the Union's decision.1 ° Thus, con-
trary to the judge, we find that the strike ended
immediately after the decertification election.
Having found that the strike ended in April
1985, the question arises whether, as the Respond-
ent asserts, Laidlaw Corp., supra, requires that eco-
nomic strikers make unconditional offers to return
to work within 6 months of the conclusion of the
strike. For the reasons set forth below, we find that
there is no per se requirement that economic strik-
ers must make unconditional offers to return to
work within 6 months of the conclusion of a strike.
In Laidlaw Corp., the Board, relying on the Su-
preme Court's decision in NLRB v. Fleetwood Trail-
er Co., 389 U.S. 375 (1967), held that "economic
strikers who have made an unconditional applica-
tion for reinstatement, and who have continued to
make known their availability for employment, are
entitled to full reinstatement to fill positions left by
the departure of permanent replacements." 171
NLRB at 1366. Although the Board has not ad-
dressed the question of whether an economic strik-
er's unconditional offer to return to work must be
made within a certain time period after the strike,
in Brooks Research & Mfg., 202 NLRB 634 (1973),
the Board held that there is no time limit on the
reinstatement rights of economic strikers, once un-
conditional offers to return to work have been
made, since the employer's burden in contacting
9 Here, we are not dealing with a collective -bargaining matter between
the Union and the Respondent , where the loss of a decertification elec-
tion may raise a question as to the Union 's status as collective -bargaining
representative. Thus, we find inapposite Presbyterian Hospital, 241 NLRB
996, 998 ( 1979), in which the Board held that a union that does not re-
ceive a majority of votes cast in a decertification election does not lose
its representative status on that day, but rather remains the employees'
collective-bargaining representative until the Board certifies the results of
the election
is Contrary to the judge, we do not find probative of whether the
strike was over that approximately 80 employees did not make uncondi-
tional offers to return to work during April 1985. The record does not
indicate why these individuals declined to make unconditional offers to
return to work As their failure to do so could be a result of any number
of reasons , e g , obtaining a new job, relocating, abandoned interest in
employment with the Respondent , lack of knowledge of the strike's ter-
mination, we decline to presume that their failures to make unconditional
offers to return to work were based on a desire to continue striking
strikers who have continued to make known their
availability for employment "is neither onerous nor
severe." 202 NLRB at 636.11
Applying that same standard here, we note that
the burden on the Respondent of placing the
Charging Parties on the rehire list more than 6
months after the strike concluded is, likewise, nei-
ther onerous nor severe. At the time the Charging
Parties sought to add their names to the list, the
Respondent was already maintaining a rehire list
that contained at least 138 names. Thus, it required
no significant effort on the part of the Respondent
to place the Charging Parties' names on the list.
Because the Respondent was in no way burdened
by the Charging Parties' placing their names on the
reinstatement list more than 6 months after the end
of the strike, we find that the Respondent's failure
to consider the Charging Parties for reinstatement
because they made their unconditional offers to
return to work more than 6 months after the con-
clusion of the strike violated the Act.
We find no merit in the Respondent's argument
that, by refusing to apply a 6-month cutoff that
would bar the Charging Parties' unconditional
offers to return, we are anomalously according
these economic strikers better treatment than we
would accord unfair labor practice strikers. We ac-
knowledge that, as the Respondent points out,
unfair labor practice strikers are required to make
such offers without unreasonable delay., J. H.
Rutter-Rex Mfg. Co., 158 NLRB 1414, 1543 (1966),
modified on other grounds 399 F.2d 356 (5th Cir.
1968), modification vacated 396 U.S. 258 (1969);
Crosby Chemicals, supra. Even if we were to apply
the timeliness standard of the Board's unfair labor
practice striker precedent, however, we would not,
as the Respondent urges, find that offers made
more than 6 months after the termination of the
strike are untimely. Crosby Chemicals and Rutter-
11 The Seventh Circuit, however, has found that an employer does not
violate Sec 8(a)(1) and (3) by terminating a striker's reinstatement rights
when a striker fails to respond to the employer's request that the striker
notify the employer of his/her interest in remaining on the rehire list
when the employer can show a business just ification for such termination
Giddings & Lewis Inc v NLRB, 710 F.2d 1280 (7th Cir 1983) In Gid-
dings, the court reasoned that the employer 's request to strikers , who still
retained reinstatement rights 2 years after the strike, to notify it, once
every 6 months , of their intent to remain on the preferential hiring list
was substantiated by a business justification because the difficulties in lo-
cating the strikers resulted in hiring delays that demonstrably impeded
the employer's "growth and progress " 710 F 2d at 1287
Even if we were to apply the Giddings holdings here, we note that the
Respondent 's situation does not begin to approach the level of substantial
business justification that would support the termination of the striker's
reinstatement rights . Indeed, the Respondent's demonstrated ' ability to
stay in contact, through its notification practices, with all strikers on the
rehire list who still retain reinstatement rights, indicates that there is no
business justification for terminating the rights of those strikers who
placed their names on the list more than 6 months after the strike's con-
clusion.
TELEDYNE STILL-MAN 985
Rex hold, respectively, that offers made by unfair
labor practice strikers as late as 4 years and 2-1/2
years after the strike's end are barred for unreason-
able delay; but Rutter-Rex also holds that any
offers made within 10 months are not thus barred.
Moreover, it suggests in dictum that offers should
not be considered unreasonably delayed so long as
they are made within 1 year. 158 NLRB at 1543.
Thus, even under the standard cited by the Re-
spondent, at least those offers made by employees
Bates and Starnes would be timely.
We do not agree, however, that the standards
for timeliness applicable to unconditional offers to
return made by economic strikers should necessari-
ly be the same as those applicable to offers made
by unfair labor practice strikers; and we see no
anomaly in the different treatment. The reason for
the distinction lies in the difference in the nature of
the rights enjoyed by the two classes of strikers. It'
has long been settled that unfair labor practice
strikers are entitled to immediate reinstatement, dis-
placing, if necessary any employees hired into their
jobs, regardless of whether those employees were
hired as permanent replacements. 12 Economic
strikers who have been permanently replaced,
however, are not entitled to immediate reinstate-
ment; instead, as noted above, their unconditional
offers to return entitle them only to have their
names placed on a rehire list so that they can be
offered jobs if and when vacancies arise. Given the
significantly less disruptive effect generally im-
posed on an employer's work force by an econom-
ic striker's offer to return, it is reasonable to make
the employer's obligation to respond to the offer
turn simply on whether, under all the circum-
stances, the employee can be said to have previous-
ly abandoned his or her interest in the job.13 As
explained below, delay in making an offer to return
may be considered as one factor in such a determi-
nation.
'It is true, of course, that with respect to tempo-
rary replacements, the reinstatement rights of eco-
nomic strikers and unfair labor practice strikers are
identical, because even economic strikers are enti-
tled to reclaim their jobs-not just be placed on a
rehire list-if their jobs are vacant or are occupied
only by temporary replacements when they make
their unconditional offers to return. But an employ-
12 See, e g , NLRB v Efco Mfg, 227 F.2d 675, 676 (1st Cir 1955), cert.
denied 350 US 1007 (1956), NLRB Y. Remington Rand, Inc, 130 F.2d
919, 927 (2d Cir 1942).
" Requiring an unfair labor practice striker to make an offer to return
within a reasonable time removes undue uncertainty that an employer
may have concerning the striker's return and that a permanent replace-
ment may have concerning his continued employment No such uncer-
tainty faces an employer and its permanent replacements in the economic
strike situation, however, because the replacements cannot be ousted
from their jobs by the strikers' return.
er is free to convert temporary replacements into
permanent employees so long as they are holding
jobs to which no striker has made an unconditional
offer to return,14 and it is unlikely that, after a sig-
nificant passage of time, employees holding former
strikers' jobs would be temporary employees. Any
who were, of course, would have no expectation of
continuing employment, so displacement in favor
of a striker would not disturb settled expectations.
In any event, we need not decide in this case how
we would treat the unlikely situation in which an
economic striker delays more than a year in
making his unconditional offer to return and, at the
time of his offer, his job is occupied by a tempo-
rary replacement. This case concerns only employ-
ees seeking to remain on a rehire list so as to be
eligible for consideration if a vacancy occurs. 1 s
Finally, as indicated above, an employer need
not reinstate any striker who has abandoned his in-
terest in continued employment with the respond-
ent; and the respondent will be free to deny a
former striker reinstatement to a position that be-
comes vacant if there is evidence that such an
abandonment has occurred. We are unwilling,
however, to find that the mere failure to offer to
return to work within 6 months of the strike's end
demonstrates that a striker has abandoned interest
in future employment with the Respondent. The
reasons for that failure could be many, for example:
a striker may temporarily have left the area and
only recently returned; a striker may have been un-
aware, at first, of the necessity to unconditionally
offer to return to work to be eligible for reinstate-
ment; a striker may, for a time, have mistakenly be-
lieved that the union's terminating the strike auto-
matically served as an unconditional offer on behalf
of all strikers to return or that the union had made
such an offer; a striker may not have learned of the
strike's conclusion; or a striker may have been ill
or temporarily incapacitated when the strike ended
and for a period thereafter. Thus, although pro-
longed delay in making an unconditional offer, to
return is a factor to be considered in determining
whether a striker is no longer interested in working
for the formerly struck employer, it will ' rarely if
ever be determinative; and the delay at issue in 'this
case-from 6 months in one case to 21 months in
two others-cannot, ' by itself, be found to manifest
"See, e g, Associated Grocers, 253 NLRB 31, 32 (1980), affd mom
sub nom Transport Drivers Local 104 v . NLRB, 672 F 2d 897 (D C 'Cir.
1981), cert denied 459 U.S 825 (1982)
15 Thus, we do not decide how we would have treated the cases of
former strikers Loftis and Key , who waited for 21 months after the strike
ended, if temporary replacements were in their positions when they of-
fered to return and their demand was for immediate reinstatement , rather
than for placement and retention on the preferential rehire list
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
abandonment of interest in the job for purposes of
denying these employees places on the rehire list.
Therefore , we find that the Respondent, by re-
fusing to consider the Charging Parties for rein-
statement because of their failure to make uncondi-
tional offers to return to work within 6 months of
the conclusion of the strike , violated Section 8(a)(1)
and (3) of the Act.16 Thus, we shall order the Re-
spondent to cease and desist from refusing to con-
sider the Charging Parties for reinstatement based
on their unconditional offers to return to work
being made more than 6 months after the conclu-
sion of the strike.
ORDER
The National Labor Relations Board orders that
the Respondent , Teledyne Industries , Inc., d/b/a
Teledyne Still-Man , Cookeville , Tennessee , its offi-
cers, agents , successors , and assigns, shall
1. Cease and desist from
(a) Refusing to consider Marvin Earl Bates,
Adelle Starnes, Denver Loftis , and Anna Key for
reinstatement because of their failure to make un-
conditional offers to return to work within 6
months from April 4, 1985, the day the strike
ended.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Consider Marvin Earl Bates, Adelle Starnes,
Denver Loftis , and Anna Key for reinstatement.
(b) Remove from its rehire priority list any lan-
guage that creates an impediment to its considering
such employees for reinstatement.
(c) Post at its facility in Cookeville, Tennessee,
copies of the attached notice marked "Appen-
dix."17 Copies of the notice , on forms provided by
the Regional Director for Region 10, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
16 Having found that the Respondent 's conduct violated the Act, we
find it unnecessary to pass on the judge's alternative finding that even if
the Respondent 's conduct were lawful , the Respondent, by placing the
Charging Parties' names on the rehire list, waived its right to assert that
their alleged untimely offers of reinstatement justified the Respondent's
refusal to consider them for reinstatement We note, however, that in Te-
ledyne Still-Man, 295 NLRB 161 ( 1989), Administrative Law Judge Roth
found , and the Board affirmed , that the Respondent's practice of placing
all strikers making unconditional offers to return to work on the rehire
list, and postponing a final reinstatement decision until the individuals
reached the top of the rehire list and a position opened up for which they
were qualified to fill, was lawful
17 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
ly upon receipt 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 altered , defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to consider Marvin Earl
Bates, Adelle Starnes, Denver Loftis , and Anna
Key for reinstatement because of their failure to
make unconditional offers to return to work within
6 months from April 4, 1985 , the day the strike
ended.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL consider Marvin Earl Bates, Adelle
Starnes, Denver Loftis, and Anna Key for rein-
statement , and WE WILL remove from our rehire
priority list any language that creates an impedi-
ment to our considering them for reinstatement.
TELEDYNE INDUSTRIES , INC., D/B/A
TELEDYNE STILL-MAN
Milton Jones, Esq., for the General Counsel.
Larry W. Bridgesmith, Esq. (Constangy, Brooks & Smith),
of Nashville , Tennessee, and Allen L. Rolnick, Esq., of
Atlanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I
heard this case in Cookeville , Tennessee, on 14 May
1987.1 On 15 April , the Regional Director for Region 10
of the National Labor Relations Board (Board) issued an
order consolidating cases, second amended complaint
and notice of hearing-based on unfair labor practice
charges filed on 22 September 1986 by Adelle Starnes
(Starnes), an individual, in Case 10-CA-22021, on 4 De-
cember 1986 by Marvin Earl Bates (Bates), an individual,
1 Unless stated otherwise , all dates occurred in 1987
TELEDYNE STILL-MAN 987
in Case 10-CA-22160-20, on 2 February by Denver
Loftis (Loftin), an individual, in Case 10-CA-22284, and
on 17 February by Anna Key (Key), an individual, in
Case 10-CA-22319-alleging violations of Section
8(a)(3) and (1) of the National Labor Relations Act (the
Act).
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses , and to file briefs. Based on the entire
record,2 on the posttrial brief filed on behalf of the Com-
pany,3 and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT4
I. JURISDICTION
Teledyne Industries, Inc., d/b/a Teledyne Still-Mans
(Company) is a State of California corporation with an
office and place of business in Cookeville, Tennessee,
where it is engaged in the manufacture and sale of heat-
ing elements. During the 12-month period prior to issu-
ance of the consolidated amended complaint, a represent-
ative period, the Company, in the course and conduct of
its business operations, sold and shipped from its Cooke-
ville, Tennessee facility finished products valued in
excess of $50,000 directly to customers located outside
the State of Tennessee. I conclude, as admitted in the
answer, that at all times material, the Company has been
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International is and the Local (jointly the Union)
was at times material, each a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal allegation is that the Company unlawful-
ly refuses to consider for reinstatement its employees
Bates, Starnes, Loftis, and Key after they, individually
and on specific dates, abandoned an economic strike
against the Company and made unconditional offers to
return to work.
It is undisputed that the Company has since 5 Septem-
ber 1984 maintained a rehire priority list and that at all
2 The record is replete with obvious errors-words are misspelled,
names are incorrectly listed (for example two different middle mitials are
reflected for me neither of which is correct) and typographical errors
abound This is not the first time this particular reporting service has pro-
vided less than satisfactory service-see, e g., General Clothing Corp, 285
NLRII 596 fn 2 (1987)
It is recommended the Board consider not using this particular report-
ing service in the future.
3 Counsel for the General Counsel did not avail himself of the opportu-
nity to file a brief
4 I have considered all record evidence, whether alluded to in this De-
cision or not I have also carefully considered Administrative Law Judge
Marvin Roth's decision in Teledyne Still--Man, 295 NLRB 161 (1987)
Judges Roth 's decision provides an excellent background for the instant
case.
5 The name of the Company appears as corrected at the trial
times since Bates, Starnes, Loftis, and Key made uncon-
ditional offers to return to work their names have been
reflected on the list. The issue of the Company's refusal
to consider the four in question for reinstatement turns
on its contention they did not make timely offers to
return to work. In keeping with its contention the Com-
pany placed notations on the rehire priority list by the
names of the four employees in question indicating they
had not made what it considered to be timely offers to
return to work. In deciding the principal issue herein, it
will be necessary to address other intertwined issues such
as: (1) What constitutes abandonment of a strike, and an
abandonment of future employment; (2) Whether there
are time limitations for making unconditional offers to
return to work; and, (3) Whether the Company waived
any right it might have had to contend the four employ-
ees in question did not make timely offers to return to
work.
For the reasons hereinafter discussed, I find, as alleged
in the complaint, that the Company has, in violation of
Section 8(a)(3) and (1) of the Act, unlawfully refused to
consider the four employees in question for reinstatement
at the Company.
B. The Evidence
The operative facts were either stipulated to, admitted,
or are undisputed.'
The Board in 1975 certified the Union as the collec-
tive-bargaining representative for employees at the Com-
pany in a unit appropriate for bargaining. Thereafter, the
Company and Union entered into successive collective-
bargaining agreements, the most recent of which expired
on 31 January 1984. Prior to January 1984, the Company
and Union reached tentative agreement on a renewal
contract however, the Union's membership refused to
ratify that agreement . On 1 February 1984 the Union
began an economic strike against the Company at its
Cookeville, Tennessee facility. All bargaining unit em-
ployees (including Starnes, Bates, Loftis, Key, and ap-
proximately 346 other employees), engaged in economic
strike activities which included picketing at the plant. On
23 February 1984 the Company notified all bargaining
unit employees including Starnes , Bates, Loftis, and Key
that it intended to begin hiring permanent replacements
for the striking employees' if the strike was riot resolved
by 27 February 1984. The first strike replacements began
work on 28 February 1984 and the Company continued
to hire replacements until all of the economic strikers
had been replaced by 5 September 1984. On that date the
Company established a rehire priority list the lawfulness
of which is not questioned in this proceeding. As em-
ployees offered unconditionally to return to work their
6 For the greater part the facts have been taken from the stipulations of
fact entered into by the parties Additionally, I have, as noted earlier,
taken official notice of Judge Roth's decision in Teledyne Still-Man, supra,
involving the Company and Union I have gleamed some uncontested
background facts from that decision. Other facts have been taken from
the testimony of Company Personnel Director Cecil B Cummings (Cum-
mings) and former Local Union Financial Secretary and current employ-
ee Imogene Birdwell (Birdwell) The testimony given by Cummings and
Birdwell was plausible, reasonable, uncontradicted , and therefore, accept-
ed
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
names were placed on the list in the order in which they
offered to return. The Company has recalled some em-
ployees from the list in the order in which their names
appeared as openings arose for which they were quali-
fied to perform.7 Pursuant to proceedings conducted in
representation Case 10-RD-913 a decertification election
was held on 4 April 1985, at which time, the unit em-
ployees voted to decertify the Union." On that same date
the Union told the Company the strike was over. No em-
ployees (including Starnes, Bates, Loftis, or Key), have
engaged in any picketing activities since 4 April 1985,
however, prior to that time, the above-named employees
and others had been very active in picketing at the plant.
Following the decertification election the Union on 7
April 1985 called a membership meeting. Approximately
125 employees attended the meeting.9 At the meeting
union officials distributed to those present copies of a
union prepared letter that the employees could individ-
ually send to the Company if they desired to make un-
conditional offers to return to work. The letters, which
were addressed to the plant manager , stated:
My name is Classification,
and Clock No.
I hereby offer to return to work immediately to any
job for which I am qualified. If no job is immediate-
ly available, please treat this as a continuing request
to return to work.
Sincerely,
SIGNED:-
ADDRESS:
Although the Union had a list of the names and address-
es of all its members it did not mail copies of the above
letter to its membership. Neither did the Union make an
offer to the Company on behalf of the striking employees
to return to work.
As of 4 April 1985 there were approximately 45 names
on the rehire priority list. From 5 April 1985 and until
the end of that month approximately 154 names were
added to the list.'O No employees were added to the list
in June 1985 and only three were added in July. Thereaf-
ter, two additional names were added during the remain-
der of 1985. Seven names were added to the list in 1986
and two were added in 1987.11 As of the trial herein,
there were approximately 147 names (some 4 employees
on the list refused recall) on the rehire priority list.12
At 6-month intervals, beginning in October 1985, the
Company has sent, and continues to send, letters to all
employees on the rehire priority list in which it requests
they notify it of their continuing interest in remaining on
the list. The letters the Company sends out are as fol-
lows:
Date
To:
Following the strike at Teledyne Still-Man that
ended in April, 1985, your name was placed on a
preferential rehire list as a result of an unconditional
offer to return to work submitted on your behalf.
It is necessary to insure that we are maintaining
up-to-date information for your name, address and
telephone number, and of your continuing interest
in remaining on the preferential rehire list. Also, to
facilitate your return, and assist us in the timing of
our manning requirements, it is necessary for us to
know if you are currently employed. We realize
that you may want to give proper notice to your
current employer prior to returning to work at Te-
ledyne Still-Man, and that this may legitimately
delay your return to work. In order to protect your
rehire rights, it is very important that information
related to the rehire list be updated periodically,
and kept current.
Please make any necessary changes on the form
below, then detach and return it, so that we can
update your address and telephone number and, so
that we can be certain of your continuing interest in
reinstatement. Your response to this letter will not
affect your rehire rights unless you choose to indi-
cate you no longer desire reinstatement. If you are
no longer interested in reinstatement, you may so
indicate. However, that choice is yours alone.
Sincerely,
Cecil B. Cummings
Personnel Director
() Yes I am interested in remaining on the prefer-
ential rehire list. Any corrections to my current ad-
dress and telephone number have been made below.
7 The Company has not, and it is unlikely it will in the foreseeable
future, reach Starnes', Bates', Loftis ', and Key's names on the list because
there are approximately 138 employees with higher rights to return to
future job vacancies by virtue of their prior submissions of unconditional
offers to return to work Starnes', Bates' , Loftis' , and Key 's, names are
listed chronologically correct on the rehire priority list
s The Board on 8 April 1985 certified the results of the election
s No conclusive evidence was presented that Starnes , Bates, Loftis, or
Key attended the meeting. In fact the evidence tends to suggest they did
not attend
is 20 names were added on 8 April, 75 on 9 April, 10 on 10 April, and
23 on 11 April 1985. Twenty-six names were added on dates between 12
and 29 April
" All names added to the list at a time 6 months or more after the
decertification election have a notation by them that reflects the number
of months after the decertification election that the names were added to
the rehire priority list
I am currently employed at
( ) I am no longer interested in reinstatement by
Teledyne Still-Man. Please remove my name from
the preferential rehire list.
Signature
Date
Bates, Starnes, Loftis, and Key individually made un-
conditional offers to return to work on 15 October 1985,
12 As of the trial, approximately 85 employees had never uncondition-
ally offered to return to work
TELEDYNE STILL-MAN 989
20 November 1985, 9 January, and 24 January, respec-
tively. Following the submission of their respective
offers to return to work Bates, Starnes, Loftis, and Key
each received from and returned to the Company notifi-
cations (like the sample set forth above) indicating their
continued interest in remaining on the rehire priority list.
On its most recent rehire priority list the Company has
made notations after Bates', Starnes', Loftis', and Key's
names which read: "6 Mo. beyond decert," "7 Mo.
beyond decert," "21 Mo. beyond decert," and "21 Mo.
beyond decert," respectively. The Company acknowl-
edges it does not intend to consider any employee for re-
instatement that made an unconditional offer to return to
work 6 months or more after the decertification election
was held.'3
C. Analysis
First I note there are certain points about which there
are no disputes. The principles governing reinstatement
rights of economic strikers are well settled NLRB V.
Fleetwood Trailer Co., 389 U.S. 375 (1967), and Laid law
Corp., 171 NLRB 1366 (1968). After an economic strike
occurs an employer may legally hire permanent replace-
ments for the striking employees. When an economic
strike is ended those participating in the strike are gener-
ally entitled to reinstatement if they make unconditional
offers to return to work and if their jobs have not been
filled by permanent replacements. If the jobs of the eco-
nomic strikers have been filled by permanent replace-
ments the strikers remain employees and are entitled to
full reinstatement when their previous or substantially
equivalent positions become available absent legitimate
and substantial business justification.
In the case sub judice, the Company contends, and
correctly so, that the Union informed it on the day of,
and immediately after the Board conducted decertifica-
tion election, that the strike was "over." The Union also
told the Company it would be preparing forms that
would be distributed to the striking employees so the em-
ployees could prepare and forward the forms to the
Company if they desired to return to work and/or be
placed on the rehire priority list. The Company thus
contends that in the face an abandonment of the strike
and other actions taken by the Union it was justified in
believing that those employees who were interested in
reinstatement Would, within a reasonable time, submit
the Union prepared return to work forms to the Compa-
ny and that those who failed to do so would be indicat-
ing a lack of interest in returning to work. The Company
asserts that 6 months from the decertification election
and from the Union saying the strike was over, was a
reasonable time for the strikers to express an interest in
returning to work. Thus, the Company argues that since
Bates, Starnes, Loftis, Key, and others did not submit un-
conditional offers to return to work within that 6-month
period, it was and is legally justified in not considering
13 Personnel Director Cummings made that decision for the Company
after he had consulted with Company counsel and after the Company
them for reinstatement notwithstanding the fact- they
made subsequent offers to return to work.
There are a number of fatal flaws in the Company's
contentions. First at the time the Union informed the
Company that the strike was over it was no longer the
exclusive bargaining representative of the employees in
question.14 Thus, it could not have spoken in a repre-
sentative capacity about the strike or strikers. In that
regard, the Union did not offer the strikers back to work
as a group. Even if the Union had the authority to say
the strike was over it did not say that by abandoning the
strike the strikers were abandoning future employment
with the Company. Nor did the Union tell the Company
it would inform the strikers that they needed to make un-
conditional offers to return to work by a certain time or
forfeit their reinstatement rights. It is undisputed that
after the decertification election was held and after the
Union claimed the strike was over no picketing or out-
ward manifestations of a strike ever occurred. However,
neither the presence of picketing or other publicity is the
measure of whether a strike exists. A strike exists when
employees withhold their services in a manner that inter-
feres with their employer's production with the object of
pressuring the employer into granting work related con-
cessions or of protesting their employer's employment
policies. See Anheuser-Busch, Inc., 239 NLRB 207 (1978),
and Service Electric Co., 281 NLRB 633, 636 (1986). Al-
though a large number of employees made unconditional
offers to return to work within a'short period of time
after the Union was decertified some 80 plus employees
did not, and as of the time of the trial, still have not
made unconditional offers to do so. But for the hiring of
strike replacements the continued withholding of their
services by the 80 plus employees would have continued
to interfere with the Company's production to the same
degree after the Union (on 4 April 1985) said the strike
was over that existed prior to that time. In light of the
large number of strikers who did not immediately offer
to return to work after the Union said the strike was
over the Company could not reasonably have concluded
that all employees considered the strike to have ended or
that they had to act within 6 months of that date in
order to perfect their Laidlaw rights. In the circum-
stances of this case, I am persuaded that the employees
who continued to withhold their services, after the
Union said the strike was over, legally ' remained on
strike against the Company.
Apart from any conclusion that Bates, Starnes, Loftis,
Key, and others remained on strike until they uncondi-
tionally offered to return to work, it is clear that no un-
equivocal evidence was presented that they, either per-
sonally or through any representative, ever indicated
they had abandoned all interest in continuing their em-
ployment with the Company. To establish an abandon-
ment sufficient to relieve a struck employer of its rein-
statement obligations there must be "unequivocal evi-
dence" of an intent on the part of the striking employees
to permanently sever their employment relationship with
had sent letters to Bates and Starnes, asking them to indicate whether 14 I am aware that the Board did not actually certify the results of the
they wished to remain on the rehire priority list 4 April 1985 decertification election'until 5 days later
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employer . S & M Mfg. Co., 165 NLRB 663
(1967), and Service Electric Co., supra at 637. In the
circumstances of the instant case I am persuaded
that the mere passage of time between the Union's
claim that the strike was over and Bates ', Starnes',
Loftis', Key's, and others offers to return to work
does not constitute "unequivocal evidence" that
they abandoned all future employment with the
Company such as to relieve the Company of its ob-
ligation to consider them for reinstatement . In find-
ing the Company was not and is not releived of its
obligation to consider the above named employees
and others for reinstatement I am not concluding,
as the Company suggests I would be, that replaced
economic strikers have an unlimited time in which
to apply for reinstatement in order to obtain prefer-
ential hiring treatment . The issue of "a lapse of
time" as constituting unequivocal evidence of an
abandonment of interest in future employment with
an employer must be examined on a case by case
basis . In the instant case the Company was already
maintaining a rehire priority list at the time Bates,
Starnes,, Loftis, and Key made unconditional offers
to return to work and it imposed no undue burden
on it to simply add their names to the preexisting
list. Thus viewed the lapse of time between any
overt strike activities and Bates ', Starnes', Loftis',
and Key's offers to return to work becomes incon-
sequential.
Assuming arguendo that Bates', Starnes', Loftis', and
Key's offers to return to work were untimely the Com-
pany has, by subsequent actions, waived its right to
assert any such claims . The Company has at 6-month in-
tervals sent and continues to send letters to all employees
that are on the list (including Bates, Starnes, Loftis, and
Key) advising them that they are , in fact , on the rehire
priority list and informs them that in order to protect
their rehire rights they need to express a continued inter-
est in remaining on the list and they are asked to provide
their current addresses and other related information to
the Company . These letters clearly inform the employees
(including Bates, Starnes , Loftis, and Key) they are on
the list and no mention is made of any impediment to
their being considered for reinstatement . Simply stated
the Company has waived its right to any untimeliness de-
fense . 15 In summary, and for all the above reasons, I
15 The Company's argument that it has "reserved the right" to deny
reinstatement to employees on the rehire priority list until such time as
they come up for consideration for an available vacancy is without merit.
find, as alleged in the complaint, that the Company has,
in violation of Section 8(a)(3) and (1) of the Act, unlaw-
fully refused to consider its employees Bates, Starnes,
Loftis, and Key for reinstatement at the Company.
CONCLUSIONS OF LAW
1. Teledyne Industries, Inc. d/b/a Teledyne Still-Man
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The International Association of Machinists and
Aerospace Workers, AFL-CIO is and Local Lodge 2553
was, at all times material, each a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing to consider its employees Marvin Earl
Bates, on and after 15 October 1985; Adelle Starnes, on
and after 20 November 1985; Denver Loftis, on and after
9 January 1987; and, Anna Key, on and after 24 January
1987, for reinstatement because of their membership in,
and activities on behalf of the Union and because they
engaged in a strike the Company has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The unfair labor practice set forth in paragraph 3
above, affects commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Company having failed to consider its employees
Bates, Starnes, Loftis, and Key for reinstatement, I shall
order that it do so and that it expunge from its rehire pri-
ority list any language that creates an impediment to its
doing so. It is also ordered that the Company post a
notice to employees, attached as "Appendix," for a
period of 60 consecutive days in order that employees
may be apprised of their rights under the Act, and the
Company's obligation to remedy its unfair labor prac-
tices.l6
[Recommended Order omitted from publication.]
The Company has already announced it will not consider Bates, Starnes,
Loftis, and Key for reinstatement when their names advance to the top of
the rehire priority list.
16 In the complaint the General Counsel sought to have a "visitatorial
provision" as a part of any remedy provided. No specific circumstances
warranting the inclusion of such a provision on the facts of this case were
cited by counsel for the General Counsel in either his opening statement
or closing argument and he did not file a posttrial brief. Accordingly, and
because the Board does not include such provisions in the absence of spe-
cific justification, I shall not recommend the inclusion of such a provision
here. See Commercial Contracting Co., 283 NLRB 784, 787 (1987).