Western Steel Casting Co.

National Labor Relations Board - Board Decisions

Dec 1, 1977

233 N.L.R.B. 870 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Steel Casting Company and Craig Angus.
Case 19-CA-9316
December I, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 12, 1977, Administrative Law Judge James
M. Kennedy issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge,
only to the extent consistent herewith.
The issue herein is whether Respondent unlawfully
failed to reinstate economic strikers Craig Angus and
Edward Collins to substantially equivalent jobs. The
General Counsel contends and the Administrative
Law Judge concluded that Angus and Collins should
have been offered "helpers" jobs in preference to
newly hired employees. Respondent contends that
the collective-bargaining agreement provides for and
the parties agreed to recall of strikers pursuant to job
classification seniority and therefore Angus, a "chip-
per," and Collins, "a foundry burner" were not
eligible for the "helpers" jobs. Respondent also
contends that the "helpers" jobs were not substan-
tially equivalent to their former jobs.
Respondent's foundry employees have been repre-
sented by International Molders and Allied Workers
Union, Local 158, AFL-CIO, since 1936. In Febru-
ary of 1976, Washington Metal Trades Association,
the bargaining agent for Respondent and other
Washington state foundries, along with similar
California and Oregon associations, entered into
negotiations with Local 158 and sister locals for a
new collective-bargaining agreement to replace the
agreement due to expire in March 1976. No
agreement was reached at that point and on March
29, 1976, 5,000 workers in three States struck
approximately 60 companies.
Agreement was finally reached in May 1976 and
the strike officially ended on May 26, 1976.
No replacements were hired by Respondent for
any of the strikers. Prior to the strike Respondent
operated with both a day shift and a night shift. Both
As the record adequately presents the positions of the parties, the
Employer's request for oral argument is hereby denied.
233 NLRB No. 128
Collins and Angus were night shift employees. When
the strike ended, Respondent decided to operate with
only one shift instead of two due to decreased
production needs. Respondent recalled employees
using job classification seniority regardless of which
shift they had worked on previously. As Angus and
Collins had lesser seniority in their job classifications
than other employees they were not recalled to their
old jobs. At that time neither Collins nor Angus had
found other work.
The record is clear that the helpers jobs were the
least desirable and lowest paying in the plant. Collins
testified that helper work was that of a slave boy.
Robert Alexander, Respondent's vice president and
manager, described it as a fetch-and-carry job.
The testimony is conflicting as to whether the
method of recalling strikers was discussed or specifi-
cally agreed upon during contract negotiations. But
the record is clear and the Administrative Law Judge
concedes that both Respondent and the Union
regarded the job classification seniority clause as
describing the proper manner in which strikers
should be recalled. In fact, at least one grievance was
disposed of by the parties on the basis of this
understanding between the parties, and all other
strikers were recalled by this method.
We disagree with the Administrative Law Judge's
conclusion that the parties' understanding is insuffi-
cient to waive any statutory rights of strikers. In our
view, he has too narrowly interpreted the require-
ments of the Board's Decision in United Aircraft
Corporation (Pratt and Whitney Division)2 which
holds that a strike recall agreement is valid if it was
not intended to be discriminatory and was not used
by either party to accomplish a discriminatory
objective, was not insisted upon by the employer to
undermine the status of the union, and was the result
of good-faith bargaining. Clearly, the classification
seniority clause herein is the product of give and take
at the bargaining table and it expressly provides that
it will apply in all cases of increasing or decreasing
forces. The record reveals no evidence of any actual
discrimination or any discriminatory intent. It is
undisputed that both management and Union clearly
understood and agreed that the seniority provisions
of the collective-bargaining agreement would govern
the recall of strikers. In these circumstances we find
that the parties' understanding constituted a valid
and enforceable recall agreement and a clear and
unmistakable waiver of the strikers' rights to any jobs
except those to which they would be eligible on the
basis of job classification seniority.
We also reject the Administrative Law Judge's
conclusions that the helpers jobs were substantially
2 192 NLRB 382 (1971).
870
WESTERN STEEL CASTING COMPANY
equivalent. We find that the helpers jobs were not
substantially equivalent to Angus' and Collins'
former classifications. The record is clear that the
helpers jobs were the least desirable jobs in the
foundry. The pay rate for Angus' classification is 18
percent greater than the helpers rate and the rate for
Collins' classification is 14 percent greater than the
helpers rate.3
Accordingly, on the basis of all the foregoing, we
find that Respondent has not engaged in any
unlawful conduct and we shall order that the
complaint be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
3 The Employer excepts to the Administrative Law Judge's conclusion
that an employer must offer an economic stnker any employment for which
he is qualified. In light of our decision herein on other grounds, we find it
unnecessary to pass on that question.
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a State of Washington corporation with
an office and plant located at Seattle, Washington, where it
is engaged in the business of manufacturing metal castings
and related products. It admits, and I find, that during the
past 12 months it has sold finished products valued in
excess of $50,000 to purchasers located outside the State of
Washington and during the same period purchased goods
and materials valued in excess of $50,000 which were
transported to its Seattle plant directly from States other
than Washington. Accordingly, it admits, and I find, that it
is and has been at all material times, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International
Molders and Allied Workers Union, Local 158, AFL-CIO
(herein called the Union) is, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
A. Background Evidence
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me at Seattle, Washington, on May
5, 1977, pursuant to a complaint issued by the Regional
Director for the National Labor Relations Board for
Region 19 on April 19, 1977, and which is based on a
charge filed by Craig Angus, an individual, on March 15,
1977. The complaint alleges that Western Steel Casting
Company (herein called Respondent) has engaged in
certain violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended.
Issues
Whether a clause in a collective-bargaining contract
providing for the rehire of employees pursuant to job
classification seniority justifies an employer's bypassing
former strikers, who have not been reinstated to their
former jobs because no openings exist in those jobs, in
favor of new hires when other jobs, for which the strikers
are qualified, become available. If not, whether substantial
and legitimate business considerations justifying bypassing
those employees in favor of the new hires were present.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
both the General Counsel and Respondent.
Upon the entire record of the case,' I make the
following:
I Respondent's unopposed motion to correct the transcript is hereby
granted.
Respondent is, and has been for many years, a member
of a multiemployer collective-bargaining association
known as Washington Metal Trades, Inc., headquartered
in Seattle. This association represents Respondent, as well
as approximately I I other employers in the same industry
in bargaining collectively with the Union. On March 29,
1976,2 to obtain a new contract, the Union commenced an
economic strike against Respondent and the other mem-
bers of the association. The strike was part of a larger strike
in the Pacific Northwest, including employers in northern
California and Oregon. The California and Oregon
employers are members of two different associations which
deal with the Union's sister locals located in those States.
The strike, insofar as it related to the State of Washington,
lasted almost 2 months, ending on approximately May 26,
when an agreement in principle was reached, although not
fully reduced to writing until a later date. The duration of
the new contract is March 14, 1976, to March 14, 1979.
For at least 15 years, and perhaps much longer, the
collective-bargaining agreements between the Union and
Washington Metal Trades have contained identical clauses
providing for job classification seniority insofar as increas-
ing or decreasing work forces are concerned. In the current
agreement, article XXI, section 2, sets forth this principle
as follows:
In cases of increasing or decreasing forces, the
company will practice and apply the principle of
seniority by departments or by classifications of work
(as designated by each company and with notice of
such designation to the Union) in every reasonable way
2 Hereinafter all dates are in 1976 unless otherwise noted.
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with due regard to each employee's ability to do the
work and his performance.
As can be seen, the language gives the employer the option
of choosing either departmental or job classification
seniority. The parties stipulated that Respondent chose job
classification seniority. Although the date of the exercise of
that option is not shown in the record, I presume that it
occurred many years ago, for there appears to be no
dispute about its historical application to Respondent's
plant.
B. The Recall of Employees After the Strike Ended
Prior to the beginning of the strike Respondent had two
shifts, a day and a night shift. At that time employees
Edward Collins and Craig Angus worked on the night shift.
Collins was classified as a "chipper" and Angus was
classified as a "foundry burner." Both employees had
worked for Respondent for several years, starting at the
bottom and working up. Each had worked for a period as a
"helper" and the parties stipulated that both men are
qualified to perform the work of "helper."
When the strike ended, due to production needs,
Respondent decided to operate with only one shift. 3
Accordingly, when it called back its employees, using job
classification seniority, employees with lesser seniority, no
matter which shift they had been on previously, were not
recalled if Respondent had no need of them. As Collins
and Angus had lesser seniority in their job classifications
than other employees, they were not recalled to their old
jobs.
When the strike ended, they, together with other
employees, learned of their situation by going to the plant
and speaking with their immediate superior, Cleaning
Room Supervisor Alec Kritsonis. When they entered the
plant on May 29, they noticed a sign on the door saying, in
effect, that employees would be recalled when production
warranted. Both spoke to Kritsonis, asking if there was
work for them. Kritsonis replied that Respondent had no
work for them, and suggested they apply for unemploy-
ment compensation insurance. Both Collins and Angus,
though not together, then went to Respondent's office
where they spoke to Norman Jones, the office clerical and
bookkeeper. Each made certain that Jones had his correct
mailing address and telephone number. Collins testified
that Jones told him to check in at least once a month.4
Collins testified that he and Angus went to Respondent's
plant approximately three times per month after that, each
time speaking to Kritsonis and/or Jones, asking if work
was available. 5 Collins, Angus, and Kritsonis all agree that
at no time did either Collins or Angus limit their inquiries
to specific jobs or to specific shifts. In each case they asked
if Respondent had "any work" for them. Kritsonis
responded each time that no work was yet available.
Robert Alexander, Respondent's vice president and
manager, made all the decisions relating to the recall of
strikers. It was Alexander who decided to recall strikers
3 Respondent had hired no replacements during the strike.
4 Jones' advice was no doubt based on art. XXI. sec. 3(a), of the contract
requiring laid-off employees to check in every 30 days or forfeit their
seniority.
according to job classification seniority, and it was he who
directed Kritsonis to contact each striker regarding his
recall. Although no separate recall agreement had been
reached with, or even suggested by, the Union, it is clear
that both Respondent and the Union regarded the job
classification seniority clause as describing the proper
manner in which strikers should be recalled. As a result of
conversations with Kritsonis, Alexander was aware that
Collins and Angus were seeking work.
On October 18 and November 3 Respondent hired
Petros Fintrilakas and Hershel Russell, respectively, as
"helpers." Neither had been employed by Respondent
prior to the strike. Alexander testified he did not call either
Collins or Angus for these jobs because "it never occurred
to me to do so." He explained that "he didn't have to"
under the seniority clause of the contract. In addition, he
said, it would have been "a demotion" and he could not
demote employees under the contract except for "just
cause." In support of this position he cited his belief that
Respondent would have been required to give Collins and
Angus their old seniority and he was afraid they would
insist on their former rates of pay, which would create wage
inequities with the other helpers. However, the last reason
can only be characterized as speculation on Alexander's
part as he never spoke with Collins or Angus to find out
what they wanted.
Assuming the truthfulness of Alexander's assertion that
offering the helper jobs to Collins and Angus "never
occurred to [him]," because the absence of contract terms
requiring him to do so, his testimony regarding the contract
as a justification for ignoring Collins and Angus is,
nonetheless, curious, as exemplified by the following
exchange:
Q. (By JUDGE KENNEDY): Well, it seems to me -
and I'm not the employer - but it seems to me that
you had Mr. Angus and I think Mr. Collins as well,
both working as helpers in the past. They were
experienced and knew the job even though they had
demonstrated higher expertise and had gone on to
bigger and better things; but, why would it be a
demotion for you to go to somebody like that and say,
"Will you come back to work as a helper under a
helper's classification, and because of the contract we
have to pay you helper's wages?" What's the problem
with that?
A. Well, sir, I can't do that.
Q. You can't do that?
A. No sir. Washington Metal Trades has my
bargaining rights with regard to -
Q. Yeah, but we're just talking about going to a
former employee or an employee who has been on
strike and hasn't been called back. Can't you say to him
when you know he's asking for work - he'd been
talking to Mr. Kritsonis, or they both had. They're both
looking for work. What's wrong with saying, "Well, the
only thing we have is a helper's job. Are you interested
in that?" Would that be a demotion?
5 Kritsonis testified that Angus came to the shop "a number" of times,
but doubted if he had had three conversations with him. Kritsonis was not
asked about Collins.
872
WESTERN STEEL CASTING COMPANY
A. Well, the issue of pay for that job would
immediately arise.
Q. Well, I suppose so, but I don't suppose you'd
pay a person for doing helper's work anything but
helper's pay, would you?
A. But, I can't do that under the contract, sir. I
can't make that contractual relationship with the men.
Q. I'm not sure I follow you. You're saying to me
that if a guy goes out on strike in one classification, you
can't bring him back because you have no opening in
his old classification; but, if you have an opening in
some other classification, you can't bring him back or
ask him if he'll work in another classification?
A. Sir, if he went to the Union, and the Union then
came to me with him and said, "This individual would
like to secure employment at this lower rate, and we
would approve of it, we the Union would approve of his
doing this," and then there would be a possibility of
discussion of that particular facet I think.
It should further be noted that the job of helper is the
least desirable and lowest paying of any of the production
classifications. It is hot, being in the foundry, requires a
great deal of heavy manual labor, and also requires that
individual to work closely with the journeymen, molders
and coremakers, from whom the helper takes a certain
amount of direction. Alexander described it as a "fetch-
and-carry" job and Collins conceded that it was a "slave
boy" classification. Furthermore, the jobs which Angus
and Collins had previously held were in the cleaning room
department, while the helper's job is in the foundry
department.
IV. ANALYSIS AND CONCLUSIONS
At the outset it should be noted, in general, credibility is
not an issue in this case. However, I confess that I have
some difficulties with Manager Robert Alexander's expla-
nation for his failure to consider Collins and Angus for the
helper openings. Alexander testified that he did not
consider them "because it never occurred to [him ]." That,
without more, is understandable as a simple oversight. But
he went on to explain that the reason it didn't occur to him
was because of the recall system in the contract.
He said, in effect, the job classification seniority system
prohibited him from offering the helper jobs to Collins and
Angus, even though they were qualified, having satisfacto-
rily held those jobs in the past. According to Alexander,
offering them the helper jobs would have been contrary to
the job classification seniority system as well as being a
"demotion." Respondent cites no authority or contract
language in support of those conclusions. Indeed, although
6 N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 381 (1967), and
concurring opinion of Justice Harlan at 381-382 (1967); The Laidlaw.
Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert.
denied 397 U.S. 920 (1970).
7 Cf. Best Industrial Uniform Supply Company, Inc. and Leonard Franklin,
Individually, 210 NLRB 300 (1974). In that case the Board, in the absence of
exceptions, adopted pro forma an Administrative Law Judge's finding that
an employer violated Sec. 8(aX5) when it ignored the union's demand for
information regarding the reinstatement of stnkers and dealt directly with
the strikers. In making this finding the Administrative Law Judge cited no
cases in support of his conclusion. Assuming that his conclusion is correct. I
article II of the contract prohibits demotions except for
"just cause" the concept of a demotion assumes that the
demotee was actually employed. Here, of course, neither
Angus nor Collins held any job, though they did retain
employee status as unrecalled economic strikers. 6 Thus,
rather than being faced with a decision to demote,
Respondent was faced with the decision of whether or not
it should "hire off the street" or first offer the job to
qualified, unrecalled strikers. As I see it, Alexander's
understanding of the contract in this regard is confused at
best.
Moreover, he testified that if he offered the helper jobs to
Collins and Angus, he believed he would somehow be
bypassing their bargaining representative, would have to
give them their old seniority, and would have to pay them
their old rate.
With regard to Alexander's claim that making such an
offer directly to the strikers would somehow constitute a
bypass of their bargaining representative, such a conten-
tion appears unfounded. At the end of strikes it is common
for employers to deal directly with employees regarding
their recall - indeed, Respondent, through Kritsonis, did
so here with others. To be sure, those communications were
consistent with the job classification seniority clause in the
contract and entailed no risk of Union opposition. But, as
noted, offering strikers other job openings when their
former job is nondiscriminatorily filled is not inconsistent
with the contract. Moreover, Respondent cites no case, and
I have found none, holding that such a communication is
violative of the Act.7
As with the demotion issue I find nothing in the contract
which would require Respondent to give them their old
seniority or pay them their old rate. Respondent, under
article XXI, section 2, had opted for job classification
seniority. Had it chosen to offer the unreplaced strikers
jobs other than the ones they had previously held, solely
because openings were only available in the lower paying
classifications and not in their former classifications, job
classification seniority and pay scales would apply. Such
individuals would acquire new seniority in their new job
and would be entitled only to the pay scale applicable to
that job. Nothing in the contract suggests otherwise.
As the reasons advanced by Alexander simply have no
reasonable basis, I conclude they are after-the-fact justifi-
cations engendered by the instant litigation and entitled to
no consideration. It therefore appears to me that Alexander
simply never thought about asking unreplaced strikers if
they would be willing to take some other job.
As I said before, an oversight of this nature is under-
standable. The jobs which were open were the least
desirable and lowest paying in the plant. Collins and Angus
had long ago risen above those jobs. Perhaps Alexander
regard the case as distinguishable on its facts. In that case, unlike the instant
case, there was no accepted system covering the recall of strikers generally.
Second, the union there did not know what factors the employer was relying
on to recall strikers and accordingly made a demand for information which
the employer ignored. Here both parties were in agreement regarding the
manner in which strikers were to be recalled, and Respondent followed the
prescribed manner. The problem now under scrutiny occurred because the
system did not fully cover the situation as it arose. I would find nothing
improper had Respondent, in an attempt to meet its reinstatement
obligation, directly dealt with those strikers who were not covered by the
general recall system.
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subconsciously thought those two would somehow be
insulted if he offered them such a job. However, he knew
they had not found permanent employment elsewhere and
were periodically asking Kritsonis for work.8
However, without regard to whether Alexander's reasons
for not offering the helpers jobs to Collins and Angus were
credible, there remain two questions which must be
resolved. First, may the job classification seniority clause
be construed as a strike settlement agreement in which the
Union somehow waived the right of strikers to reinstate-
ment to jobs other than the ones they had held at the time
of the strike? Second, if not, were there "legitimate and
substantial business justifications" present privileging
Respondent to offer the jobs to new employees?
Both questions, in my opinion, must be answered
negatively. With regard to the first, it is clear that although
both the Union and Respondent intended the clause to
govern the recall of strikers, it simply was not a strike
settlement agreement. It was, and is, far broader than that,
encompassing any kind of increase or decrease in the
employee complement. That it was applied to the recall of
strikers is not surprising, but Respondent's contention that
the clause may constitute a waiver of any right to any other
jobs for which strikers are qualified is startling.
It is true that a union may waive certain statutory rights,
including the right to be recalled to particular jobs. See
United Aircraft Corporation, (Pratt & Whitney Division) 192
NLRB 382, 388 (1971), remanded 525 F.2d 237 (C.A. 2,
1975). But such an agreement is the product of give and
take at the bargaining table. Nothing of the sort occurred
here. The parties simply retained the seniority clause which
had been in effect for at least 15 years. I cannot ascribe to
the Union any intent to waive reinstatement rights under
that circumstance. In any event a waiver of such rights
would have to be made intelligently and be in clear and
unmistakable terms. The language here does not rise to
that level. Accordingly, I reject any contention that the job
classification seniority clause is a waiver of any reinstate-
ment rights held by the strikers.
The reinstatement rights themselves are set forth in the
Supreme Court's decision in Fleetwood Trailers, supra, and
the Board's extension of Fleetwood in Laidlaw, supra. In
Fleetwood the Court, saying that unrecalled strikers have a
"basic right to jobs" with their employer, are entitled to an
offer of reinstatement "If and when a job for which the
striker is qualified becomes available." 389 U.S. 375, 381.9
In Laidlaw that policy was extended to cover strikers who
had been permanently replaced, but whose jobs became
vacant upon the departure of the strikers' replacements.
The sum of these two cases is a well-grounded policy
requiring employers to favor returning strikers over new
employees when openings arise for which both are
qualified. This policy is so strong, of course, that the
employer's motive in failing to favor the striker over the
new hire "constitutes an unfair labor practice without
reference to intent." 10 Fleetwood, supra at 380.
s Even if they had asked only once they were, absent "legitimate and
substantial business justifications," entitled to some sort of consideration.
See N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375, 380-381. where the
Court said: "II It was clearly error to hold that the right of the strikers to
reinstatement expired on August 20, when they first applied. This basic right
The policy was reemphasized in Fire Alert Company, 207
NLRB 885, 886 (1973), where the Board said:
In Brooks Research & Manufacturing, Inc., 202
NLRB 634, the Board noted that the Supreme Court in
Fleetwood Trailer, 389 U.S. 375 at 381 (1967), had held:
. . . The status of the striker as an employee
continues until he has obtained "other regular
and substantially equivalent employment"....
If and when a job for which the striker is qualified
becomes available, he is entitled to an offer of
reinstatement. The right can be defeated only if
the Employer can show "legitimate and substan-
tial business justifications." N.LR.B. v. Great
Dane Trailers, 388 U.S. 26.
The Board continued in Brooks, supra, stating from its
decision in The Laidlaw Corporation, 171 NLRB 1366,
enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S.
920 (1970), that:
. . . economic strikers who unconditionally
apply for reinstatement when their positions are
filled by permanent replacements are entitled to
full reinstatement upon departure of replace-
ments or when jobs for which they are qualified
become available, unless they have in the mean-
time acquired regular and substantially equiva-
lent employment or the employer can sustain its
burden of proof that the failure to offer full
reinstatement was for legitimate and substantial
business reasons. [Emphasis supplied.]
Thus, it is obvious that the Respondent's reinstate-
ment obligation here is not limited to the strikers' old
positions, but rather includes reinstatement to substan-
tially equivalent positions which the strikers are
qualified to fill.
Under this policy, the only insulation available to such
an employer is the showing of a substantial and legitimate
business justification privileging his choice of a new hire
over a qualified striker.
The only factors offered by Respondent to show the
existence of a "legitimate and substantial business justifica-
tion" for failing to offer Collins and Angus the helper jobs
are: the helper jobs (1) are undesirable, involving low pay
and arduous work under hot conditions; (2) would require
Collins and Angus to work as subordinates for employees
with whom they had previously been near peers; (3) are
under different supervisory lines of authority than their
previous jobs because those were in the cleaning room
department under Kritsonis while the helper jobs are in the
foundry department under the foundry supervisor.
I am not persuaded that these reasons constitute
"legitimate and substantial business justifications" privileg-
ing Respondent to fail to offer its statutory employees
to jobs cannot depend on availability as of the moment when the
applications are filed."
9 Relying on Sec. 2(3) of the Act.
lo Thus, even "oversight" such as Alexander's is no defense to a failure to
recall strikers to jobs for which they are qualified.
874
WESTERN STEEL CASTING COMPANY
openings for which they are qualified. First, an undesirable
job may reasonably be expected to be more desirable than
no job at all. Second, there is no evidence that any
disruption of work would occur if Collins and Angus were
assigned to work with the journeymen. When they worked
in the cleaning room they were subordinate to the
journeymen, at least in terms of pay rates. Yet they were
satisfactory there and had satisfactorily worked as helpers
in the past. Respondent is engaging in sheer speculation
when it raises the question of whether or not Collins and
Angus could be expected to subordinate themselves to the
journeymen. Third, the fact that the helper jobs are under a
different supervisor appears to me to be of little moment.
Finally, Respondent asserts that a striker is entitled to be
reinstated only to his prestrike job or to a job substantially
equivalent to his prestrike job, if he is qualified for that job,
but that he has no right to be reinstated to a job which is
not substantially equivalent." It is true that each of the
cases cited by Respondent contains a phrase to the effect
that an employer is obligated to reinstate strikers to their
former or "substantially equivalent" jobs.
Certainly the Supreme Court's decision in Fleetwood
Trailers, supra, contains no such limitation. The Court said
merely: "if and when a job for which the striker is qualified
becomes available, he is entitled to an offer of reinstate-
ment." 389 U.S. 375, 381. Nowhere in the decision did the
Court use the phrase "substantially equivalent" in describ-
ing the employer's obligation to reinstate economic
strikers. None of the cases cited by Respondent contains
any analysis of the phrase vis-a-vis the obligation. The
phrase merely stands alone, and one case, New Fairview
Hall Convalescent Home, merely cites Fleetwoo,4 Laidlaw,
and N.LR.B. v. Great Dane Trailers, Inc., 366 U.S. 26
(1967) (the decision upon which Fleetwood is based),
without further explication.
As I read those cases the phrase "substantially equivalent
job" is not intended as a limit on the obligation beyond
which an employer need not go but is rather a means to test
the adequacy of the offer after it has been made. Thus, I
regard the law as requiring an employer to offer economic
strikers reinstatement to either their old job; or, if that is
not available, to a substantially equivalent job for which
they are qualified; 12 or, if neither of those options is
available, any other job for which the striker is qualified.13
It is clear to me, under any of the above circumstances,
that Respondent has not met its obligation here. First, all
parties agree that Collins and Angus were qualified for the
helpers jobs which became available. Second, I believe the
helpers jobs were in fact "substantially equivalent" as that
term is generally used. See Northwest Oyster Farms, Inc.,
173 NLRB 872, 876 (1968) (Clark); cf. New Era Electric
Cooperative, Inc., supra (striker not qualified for construc-
tion job having held only maintenance jobs in the past).
Thus, Respondent did have an obligation to offer the
helpers jobs to the strikers so long as they had not obtained
II In support of these propositions Respondent cites Crystal Princeton
Refining Company, 222 NLRB 1068 (1976); New Era Electric Cooperative,
Inc., 217 NLRB 477 (1975); Elsing Manufacturing Co.. 209 NLRB 1089
(1974); New Fairview Hall Convalescent Home, 206 NLRB 688 (1973); and
N.L.R.B. v. Johnson Sheet Metal. Inc. 442 F.2d 1056 (C.A. 10, 1971).
t2 Fire Alert Companv, supra.
13 Fleetwood. supra.
any other regular and substantially equivalent employment
elsewhere.
As Respondent has been unable to justify its failure to
offer the unrecalled strikers openings for which they were
qualified, I find it has violated Section 8(aX3) and (1).
Fleetwood Trailers and Fire Alert Company, both supra.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX3) and
(1) by failing to offer the helpers jobs which became
available on October 18 and November 3 to Collins and
Angus,14 I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I shall,
therefore, recommend that Respondent immediately offer
Collins and Angus the jobs of helper, displacing, if
necessary, any replacements, and make them whole for any
loss of pay suffered by reason of the discrimination against
them. However, if since the dates they should have been
given the helpers jobs, higher paying jobs have become
available which Collins and Angus would have successfully
bid upon,i5 Respondent shall, instead, offer those jobs to
Collins and Angus, displacing, if necessary, any replace-
ments, and make Collins and Angus whole for any loss of
additional pay so suffered. Backpay shall be computed in
accordance with the formula set forth by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950).
The General Counsel has attached to his brief a
supplement in which he urges the current 6-percent interest
rate on backpay (see Isis Plumbing & Heating Co., 138
NLRB 716 (1962)) be increased to 9 percent. While there
appears to be merit in the General Counsel's request, I
believe such a request is more appropriately directed to the
Board, as it has recently rejected numerous attempts to
increase the interest rate.'1 Accordingly, I recommend only
that Respondent be required to pay 6 percent interest in
accordance with Isis, supra.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Western Steel Casting Company, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Molders and Allied Workers Union,
Local 158, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing on October 18, 1976, and November 3,
1976, to offer Edward Collins and Craig Angus the jobs of
helper, Respondent violated Section 8(aX3) and (1) of the
Act.
[Recommended Order Omitted from publication.]
14 1 shall leave to the compliance stage resolution of the question of
which discrminatee should have been offered the first opening.
I5 See sec. XXV of the new contract.
s1 See Hyster Company, 220 NLRB 1230 (1975); Mercy Peninsula
Ambulance Service, Inc., 217 NLRB 829 (1975); and the other cases cited in
fn. 4 of the supplement.
875