826 F.2d 1496 (6th Cir. 1987), 86-5308, N.L.R.B. v. American Olean Tile Co., Inc.

Docket Nº:86-5308.
Citation:826 F.2d 1496
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, and Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, Intervenor, v. AMERICAN OLEAN TILE COMPANY, INC., Respondent.
Case Date:August 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1496

826 F.2d 1496 (6th Cir. 1987)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

and

Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC,

Intervenor,

v.

AMERICAN OLEAN TILE COMPANY, INC., Respondent.

No. 86-5308.

United States Court of Appeals, Sixth Circuit

August 13, 1987

Argued March 9, 1987.

Rehearings and Rehearings En Banc Denied Oct. 15, 1987.

Page 1497

Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., Susan L. Williams (argued), William R. Stewart, Emil C. Farkas, Director, Region 9, N.L.R.B., Cincinnati, Ohio, for petitioner.

Arthur R. Donovan, Larry R. Downs, Kahn, Dees, Donovan, Kahn, Evansville, Ind., William Michael Schiff, Evansville, Ind., J. Alan Lips (argued), Taft, Stettinius & Hollister, Cincinnati, Ohio, for American Olean Tile.

Irwin H. Cutler, Jr. (argued), Louisville, Ky., for intervenor.

Before LIVELY, Chief Judge, BOGGS, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

LIVELY, Chief Judge.

This case concerns the reemployment rights, respectively, of employees who offer to return to work during an economic strike and those who offer to return after the strike ends. The specific question is whether an employer may continue, after the strike ends and all employees are prepared to return, to recall employees from a chronological list based on the date of an unqualified offer to return to work, when this procedure results in a preference for early offerors over some late offerors with greater plant seniority.

I.

American Olean Tile Company (the employer) manufactures ceramic tile at plants in Lewisport and Cloverport, Kentucky. The plants are located approximately twenty miles apart, and constituted a single bargaining unit for collective bargaining purposes. Employees at both plants were represented by the Amalgamated Clothing and Textile Workers Union under a single agreement that expired on June 16, 1978. Upon expiration of the collective bargaining agreement the employees at both plants began an economic strike, and by

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December 1978 all jobs had been filled with permanent replacements.

Beginning in mid-January 1979 striking employees, individually and in small groups, made unconditional offers to return to work. Since there were no openings at this time the employer placed these employees on a preferential hiring list in chronological order based on the date and time of individual requests to return to work. When several employees made such a request as a group, they were placed on the chronological list as a unit and listed within the unit according to their pre-strike seniority. The requesting employees were advised that there were no openings and that they would be recalled as vacancies occurred. They were also told that vacancies would probably occur first at Lewisport, but that returning Cloverport employees who accepted positions at Lewisport and desired to return to Cloverport would be transferred there when vacancies occurred.

On January 23, 1979, approximately 31 employees were on the recall list. That evening the striking employees met and voted to end the strike and unconditionally offer to return to work. This information was conveyed to the manager of both plants by union officials in a telephone call between 1:00 and 2:00 a.m. on January 24 and by a telegram delivered between 9:00 and 10:00 a.m. that day. Prior to the delivery of the telegram an additional nine or ten employees individually made unconditional offers to return. These employees were given the same information as those who had offered to return during the strike, including the possibility of ultimate transfers to Cloverport for former Cloverport employees who accepted positions at Lewisport.

Although the employer disputed this fact, it appears that those who offered to return to work after the union's notification were placed on two lists, one for Lewisport and one for Cloverport, according to pre-strike seniority. The employer contends that the January 24 post-telegram offerors were treated exactly the same as employees who offered earlier to return in groups; they were placed chronologically according to the date of the group offer (January 24) and were ranked within the group by seniority.

The union did not object to the chronological recall of employees who offered to return prior to the union's telephone notification in the early hours of January 24. However, it did object to any employees who made offers to return after 1:00 a.m. on that date being placed on a preferential recall list based on chronology. It contended that "all employees who had not made individual offers to return to work before 1:00 a.m. on January 24 should be placed on the hiring list in their order of seniority."

II.

The union filed an unfair labor charge based solely on the reinstatement of twelve employees, seven of whom offered to return to work prior to the vote to end the strike and five of whom offered after the vote but prior to delivery of the telegram. All twelve were former Cloverport workers, and all were recalled to the Lewisport plant in the order of their offers to return to work. As openings occurred at Cloverport the twelve were transferred there ahead of more senior Cloverport employees whose names had not been reached on the chronological list. The union charged that this action by the employer constituted a violation of sections 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Secs. 158(a)(1) and (3), "by discriminating in regard to the terms and conditions of employment of formerly striking employees."

Following a hearing an administrative law judge (ALJ) held that the twelve former Cloverport employees were granted an unlawful preference by being transferred to jobs substantially equivalent to their former employment while more senior strikers were awaiting reinstatement to their former positions or to substantially equivalent ones. The ALJ found that the employer had formerly filled vacancies at the plants on a seniority basis and that it returned to that method when the strike ended with

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respect to those who applied for reinstatement after the union's telegram was received. The ALJ found there was no showing of an anti-union motivation, but that this preference was inherently destructive of the rights of senior striking employees and thus, unlawful, even without a showing of union animus. The finding of an unlawful preference was based on the ALJ's determination that the twelve employees were not fully reinstated when they were recalled to work at Lewisport but only when they were transferred to Cloverport. Under this reasoning, a move which the employer considered a transfer in accordance with procedures adopted during the strike, became a discriminatory reinstatement because it occurred after the strike ended.

The ALJ also ruled on an issue raised by the employer. The charge was filed by the union on November 21, 1979, and the employer contended that it was untimely under section 10(b) of the Act, 29 U.S.C. Sec. 160(b), which limits Board consideration to events occurring within six months of the filing of a charge. The employer argued that the union had knowledge of its practice of recalling employees on the basis of the chronological list at least as early as January 1979 and that the November filing was untimely. Further, the twelve employees were recalled to Lewisport between January 15 and April 2, 1979, and thus these activities were outside the six-month limitations period. The ALJ decided this issue consistently with his view that reinstatement did not take place until each of the twelve employees began working at Cloverport. Since the first transfer of one of the twelve from Lewisport to Cloverport occurred on June 20, 1979, the ALJ concluded that the November 21 charge was timely.

The ALJ ordered a comprehensive remedy. The Board overruled the employer's exceptions, affirmed the ALJ's decision and adopted the recommended order with one modification, 265 NLRB 1625 (1982). The Board now seeks enforcement of its decision and order.

III.

An employer may hire permanent replacements during an economic strike, and is not required to discharge the replacements to make room for strikers who desire to return to work. Economic strikers who unconditionally apply for reinstatement are entitled to reinstatement when replacements leave the strikers' former positions or when vacancies occur for which they are qualified. N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Arlington Hotel Co. v. N.L.R.B., 785 F.2d 249 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986). The right to reinstatement does not expire if there are no vacancies for which the striker is qualified when he first applies. The request must be treated as a continuing one until the striker has obtained "other regular and substantially equivalent employment." Fleetwood Trailer, 389 U.S. at 380-81, 88 S.Ct. at 547; Laidlaw Corp., 171 N.L.R.B. 1366, 1369-70 (1968), enforced, 414 F.2d 99 (7th Cir.1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). In determining which of its striking employees will be reinstated upon request and which will have to wait, an employer may resort "to any one of a number of methods" as long as a method is not chosen "with the purpose to discriminate against those most active in the union." N.L.R.B. v. MacKay Co., 304 U.S. 333, 347, 58 S.Ct. 904, 911, 82 L.Ed. 1381 (1938).

Since the twelve strikers were qualified to fill the vacancies at Lewisport, the employer was required to offer them these positions as they opened. The employer recalled strikers for positions at Lewisport in chronological order of their offers to return to work, and the union did not contest these appointments. However, the Lewisport positions were not substantially equivalent to those the...

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