Aqua-Chem, Inc., Cleaver-Brooks Div. v. N.L.R.B.
| Decision Date | 08 January 1991 |
| Docket Number | INC,Nos. 88-2191,88-2475,CLEAVER-BROOKS,AQUA-CHE,s. 88-2191 |
| Citation | 922 F.2d 403 |
| Parties | 136 L.R.R.M. (BNA) 2199, 117 Lab.Cas. P 10,477 ,DIVISION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julie Broido, N.L.R.B., Aileen A. Armstrong, Elliott Moore, Peter D. Winkler, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., George F. Squillacote, N.L.R.B., Region 30, Milwaukee, Wis., and Gerald P. Fleischut, N.L.R.B., Region 26, Memphis, Tenn., for N.L.R.B.
Thomas W. Mackenzie, Lindner & Marsack, Milwaukee, Wis., for Aqua-Chem, Inc., Cleaver-Brooks Div.
Prior report: 910 F.2d 1487.
Before BAUER, Chief Judge, CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.
On September 4, 1990, the petitioner filed a petition for rehearing with suggestion for rehearing en banc. An answer to the petition was requested and response was filed by the National Labor Relations Board on September 27, 1990. All of the judges on the original panel voted to deny a rehearing. A judge in regular active service requested a vote and the majority of the judges voted to deny a rehearing en banc. POSNER, COFFEY, FLAUM, EASTERBROOK and MANION, Circuit Judges, voted to grant rehearing. Accordingly, the petition for rehearing is hereby DENIED.
When workers go out on a strike not provoked by any unfair labor practices, the company is entitled to hire permanent replacements for the striking workers. NLRB v. McKay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). Although the company cannot offer these replacement workers unlimited seniority as an inducement to accept employment, NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963), it can promise them that if they are subsequently laid off the layoff will not create vacancies that the employer either can or must fill by recalling the strikers whom the replacement workers had replaced and who by definition will have greater seniority, having been hired earlier. Such a promise, we held in Giddings & Lewis, Inc. v. NLRB, 675 F.2d 926, 930-31 (7th Cir.1982), does not violate the National Labor Relations Act. The Eighth Circuit agrees, Medallion Kitchens, Inc. v. NLRB, 806 F.2d 185, 188 (8th Cir.1986); Randall v. NLRB, 687 F.2d 1240, 1247 (8th Cir.1982) (dictum), and probably the Sixth as well, cf. NLRB v. Harrison Ready Mix Concrete, Inc., 770 F.2d 78, 80 (6th Cir.1985); no circuit has registered disagreement. The employer in this case made such a promise. It promised that when a layoff ended, the company would recall workers not in order of seniority but in the reverse order in which they had been laid off, thus putting the replacement workers ahead of some former strikers having greater seniority.
Giddings had reversed the Labor Board. The Board did not react with gracious acquiescence. When this case came along, the Board held, contrary to Giddings, that the layoff of the replacement workers had created vacancies which the company was obliged to fill with strikers whom the replacement workers had replaced. The Board reasoned that the replacement workers who were laid off had no reasonable expectation of being recalled, though of course they were recalled--it was because they were recalled ahead of strikers having greater seniority that the company was found to have engaged in an unfair labor practice. Because the replacement workers lacked such an expectation, the Board concluded, their interest in their jobs was...
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...these workers be snatched back if they remain employed. Cf. Aqua-Chem, Inc. v. NLRB, 910 F.2d 1487 (7th Cir.1990), rehearing denied, 922 F.2d 403 (1991). Does this violate the union's duty to represent its enemies fairly? Must the union, perhaps, advance the interests of the replacements, a......
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