Medallion Kitchens, Inc. v. N.L.R.B., 86-1185
| Decision Date | 11 February 1987 |
| Docket Number | No. 86-1185,86-1185 |
| Parties | 124 L.R.R.M. (BNA) 2830, 105 Lab.Cas. P 12,182 MEDALLION KITCHENS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW), Local 1267, Intervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Douglas P. Seaton, Minneapolis, Minn., for petitioner.
Paul J. Spielberg, Washington, D.C., for respondent.
Before ROSS and WOLLMAN, Circuit Judges, and DUMBAULD, * District Judge.
Medallion Kitchens, Inc. (Medallion) appeals from an order of the National Labor Relations Board (the Board) holding that Medallion had violated Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (3) (1982) by failing to reinstate former strikers into temporary positions made available prior to Medallion's relocation to Waconia, Minnesota. Medallion argues that the Board erred in finding that the temporary positions were vacancies to which former strikers were entitled to be offered reinstatement and that the Board abused its discretion to fashion remedies by extending the reinstatement and back pay award to the new Waconia facility. We affirm the Board's decision that Medallion violated the Act by failing to reinstate former strikers into the temporary positions, but reverse the Board's remedy to the extent that it extends the remedy of reinstatement and back pay to the Waconia facility. 1
Background:
Medallion Kitchens, a manufacturer and distributor of kitchen cabinetry, maintained an office and place of business in Fergus Falls, Minnesota. The Company had a collective bargaining agreement with Local 1267 of the United Auto Workers which had an expiration date of September 19, 1983. On this day most of Medallion's 275 bargaining unit employees went on strike after failing to agree on a new contract. During the course of the strike, Medallion continued plant operations by using nonstrikers and by hiring replacement workers. On December 19, the Union notified the Company that the strike would end as of December 25, 1983, and that all of the strikers would be unconditionally available for work the following day. By midsummer 1984, Medallion had called back many ex-strikers, although approximately 75 former strikers had still not been offered reinstatement.
On July 2, 1984, the Union was advised that Medallion planned to relocate its operations in Waconia, Minnesota due to an earlier fire which had destroyed much of the Fergus Falls facility. Medallion maintains that in order to facilitate the move, it placed ads for temporary employment lasting 2 to 10 weeks in the Fergus Falls newspaper. As a result of the ad, Medallion hired 27 new employees on September 24, 1984, including three unreinstated strikers who had responded to the ad. The work performed by the newly hired employees was substantially the same as that performed by bargaining unit employees, including some work to prepare for the move to Waconia. Seven of the 24 new employees worked between two and three months; seven worked about a month; four worked about three weeks and the remaining six worked between one and ten days before their final layoff.
Anticipating the December 27, 1984 closing of the Fergus Falls facility, Medallion held in-house meetings inviting its present employees to apply for positions at the new Waconia facility. About forty of the existent employees accepted Waconia positions, three of whom had been among the new employees hired on September 24 as a result of the open hiring process.
Because of Medallion's failure to fill the September 24 positions with bargaining unit employees, the Union filed unfair labor practice charges. On July 24, 1985 the administrative law judge entered his findings of fact and decision concluding that Medallion violated sections 8(a)(1) and 8(a)(3) as charged. The ALJ issued an order requiring Medallion to award back pay to the 24 most senior unreinstated employees for the hours actually worked by the 24 newly hired employees between September 24 and December 31. In addition, the ALJ ordered that these 24 most senior employees be offered immediate and full reinstatement at the new Waconia, Minnesota facility, including back pay for any loss of earnings from the date of the Fergus Falls plant closing. Upon Medallion's excepting to the ALJ's decision, the Board affirmed the findings and conclusions of the ALJ and modified his order by providing that the remedy extend to the new Waconia facility unless Medallion can show that the discriminatees would not have applied for work at Waconia or, had they applied, that they would not have been hired. Medallion now appeals this decision.
Medallion argues first that substantial evidence does not support the Board's finding that Medallion violated the NLRA by failing to recall former strikers on September 24. It is well settled that during a strike, strikers retain their status as employees and are presumptively entitled to reinstatement at the conclusion of the strike. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614 (1967). It is also well settled that during an economic strike an employer may hire permanent replacements and need not discharge these replacements in order to create immediate vacancies for strikers later seeking reinstatement. Id. at 379, 88 S.Ct. at 546. Although an employer may lawfully refuse to reinstate an economic striker whose former position is occupied by a permanent replacement, "[i]f and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement." Id. at 381, 88 S.Ct. at 547. Absent a substantial and legitimate business justification, an employer's obligation is satisfied only upon an offer to the former striker of a substantially equivalent job. Id. at 381, 88 S.Ct. at 547; Little Rock Airmotive, Inc. v. NLRB, 455 F.2d 163, 167 (8th Cir.1972).
Medallion argues that the temporary, transitional positions made available to the September 24 new hires were not substantially equivalent to the unrecalled strikers' former jobs and, as such, Medallion had no obligation to offer these positions to the former strikers. Medallion relies on several cases which have considered brevity of employment a factor in determining whether a job opening was substantially equivalent to the former jobs of unrecalled bargaining unit employees.
In Randall v. NLRB, 687 F.2d 1240 (8th Cir.1982), this court observed that "[t]he existence of a temporary job is not the equivalent of a vacancy to which a striker should have been reinstated." Id. at 1248. Medallion urges the broadest interpretation of this holding, arguing that temporary positions never give rise to the reinstatement obligation. This decision, however, must be limited to the unique facts of the case. In Randall, rather than reinstating former strikers, the employer rehired two strike replacements, Cheryl and Louis Turnage who had voluntarily quit their jobs expecting to sell their home and leave the state. These jobs were still unfilled two weeks later when the Turnages asked to resume work until their house sale was finally consummated. Rehired, one worked four days, the other about two weeks. This court held that under these circumstances the reinstatement of the Turnages into their former positions for an extremely brief period of time did not amount to an unfair labor practice in violation of the Act.
Rather than enunciating the broad statement that limited duration is a dispositive factor in determining the equivalent nature of positions, the NLRB has indicated that brevity of employment is but one factor to be considered in making this determination. In addition to length of employment, the Board has considered other factors such as the duties, hours, pay and authority of the position. New Era Electric Coop., 217 N.L.R.B. 477, 477 (1975). In Certified Corp., 241 N.L.R.B. 369 (1979) the Board held that the temporary, part-time employment of someone other than a...
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