N.L.R.B. v. Harrison Ready Mix Concrete, Inc., 84-6063

• Decision Date: 13 August 1985
• Docket Number: No. 84-6063,84-6063
• Parties: 120 L.R.R.M. (BNA) 2077, 103 Lab.Cas. P 11,543 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARRISON READY MIX CONCRETE, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 78

770 F.2d 78

120 L.R.R.M. (BNA) 2077, 103 Lab.Cas. P 11,543

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARRISON READY MIX CONCRETE, INC., Respondent.

No. 84-6063.

United States Court of Appeals, Sixth Circuit.

Argued July 11, 1985.

Decided Aug. 13, 1985.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Suzanne Stocking, Frances O'Connell (argued), Washington, D.C., for petitioner.

J. Michael Fischer (argued), Ennis, Roberts and Fischer Co., Cincinnati, Ohio, for respondent.

Before MARTIN and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

This is an enforcement action by the National Labor Relations Board. The NLRB, in a 2-1 decision, held that the respondent's failure to reinstate two returning strikers with full seniority was an unfair labor practice, distinguishing NLRB v. Mackay Radio Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). We deny enforcement of the order.

Harrison Ready Mix Concrete, Inc., produces and sells ready mix concrete at its Harrison, Ohio, facility. Its business is both seasonal and cyclical, and the amount of work for its drivers is dependent on the orders to be delivered on any given day, a matter that cannot be predicted in advance or even at the beginning of the day. Drivers are called to work and assigned delivery runs on the basis of seniority. Drivers at the top of the seniority list can work as much as they want to, drivers in the middle essentially have part-time jobs, and drivers at the bottom of the list may be assigned only a limited number of driving assignments.

Harrison's drivers are represented by Truck Drivers, Chauffeurs and Helpers Local Union No. 100, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. They were covered by a collective bargaining agreement until it expired on February 28, 1983. The following day, March 1, 1983, the employees began an economic strike.

Nine employees crossed the picket line and fifteen new employees were hired by March 10, 1983, bringing Harrison up to its prestrike force of twenty-four drivers. The nine prior employees were given the top nine places on the seniority list, based on their old seniority. On March 14, 1983, the former employees involved in this dispute, James M. Weitz and Ricky D. Ramey, offered unconditionally to cross the picket line and return to work. No openings were then available, but three of the replacements left Harrison's employ five days later, creating additional openings. Weitz and Ramey were actually reemployed on March 25 and 30, respectively.

Although Weitz and Ramey were given their full seniority for all other purposes, on the driver seniority list they were placed below replacement drivers with prior experience and above replacement drivers with no prior experience. This put Weitz in the seventeenth slot and Ramey in the eighteenth. Prior to the strike Ramey was thirteenth and Weitz was fourteenth in seniority. Because more senior employees chose to remain on strike, they would have been in the third and fourth slots if given their full seniority. They have since moved up the list due to resignations and terminations, but they continue to be lower on the driver seniority list than all the employees who crossed the picket line and returned to work before them and lower than the replacement drivers who had prior cement truck driving experience.

Ramey and Weitz filed charges against Harrison with the National Labor Relations Board on April 11, 1983. The parties stipulated the facts and waived a hearing before an administrative law judge, and a panel of the Board considered the case. The panel, with one dissent, found Harrison guilty of an unfair labor practice under section 8(a)(1), (3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3), and ordered remedial action. Harrison Ready Mix Concrete, 272 N.L.R.B. No. 47 (Sept. 26, 1984).

An employer is entitled to replace economic strikers, and it need not discharge permanent replacements to create places for returning strikers. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). Subject to that rule, economic strikers who make an unconditional offer to return to work must be reinstated, unless the employer can show legitimate and substantial business justifications for the failure to reinstate. Rogers Manufacturing Co. v. NLRB, 486 F.2d 644, 647-48 (6th Cir.1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 288 (1974); NLRB v. Hartmann Luggage Co., 453 F.2d 178 (6th Cir.1971). The reinstated strikers must be given their full seniority, and super-seniority cannot be given to the replacement employees. NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). The question is whether this case is controlled by Mackay or Erie Resistor.

In the dissent to the Board's decision, it was stated that "where, as here, demotion on the roster is reassignment to a lesser, and therefore different, position with a cut in wages, the nice distinction between 'discharge' and unavailability of work offers is without substance." The Board majority, on the other hand, viewed ...