Randall, Div. of Textron, Inc. v. N.L.R.B., 81-1831

• Decision Date: 09 September 1982
• Docket Number: No. 81-1831,81-1831
• Parties: 111 L.R.R.M. (BNA) 2437, 95 Lab.Cas. P 13,776 RANDALL, DIVISION OF TEXTRON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1240

687 F.2d 1240

111 L.R.R.M. (BNA) 2437, 95 Lab.Cas. P 13,776

RANDALL, DIVISION OF TEXTRON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1831.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1982.

Decided Sept. 9, 1982.

Michael W. Hawkins, Robert E. Kaplan, Cincinnati, Ohio, for petitioner; Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, of counsel.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William F. Wachter, Diana Orantes Ceresi, Attys., N. L. R. B., Washington, D. C., for respondent.

Before ARNOLD, Circuit Judge, STEPHENSON, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

ARNOLD, Circuit Judge.

This matter comes before the Court on petition of Randall, Burkhart/Randall Division of Textron, Inc. (Randall) for review of an order of the NLRB holding that Randall committed unfair labor practices in connection with an economic strike by the employees at Randall's plant in Blytheville, Arkansas, in 1977. The case presents several issues arising from the manner in which strikers were reinstated to Randall's active work force following the strike. The primary dispute concerns whether the NLRB correctly determined that Randall's policy of offering special-rated jobs to unreinstated strikers only if no one in the active work force was qualified for and wanted the job, was an unfair labor practice. We enforce the NLRB's order with respect to that issue. With respect to the remaining issues, we grant enforcement in part and deny enforcement in part.

I.

Randall's Blytheville plant manufactures automotive trim such as body side moldings, wheel openings, hub caps, and headlight openings. Its customers include all the major automobile manufacturers. Randall's production schedule varies in response to changes in weekly customer orders and in the size of the finished-goods inventory. In meeting production needs, the plant manager of course strives to operate the plant in the most efficient manner with the fewest employees. On the average, Randall employs approximately 400 production and maintenance employees. ¹ Randall's need for employees occasionally varies with changes in its production schedule, but according to the plant manager, the size of the work force ordinarily remains stable (Tr. 663).

Randall's plant is divided into a number of different departments, and employees within the various departments are classified as either production workers or "special-rated" workers depending on the nature of the tasks they perform. Production positions require no special skills and are all compensated at the same rate of pay. Special-rated positions, on the other hand, do require additional skills and consequently are more highly compensated. ²

On occasion, Randall shifts its employees within and between departments in response to changes in its production requirements. Under the three-year collective-bargaining agreement with the Union which expired September 1, 1977, Randall could temporarily transfer any employee to a different position for ten days or less without restriction. Randall also had the right to move an employee permanently between departments to a position at the same or a lower pay level. However, whenever a special-rated position opened up, the agreement required Randall to follow a posting procedure, allowing any interested employee to bid on the job. The contract specified that the job should be awarded to the most qualified bidder or, among equally qualified bidders, to the one with the most seniority. Only if the bid procedure produced no eligible, qualified applicants could Randall fill special-rated openings from outside the workforce.

When the collective-bargaining agreement between Randall and the Union expired in 1977, the parties were unable to agree to a new contract. On September 8, 1977, the employees struck to bolster their bargaining position. The strike lasted until October 16, 1977, when the Union accepted Randall's latest offer and made an unconditional request to return to work. All the employees in the bargaining unit, except for five janitors and one production worker, joined in the strike at its outset. During the course of the strike, Randall continued operations by hiring permanent replacements for the strikers. In addition, a steady stream of individual strikers requested leave to return to work during the course of the strike. On September 19, 1977, Randall began keeping a list of such strikers (hereinafter referred to as the sign-up list). Thereafter, Randall offered job openings to the people on the sign-up list in preference to hiring permanent replacements.

Although the sign-up list was created and maintained for the benefit of voluntarily returning strikers, there was one occasion on which Randall allegedly solicited employees to sign the list. About two weeks after the strike began, employee Woodrow Robinson called the plant manager and asked to return to work. Because he feared retaliation by other strikers if he came to the plant to sign the list, he asked that someone bring the list to him. When the personnel director brought Robinson the list, Robinson noticed that he was being observed by his neighbor and fellow striker, Gary Stevens. To divert suspicion from himself, Robinson suggested that the personnel director ask Stevens if he desired to return to work. The personnel director obliged, Stevens said he was not interested, and that was the end of the incident.

Over the course of the strike, Randall hired 422 permanent replacements, not all of whom stayed on. At the end of the strike, the active work force numbered approximately 360, including both permanent replacements and previously reinstated strikers. ³

Randall adopted the following procedure for recalling and reinstating strikers after the strike. When additional production workers were needed, Randall first recalled persons on the sign-up list, in order of signing. After exhausting the sign-up list, Randall recalled persons on the list submitted by the Union, in order of seniority. When special-rated positions became available, Randall first attempted to fill them with workers from within the plant, if any had the necessary qualifications. If no one within the plant had previously performed the job, Randall then recalled the first qualified striker appearing on the above-mentioned lists.

Between September, 1977, and February, 1978, Randall reinstated some 40 strikers. During this period Randall also recalled 13 permanent replacements who were allegedly on leaves of absence, transferred five security guards into production positions, reinstated two permanent replacements (the Turnages) who voluntarily quit and then asked to return a week later, and transferred at least 20 permanent replacements from production to special-rated positions. See General Counsel's Exhibit 29(B). After February, 1978, Randall began recalling strikers in larger numbers, and as of March 29, 1979, all but 17 of the 389 strikers had been recalled.

Returning strikers found their working conditions and benefits somewhat changed. Under the expired collective-bargaining agreement, more senior employees had been permitted to transfer to more desirable shifts, but after January 1, 1979, Randall refused to allow employees to use seniority for shift preference. Also, the strikers' insurance coverage was suspended until 60 days after they returned because of the hiatus in their active work status.

On January 16, 1978, the Union filed an unfair-labor-practice charge alleging a variety of statutory violations. The NLRB issued a complaint against Randall on March 1, 1978, and Administrative Law Judge (ALJ) Robert Cohn presided over the hearing on the complaint, which took place on various dates from November, 1978, to September, 1979. The ALJ made his decision on August 14, 1980, holding that Randall had violated § 8(a)(1) and (3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) and (3), in six respects: (1) by preferring permanent replacements to unreinstated strikers for special-rated jobs, (2) by recalling 13 permanent replacements from alleged leaves of absence rather than recalling strikers, (3) by rehiring the Turnages instead of recalling strikers, (4) by transferring five security guards into production positions instead of recalling strikers, (5) by failing to allow returning strikers to exercise shift preference on the basis of seniority, and (6) by interrupting the returning strikers' insurance coverage. On July 21, 1981, the NLRB adopted the ALJ's recommended order in full, with the additional finding that Randall had also committed an unfair labor practice in soliciting Gary Stevens to abandon the strike. Randall applied to this court for review of the NLRB's order, and the NLRB cross-petitioned for enforcement.

II.

A. Vacancies In Special-Rated Jobs

The central issue in this appeal stems from the NLRB's holding that Randall should have considered unreinstated strikers in preference to permanent replacements for openings in special-rated positions. The NLRB determined that Randall's policy of first offering all special-rated job openings to employees on the payroll instead of to unreinstated strikers discriminated against the strikers on the basis of their participation in union activity. See Little Rock Airmotive, Inc. v. NLRB, 455 F.2d 163, 165-168 (8th Cir. 1972), adopting Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969), (an employer must reinstate economic strikers when vacancies arise for which the strikers are qualified, unless there is a valid business reason for denying reinstatement), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970).

Randall argues that its reinstatement policy was not discriminatory because it did offer all "vacancies" in both production and special-rated...