National Labor Relations Board, and Amalgamated Clothing and Textile Workers Union, Afl-Cio-Clc, Intervenor v. American Olean Tile Company, Inc. ( 1987 )

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 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 Lewis-port, 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 Clover-port 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 Clover-port 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. §§ 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 (ALT) 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 AU 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 respect to those who applied for reinstatement after the union’s telegram was received. The AU 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 AU’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 AU 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. § 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 AU 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 AU concluded that the November 21 charge was timely.

The AU ordered a comprehensive remedy. The Board overruled the employer’s exceptions, affirmed the AU’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 returning strikers had previously held at Cloverport. When vacancies occurred in substantially equivalent positions at Cloverport, the twelve strikers were transferred to those positions, again in chronological order. The union argued that these transfers discriminated against strikers who made their unconditional offers after delivery of the telegram, imposing an unlawful burden on concerted activities and discouraging union membership. The AU agreed, finding such employer action “inherently destructive” of employee rights, thus eliminating any requirement that the union show anti-union motivation.

The first reference to the “inherently destructive” standard appeared in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 228, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308 (1963). After discussing situations in which a charging party makes a showing that an employer intended to encroach upon protected rights, the Court stated:

The outcome may well be the same when intent is founded upon the inherently discriminatory or destructive nature of the conduct itself. The employer in such cases must be held to intend the very consequences which foreseeably flow from his actions and if he fails to explain away, to .justify, or to characterize his actions as something different than they appear on their face, an unfair labor practice charge is made out.

Id. (Citations omitted). The standard was applied again in N.L.R.B. v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 986, 13 L.Ed.2d 839 (1965), and American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311, 85 S.Ct. 955, 963, 13 L.Ed.2d 855 (1965).

IV.

A.

This case is different from others where an unfair labor practice finding was based upon the inherently destructive nature of the employer’s actions. No positions were filled with new hires after unconditional offers were received. The employer did not deny reinstatement to unconditional offerors or withhold reinstatement until a vacancy occurred in a substantially equivalent position; strikers were reinstated when any position opened for which they were qualified. The employer did not grant superseniority to non-strikers, or refuse to pay strikers vacation pay while offering it to striker replacements. These are the types of employer action that have been held inherently destructive of employee rights. See N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); Erie Resistor Corp., supra.

Since turnover was much greater at Lewisport than at Cloverport, all recalls were initially to the Lewisport plant. The very use of a chronological list for recall created a preference for those who applied early for reinstatement. The union appears to agree that this preferential treatment was lawful while the strike was in progress, and the decision in MacKay Co. seems to support this conclusion. The union’s position is that while use of the chronological list to recall strikers to Lewisport was permitted, it was unlawful to extend this preferential treatment by timing transfers of employees to their former positions or substantially equivalent ones at Cloverport on the basis of the same list after the strike had ended. Instead, the union argues, employees already recalled from the chronological list should have been transferred to Cloverport only when there were no unreinstated employees with greater Clover-port pre-strike seniority available to fill the positions, regardless of their place on the chronological list. It was admitted that there were former Cloverport workers with greater seniority than any of the twelve transferees who had made unconditional offers to return but who had not been reached for reinstatement on the chronological list at the time of the transfers.

There is no right to recall according to seniority in the absence of such a provision in a collective bargaining agreement or “a binding established past practice.” In the absence of such a right, an employer may establish a new recall procedure so long as it is “applied consistently.” Lone Star Industries, Inc., 279 N.L.R.B. No. 78, 1985-86 CCH NLRB ¶ 17,980 at 30,889. The employer asserts that it did apply the chronological recall procedure consistently, and there was no basis in the collective bargaining agreement or binding past practice for requiring recalls by seniority. The employer also points out that all employees on the list were recalled chronologically and there was no complaint from the union about the recall procedure until the twelve strikers were transferred to Cloverport. It contends that the transfer of the twelve was in accord with the representation made to all offerors, both during the strike and after it ended. All who made unconditional offers to return were treated the same way. The transfers were part of the process of recall adopted when the strike was in progress and served a legitimate business purpose.

At oral argument the attorney for the union contended that while use of the chronological list was lawful during the strike, its use after the strike ended was illegal. Counsel argued that during the strike the “defectors” were the only employees available to fill the vacancies, but once the strike ended the employer did not need the incentive of an early restoration to a striker’s previous job in order to maintain its work force. No authority was cited for the proposition that an employer must abandon a legally devised and consistently applied recall procedure once a strike ends, and the Board did not rest its decision on this distinction. We decline to adopt such a rule.

B.

The question as formulated by the AU is whether the reinstatement of the twelve employees took place when they were recalled for jobs at Lewisport or when they were transferred to Cloverport. If it took place at the recalling, their reinstatement did not discriminate against other strikers; it merely applied a logical procedure of giving jobs as they opened to applicants in the chronological order of their offers to return to work. Since every offeror was recalled on the same basis, there was nothing “inherently discriminatory or destructive” in this conduct. Erie Resistor, 373 U.S. at 228, 83 S.Ct. at 1145. If reinstatement occurred only when the strikers were returned to their former positions or substantially equivalent ones at Cloverport as the Board determined, use of the chronological list served no purpose except to prefer strikers who abandoned the strike over those who continued to the end.

It is difficult to understand how a procer dure that was admittedly lawful during the strike became inherently destructive of the rights of employees with greater seniority when the strike ended. The union and the employer had not bargained for all recalls to be based on seniority. Since the employer was free to adopt “any number of methods” for determining the order of recall, MacKay Co., 304 U.S. at 347, 58 S.Ct. at 911, all strikers put any anticipation of recall according to seniority at risk when they joined the strike. The employer chose to consider seniority in recalling employees only for the purpose of ranking offerors within groups that requested reinstatement together and thus had the same chronological position on the roster. This procedure was followed both before and after the strike ended.

We conclude that the reinstatement of the twelve employees occurred when they were recalled to work at Lewisport and the transfers to Cloverport merely completed the process adopted by the employer and communicated to the offerors. The law requires reinstatement when a vacancy occurs for which an offeror is qualified, whether in his previous position or a substantially equivalent one, or not. Fleetwood Trailer, 389 U.S. at 381, 88 S.Ct. at 547. The AU’s construction would permit an employee to decline an offer of reinstatement to a position for which he was merely qualified and later demand reinstatement to his former position or a substantially equivalent one when it became vacant. This would upset the balance of interests sought to be served by court-created rules relating to reinstatement. Only employees who make unconditional offers to return to work are entitled to reinstatement. In the situation presented by this case, an unconditional offer required an employee to make himself available for recall to any job within the bargaining unit— that is, at either plant — for which he was qualified. Since all employees were reinstated on the same basis — from the chronological list — it is immaterial that some more senior Cloverport employees were still awaiting reinstatement at the time previously reinstated employees were transferred from Lewisport to Cloverport.

There is no evidence that the employer prepared and used the chronological list “with the purpose of discriminating against those most active in the union.” MacKay Co., 304 U.S. at 347, 58 S.Ct. at 911. The chronological list had the legitimate business purpose of providing a fair and orderly method of dealing with strikers who desired to return to work as the employer endeavored to continue operating. While the list created a preference based on the time when an employee made the unconditional offer to return, it made no distinction between those who offered during the strike and those who did so after it ended. The procedure was consistently applied, and seniority — the issue emphasized by the ALJ — played the limited role of ranking people who were otherwise in the same position on the chronological list.

We conclude that the Board erred in holding that the transfer of twelve previously reinstated employees to Cloverport in accordance with the chronological list while employees with greater pre-strike seniority at Cloverport were awaiting reinstatement because of their lower positions on the same list constituted an unlawful preference in violation of sections 8(a)(1) and (3).¹

The record with respect to the section 10(b) issue was not fully developed, but it is not necessary to decide that issue in view of our decision on the merits.

Enforcement of the Board’s order and decision is denied.

1 . The dissent would grant enforcement without adopting either the rationale of the Board or the arguments of the union. The dissent disagrees with this opinion on the question of when reinstatement took place. In effect, it treats the recall of former strikers to jobs for which they were qualified as a gratuitous act by the employer rather than an obligation imposed by law. The case law does not support this view.