Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices - 61violated Section 8(a)(1) of the Act because it "may be fairly understoodas a threat of reprisal" as indicated in Eagle Comtronics.It held that the employer's combined references to the futilityof strilcing and the employees' probable loss of employment werenot consistent with Laidlaw Corp.," which guarantees permanentlyreplaced strikers, who have made unconditional offers toreturn to work, the right to full reinstatement when positions areavailable and to be placed on a preferential hiring list if positionsare not available. Because an employer's right to permanently replaceeconomic strikers does not render it futile to engage in theprotected right to strike, or entail an absolute loss of employmentfor those striking employees who are replaced, the Board concludedthat the respondent's remarks went beyond the permissibleboundaries of protected speech and restrained or coerced employeesin the exercise of their rights under the Act."In Carborundum Materials Corp.," the Board reversed the administrativelaw judge to find that a supervisor's threat to "get"an employee and to sue her because she had jeopardized his jobby filing an unfair labor practice charge with the Board violatedSection 8(a)(1).In dismissing the allegation, the judge relied on Postal Service,"in which the Board found that a supervisor's threat to filea lawsuit against a union—for harassing her by filing grievancescontending that she had received preferential treatment—was notunlawful. The Board in Carborundum, however, distinguishedPostal Service, where the threat to sue, on the temporary supervisor'sown behalf and in response to actions affecting her status asan employee, could not be construed as any threatened retaliationby the respondent employer at the workplace. That situationwas in contrast to the situation in Carborundum, where the supervisorwas not temporary, and the supervisor's threat to "get"an employee, made together with the threat to sue her, involveda form of retaliation by the supervisor in question within theframework of his supervisory capacities.• The Board further found that the Supreme Court's decision inBill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983), holdingthat the Board could not enjoin the filing and prosecution of awell-founded lawsuit, was inapplicable to the situation in Garborundum,which involved a threat directly related to the workplaceand a threat to sue rather than the actual filing of a suit.In Carborundum, the Board also rejected the respondent's contentionthat the 8(a)(1) threat was appropriate for arbitrationunder the parties' contract under United Technologies Corp., 26814 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970)." Member Babson found it unnecessary in the context of this case to pass on the distinction drawnby the Board in fn. 8 of Eagle Comtronics. In that case, the Board distinguished cases involving employerconduct that merely informs employees of the risk of being permanently replaced and fromthose in which an employer tells employees they would permanently lose their jobs.15 286 NLRB No. 126 (Members Johansen, Babson, and Stephens).17 275 NLRB 360 (1985).