Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 71cifically, Bruckner certainly does not cover the situation in whichthe petitioner filed postelection but pretally charges that the employerviolated Section 8(a)(2) by prepetition recognition of theunion. Member Stephens would have adopted the judge's recommendedremedy—order the employer to withdraw and withholdrecognition from the unlawfully recognized union until it is certifledby the Board in an appropriate unit.C. Employer Discrimination Against EmployeesSection 8(a)(3) prohibits an employer from discriminatingagainst employees "in regard to hire or tenure of employment orany term or condition of employment" for the purpose of encouragingor discouraging membership in any labor organization. •Many cases arising under this section present difficult factual, butlegally uncomplicated, issues as to employer motivation. Othercases, however, present substantial questions of policy and statutoryconstruction.1. Striker Reinstatement RightsIn Aqua-Chem, Inc.," the Board held that the company violatedthe Act in recalling laid-off striker replacements before moresenior unreinstated strikers. In reaching this decision, the Boardset out a new framework for determining whether the layoff of apermanent replacement creates a vacancy that activates a striker'sreinstatement rights.In March 1980, the company's production and maintenanceemployees commenced an economic strike, and the companybegan hiring permanent replacements for the strikers the followingmonth. The strike ended in August 1980 when the companyexecuted a new collective-bargaining agreement that included anagreement that strikers were deemed to have made an unconditionaloffer to return to work and that they would be returned towork as job vacancies occurred. In March 1982, the company indefinitelylaid off 15 employees, 14 of whom were striker replacements.The company began recalling employees from layoffin May 1982, and by August it had recalled four employees,three of whom were striker replacements. The company did notconsider recalling any of the remaining unreinstated strikers,taking the position that its layoff of replacements did not createany vacancies to which the unreinstated strikers were entitled tobe recalled.The judge concluded that the company had violated Section8(a)(3). The judge noted that, under Laidlaw Corp., 44 economicstrikers who have been permanently replaced but who unconditionallyoffer to return to work are entitled to be reinstated upon43 288 NLRB No. 121 (Chairman Stephens and Member Babson; Member Johansen concurring).44 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).