Operations In Fiscal Year 1988 - National Labor Relations Board

72 Fifty-Third Annual Report of the National Labor Relations Boardthe departure of the replacements. The judge found that the replacements'layoff for a prolonged, indefinite period did constitutetheir departure from the company and, hence, the later reopeningof positions constituted vacancies to which the unreinstatedstrikers were statutorily entitled to be recalled.Although Chairman Stephens and Member Babson agreedwith the judge's fmding of a violation, they disagreed with thejudge's reasoning that an economic layoff of permanent replacementsfor a prolonged, indefinite period is per se a vacancy thattriggers strikers' reinstatement rights. The Chairman and MemberBabson found that the question of whether the layoff of a permanentreplacement 'creates such a vacancy must be resolved bybalancing the rights of the parties involved, and that this shouldbe done in the following manner.Chairman Stephens and Member Babson stated that the GeneralCounsel would first be required to establish a prima facie casethat "the layoff truly signified the departure of the replacementsunder Laidlaw and thus created vacancies to which the unreinstatedstrikers were entitled to be recalled. The elements of thisprima facie case would include showing that the strikers havemade an unconditional offer to return to work, that a layoff ofpermanent striker replacements has occurred, that the replacementswere recalled from layoff instead of the former strikers,and that, based on objective factors, the laid-off replacementshad no reasonable expectancy of recall. The factors relevant todetermining whether there was a reasonable expectancy of recallwould include, inter alia, evidence concerning the employer'spast business experience and its future plans, the length and circumstanceof the layoff, and what the employee was told regardingthe likelihood of recall. Once the General Counsel has establishedthis prima facie case, the majority said, the burden shifts tothe employer to show that in fact no such Laidlaw vacancy occurredor that its failure to recall the striker was otherwise basedon legitimate and substantial business justifications. ChairmanStephens and Member Babson found a violation in this case becausethe General Counsel had established a prima facie case,and the company failed to rebut it.In his concurrence, Member Johansen disagreed with placingthe burden of proving "vacancies" on the General Counsel.Member Johansen noted that "the [Supreme] Court and theBoard have consistently placed the burden on the employer toshow that its replacements are permanent," and that the majority'sapproach ran against this precedent. This reallocation ofburdens, Member Johansen concluded, would "disturb the balanceof the economic weaponry established by Congress and preservedin Court and Board opinions defining the rights of strikersand their replacements."