Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 73In Delta-Macon Brick & Tile Co.," an administrative lawjudge found that an employer's recall of laid-off striker replacementsbefore unreinstated economic strikers, after a layoff ofmore than 15 months, did not violate Section 8(a)(3) and (1) ofthe Act, as had been alleged in the complaint.Following the judge's decision in this case, the Board issued aDecision and Order in Aqua-Chem," setting forth the criteria tobe used in determining whether a layoff has resulted in the departureof a striker replacement under Laidlaw Corp.,'" and allocatingto parties their respective burdens of proof on this issue.In Delta-Macon, the Board majority decided to remand theproceeding to the judge for the purpose of allowing the partiesan opportunity to present evidence on this issue in accordancewith the Board's holding in Aqua-Chem and for the judge's furtherconsideration under the Aqua-Chem holding. The majoritynoted that given the rule in Aqua-Chem, which places the burdenon the General Counsel to show that permanent replacementswho were subsequently laid off had no reasonable expectation ofrecall, it was appropriate, notwithstanding the passage of time, togive the General Counsel an opportunity to meet the burden inthis case.48Member Johansen dissented from the majority's decision toremand the case for further fmdings. Rather, relying on his concurringopinion in Aqua-Chem, Member Johansen expressed theview that the burden is on the employer to show that the layoffof striker replacements did not result in vacancies under Laidlawto which unreinstated strikers would be entitled. He found thatthe respondent in this case had ample opportunity during thehearing to make such a showing, but the evidence demonstratedthat it failed to do so. Thus, he found that no purpose was servedby giving the respondent, more than 6 years after the judge's decisionin this case, a second chance to prove that the layoffs didnot create vacancies within the meaning of Laidlaw. In his view,the long, indefinite layoffs that occurred here constituted a sufficientinterruption of the employment relationship to warrant therecall of the unreinstated strikers.4 289 NLRB No. 111 (Chairman Stephens and Member Babson; Member Johansen dissenting).46 288 NLRB No. 121 (Chairman Stephens and Member Babson; Member Johansen concurring).4 7 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cart denied 397 U.S. 920 (1970). UnderLaidlaw, economic strikers who have been permanently replaced but who unconditionally offer toreturn to work are entitled to reinstatement on the departure of their replacements. Under Aqua-Chem,the burden of proving that the layoff of a striker replacement resulted in the departure of the replacementunder Laidlaw is on the General Counsel. Member Johansen, who concurred in the Aqua-Chemdecision, is of the view that this is not so; rather, he believes that "the burden is on the employer toshow that its replacements are permanent.48 The judge's decision in this case issued on June 9, 1982. The Board issued its Aqua-Chem decisionon May 26, 1988.