Extract
Gibson Greetings, 1286 (1993)
Gibson Greetings, Inc. and International Brotherhood of Firemen and Oilers, AFL-CIO and Betty Smith. Cases 9-CA-26706, 9-CA-27660, and 9-CA-26875
May 7, 1993DECISION AND ORDERBY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGHOn December 18, 1991, Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a brief in support, and the General Counsel and the Charging Party filed cross-exceptions and briefs in support. All three parties filed answering briefs to each other's exceptions, and the Respondent also filed reply briefs to the General Counsel's and the Charging Party's answering briefs.1The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions as modified and to adopt the recommended Order as modified.This case involves an economic strike which began on May 1, 1989,3 after negotiations had broken down between the parties. The strike ended on August 8, when the strikers made an unconditional offer to return to work. The General Counsel alleged that actions by the Respondent on May 1 and 15 were unlawful and that each act was sufficient to convert the strike to an unfair labor practice strike. The judge found that a letter sent by the Respondent to striking employees on May 1 violated Section 8(a)(1) of the Act, in that it threatened to deprive them of their Laidlaw4 rights, but that this violation did not convert the strike. He further found that the Respondent violated Section 8(a)(5) of the Act on May 15 and again on May 21, when it insisted that the Respondent comply with its demands on a nonmandatory subject of bargaining as a condition of any further bargaining. He concluded that this 8(a)(5) violation sufficed to convert the strike to an unfair labor practice strike as of May 15. We agree with the judge's findings as to these matters, for the reasons set out below.The judge also found that the employees hired during the strike were hired as permanent replacements for striking employees. Thus, he concluded that the Respondent was not required to displace those employees who were hired between May 1 and 14, because the strike was an economic one during that period. We disagree with the judge on this issue and find that the Respondent did not meet its burden of proving that the replacements shared with it an understanding that their employment was permanent. We find instead that the newly hired employees were in fact temporary replacements, and accordingly, we will order reinstatement of all strikers who made an unconditional offer to return to work.1. The 8(a)(1) threat in the May 1 letterThe complaint alleges that by its letter dated May 1 to its striking employees, the Respondent violated Section 8(a)(1) of the Act by threatening to disregard the employees' Laidlaw right to reinstatement if job vacancies occurred after replacement employees departed. The letter discussed the Respondent's position on the two bargaining issues which separated the parties, and then concluded:We will begin to hire and train new employees immediately so you should understand that you have a right to work here which is protected by federal and state law if you return to work before you are replaced. It really is up to you. [Emphasis in original.]The judge found that this language violated Section 8(a)(1) in that it threatened to ignore the employees' rights guaranteed by Laidlaw. He noted that the Respondent underlined the threat to prevent any employees from missing the point, and that it concurrently published a notice in the newspapers indicating that the rights of replacement workers would be respected.51 The Respondent also filed a motion for oral argument. This request is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties.The Charging Party Union has moved us to receive into the record the unpublished opinion of the United States Court of Appeals for the Sixth Circuit in Gibson Greetings v. Firemen & Oilers Local 77, 947 F.2d 944 (1991), in which the court affirmed a district court order dismissing Gibson's suit for the Union's alleged breach of the no-strike clause in the 1986-1989 collective-bargaining agreement. We grant the motion, but note that we do not give that decision res judicata effect as to any issue in this proceeding.2 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard...See the full content of this document
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