Extract
Lucky 7 Limousine, 770 (1993)
S & F Enterprises, Inc., d/b/a Lucky 7 Limousine and United Steelworkers of America, AFL- CIO, CLC. Cases 28-CA-10702, 28-CA-10702- 2, 28-CA-10767-2, and 28-CA-10894
September 30, 1993DECISION AND ORDERBY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGHOn March 11, 1993, Administrative Law Judge Timothy D. Nelson issued the attached decision. The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting and answering briefs, and the General Counsel and Charging Party also filed reply briefs.The National Labor Relations 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 as modified,1 and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3 1. We agree with the judge's finding that the strike was an economic strike prior to the Respondent's unlawful withdrawal of recognition in late January 1991. Contrary to the judge, however, we find it necessary to decide whether the withdrawal of recognition con- verted the strike into an unfair labor practice strike because under Board precedent unfair labor practice strikers are entitled to special remedial provisions. See Beaird Industries, 311 NLRB 768 (1993).An economic strike is converted into an unfair labor practice strike when an employer's unfair labor practices prolong the strike. C-Line Express, 292 NLRB 638 (1989). The Board has found that an unlawful withdrawal of recognition from a union prolongs a strike because it deprives the employees of their bargaining representative, thereby precluding the possibility of reaching agreement on a contract and impeding the settlement of the strike. Rose Printing Co., 289 NLRB 252, 253 (1988); Valley Kitchens, 287 NLRB 686, 690 (1987); and Brooks & Perkins, Inc., 282 NLRB 976, 981 (1987). Here, the Respondent unlawfully withdrew recognition of the Union during the last week of January. Based on the above-cited precedent, we find that the Respondent's withdrawal of recognition converted the economic strike to an unfair labor practice strike.We accordingly shall order that all striking employees who were not permanently replaced prior to the date of the unlawful withdrawal of recognition be reinstated, on their unconditional request, to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, discharging, if necessary, any replacements hired after the unlawful withdrawal of recognition; and that the Respondent make such strikers whole for any loss of earnings and other benefits resulting from its failure to reinstate them within 5 days of their unconditional request, with backpay and interest, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987).4 Such employees for whom employment is not immediately available shall be placed on a preferential hiring list for employment as positions become available and before other persons are hired for such work. Priority for placement on such list is to be determined by seniority or some other nondiscriminatory test. 2. The judge credited employee Dial's testimony that on October 10, 1990, he overheard a conversation between Manager Brooks and employee Wardle in1 The General Counsel and the Respondent have 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 Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.The General Counsel also contends that remarks by the judge about the General Counsel's case evidence the existence of bias. We have carefully reviewed the record and the judge's comments and find no merit in the contention.The General Counsel and the Union except to the judge's finding that the Respondent did not unlawfully fail to reinstate driver Jeff Moline. The judge credited Manager Edward Brooks' testimony that he repeatedly told Moline to contact Owner Willard Booth about reinstatement and Moline did not do so. Alternatively, the judge found that even under Moline's version of the events, Moline had abandoned his efforts to seek reinstatement before the Respondent's intentions were adequately tested. In adopting the dismissal of this allegation, we rely on Brooks' credited testimony and find it unnecessary to pass on the judge's alternative finding.The General Counsel also excepts to the judge's failure to address the allegation that ...See the full content of this document
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