NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,413, SUPER GLASS CORP. et al. and ARMANDO BOCANEGRA., (July 28, 1994), National Labor Relations Board, (Jul 28, 1994)

In adopting the judge’s finding that the Respondent unlawfully refused to reinstate five striking employees, we reject, as did the judge, the Respondent’s contention that it had no work for these five strikers. The evidence indicates that the Respondent utilized several individuals, some of whom were already on the Respondent’s payroll, to perform unit work during the strike as well as after the Respondent received the Union’s unconditional offer to return to work. These include Bobby Dancy, who had previously been employed by the Respondent but was not employed at the time the strike began and who worked as a blower during the strike; Charles Clitus, who was a glass mold foreman prior to the strike, but was brought in to do unit work; a new Brazilian employee, who began working during the strike as a gatherer and continued to work into January 1992; and Armando St. Louis, a hot end spray equipment foreman prior to the strike who was brought on to perform unit work.

Regardless of whether these individuals were previously working for the Respondent in management or other nonunit positions, or were newly hired, they were clearly replacements performing unit work at a time when the Respondent was obligated to offer that unit work to the unfair labor practice strikers seeking reinstatement.

The judge found, and we agree, that striking employees were unlawfully discharged on October 8, 1991. The Board has held that unlawfully discharged strikers, like unlawfully discharged employees, need not request reinstatement in order to activate the employer’s backpay obligation. See Abilities & Goodwill, Inc., [1978-79 CCH NLRB ¶15,634] 241 NLRB 27 (1979). Thus, the discharged strikers are entitled to reinstatement and backpay from the date of the employer’s unlawful action until the date he or she is offered reinstatement. To the extent that the judge’s remedy and recommended Order do not explicitly indicate that backpay shall be calculated from October 8, 1991, we clarify them to so provide.

Member Cohen agrees that the Respondent unlawfully discharged its striking employees on October 8, 1991, in violation of Sec. 8(a)(3). Having so found, it is, in Member Cohen’s view, unnecessary to determine whether the economic strike subsequently converted to an unfair labor practice strike and whether the Respondent’s subsequent refusals to reinstate violated the Act.