Tanner Motor Livery, Ltd.

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 575 (N.L.R.B. 1969)

TANNER MOTOR LIVERY, LTD.
Tanner Motor Livery, Ltd., Tanner Motor Tours,
Ltd., and Avis Tanner , Inc. and Chauffeurs Union,
Local No. 640, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America ; Teamsters Automotive Workers,
Local No. 495, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America ; International Association of
Machinists, AFL-CIO, Lodge No. 1186; and
Office Employees International Union, Local No.
30, AFL-CIO
West Coast Transportation Co. and Chauffeurs
Union, Local 640 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers
of America and Drivers Committee , Party in
Interest . Case 31-CA-399 and 31-CA-479
June 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 25, 1968 Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding , finding that Respondents had not
engaged in unfair labor practices warranting the
issuance of a remedial order , and recommending
that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner ' s Decision.
Thereafter, the General Counsel filed exceptions and
a supporting brief. However, subsequent thereto the
General Counsel filed a motion to amend such
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision , the amended exceptions and
brief,' and the entire record in these cases , and with
the limited modification indicated below , hereby
adopts the findings , conclusions, and
recommendations of the Trial Examiner.'
'We hereby grant the unopposed motion of the General Counsel to
amend its exceptions, by withdrawing those which pertain to Case
31-CA-479. Such withdrawal was a part of the settlement approved by us
and reflected in an unpublished Supplemental Decision and Order of the
Board issued February 12, 1969 in Case 31-CA-40.
'In adopting the Trial Examiner 's Decision in Case 3l-CA-339 , we do so
solely on the ground that an issuance of an order in this case would be a
needless duplication of our Order in Tanner Motor Livery, Ltd., 160
NLRB 1669. See New Enterprise Stone and Lime. Inc ., 176 NLRB No.
71. In the absence of exception thereto , we adopt , pro forma, the Trial
Examiner 's Decision in Case 3l-CA-479.
ORDER
575
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: The charge in
Case Number 339 was filed by the four unions named in
the caption, above, against Tanner Motor Livery, Ltd.,'
and against its affiliates, Tanner Motor Tours, Ltd., and
Avis Tanner, Inc. (all called herein Tanner) on March 7,
1966, alleging refusal to bargain with the said unions on
and after February 28, 1966. The charge in Case Number
479 was filed by Chauffeurs Union, Local, No. 640,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Local 640, against West Coast
Transportation Company, herein called West Coast, on
July 1, 1966, alleging discriminatory discharge of two
employees and refusal to bargain. On January 23, 1967,
Local 640 filed an amended charge against West Coast
alleging , in addition to those unfair labor practices
specified in the original charge, the discriminatory refusal
by West Coast, as successor to Tanner, to reinstate eight
named employees, because they had engaged in a strike.
Upon these charges, the General Counsel for the National
Labor Relations Board, by the Regional Director of
Region 31, of the Board, on April 10, 1967, issued a
consolidated complaint and notice of hearing alleging
violation by each Respondent of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended, 29
U.S.C. sec. 151, et seq.
West Coast, on June 20, 1967, filed an answer, denying
the commission of the unfair labor practices and pleading
affirmatively denial of due process, the 6 months' bar of
Section 10(b) of the Act, and waiver by Local 640,
because Local 640 allegedly had knowledge of the
existence of its predecessor's, and Pacific Coast
Transportation Company's, existence as early as August
10, 1965, and failed to request bargaining at the
expiration of the contract between Tanner and Local 640
on September 1, 1965. West Coast further pleaded that it
had a good-faith doubt that Local 640 represented a
majority of its employees.
Identifying itself as "Grand Rent A Car Corp.
(formerly Tanner Motor Livery, Ltd.)",' Tanner filed an
answer on June 21, 1967, in effect denying all of the
alleged unfair labor practices.'
Pending consolidated hearing in Cases 31-CA-339 and
479, the General Counsel on April 19, 1967, moved the
'This Respondent changed its name (but underwent no corporate change
otherwise ) at some time before the date of its answer , June 20, 1967.
'Tanner Motor Tours , Ltd., is now called Gray Lme Tours Company
No change of name was noted for Avis Tanner, Inc. As found in and
earlier case , 31-CA-40 (160 NLRB 1669), Tanner Motor Tours and Avis
Tanner are wholly owned subsidiaries of Tanner Motor Livery, Ltd. which
is now called Grand Rent A Car Corp . On the appearance sheet, counsel
for Tanner showed Gray Line Tours Company as "formerly Tanner Motor
Livery, Ltd.," and Grand Rent A Car as "formerly Tanner Motor Tours
Co." This was probably an error , but to avoid confusion herein,
Respondents in Case 339 will continue to be called Tanner.
'On the second day of the hearing, Respondent Tanner moved to add
Tanner Motor Tours Company (now Gray Lme Tours Company) to the
answer, and the motion was granted. No mention was made of
Avis-Tanner.
176 NLRB No. 72
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board to reopen the record in Case 31-CA-40 (160 NLRB
1669) and to approve consolidation of that case with the
two here involved, for the purpose of hearing. Thereafter,
on August 9, 1967, the Board granted the motion to
reopen the record in 31-CA-40, and directed the Trial
Examiner to issue a Supplemental Decision and
Recommendation following the hearing.
Pursuant to notice, a consolidated hearing was held in
Los Angeles, California, on various dates between
September 26 and November 20, 1967; and on June 11,
1968, 1 issued a Supplemental Decision and
Recommendation in Case 31-CA-40, recommending that
the Board join Pacific and West Coast as Respondents on
the ground that they are successors to Tanner. The
Board 's Decision is pending as of this date. Following the
close of the hearing , the parties were afforded an extended
time in which to file briefs. Within that time , briefs were
filed by the General Counsel and by West Coast.
1. THE BUSINESS OF RESPONDENT
Respondent Tanner is a California corporation
engaged, through wholly owned subsidiaries, in providing
touring bus service, limousine service, and car rental
service to the general public in various cities in Los
Angeles County, California. During the 12 months
preceding the date of issuance of the complaint, Tanner
received gross revenues exceeding $500,000 from the
operation of the foregoing services. During the same
period, Tanner provided transportation services for firms
located within the State of California, which firms, during
the same period, sold and shipped goods valued in excess
of $50,000 directly from California to firms and points
located outside the State of California. During the same
period of time, Tanner purchased tires, vehicles, and other
supplies for use in its operations, described above, valued
in excess of $50,000 from suppliers located within the
State of California, which suppliers purchased and
received these same items directly from firms and points
located outside the State of California. Tanner admits
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and I so find.
Respondent West Coast is a California corporation
engaged in providing taxicab service to the general public
in Glendale, Pasadena, and Santa Monica, California.
During the 12-month period immediately prior to issuance
of the complaint, West Coast received gross revenues
exceeding $500,000 from the operation of said service.
During the same period of time, West Coast purchased
tires, vehicles, and other supplies for use in its operations,
described above, valued in excess of $50,000 from
suppliers located within the State of California, which
suppliers purchased and received these same items directly
from firms and points located outside the State of
California. West Coast's answer, for want of denial,
admits that it is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act, and I so find.
11. THE LABOR ORGANIZATIONS
The Charging Parties, herein separately referred to as
Local 640 , Local 495, Lodge 1186, and Local 30 are now,
and at all times material herein have been, labor
organizations within the meaning of Section 2(5) of the
Act. Each was also a charging party in Case 31-CA-40,
where it was found that each represented certain
employees of Tanner . Local 640 represented Tanner's
taxicab drivers, and it, alone, has charged West Coast, as
successor to Tanner's taxicab business, with unfair labor
practices.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to Bargain
1. Appropriate units
The complaint herein, as respects Tanner, alleges as
appropriate units the same ones as were found to be
appropriate in the Board's Decision and Order in the case
of Tanner Motor Livery, Ltd., 160 NLRB 1669, except
for the unit of taxicab drivers, there found appropriate,
which the complaint, with respect to West Coast, alleges
to be appropriate.
West Coast denies the appropriateness of the unit of
taxi drivers. Tanner admits the appropriateness of all units
alleged except that of taxi drivers and an alleged unit
composed of Tanner's U-drive men tire changers,
lubemen, washers and polishers, and clean-up men
employed in Los Angeles County, California, which it
denies. Ordinarily, a unit once found to be appropriate by
the Board, presumptively continues to be appropriate in
the absence of a showing of a compelling change in
circumstances which affects the appropriateness of the
unit.' Here no evidence was offered to show why the units
alleged in the complaint and denied by Tanner and West
Coast were not appropriate. Except for the change in
ownership, West Coast has offered no evidence to show
any changed circumstance which might even suggest why
a unit of taxicab drivers is not still appropriate, and
neither Tanner nor West Coast has suggested that any
unit other than those described in the complaint and in the
Board's earlier decision is appropriate. Accordingly, for
want of evidence to the contrary, I find the same units to
be appropriate now, regardless of which employer is now
employing the employees in the respective appropriate
units.
2. The majority of the several unions in the
appropriate units
The General Counsel makes no attempt to prove the
majority of any of the several unions in the unit in which
they had represented Tanner's employees at any date after
the sale of the taxicab business to West Coast on October
5, 1965. He relies entirely upon the presumption of
continued majority growing out of Tanner's recognition of
the several unions when, in 1965, Tanner agreed to extend
their contracts to September 1, 1965. Since any loss of
majority of the unions may be attributed to Tanner's
refusal to execute the agreed contracts and thereby to
recognize the several unions as majority representatives in
the respective units, the Respondents may not rely upon a
good-faith doubt as to the union's majorities.' Tanner
continued to be bound to bargain collectively with the
respective unions (except to the extent that it sold the
taxicab business to Pacific, now West Coast) on the basis
of the majority found by the Board in 160 NLRB 1669.
The same presumption of continued majority of Local 640
'See Bowman Transportation , Inc. 142 NLRB 1093; National
Carloading Corp, 167 NLRB No. 116; Little Rock Downtowner. Inc, 168
NLRB No. 18, Rish Equipment Company. 169 NLRB No. 129.
'C & C Plywood Corporation, 163 NLRB No. 136; Schd/ Steel
Products, inc., 161 NLRB 939.
TANNER MOTOR LIVERY, LTD.
as to the taxicab drivers applies so far as West Coast, as
successor, is concerned.
A question arises, however, as to whether or not such
presumption of majority may be relied on to support a
charge of refusal to bargain as a new and independent
violation of 8(a)(5) of the Act entirely independent of the
original refusal to bargain or whether Section 10(b) of the
Act prohibits the issuance of a complaint in such case.
This will be discussed hereinafter.
3. The request and refusal to bargain
The complaint alleges new requests to bargain made by
Local 640, to Tanner on March 4, 1966,° with respect to
the bus operators' units, and by Local 640 to West Coast
on May 27, 1966, with respect to the taxicab operators;
but with respect to the other three unions, the complaint
merely alleges that " at all times material herein, and
continuing to date," the respective unions had requested
Tanner to bargain with them. In addition to alleging a
refusal by each Respondent to bargain with the respective
unions , the complaint also alleges changes in conditions of
employment made by Tanner on February 28, 1966, and
by West Coast in January and May 1966 without
consulting with the union representing the employees
affected. Tanner and West Coast, in their answers, denied
the requests and refusal to bargain except that Tanner
admits the refusal to bargain with Local 640 for the bus
drivers.
The evidence establishes that on March 4, 1966, R. C.
Wilson, secretary- treasurer of Local 640, on behalf of that
Union, sent Tanner a telegram requesting a meeting to
bargain for agreements covering the bus drivers and the
taxicab drivers, and on March 10, 1966, Tanner' s counsel,
Bruce R. Geernaert, replied on behalf of Tanner,
expressing doubt as to that union's majority and, in effect,
refusing to meet with Local 640. On May 13, 1966, Local
640 wrote to West Coast and requested a meeting
concerning a grievance over the discharge of an employee.
On May 20, 1966, Donald Bebout, West Coast's attorney,
wrote denying the existence of any contracts but offering
to discuss the matter. Later, Julius Reich, attorney for
Local 640, and Jack Shore, secretary-treasurer of Local
640 met with Bebout at Bebout's office and demanded
recognition and bargaining . Bebout said he would take the
matter up with the Board of Directors of West Coast and
would inform Local 640 of the position of West Coast. On
June 10, 1966, not having heard from Bebout, Reich
wrote him and requested an immediate response. None
was forthcoming. Davis conceded that he and his
associates in West Coast had told Bebout that they felt
they were not obligated to bargain with Local 640, but
Davis also testified that they had given him no instruction
,to reply.
It is clear, then, that Local 640 had requested
bargaining in 1966 with Tanner for the bus drivers and
with West Coast for the taxicab drivers, that Respondent
refused such requests and that loss of majority is no
defense.
Some question may be raised , however, with respect to
the cases of Local 30, Local 495, and Lodge 1186. No
request to bargain for a new contract after the expiration
of the contract on September 1, 1965, has been shown for
any of the three.' Even if the Respondents were not able
successfully to interpose a defense of good-faith doubt as
• he ria xaminer' s Decision was issued on February 25, 1966, in
Case 31-CA-40.
577
to majority as to these three unions, this fact would not
dispense with the necessity for a request to bargain. The
Board's Order in Case 31-CA-40 required Tanner to
bargain, upon request, with the unions named therein even
after the expiration of the contract on September 1, 1965,
but there is no evidence of a request thereafter by these
three unions. Local 30 did write to Tanner's attorney,
Kirshman, on March 9, 1966. But this letter requested the
reinstatement of eight employees and requested a date for
a meeting at which an authorized representative of Tanner
could "execute a written collective bargaining agreement
with this organization for a period consistent with the
decision of the Trial Examiner." (In Case 31-CA-40). This
refers to the contract (expiring on September 1, 1965)
which the Trial Examiner had found had been reached
orally but had never been reduced to writing. No request
was made for bargaining by Local 30 after September 1,
1965, the end of the period mentioned in its letter any
more than by Local 495 or by Lodge 1186.
It is ordinarily not enough that a union may have
desired bargaining if it did not request it,' but where there
is a continuing refusal to bargain collectively, it is not
required that proof be adduced of a new request and
refusal to bargain, especially where, as here, Tanner,
before the expiration date of the contract found to exist
by the Board in its previous decision (160 NLRB 1669),
had amply demonstrated that it was refusing to execute
the contract or to bargain with the unions here involved as
early as February 1965, on the ground, among others, that
the unions had lost their majority.' Tanner never
abandoned this position and never complied with the
Board's Order in Case 31-CA-40 to execute a written
contract and to continue to bargain collectively after the
expiration date of that contract. Obviously, a request to
bargain would have been an empty and useless gesture.1°
That a request would have been fruitless is further
exemplified by the fact that Tanner made unilateral
changes in terms of employment of its bus drivers" and by
letter of March 10, 1966, rejected the express request of
Local 640 to bargain collectively.
4. The effect of Section 10(b)
It is obvious that Tanner has continuously refused to
bargain with the charging unions as alleged in the
complaint. But West Coast has pleaded and argues that,
under Section 10(b) of the Act, it cannot be found to have
committed an independent unfair labor practice in
violation of Section 8(a)(5) of the Act on the basis of
unilateral changes made in conditions of employment or
on the basis of a request to bargain made within 6 months
prior to the filing and service of the charge where its
alleged duty to bargain depends upon the unfair labor
practice of Tanner in refusing to bargain in 1965 and
stipu anon , the General Counsel introduced in evidence a letter from
IAM District Lodge 94 to Tanner dated June 28, 1966, in which Lodge 94
requested a meeting to negotiate a modified contract . There is no evidence,
however, that Lodge 94 is a successor to Lodge 1186 , which is a party to
these proceedings . In any event , the acknowledged existence of a contract
in that letter implies that there has been bargaining, and there is no
evidence that Tanner either did or did not refuse the request of Local 94.
' Western Aluminum of Oregon, Inc.. 144 NLRB 1191.
'Wynn-Dixie Stores , Inc. 147 NLRB 788, enfd. as modified 361 F.2d
512 (C.A. 5).
"The Texas Pipe Line Company . 129 NLRB 705; Old Town Shoe Co.
91 NLRB 240.
"Local 640 protested the unilateral action taken without notification or
bargaining by letters dated December 20, 1966, and April 12, 1967.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where West Coast, itself, had never been held to have
violated Section 8(a)(5) of the Act. The same argument
might also be made as to Tanner , unless a new and
independent unfair labor practice was committed by it
within the 6-month period.
A request to bargain and a refusal within 6 months of
the date of the filing and service of the charge will be
proof of an unfair labor practice only if it is not necessary
to rely upon proof of an unfair labor practice which
occurred more than 6 months prior to the filing and
service of the charge .' 2 Here, it appears that it would be
necessary to rely upon an unfair labor practice committed
by Tanner more than 6 months prior to the date of the
filing of the charge in order to show the right of Local
640 to represent employees of either Tanner or of West
Coast. As against Tanner, in February 1965, Local 640
established its majority and its right to recognition in an
appropriate unit , a concomitant of an unfair labor
practice refusal to bargain, by showing its majority prior
to the strike and by showing Tanner's agreement to renew
the contract. After that time, the presumption of majority
continued because of the unremedied unfair labor practice.
I conclude , therefore , that a new and independent unfair
labor practice of refusal to bargain cannot here be found
on the basis , alone , of a request and refusal to bargain or
on the basis of unilateral changes in conditions of
employment unless there be proof of a majority without
dependence upon the evidence that established a majority
in the prior unfair labor practice case.
Even the General Counsel' s allegation that West Coast
committed an unfair labor practice within the meaning of
Section 8 (a) (5) and ( 1)" by dealing with the Drivers
Committee in derogation of the bargaining rights of Local
640 could be sustained only by proof, independent of that
in the prior unfair labor practice case, that Local 640 is
the current representative of a majority of the taxicab
drivers, proof which was not offered.
5. Duplication of remedies
But wholly aside from the question of limitation under
Section 10(b) of the Act, I can see no reason for a new
charge of refusal to bargain which is just a continuation of
an old refusal to bargain which has already been found by
the Board to be an unfair labor practice and which can
still be remedied by enforcement of the outstanding Order
of the Board . This applies to both Tanner , the original
respondent , and to West Coast, found to be successor to
Tanner with respect to the taxicab business in my
Supplemental Decision in Case 3l-CA-40, issued on June
11, 1968, and therefore to be required to bargain in lieu of
Tanner with Local 640.
B. Failure and Refusal to Reinstate Former Strikers
The complaint alleges as continuing violations of
Section 8 (a)(3) of the Act the failure and refusal by
Tanner and by its successors, Pacific and West Coast, to
reemploy certain strikers who, after the strike , had made
unconditional application for reinstatement . Ten such men
were identified by the General Counsel in a bill of
particulars." In the reopened hearing in Case 31-CA-40,
West Coast raised certain issues regarding its
responsibility as successor for reinstatement of former
strikers and payment of backpay . These issues were
"Local ge No. 1424, IAM v. N.L R.B, 362 U.S. 471.
" It was not alleged to be a violation of Section 8 (a) (2) the Act.
disposed of in my Supplemental Decision in that case
issued on June II, 1968. In the current case, issues have
been raised by West Coast regarding its liability under the
new charge against it. The first is that a continuing refusal
to reinstate is not a new and independent unfair labor
practice but one dependent on the original discrimination
which took place (in this case) in 1965 and that, hence,
the allegation of the complaint of violation of Section
8(a)(3) is barred by Section 10(b) of the Act; but that even
if West Coast is liable at all, its liability should be limited
to the period within 6 months prior to the service of the
charge. Other issues raised are to the effect that there was
no unfair labor practice in the refusal to reinstate because
(1) the alleged discriminatees did not apply for work at
the very time when taxicab drivers were being hired and
(2) there were valid nondiscriminatory business reasons for
declining to reinstate some of the men who were not
reinstated.
Because West Coast may misconceive its obligation to
reinstate former strikers under the Board's Order in Case
31-CA-40, and because, in my Supplemental Decision in
that case, I stated that I would discuss the cases of the
individuals allegedly discriminated against, I shall first
point out that West Coast is in error in assuming that
none of the ten employees herein concerned can be shown
to have been discriminated against unless he made
application for work when a job actually was available. Its
reliance on N.L.R B v. Brown & Root, Inc., 132 NLRB
486, is misplaced. There the economic strikers had been
replaced before they applied for reinstatement. The
General Counsel had there argued that such returning
strikers should have then been placed on a preferential list
and offered employment when it became available. The
Board held that it was not necessary for the employer to
establish a preferential list of applicants and to offer work
to those on such list when an opening might thereafter
arise. Economic strikers no longer have status as
employees if their jobs are filled during the strike. So
where a striker is seeking backpay on the basis of a job
later becoming available , it is incumbent upon him to
apply for the job when it opens up and it is not incumbent
upon the employer to convey an offer of the job to him.
The case at hand does not, however, concern newly
created jobs or jobs opening up as a result of
terminations. It concerns only the jobs which remained
unfilled at the end of the strike - jobs which remained
unfilled because it took Tanner several months to get back
to full scale operations. In this respect the facts here are
similar to the facts in N.L.R.B. v. Fleetwood Trailer
Company, Inc., 389 U.S. 375, where the United States
Supreme Court held that it was incumbent on the
employer to offer employment to strikers who had already
made unconditional application for reinstatement. As in
the Fleetwood case, the evidence here shows that, after
jobs became available by activating cabs after April 15,
1965, Tanner hired at least ten new employees to the
exclusion of the ten here involved who had previously
made application for reinstatement. "Unless the employer
who refuses to reinstate strikers can show that his action
was due to `legitimate and substantial business
justifications' he is guilty of an unfair labor practice.""
The court also held there that such failure to offer
employment to the returning strikers who had applied for
"The allegation of discrimination by West Coast in discharging Joseph
Polin was dismissed at the hearing for want of sufficient proof.
"Fleetwood. cupra, citing N L.R B. v. Great Dane Trailers. 388 U S. 26.
TANNER MOTOR LIVERY, LTD. 579
reinstatement would be an unfair labor practice even
without a showing of antiunion motivation.
In the case at hand , I find no general changes in
methods of operation which would have resulted in
eliminating the jobs of the ten strikers here involved who
had applied for reinstatement . It is true that during 1965,
Tanner eliminated cabs with automatic shift. This,
however, could have affected only one returning striker,
Irvin McKenney , who, before the strike , usually, but not
exclusively , drove automatic shift cars , because he had a
physical defect . But when McKenney was making
inquiries as to when he would be reinstated , Rounds did
not tell him that he could not be reinstated because
Tanner had eliminated automatic-shift cars. In fact,
Rounds testified that he did not even know in February or
March of 1965 that McKenney had a license restricting
McKenney to driving automatic -shift cars or cars
equipped with a hand throttle. (I find it difficult to
believe , if this was implied by Rounds ' answer, that
Rounds did not know of McKenney ' s handicap .) Rounds
testified that in late February or early March he had
asked McKenney if he wanted to come back to work and
that McKenney had said that he did not want to return
then . If such an incident occurred , I am inclined to believe
that it occurred before the end of the strike instead of
afterwards . In April 1965 , Tanner sent , in registered
envelopes , cards asking former strikers to mail the cards
back , indicating whether or not they were available for
work. McKenney, who had made application for
reinstatement on February 3, 1965, testified that he had
received such a card and brought it to Rounds personally
in April and asked when he could go to work. He testified
that Rounds told him that it would be three or four
months before he could use him . Following that time,
however , the records show that Tanner hired five new men
in May 1965, and five more new men in June 1965, not to
mention other new men hired in July and August of that
year, without any offer of work having been made by
Tanner to McKenne'. Since Rounds failed to inform
McKenney of any valid business reason why he would not
be rehired , I find that McKenney 's physical handicap was
not the real reason.
In some instances , Tanner failed to reinstate former
strikers, who had applied for reinstatement , because of
their age , but it was conceded that Tanner had no
mandatory retirement age before the strike and there was
no such rule adopted afterward which indicated a
clean-cut change of policy.
In one case , that of Syd Commins, the excuse for
failure to reinstate was that an unknown doctor had
telephoned and advised Davis against reemploying
Commins in a job where he would be dealing with the
public. Commins was not then questioned by Davis,
Rounds, or any other agent of Tanner authorized to hire
concerning any medical or psychiatric treatment he might
have been undergoing . Until 1967, Commins was not told
by an agent of either Tanner or Tanner's successor that he
could not be reemployed without a doctor's release. Until
he was so informed, I find that he was not justifiably
denied employment.
It is, however, my conclusion that the reinstatement
rights of the ten employees whose cases were gone into
here should not have been made the subject of a new
charge and complaint but should have been taken up in a
supplemental proceeding for the determination of backpay
in Case 31-CA-40. An order is already outstanding for
reinstatement and backpay which is broad enough to
cover the ten employees here involved. If a new order
were to issue, it could (in view of Section 10(b) of the
Act) at best cover backpay for a period of 6 months prior
to the service of the charge even if the complaint of
discrimination were not altogether barred by Section 10(b)
of the Act because they depend upon proof of an unfair
labor practice committed more than 6 months prior to the
service of the charge . But regardless of Section 10(b) of
the Act, I find that a new order of reinstatement and
backpay would be an unnecessary duplication.
RECOMMENDED ORDER
For the reasons hereinbefore stated , I recommend that
the complaint in Cases 31 -CA-339 and 479 be dismissed.