Transport Service Co.

National Labor Relations Board - Board Decisions

Jul 20, 1994

314 N.L.R.B. 458 (N.L.R.B. 1994)

458
314 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 A third discriminatee, mechanic Ron Golden, is not entitled to
any backpay because his interim earnings exceeded the gross back-
pay claimed in the backpay specification.
2 All subsequent dates refer to 1987 unless otherwise specified.
3 The bargaining unit is composed of mechanics, utilitymen, and
washers. Utilitymen performed less skilled work than mechanics, al-
though both groups performed some of the same tasks prior to the
strike.
4 The Respondent argues that its proffered evidence relating to this
issue was precluded by Judge Sherman’s refusal to admit informa-
tion about utilitymen’s prestrike duties. While it is not clear what
evidence the Respondent sought to elicit, our holding eliminates its
possible relevance, even if the evidence would have related to
prestrike allocation of duties between utilitymen and mechanics.
5 In accord with his partial dissent in the underlying unfair labor
practice case, Member Devaney would have found that four mechan-
ics’ positions were open at the end of the strike. See Transport Serv-
ice Co., 302 NLRB 22, 24 (1991).
Transport Service Co. and Thomas McClain and
Automobile Mechanics’ Local No. 701, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO and James DeMoss.
Cases 13–CA–26615, 13–CA–26859, and 13–CA–
26892
July 20, 1994
SUPPLEMENTAL DECISION
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On February 3, 1994, Administrative Law Judge
Nancy M. Sherman issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an answer-
ing brief.
The 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 de-
cided to affirm the judge’s rulings, findings as modi-
fied, and conclusions and to adopt the recommended
Order.
At issue is the backpay owed two employees for the
Respondent’s unlawful failure to reinstate them fol-
lowing an economic strike.1 See Transport Service
Co., 302 NLRB 22 (1991), enfd. in relevant part 973
F.2d 562 (7th Cir. 1992).
Judge Sherman found that the backpay periods of
mechanics Roosevelt Carter and Thomas McClain
commenced on January 14, 1987.2 The judge observed,
however, that the Respondent might have attempted to
show that there was insufficient work available for the
two mechanics on that date, based on the manner in
which work was allocated between mechanics and
utilitymen prior to the strike.3 The Respondent com-
plains that the judge asserted at the hearing that she
would not consider such evidence relevant and that it
was, therefore, unfairly precluded from introducing
evidence it was prepared to adduce.
We agree with Judge Sherman’s finding that the two
mechanics’ backpay periods commenced on January
14. For the reasons that follow, we disavow the
judge’s suggestion that the Respondent could have at-
tempted to show that the backpay periods commenced
on a later date by introducing evidence of its prestrike
work allocation.4
When the strike began on January 4, the Respondent
employed eight mechanics, one utilityman, and four
washers in the unit. At the time of the Union’s January
13 unconditional offer to return, the Respondent’s
complement of mechanics consisted of two nonstrikers
and three permanent replacements. The Respondent’s
executive vice president, Robert Schurer, advised the
Union, on January 13, that three mechanics positions
were available, and asked the Union to select three
striking mechanics to return to work. The Respondent
and the Union agreed on the return of one less senior
mechanic for a particular position, but the Respondent
refused to fill the other two positions at that time. In-
deed, it did not recall other mechanics until June 8,
when Carter accepted a mechanic job, and August
1988, when McClain and Golden were recalled.5
In the underlying unfair labor practice proceeding,
the Board affirmed Judge Kaplan’s finding that ‘‘the
Respondent failed to demonstrate any legitimate and
substantial business justification’’ for failing to fill the
two vacant mechanic positions at the end of the strike.
Transport Service Co., supra, 302 NLRB at 29. Spe-
cifically, Judge Kaplan discredited the testimony that
the Respondent’s initial statement to the Union that
three mechanic positions were available was in error.
Id. Further, observing that the Respondent hired some
utilitymen to perform work previously assigned to me-
chanics, Judge Kaplan rejected the assertion that the
Company reduced its complement of mechanics be-
cause it learned to operate more efficiently during the
strike. Id. Instead, as the court summarized, Judge
Kaplan concluded that the Respondent shifted me-
chanic work to utilitymen to circumvent its obligation
to recall striking mechanics. Id.; NLRB v. Transport
Service Co., 973 F.2d 562, 571 (7th Cir. 1992).
Thus, as Judge Sherman held, Judge Kaplan, the
Board, and the court in the underlying case all found
that as of January 14 the Respondent had tasks which,
if allocated in the prestrike manner, would have been
performed by two additional mechanics. That holding
necessarily precludes any argument in the compliance
proceeding that the Respondent did not have sufficient
work for two additional mechanics on January 14
based on either prestrike or poststrike allocation. Such
an argument would be inconsistent with the underlying
459TRANSPORT SERVICE CO.
1 As issued, the compliance specification included allegations that
the Board’s Order required certain payments into the pension fund
and health and welfare fund of the Charging Union, Automobile Me-
chanics Local No. 701, International Association of Machinists and
Aerospace Workers, AFL–CIO (the Union). At the hearing, the Gen-
eral Counsel, the Union, and Respondent requested the receipt into
evidence of a stipulation which included an undertaking by Respond-
ent to pay certain amounts into these funds, an agreement by the
Union to accept these amounts in order to settle only the claims
raised in the compliance specification concerning money owed to the
funds, and an agreement by the General Counsel that completion of
the payment to the funds settles the contribution liability in full. By
letter to me dated September 29, 1993, the General Counsel advised
me that based on the terms of the stipulation, Respondent had settled
the monetary obligations to the funds in full. Accordingly, the alle-
gations of the compliance specification as to these funds are not be-
fore me.
finding that the Respondent actually had work for the
additional mechanics but that such work was shifted to
utilitymen.
Issues litigated and decided in an unfair labor prac-
tice proceeding may not be relitigated in the ensuing
backpay proceeding. See Baumgardner Co., 298
NLRB 26, 27–28 (1990), enfd. mem. 972 F.2d 1332
(3d Cir. 1992); Best Glass Co., 280 NLRB 1365, 1367
(1986); Sumco Mfg. Co., 267 NLRB 253, 255 (1983),
enfd. 746 F.2d 1189 (6th Cir. 1984), cert. denied 471
U.S. 1100 (1985).
In its exceptions, the Respondent contends that
Judge Kaplan’s decision preserved its right to litigate
the date on which backpay commences by stating
‘‘that the determination of the precise dates on which
the aforenamed strikers should have been reinstated
[will] be left to the compliance stage of this pro-
ceeding.’’ Transport Service Co., supra, 302 NLRB at
35 fn. 10. We disagree with the Respondent’s interpre-
tation.
The language used in footnote 10 of Judge Kaplan’s
decision is a standard provision commonly found in
Board unfair labor practice decisions, and in context
may have referred to strikers other than the mechanics.
It may also have contemplated postdecision changes in
circumstances, striker availability, and the like. Judge
Kaplan’s footnote 10 cannot, however, be interpreted
(as the Respondent urges) to eviscerate a critical find-
ing that was vigorously challenged before the Board
and the court of appeals and that was the sole raison
d’etre of the compliance proceeding. To read footnote
10 as permitting relitigation of the issue of the amount
of work available for mechanics runs counter to the
sense of Judge Kaplan’s substantive findings and to
the Board’s consistent policy of precluding the relitiga-
tion of issues previously concluded in an underlying
procedure. We will not ascribe such an anomalous in-
tention to Judge Kaplan.
Accordingly, we agree with Judge Sherman’s sup-
plemental decision regarding the dates of reinstatement
and the amounts of backpay due.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Transport Service Co.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Richard Kelliher-Paz, Esq., for the General Counsel.
Leonard R. Kofkin, Esq., of Chicago, Illinois, for the Re-
spondent.
Thomas McClain, of Markham, Illinois, pro se.
John Baker, of Chicago, Illinois, for the Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. On
March 11, 1991, the Board issued a Decision and Order find-
ing, inter alia, that Respondent had violated Section 8(a)(3)
and (1) of the National Labor Relations Act by failing to re-
call strikers Roosevelt Carter, Thomas McClain, and Ron
Golden. The Board’s Order included a requirement that Re-
spondent offer reinstatement to McClain and Golden (Carter
having been reinstated, although allegedly belatedly) and
make these three employees whole for any loss of pay they
may have suffered by reason of the discrimination against
them. Transport Service Co., 302 NLRB 22 (1991). On Au-
gust 26, 1992, the Court of Appeals for the Seventh Circuit
entered a judgment enforcing the foregoing provisions of the
Board’s Order (973 F.2d 562). These proceedings are herein
referred to as Transport I.
A dispute having arisen as to the amounts due under the
foregoing provisions of the Board’s Order, enforced by the
court of appeals on December 7, 1992, the Regional Director
for Region 13 issued a compliance specification and notice
of hearing alleging, inter alia, amounts due and owing to
these three discriminatees. On December 18, 1992, Respond-
ent Transport Service, Inc. filed its answer and affirmative
defense to the compliance specification. The hearing was
held before me in Chicago, Illinois, on September 23, 1993.
Thereafter, briefs were filed by Respondent and by counsel
for the General Counsel (the General Counsel). After due
consideration of these briefs and the entire record made be-
fore me, I make the following1
FINDINGS OF FACT
I. PROCEDURAL HISTORY OF THE UNFAIR LABOR
PRACTICE PROCEEDING
A. The Proceedings Before Administrative Law Judge
Irwin Kaplan
On March 24, 1987, the Regional Director for Region 13
issued a complaint which alleged, inter alia, that ‘‘On or
about January 14, 1987, Respondent . . . failed and refused
to reinstate’’ striking employees Roosevelt Carter, Thomas
McClain, and Ron Golden after an application for reinstate-
ment had been made on their behalf, ‘‘and since said dates
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has continued to fail and refuse to reinstate said employees
to their former positions of employment,’’ in violation of
Section 8(a)(1) and (3) of the Act. Respondent’s answer,
dated March 31, 1987, denied that it had engaged in any un-
fair labor practices, and alleged:
[T]he named employees are and were economic strikers
who were permanently replaced . . . . Roosevelt Carter
has been returned to work as a result of a vacancy
among the persons employed and permanent replace-
ments for the other named employees remain employed.
A hearing on this complaint, which for hearing purposes
was consolidated with two other complaints, was held on
May 2, 3, and 4, 1988, before Judge Irwin Kaplan. Mean-
while, on June 8, 1987, Roosevelt Carter, who had been a
mechanic before the strike and had accepted employment
with Respondent to a lower paid position as a utilityman
after the strike ended, was offered and accepted reinstatement
as a mechanic. Respondent contends that his reinstatement to
the mechanics’ position was occasioned by the June 1987
resignation of mechanic J. Koonce, who had been hired as
a permanent replacement during the January 1987 strike.
Respondent’s July 1988 posthearing brief to Judge Kaplan
alleged in part as follows (p. 42):
[T]he record shows that the pre-strike complement con-
sisted of eight mechanics (excluding utility for the mo-
ment); Danhoff, Carter, McClain, Fukar, Golden,
O’Connor, Morrissey, and McCormack (Joint Exhibit
No. 2; [Tr.] 197). That number was reduced to six dur-
ing the strike. McCormack and O’Connor crossed the
picket line, worked during the strike and continue to be
employed ([Tr.] 196). Danhoff’s position of building
maintenance mechanic was not filled during the strike.
He returned to that position after the strike ended and
remains employed. Three mechanic replacements were
hired: they were J. Koonce (who quit in June, 1987,
and whose position was filed by Carter, the Senior
striking mechanic), J. Gariby (still employed) and R.
Clark (still employed). Two [mechanics’] positions
were not filled. It was explained that the elimination of
the two mechanic’s positions resulted from learning to
operate better and more efficiently during the strike
([Tr.] 198–199). There is no allegation, evidence or in-
ference that Respondent thereafter hired any mechanics
to fill those two positions. This is true despite the fact
that the terminal has the same complement of equip-
ment as before the strike ([Tr.] 199).
In August 1988, after the close of the hearing before Judge
Kaplan, Respondent offered McClain (who is junior to
Carter) reinstatement as a mechanic, and he accepted the
offer; Respondent contends that this offer was occasioned by
the resignation of mechanic O’Connor, who worked during
the strike. Also in August 1988, Respondent offered Golden
(who is junior to McClain) reinstatement as a mechanic; Re-
spondent contends that this offer was occasioned by the res-
ignation of R. Clark, a permanent replacement who was hired
during the strike as a mechanic. Golden did not accept this
reinstatement offer; the General Counsel concedes that
Golden’s interim earnings exceeded his gross backpay during
his at least alleged backpay period, and that, therefore, he is
not entitled to any backpay.
Judge Kaplan’s decision issued on May 16, 1989 (302
NLRB 22, 25). He agreed with Respondent that J. Koonce,
J. Gariby, and R. Clark were hired as permanent replace-
ments for mechanics; 302 NLRB at 28–29. Judge Kaplan
then went on to find as follows (302 NLRB at 29–30):
Respondent employed eight mechanics immediately be-
fore the strike. Of these, six of them became strikers:
R. Carter, J. Danhoff, R. Fukar, R. Golden, T. McClain,
and J. Morrissey. The other two mechanics, L.
O’Conner and J. McCormack, worked during the strike.
Danhoff returned to work on January 16 as the building
maintenance mechanic with the consent of the Union,
although he was not the most senior mechanic. As pre-
viously noted R. Clark, J. Garibay, and J. Koonce were
hired as permanent replacements. Thus, excluding
Danhoff, of the seven remaining pre-strike positions,
three were filled by permanent replacements, two posi-
tions continued to be held by O’Conner and McCor-
mack. This left two mechanic slots still open at the
time the offer to return to work was made for which
the Respondent failed to demonstrate any legitimate and
substantial business justification. In fact the Respond-
ent’s initial written response to the Union immediately
after it learned that the strike was over was to confirm
that there were mechanic positions open. Thus, [execu-
tive vice president] Schurer, by telegram stated, in per-
tinent part:
All tank washers have been replaced but three me-
chanics have not. Please select three mechanics [em-
phasis added] to report to work immediately at com-
mencement of regular shift. [G.C. Exh. 7.]
As noted above, the Union agreed to the Company’s
choice of Danhoff to fill one of these positions. How-
ever, the other two slots were not filled. I reject
Schurer’s uncorroborated and implausible testimony
where he asserted that soon after sending the aforenoted
telegram he checked the facts with his staff and discov-
ered that he made a mistake regarding the number of
slots open for mechanics. As for Schurer’s second tele-
gram which was sent the following day assertedly cor-
recting the mistake, I find its contents ambiguous, self-
serving, and more likely in the circumstances of this
case sent to afford the Respondent some documentary
protection for its refusal to recall strikers. Thus,
Schurer’s second telegram could be viewed as dealing
with washers rather than mechanics or even both
groups. There, Schurer merely noted that ‘‘[He] mis-
stated the substantial amount of permanent replace-
ments and the availability of work in view of the lim-
ited amount of equipment at the terminal during the
strike.’’ (G.C. Exh. 8.) There, Schurer also represented
that he would have ‘‘all information for review and dis-
cussion’’ at the previously arranged meeting set for the
following day. This (the information) proved to be
largely illusory.
According to Schurer, there were two positions open
and not the three as stated in his first telegram. How-
ever, even as to these two asserted openings, one turned
out to be illusory. That ostensible position involved the
shop foreman classification, a unit job. The record dis-
461TRANSPORT SERVICE CO.
2 Quotations are from the decision as signed by him and included
in the record before me. The version which appears in the printed
Board volumes contains a few small typographical changes, and does
not include Judge Kaplan’s recommended notice.
closed that at the time of the strike, the shop foreman
position was already open and remained open until
March, 2 months after the strike ended, when the Re-
spondent hired E. Pietrzak, a new employee. The Re-
spondent told the Union that none of the strikers were
qualified to fill that position. In these circumstances,
the conclusion is inescapable that the vacant shop fore-
man’s position vis-a-vis the strikers had no relevance as
a job opening. Thus, of the three mechanic openings re-
ferred to by Schurer in his first telegram, only one, the
building maintenance position filled by Danhoff proved
to be meaningful.
I also reject Schurer’s conclusionary and uncor-
roborated assertion that the Company learned to operate
more efficiently during the strike as a basis for reducing
the number of mechanics (Tr. 198–199). It is noted that
the strike was of relatively short durations, approxi-
mately 10 days. In fact, [company attorney] Kofkin in-
dicated to the Union that the Company had no plans to
‘‘decrease the number of positions.’’ (Tr. 124–125.) In
these circumstances, I find that the failure of the Re-
spondent to at least notify the Union at the meeting of
January 15 and the last bargaining session of February
17 that it had decided to eliminate two mechanic posi-
tions tends to militate against Respondent’s good faith
in dealing with the strikers.
While the Respondent did not hire any new mechan-
ics after the strike, it hired some utilitymen and they
performed some of the work previously assigned to the
mechanics although the record is unclear as to what ex-
tent. The Respondent’s treatment of D. Koonce, brother
of J. Koonce, as a permanent replacement is another
case in point. Schurer testified that D. Koonce, a utility
man was hired during the strike as a permanent replace-
ment. However, at the time of the strike, the Company
had only one utility man, R. Taylor, and he worked
during the strike. Thus, any reliance by the Respondent
on the status of D. Koonce at any time material herein
is misplaced.
Under the the remedy, Judge Kaplan stated, in part:
Having also found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by not timely reinstating
former strikers Roosevelt Carter and James De Moss,9
and not at all reinstating former strikers Thomas
McClain, Ron Golden and Paul Anderson [see infra fn.
3], I shall recommend that the Respondent offer
McClain, Golden, and Anderson immediate reinstate-
ment to their former positions or, if such positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights, dis-
missing, if necessary, any employee hired after January
13, 1987, to replace them and make them whole as well
as Carter and DeMoss for any loss of pay by reasons
of its refusal to timely reinstate them.10
9 The record disclosed that Carter, a mechanic, returned to work as
a utility man on March 16, 1987, and subsequently, on June 8, 1987,
he was reinstated to his former mechanic position; DeMoss was rein-
stated to his former washer position on or about June 15, 1987. (Jt.
Exh. 2.)
10 I recommend that the determination of the precise dates on which
the aforenamed former strikers should have been reinstated be left to
the compliance stage of this proceeding. See, e.g., Challenge-Cook
Bros., [288 NLRB 387], 390 fn. 8 [1988].
In addition, Judge Kaplan recommended an order requiring
Respondent to, inter alia, ‘‘Cease and desist from . . . . Fail-
ing and refusing to reinstate former striking employees to
their former positions or to substantially equivalent posi-
tions;’’ to ‘‘Offer Thomas McClain [and] Ron Golden . . .
immediate and full reinstatement to their former jobs or, if
such positions no longer exist, to [substantially] equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, discharging, if necessary
any employees hired after January 13, 1987 and [make] them
whole as well as Roosevelt Carter and James DeMoss for
any loss of pay by reasons of its refusal to timely reinstate
them in the manner set forth in the section of this Decision
entitled ‘The Remedy.’’’ In addition, Judge Kaplan rec-
ommended that Respondent be required to post a notice to
employees stating, in part:
WE WILL NOT fail and refuse to reinstate former
strikers to their former positions or to substantially
equivalent positions . . . .
WE WILL offer Thomas McClain [and] Ron Golden
. . . immediate and full reinstatement to their former
jobs or, if such positions no longer exist, substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, dis-
charging, if necessary any employees hired after Janu-
ary 13, 1987, and [make] them whole as well as Roo-
sevelt Carter and James DeMoss for any loss of earn-
ings by reason of our refusal to timely reinstate them
in the manner set forth in the section of this Decision
entitled ‘‘The Remedy.’’2
B. The Proceedings Before the Board
Thereafter, both the General Counsel and Respondent filed
exceptions to Judge Kaplan’s decision, together with sup-
porting briefs. Respondent’s exceptions included exceptions
to practically all of the above-quoted findings of Judge
Kaplan (see Exceptions 1–5, 9–10, 30), and such exceptions
were discussed at length in Respondent’s brief to the Board
(see pp. 13–26).
On March 11, 1991, the Board issued a Decision and
Order which adopted Judge Kaplan’s findings and conclu-
sions as to (inter alia) McClain, Carter, Golden, and DeMoss,
302 NLRB 22. The Board issued an order which, inter alia,
required Respondent to ‘‘Cease and desist from . . . .
[f]ailing and refusing to reinstate former striking employees
to their former positions or to substantially equivalent posi-
tions, if their former positions no longer exist’’ and to offer
reinstatement and make employees whole in substantially the
language used by Judge Kaplan. In addition, the Board re-
quired Respondent to post notices to employees which stated,
in part:
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to reinstate former strikers to
their former positions or to substantially equivalent po-
sitions if their former positions no longer exist. . . .
. . . .
WE WILL offer Thomas McClain [and] Ron Golden
. . . immediate and full reinstatement to their former
jobs or, if such positions no longer exist, substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, dis-
charging, if necessary, any employees hired after Janu-
ary 13, 1987, and we will make them whole as well as
Roosevelt Carter and James DeMoss for any loss of
earnings by reason of our failure to timely reinstate
them, with interest.
C. The Proceedings Before the Court of Appeals
Thereafter, the Board filed a petition to enforce the
Board’s Order with the Court of Appeals for the Seventh
Circuit. Respondent’s opening brief to the court of appeals
contended, in substance, that as to Carter, McClain, and
Golden, Judge Kaplan and the Board had erred in finding the
existence of openings for three mechanics (pp. 9–35).
On August 26, 1992, the Court of Appeals for the Seventh
Circuit issued an opinion which affirmed the Board’s find-
ings as to, inter alia, Carter, McClain, and Golden. The court
stated, in part (973 F.2d at 566, 570–572):
The ALJ [Judge Kaplan] determined that, in viola-
tion of sections 8(a)(3) and (1), Transport failed to rein-
state three returning strikers (Anderson, McClain and
Golden) and to timely recall two returning strikers
(Carter and DeMoss). . . .
The NLRB accepted virtually all of the ALJ’s find-
ings of fact and conclusions of law. Accordingly, the
NLRB issued an order requiring Transport, among other
things, to . . . . reinstate Anderson, McClain, and
Golden to their former positions or substantially equiva-
lent positions and make them as well as Carter and
DeMoss whole for any loss of pay by reason of Trans-
port’s failure to timely reinstate them . . . .
. . . .
A head count of the pre-strike and post-strike me-
chanics at Transport’s facility serves as a springboard
into the NLRB’s decision regarding the reinstatement of
the mechanics. Transport employed eight mechanics be-
fore the strike: O’Connor, McCormack, Carter,
McClain, Fukar, Golden, Morrissey and Danhoff. Two
mechanics worked during the strike (O’Connor and
McCormack), and Transport hired permanent replace-
ment mechanics giving Transport a total of five me-
chanics during the strike. That left three unfilled posi-
tions at the end of the strike. Transport, however, filled
only one of those positions with a former striker
(Danhoff) and left two positions unfilled. Carter took a
utility position, and when one of the replacement me-
chanics left in June 1987, Carter (the senior former
striking mechanic) took a mechanic position. The ALJ
found all the permanent replacements were legitimately
hired before the end of the strike.
Relying on several intermediary findings, the ALJ re-
jected Transport’s contention that it had eliminated two
mechanic positions. . . . We will address each of
Transport’s arguments in turn.
First, Transport attacks the ALJ’s credibility deter-
minations. The ALJ noted that Schurer had initially
telegrammed the Union that it had three mechanic posi-
tions open and then within 24 hours sent a second tele-
gram stating that ‘‘[h]e had misstated the substantial
amount of permanent replacements and the availability
of work in view of the limited amount of equipment at
the terminal during the strike.’’ Although Schurer ex-
plained that between telegrams he had checked with the
staff and discovered his mistake, the ALJ rejected the
testimony as ‘‘uncorroborated and implausible.’’ Fur-
thermore, the ALJ found the second telegram to be
‘‘ambiguous, self-serving and more likely . . . sent to
afford [Transport] some documentary protection for its
refusal to recall the strikers.’’ Although the telegram
mentioned a reduction in the complement of equipment,
Schurer testified at the hearing that there was no change
in the complement of equipment before and after the
strike. Noting that the strike lasted only ten days, the
ALJ also rejected Schurer’s uncorroborated assertion
that Transport could reduce the number of mechanics
because it learned to operate more efficiently during the
strike. In response to these findings, Transport argues
that Schurer’s office was not at the facility so it is en-
tirely plausible that he did not know the extent of per-
manent replacements hired or the extent to which the
facility had managed to operate with fewer mechanics.
Transport argues that it was plausible that Transport
could conclude in ten days that increased efficiency
eliminated its need for two mechanics. Credibility de-
terminations, however, are outside our domain, and we
will not second guess the ALJ. . . .
Second, Transport confronts the ALJ’s finding that
Transport added utility men who did some of the work
formerly handled by mechanics during and after the
strike. In effect, the ALJ concluded that although
Transport claimed that it ‘‘eliminated’’ mechanic posi-
tions, Transport circumvented its duty to hire back
striking mechanics by shifting work from mechanics to
utility men and hiring new employees into the utility
positions without offering the utility positions to the re-
turning striker mechanics. Although Transport maintains
that the record shows mechanics did utility work, not
that utility men did mechanic work, the record is open
to conflicting interpretations. On the whole, the record
shows that many of the tasks formerly performed by
both mechanics and utility men became exclusively the
tasks of utility men after the strike.4 For example, one
witness testified that some of the inspections formerly
done by mechanics were shifted to utility men. We will
not disturb the ALJ’s reasonable inference that Trans-
port engineered these shifts in responsibility to cir-
cumvent its duty to reinstate former strikers. . . .
Third, Transport attempts to undermine the ALJ’s
finding that Transport vacillated about the number of
available mechanic positions, which heightened the
ALJ’s skepticism regarding Transport’s candidness. The
ALJ noted that at the January 15, 1987 meeting,
Schurer initially referred to two mechanic positions but
one proved to be illusory since it was the working fore-
463TRANSPORT SERVICE CO.
3 The court rejected other Board findings, including its finding that
Respondent unlawfully failed to recall striker Anderson and timely
to recall striker DeMoss, both washers. The Board had found that
Respondent had unlawfully discriminated against a total of five em-
ployees—Anderson, DeMoss, Carter, McClain, and Golden.
man’s position which was not filled before the strike
and which the Union and Transport agreed none of the
strikers were qualified to fill. Transport points out that
the ALJ misquoted the record and erroneously con-
cluded that Transport did not notify the Union at the
January 15, 1987 meeting about its plans to reduce the
number of mechanic positions.5 Nevertheless, even if
Transport did not put the Union on notice of its inten-
tion to reduce the number of positions, notice would
not satisfy the ALJ’s overriding concern that Transport
was less than forthright with the Union since Schurer
vacillated before the meeting regarding the number of
mechanic positions available. Moreover, even if Trans-
port had notified the Union on January 15 of its plan
to reduce the number of mechanics, it would not have
affected the ALJ’s final decision since the ALJ did not
believe that Transport really ‘‘eliminated’’ the posi-
tions. Instead, the ALJ concluded that Transport shifted
mechanic work to utility men, created two additional
utility positions, and filled the two positions with new
employees.
. . . .
Substantial evidence on the record supports the
NLRB’s decision that Transport violated sections
8(a)(3) and (1) by failing to recall two mechanics,
McClain and Golden, and failing to timely recall one
mechanic, Carter. Therefore, we will grant the NLRB’s
application for enforcement of the order as it pertains
to McClain, Golden, and Carter.3
4 While there is some dispute concerning precisely when these
changes in responsibility occurred, there is substantial evidence that the
changes did not take full effect until after the strike.
5The witness did not testify that Transport indicated to the Union
that Transport had no plans ‘‘to decrease the number of positions’’ as
the ALJ stated . . . Instead, the witness testified that Transport indi-
cated it ‘‘had no plans to increase or decrease the number of positions
then filled.’’
On September 29, 1992, the court of appeals issued a
judgment which included all provisions of the Board’s cease-
and-desist order quoted herein. In addition, the court’s judg-
ment required Respondent to
[o]ffer Thomas McClain and Ron Golden immediate
and full reinstatement to their former jobs or, if such
positions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges previously enjoyed, discharging, if
necessary, any employees hired after January 13, 1987,
and make them whole as well as Roosevelt Carter for
any loss of pay by reasons of its refusal to timely rein-
statement [sic] them in the manner set forth in the rem-
edy section of the judge’s decision.
Also, the court’s judgment required the posting of notices
to employees which included the following provisions, inter
alia:
WE WILL NOT refuse to reinstate former strikers to
their former positions or to substantially equivalent po-
sitions if their former positions no longer exist.
. . . .
WE WILL offer Thomas McClain and Ron Golden
immediate and full reinstatement to their former jobs
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, dis-
charging, if necessary, any employees hired after Janu-
ary 13, 1987, and WE WILL make them whole as well
as Roosevelt Carter for any loss of earnings by reason
of our refusal to timely reinstate them, with interest.
D. The Instant Proceeding
The instant compliance specification alleges, in part (1)
that the backpay period as to Carter and McClain begins on
January 14, 1987, the day following the Union’s offer to re-
turn to work; (2) that the backpay period as to Carter ends
on June 8, 1987, the date on which Respondent reinstated
him to a position as a mechanic; (3) that the backpay period
as to Golden begins on June 8, 1987, ‘‘the day on which the
first mechanic position became available as a result of the
resignation of a lawful strike replacement’’; (4) that the
backpay period as to Golden ends on August 5, 1988, the
day of the last opportunity he had to accept Respondent’s
offer of reinstatement; and (5) that the backpay period as to
McClain ends on August 5, 1988, the date on which he was
reinstated by Respondent. The parties agree that the backpay
calculations set forth in the compliance specification are cor-
rect if the backpay period is found to begin on January 14,
1987, for McClain and Carter; and to begin on June 8, 1987,
for Golden. No backpay as claimed as to Golden, because
the General Counsel admits that the claimed gross backpay
as to him was exceeded by his interim earnings. My reasons
for discussing the backpay period as to Golden will appear
hereafter.
The evidence adduced before me in December 1993 shows
that Respondent increased its active utilitymen complement
to two (by hiring D. Koonce) on January 12, 1987, during
the strike; and to three on April 28, 1987, after the strike had
ended. At the May 1988 unfair labor practice hearing, Lead
Superintendent Rosko Stojkovich testified that the
utilitymen’s duties were to perform pretrip safety inspections,
to do minor mechanical work, and to check that equipment
has been properly cleaned and that the licensing is in order
(Tr. 363). He went on to testify that mechanics ‘‘repair’’ the
equipment (that is, do whatever is necessary to maintain and
to keep the equipment in safe operating condition), and are
also qualified to fill utility positions (Tr. 363). In addition,
he testified (Tr. 453–454) that utilitymen and mechanics have
the same training procedure because, if utilitymen are ‘‘all
caught up with their hook-ups and everything,’’ they assist
mechanics in performing mechanics’ work. Also, he testified
that in the winter of 1986, he noticed that when mechanics
should have been fixing the equipment, they were out in the
yard starting trucks, parking equipment, hooking up, and
bringing up fifth wheels. He went on to testify that before
about December 1986, the utilitymen checked out and
hooked up equipment, performed minor repairs, and, if they
had the time, were required to change a tire and ‘‘could as-
sist’’ the mechanics. He testified that around December 1986
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As previously noted, the General Counsel admits that Golden is
not entitled to any backpay, on the ground that during his at least
alleged backpay period beginning on June 8, 1987, his interim earn-
ings exceeded his gross backpay. Golden’s situation is discussed
herein solely because of Respondent’s contention that the General
Counsel claim as to Carter and McClain is rendered logically unten-
able by his claim as to Golden.
5 See Baumgardner Co., 298 NLRB 26, 27–28 (1990), enfd. 972
F.2d 1332 (3d Cir. 1992); Sumco Mfg. Co., 267 NLRB 253, 255
(1983), enfd. 746 F.2d 1189 (6th Cir. 1989), cert. denied 471 U.S.
1100 (1985); Best Glass Co., 280 NLRB 1365, 1367 (1986); Over-
seas Motors, 277 NLRB 552, 556–557 (1985), remanded on other
grounds 818 F.2d 517 (6th Cir. 1987); Laborers Local 38 (Hancock-
Northwest), 268 NLRB 167, 178 (1983), enfd. in material part 748
F.2d 1001 (5th Cir. 1984), cert. denied 470 U.S. 1085 (1985); EDP
Medical Computer Systems, 293 NLRB 857, 858 (1989); Unico Re-
placement Parts, 286 NLRB 738, 739 (1987); and cases cited.
and after the January 1987 strike, utilitymen were given
more responsibility because he needed the mechanics to be
more productive. (Tr. 456–459.) Mechanic McClain testified
at the unfair labor practice hearing that before the strike, he
spent 50 to 55 percent of his time on utility work, and that
inspection work was performed by mechanics until 2 or 3
weeks before the strike, at which time utilitymen began to
perform some of the inspection work (Tr. 483–484). On May
3, 1988, during the unfair labor practice hearing, Respond-
ent’s counsel asked Stojkovich why Respondent’s com-
plement of utilitymen, and the amount of their overtime, had
increased from one before the January 4–13, 1987 strike to
two during and for several months after the strike and three
in April or May 1987. Stojkovich replied:
Before the strike we only had one utility man, and
he was working on the midnight shift. The prior to
strike, most of our mechanics were doing utility man
duties; throughout the day. They would go in and hook
up equipment and they would spend most of the time
doing utility men’s duties.
After, or during the strike, I had . . . some problems
with [utility man Robert Taylor, a nonstriker] so we put
another utility man on and found that with the added
utility man, the mechanics were a little more
productive[,] they were doing [mechanics’] work then,
instead of yard work.
He went on to testify that thereafter, Respondent hired a
third utilityman because equipment was no longer leaving
and arriving between 10 p.m. and 6 a.m. alone but, instead,
was constantly arriving and departing. Stojkovich further tes-
tified that this expansion of arrival/departure hours had
begun about early 1986, ‘‘but we had mechanics that if we
had put utilitymen in, I would have too many people then,
I would not be able to keep everybody busy, so the mechan-
ics were doing the utility [men’s] work and they were not
doing their [mechanics’] work, they were doing utility
[men’s] work.’’ When asked why Respondent worked with
fewer mechanics during and after the strike, Stojkovich re-
plied, ‘‘because they are working a little more efficiently
now.’’ (Tr. 359–363.)
II. ANALYSIS AND CONCLUSIONS
So far as material here, Transport I found as follows: On
January 13, 1987, at the conclusion of a 10-day protected
economic strike, the Union made an effective application for
reinstatement on behalf of the strikers, including Carter,
McClain, and Golden, all three of whom had been classified
as mechanics before the strike. Respondent failed to offer
them such jobs at that time, and during the litigation offered
the defense that no mechanics’ vacancies existed after the re-
instatement of former striker Danhoff, also classified as a
mechanic before the strike. At all material subsequent times,
Respondent’s active employees included two fewer employ-
ees classified as mechanics than Respondent had actively em-
ployed with that classification before the strike. However,
during the strike and during the poststrike period, Respond-
ent increased (mostly by new hires) the number of its em-
ployees with the classification of utilityman above the num-
ber of prestrike employees with that classification, and as-
signed to utilitymen alone certain tasks which before the
strike had been performed by both utility and mechanic clas-
sifications; Respondent engineered these shifts in responsibil-
ity in order to circumvent its duty to reinstate former strikers.
Moreover, upon receiving the Union’s request for reinstate-
ment, Respondent had initially advised the Union that it had
two vacancies for mechanics in addition to the vacancy filled
by Danhoff; and later advised the Union that the alleged de-
crease in the number of mechanics’ jobs was due to a reduc-
tion in the complement of equipment, although Respondent’s
testimony showed that no such reduction in equipment had
in fact occurred. Accordingly, Respondent violated Section
8(a)(3) and (1) by failing to recall mechanics McClain and
Golden, and failing to timely recall Carter as a mechanic.
As to the beginning of the respective backpay periods with
respect to these employees, the General Counsel argues as
follows: Transport I found that as of January 14, 1987, the
day after the Union’s application for reinstatement, Respond-
ent had tasks to be performed which, if they had been
grouped in the manner used by Respondent before the strike,
would have amounted to two jobs coming within the classi-
fication of mechanic and which were not filled in January
1987 by either strike replacements or returning strikers. Ac-
cordingly, the General Counsel contends, the date on which
mechanics’ jobs should have been offered to discriminatees
Carter and McClain (the two senior unreinstated striking me-
chanics) was January 14, 1987, which, therefore, was the be-
ginning of the backpay period as to them. The General
Counsel goes on to argue that an additional mechanic va-
cancy became available on June 8, 1987, upon the departure
that day of a permanent replacement; and that, because the
two senior mechanic discriminatees (Carter and McClain)
should have been offered reinstatement several months ear-
lier, the existence of the June 8, 1987 vacancy (which Re-
spondent gave to Carter, thereby admittedly terminating his
backpay period) triggered the beginning of the backpay pe-
riod as to the third, junior, mechanic—namely, Golden.4
I agree with the General Counsel that the foregoing anal-
ysis is required by Transport I and the state of the record
made before me. Respondent’s contention before me that
these three mechanics were promptly offered the first job va-
cancies to which they had a statutory right is precluded by
the procedural limitations on relitigating, in a backpay pro-
ceeding, issues litigated and decided in the underlying unfair
labor practice case.5 Such a contention by Respondent in-
cludes (at least) the contention that before the May 1988
close of the hearing before Judge Kaplan, the only such va-
cancy arose in June 1987, and this vacancy was filled by
465TRANSPORT SERVICE CO.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board, and all objections thereto shall be deemed
waived for all purposes.
Carter, the senior unreinstated mechanic. However, because
the existence before May 1988 of vacancies to which the
unreinstated mechanics had a statutory right was necessary to
any finding in Transport I that Respondent violated the Act
by failing to offer them reinstatement, Respondent’s conten-
tion as to the absence of such vacancies is irreconcilable with
Transport I’s conclusion, on the basis of the May 1988
record made before Judge Kaplan, that Respondent violated
the Act by failing to recall McClain and Golden and failing
to timely recall Carter. Transport I may perhaps have af-
forded Respondent the right to adduce evidence in compli-
ance proceedings that as of January 14, 1987, the tasks
which it had available would not have been sufficient to oc-
cupy the time of two additional mechanics (or even one) if
allocated between mechanics and utilitymen in the prestrike
fashion; and that a later date prior to the close of the May
1988 hearing was the date of its action in ‘‘engineer[ing]
these shifts in [mechanics’ and utilitymen’s respective re-
sponsibilities] to circumvent its duty to reinstate former strik-
ers’’ (973 F.2d at 571). However, Respondent made no effort
to show this during the proceeding before me. Accordingly,
and in view of management’s January 13, 1987, telegram to
the Union stating (in effect) that two vacancies for mechan-
ics (in addition to the mechanic job to which Danhoff was
reinstated) were available, I find that the backpay period for
Carter and McClain began on January 14, 1987. Because Re-
spondent otherwise admits the allegations in the compliance
specification, I find that the backpay owed by Respondent in
connection with the discrimination against Carter and
McClain is the amounts claimed in the specification.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Transport Service Co., Chicago, Illinois,
its officers, agents, successors, and assigns, shall make, as
net backpay, payments in the following amounts, plus inter-
est as called for by the Board’s Order as enforced by the
court of appeals, less tax withholdings required by Federal
and state laws:
To the estate of the late
Roosevelt Carter $7,364.80
To Thomas McClain $40,475.06