Ferrell-Hicks Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1966

160 N.L.R.B. 1692 (N.L.R.B. 1966)

1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America; in Teamsters Automotive Workers, Local 495, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America;
in International Association of Machinists, AFL-CIO, Lodge No. 1186; or in
Office Employees International Union, Local No. 30, AFL-CIO by discrimi-
nating in regard to the hire or tenure of employment or any term or condition
of employment of any reemployed striker.
WE WILL NOT in any other manner interfere with, restrain , or coerce
employees in the exercise of their right to self-organization , to form, join, or
assist labor organizations , including those above named, to bargain collec-
tively through representatives of their own choosing , or to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Section
8(a)(3) of the National Labor Relations Act, as amended.
WE WILL, upon request by any of the above-named Unions, execute written
agreements renewing the agreements with said Unions which expired on Sep-
tember 1, 1964, for a term of 1 year to September 1, 1965, and We WILL
give retroactive effect to such agreement or agreements on all terms thereof,
including , but not limited to, the provisions relating to wages, bonuses, and
all other benefits, and processing , if requested , all grievances raised during
the term of such renewed contracts.
WE WILL make whole all employees for any loss suffered by them by reason
of our refusal to execute such agreements or to give effect to them, and WE
WILL make whole all strikers who, at the end of the strike in January 1965,
made unconditional application to us to return to work and who were either
rehired by us as new employees or were denied available work because they
refused to sign applications as new employees.
TANNER MOTOR LIVERY, LTD.,
Employer.
Dated----- -------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 312
North Spring Street, Los Angeles, California, Telephone 688-5844.
Ferrell -Hicks Chevrolet , Inc. and Andrew Burinskas , an Indi-
vidual . Case 13-CA-4886. October 7, 1966
SECOND SUPPLEMENTAL DECISION AND ORDER
On April 22, 1963, a majority (former Members Leedom and
Rodgers ) of a National Labor Relations Board panel issued a Deci-
sion and Order (142 NLRB 154) in this proceeding, dismissing the
complaint on the ground that the General Counsel had failed to
establish by a preponderance of the evidence that Respondent dis-
charged Andrew Burinskas in violation of Section 8(a) (3) of the
National Labor Relations Act, as amended. Chairman McCulloch, the
third member of the panel, dissented and would have adopted the
finding of the Trial Examiner that the discharge was in violation of
Section 8(a) (3).
160 NLRB No. 134.
FERR.ELL-HICKS CHEVROLET , INC. 1693
On January 8, 1964, upon petition for review filed by Burinskas,
the Court of Appeals for the District of Columbia remanded the case
to the National Labor Relations Board for reconsideration of its
Decision with a view to its clarification . Andrew Buurinskas v. N.L.R.B.,
55 LRRM 2300. After further proceedings , the Board on Decem-
ber 9, 1964 , issued a supplemental Decision and Order ( 149 NLRB
1512), reversing its earlier Decision and Order , and adopting the
Trial Examiner 's finding that Burinskas had been unlawfully dis-
charged and his recommendation that Respondent be required to offer
Burinskas reinstatement to his former position and pay Burinskas
backpay covering the period "from the date of the discrimination
against him to the date of offer of reinstatement."
The Respondent petitioned for review of the Supplemental Deci-
sion and Order, and Burinskas cross-petitioned for enforcement. On
February 1, 1966 , the Court of Appeals affirmed the Board 's finding
that Respondent had violated Section 8(a) (3) of the Act, but again
remanded the case to the Board on the question of remedy (357 F.2d
822 (C.A.D.C.) ). In its opinion , the court discussed several Board deci-
sions involving the tolling of backpay and then concluded :
Thus, the Board has tolled back pay for varying periods with-
out explanation . More germane to the case before us , however, is
the fact that the Board has tolled back pay in cases very similar
to the one at hand and has never explained by what criteria it
selects the cases in which it will toll. . . . We think the
Board should come to grips with this recurring problem, for the'
protection of the rights of the employee and for the protection
of the employer acting in good faith . It would seem that the
Board could, in the exercise of its expertise , develop appropriate
policy considerations and outline at least minimal standards to
govern the ascertainment of tolling backpay practices.
These cases , therefore , are remanded to the Board for findings
on the question whether back pay should be tolled. [357 F.2d 822,
at 827 ( C.A.D.C ) ; footnotes omitted.]
The Board accepted the remand from the Court of Appeals . There-
after, on March 25, 1966, it offered the parties to the proceeding an
opportunity to file statements of position and supportii g briefs on
the following questions :
1. Should backpay be tolled in this proceeding?
2. If the Board determines that backpay should be tolled , for what
period should it be tolled?
The Charging Party and the Respondent have filed statements of
position and briefs . We have carefully considered the questions raised
by the Court of Appeals and have examined our practices with
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the tolling of backpay. We shall first discuss the consider-
ations directly relevant to our remedy in this case, and then, in an
effort to be fully responsive to the apparent scope of the remand, we
shall discuss the considerations that have controlled, and will control,
our remedies in the various other situations where the issue of tolling
is present.
The issue in this case upon which the Board, following the original
remand, reversed itself is whether Respondent discharged Burinskas
to discourage union activities among its employees, in violation of
Section 8(a) (3) of the Act. The Board's present practice as to the
tolling of backpay in such discriminatory discharge situations was
established in A.P.TV. Products Co., Inc., 137 NLRB 25, enfd. 316 F.2d
899 (C.A. 2). In that case the Board reconsidered its practice of tolling
backpay in discriminatory discharge cases between a Trial Exam-
iner 's recommended dismissal of the complaint and the Board's find-
ing of unlawful discrimination. The Board rejected the rationale of
the previous tolling practice in such cases that, as a matter of equity,
respondents in those cases are entitled to rely on the Trial Examiner's
finding that the discharge was lawful and therefore cannot be
expected to offer reinstatement after such a finding. The Board con-
cluded (former Members Rodgers and Leedom dissenting) that the
result of the practice had been to benefit the wrongdoer at the expense
of the wronged-that tolling relieved the respondent of a burden for
which he bore full responsibility for no reason other than that the
Trial Examiner had reached an erroneous conclusion. In addition to
this appraisal of the equities bearing upon the tolling issues in such
cases , the Board found that a no-tolling rule was far more consistent
with the fundamental aim of the Board's remedial authority and
power, as a tolling practice permitted respondents in such cases to
delay reinstatement of the unwanted employee at no cost to them-
selves and punished the unlawfully discharged employee by shifting
to them the financial burden flowing from the unlawful activity,
while a no-tolling rule largely avoided such results. Consequently; the
Board held in that case that a full backpay and reinstatement remedy
was appropriate, with no exclusion from the backpay computation
for the period between the issuance of the Trial Examiner's Decision
and the date of the Board's order.
We consider the principles relied on in the A.P.W. case wholly
applicable here; for this too is a discriminatory discharge case` in
which the basic issue is a factual one as to the intent of 'the respond-
ent. When it is ultimately determined, by the final reviewing author-
ity, that the respondent was indeed motivated by an unlawful intent,
our system of law' holds that determination to be an indisputable fact,
FERRELL-HICKS CHEVROLET, INC. 1695
for the purposes of the case. And, if the respondent was in fact so
motivated, he would presumably have been aware at all times of the
true reason for his discriminatory act, and no favorable intermediate
decision should have misled him into believing that his real intent
would not eventually be determined. In such cases, therefore, where
the critical issues are factual ones and the final reviewing authority
ultimately finds a discriminatory act and an unlawful intent, the
wrongdoer should be subjected to payment of restriction ab initio.
Here, the Board has now found the Respondent to have been
unlawfully motivated. The Court of Appeals has affirmed this find-
ing. The Respondent must be held to a full awareness of the familiar
consequences of discharging an employee in order to quell unionism.
The Respondent's claim that a temporary vindication in the course of
the decisional process should entitle it to some relief in the formula-
tion of the remedy has, in the case of a knowing wrongdoer, scant
equitable appeal. Accordingly, we adhere to the findings, conclusions,
and remedy adopted in our Supplemental Decision and Order in this
proceeding.
By and large, the bulk of Board cases which provide for a rein-
statement and backpay remedy, and therefore conceivably raise an
issue as to tolling, are 8(a) (3) findings like the present case. In these
cases, the problems will generally be factual ones, and any conflicts
between the Trial Examiner, the Board, and the Court of Appeals
will likely be disagreements about the appraisal of evidence and the
inferences to be drawn therefrom. As we have indicated, once a final
determination of the Respondent's unlawful intent has been made in
such cases, he must be conclusively branded as a wrongdoer, and the
balance of equities shifts in favor of the discriminatee. In these situ-
ations, therefore, no equitable consideration outweighs the ordinary
remedy which most completely effectuates the policies of the Act by
seeking a restoration of the status quo ante and placing any resulting
financial burdens on the wrongdoer who created the situation. Occa-
sional cases will arise, however, usually under other sections of the
Act, in which, while backpay may seem a presumptively appropriate
remedy, the distribution of equities between respondent and employee
will not be so clearly limned.
Where reinstatement of an employee to his job seems a proper
remedy for employer conduct, but there is no element of employer
intent which so compellingly fixes the equities as in an 8(a) (3) case,
the Board will consider any special factors in the case which may
prompt the conclusion that a full backpay award would be inappro-
priate. Falling into this category are the only three cases decided since
A.P.W. Products in which the Board has tolled backpay, and, upon
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Court of Appeals has asked us to comment: Walls 31anu-
factoring Company, Inc., 137 NLRB 1317. Fibreboard Paper Prod-
ucts Corporation, 138 NLRB 550, and Kohler Co., 148 NLRB 1434.
After brieflydiscussing these cases; the Court of Appeals suggests that
they are ". . . very similar to the one at hand ...." As discussed below,
we believe that both Fibreboard and Kohler are markedly dissimilar
from the instant proceeding, which clearly is the type of routine
8(a) (3) situation to which the A.P.W. Products rule was addressed
and which presents no meritorious case for relief from the traditional
remedy.
In both Fibreboard and Kohler the backpay formulas were respon-
sive to the unique demands of remedying terminations and failures
to reinstate which, while not bottomed on an unlawful intent, were
nonetheless subject to Board remedial action. In neither of the cases
did the decision to reinstate arise out of a finding that the employees
had been discharged from their jobs because of a deliberate employer
intent to obstruct their collective activities. In the absence of this
clear guideline, and in the presence of other equitable considerations
favoring the employer in each case, the Board found itself in the area
of "unusual circumstances" foreseen by A.P.W. Products, in which a
fresh examination of the remedy appropriate to the violation could
properly be undertaken.
Fibreboard involved the question of an employer's duty, under
Section 8(a) (5) of the Act, to bargain with a union over a decision
to contract out the work of an entire bargaining unit. The existence
of the duty was unsettled in Board law at the time the employer let
the subcontract, and the violation eventually found clearly was free
of any trace of a 9nala fides intent. In these circumstances, the equities
of the case, with regard to remedy, favored the Fibreboard Company,
and backpay was accordingly tolled. It seems apparent that the
instant Respondent, found to have been animated by an antiunion
motivation in discharging Burinskas, has not even a colorable claim
to the consideration given by the Board to the merits of the Fibre-
board Company's argument for tolling.
Walls unquestionably presents a factual situation much closer to
the instant case than to either Fibreboard or Kohler. Indeed, were the
Walls case to come before us today, we would be very likely to apply
A.P.W. and refuse to toll backpay. We agree, in short, with the
implicit suggestion of the Court of Appeals, in its opinion on remand
here, that the single factor mentioned in the Board's Supplemental
Decision as the reason for tolling-that both the Trial Examiner and,
originally, the Board had exonerated the Respondent-does not, in
and of itself, state a justifiable reason for departing from the practice
established in A.P.W. Products, in the light of the reasoning there
articulated for awarding a full measure of backpay.
FERRELL-HICKS CHEVROLET, INC. 1697
As with Fibreboard, however, an obvious distinction may also be,
seen between the facts on which the present proceeding is founded
and those giving rise to the backpay order in the Kohler case. It is no
longer subject to question that the Respondent here discharged Bur-
inskas with the specific intent of suppressing union activity, and this.
clear fact overshadows any claim for relief Respondent might assert
based on other considerations. Kohler, on the other hand, involved a
refusal to reinstate employees because of unprotected acts of miscon-
duct in which they had engaged during a strike. The definitive cri-
terion of unlawful intent, although present with respect to related
unfair labor practices, was absent with specific respect to the dis-
charges and failure to reinstate. The discretionary authority of the
Board to require reinstatement and backpay as to these employees
turned on whether the Thayer principle' was applicable. In its origi-
nal decision, which preceded the unconditional application for rein-
statement, the Board had not accepted the Thayer principle as appli-
cable to the case. It was not until the court remanded the case to the
Board for reconsideration of the issue involved that the Respondent
became fully apprised of the legal principles to be applied to its
refusal to reinstate the strikers who had been discharged for miscon-
duct. In these circumstances, the Board considered it appropriate in
the exercise of its discretionary authority to consider the equities
favoring the Respondent in fixing the backpay period.
The issue of backpay and tolling can only arise when an employee
has lost work through the action of the employer (sometimes at the
behest of a union). The great majority of the cases in which the
Board adjudicates whether such employer action was an unfair labor
practice are based on 8(a) (3) complaints in which a key element is
the employer's motive. When violations are eventually found in such
proceedings, it is necessarily decided that the discrimination was
intended to discourage union activity. In considering the matter of
remedy in these cases, the Board has weighed the arguments on each
side and concluded that, in virtually all such cases, the employer has
no equitable standing to claim credit for periods of time in which an
intermediate reviewer erroneously thought the employer's conduct to
be lawful. However, in the infrequent cases in which an employee is
terminated as a result of employer conduct which, while an unfair
labor practice, does not bespeak such a clear intent, the Board will
be more receptive to such employer contentions as, for example, that
it was justifiably reliant on a decisional error or on an expectation
that the Board would adhere to a particular view of the law. When
the respondent is not an ill-intentioned offender, as he is in an
8(a) (3) case which turns on motive, the balance of equities between
1N.L.R.B. v. Thayer Company, 213 F.2d 748 (C.A. 1), cert. denied 358 U.S. 883.
257-551-67-vol. 160-108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and employee draws closer to equilibrium, and the Board
will consider more sympathetically any substantial defenses the
respondent may proffer against a full backpay remedy. This case,
however, is not one of those infrequent cases. It follows that we affirm
our decision to award a full backpay remedy.
[The Board reaffirmed its Order of December 9, 1964, [149 NLRB
1512] in this proceeding.]
Gopher Aviation, Inc. and International Association of Machin-
ists, AFL-CIO. Case 18-CA-2057. October 10, 1966
DECISION AND ORDER
On April 14, 1966, Trial Examiner William Seagle issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof."
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 this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,2
and recommendations of the Trial Examiner only to the extent indi-
cated below.
"The Respondent's request for oral argument is hereby denied as the record, including
the Respondent's exceptions and brief, adequately presents the issues and the positions
of the parties.
2 The Respondent excepts to the Trial Examiner's determinations with respect to issues
of credibility, contending in support thereof that the Trial Examiner was prejudiced.
After a careful review of the record, we conclude that the Trial Examiner's credibility
findings are not contrary to the clear preponderance of all the relevant evidence. Accord-
ingly, we find no basis for disturbing his credibility findings in this case. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). While we do not sub-
scribe to all the Trial Examiner's findings, we specifically reject the Respondent's conten-
tion of bias, there being no evidence that the Trial Examiner prejudged this case or made
prejudicial rulings. Hot Shopper, Inc., 146 NLRB 802. Errors in his findings and in the
analysis of the facts upon which they are based, as set forth in the Trial Examiner's
Decision, are hardly sufficient to establish bias. The Great Atlantic & Pacific Tea Com-
pany, Inc., 129 NLRB 757, footnote 3 at 758.
160 NLRB No. 130.