Transport Service Co.

National Labor Relations Board - Board Decisions

Mar 11, 1991

302 N.L.R.B. 22 (N.L.R.B. 1991)

22
302 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unlike our dissenting colleague, we agree with the judge’s finding that the
Respondent’s January 9, 1987 commitment to hire Juan Garibay, in addition
to two other individuals, was an offer of permanent employment. Pursuant to
its normal hiring procedure, the Respondent required Garibay and the other
new employees to pass a physical, a polygraph test, and a motor vehicle
records check. Only Garibay, of the three new hires, had not completed his
tests by the Union’s January 13, 1987 offer on behalf of strikers to return to
work. For the reasons stated in our decision in Solar Turbines, 302 NLRB 14,
issued today, we find that the Respondent’s routine requirement of some
posthire testing did not convert its commitment to Garibay into something less
than an offer of permanent employment. Accordingly, we conclude Garibay
was a permanent striker replacement as of January 9, 1987.
The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 The judge recommended a broad cease-and-desist order against the Re-
spondent based on his finding, inter alia, that the Respondent’s withdrawal of
union recognition was not grounded in good faith and that the Respondent en-
gaged in misconduct including a failure to reinstate strikers. Although we
agree with the judge that the Respondent has violated the Act, we do not agree
that a broad order is necessary here. A broad order is warranted only when
a respondent is shown to have a proclivity to violate the Act or has engaged
in such egregious or widespread misconduct as to demonstrate a general dis-
regard for the employees’ fundamental statutory rights. See Hickmott Foods,
242 NLRB 1357 (1979). Contrary to the judge, we do not believe the Re-
spondent’s conduct warrants such a finding. Accordingly, we shall modify the
judge’s recommended Order and shall issue a new notice to employees.
3 All dates are 1987 unless indicated.
4 The Respondent’s position letter responded to a set of charges filed by the
Union in Case 13–CA–26817.
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
March 11, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 16, 1989, Administrative Law Judge Irwin
Kaplan issued the attached decision. The Respondent
and the General Counsel filed exceptions and support-
ing briefs, and the Respondent filed an answering
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,1 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.2
We agree with the judge that the Respondent law-
fully denied the Union access to its premises on Feb-
ruary 17, 1987.3 However, we do not agree with the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by denying the Union access
to the Respondent’s premises from on or about April
20. The judge relied on an April 20 position letter sent
by the Respondent’s attorney to the Regional Office
that stated in part, ‘‘[t]he Company does not believe
the union represents a majority of its employees in an
appropriate unit and thus has no obligation . . . to per-
mit this union onto its premises.’’4 As the judge pre-
viously found the Respondent was obligated to con-
tinue to recognize and bargain with the Union, the
judge concluded that the Respondent had no justifica-
tion to deny the Union access to its premises.
The Respondent excepts to this finding, arguing that
the Union did not request access to its premises subse-
quent to February 17, that the Respondent did not
refuse the Union access since February 17, and that the
Respondent was never charged with denying the Union
access since February 17. The Respondent also argues
that its April 20 position letter was written to refute
the Union’s charge that it unlawfully denied the Union
access on February 17 and that the judge found the
Respondent’s February 17 denial of access to be law-
ful.
We find merit in the Respondent’s exceptions. The
complaint does not allege the Respondent refused the
Union access on or since April 20, and such refusal
was not litigated at the hearing. There is also no evi-
dence that the Union requested access to the Respond-
ent’s premises since February 17, nor was there evi-
dence that the Respondent’s position letter of April 20
was ever communicated to the Union. In sum, the vio-
lation the judge found was not alleged, litigated, or
proven. We therefore reverse the judge’s finding that
the Respondent violated Section 8(a)(5) by its April 20
letter.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 7 and renumber the sub-
sequent conclusions of law.
ORDER
The National Labor Relations Board orders that the
Respondent, Transport Service Co., Chicago, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize the Automobile Mechan-
ics’ Local No. 701, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO (the
Union) as the exclusive collective-bargaining rep-
resentative of its employees in the appropriate unit.
(b) Failing and refusing to bargain collectively with
the Union by unilaterally ceasing to make contribu-
tions into the Union’s pension, health and welfare
funds on behalf of certain employees who continued to
work during the strike.
(c) Failing and refusing to furnish, on request, rel-
evant information to the Union.
23TRANSPORT SERVICE CO.
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted By Order of The National Labor Re-
lations Board’’ shall read ‘‘Posted Pursuant to a Judgment of The United
States Court of Appeals Enforcing an Order of The National Labor Relations
Board.’’
1 There are no exceptions to the judge’s finding that, like Garibay, J.
Koonce was also hired as a permanent replacement so I adopt that finding pro
forma in the absence of exceptions. I agree with the balance of my colleagues’
findings on the other unfair labor practice allegations.
2 Unless otherwise noted, all subsequent dates are in 1987.
(d) Failing and refusing to reinstate former striking
employees to their former positions or to substantially
equivalent positions, if their former positions no longer
exist.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of its employees in the ap-
propriate unit described below concerning terms and
conditions of employment. The appropriate unit is as
follows:
All employees in the bargaining unit, namely
Foreman or Head Mechanic, Automobile Machin-
ist, Mechanic, Welder, Painter, Skilled Tireman,
Helper, Truck, Tractor and Tank Cleaners and
Apprentices coming under the jurisdiction of
Automobile Mechanics Local No. 701, IAM and
AW, AFL–CIO, 133 S. Ashland Avenue, Chi-
cago, Illinois 60607; but excluding office clerical
employees, guards, and supervisors as defined in
the Act.
(b) Remit to the Union all contributions it failed to
make to the Union’s pension, health and welfare funds
on behalf of prestrike employees who continued to
work during the strike as provided in the remedy sec-
tion of the judge’s decision and make these employees
whole for any losses attributable to its failure to make
the contribution as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(c) Furnish the Union, on request, all relevant infor-
mation including the names and addresses of all unit
employees and information pertaining to the Compa-
ny’s insurance, hospital, and pension plans, and copies
of those plans.
(d) Offer Thomas McClain, Ron Golden, and Paul
Anderson 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 remedy section of
the judge’s decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its facility in Chicago, Illinois, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those portions of the
consolidated complaint and amendments that were
found to be without merit are dismissed.
MEMBER DEVANEY, dissenting.
For the reasons set forth at greater length in my dis-
sent in Solar Turbines, 302 NLRB No. 3, issued this
day, I find, contrary to my colleagues and the judge,
that the Respondent had not hired Juan Garibay as a
permanent striker replacement at the time the strike
ended and the Union made its offer to return, so that
the Respondent violated Section 8(a)(3) and (1) by
failing to reinstate a striker mechanic to the position
later occupied by Garibay. In my view, the Respond-
ent’s offer of employment to Garibay was conditional,
dependent on his successful completion of the Re-
spondent’s screening procedure; as of the time of the
offer to return Garibay had not successfully completed
the screening procedure and therefore had not removed
the conditions placed on that offer. Accordingly, I
would find that the reinstatement and backpay ordered
to remedy the Respondent’s unlawful refusal to rein-
state strikers should extend to an additional former
striker.1
The key facts follow. The Union commenced an
economic strike on January 4, 1987.2 The strike ended
on January 13 when the Union offered to return to
work on behalf of the striking employees. After ini-
tially being informed that three mechanic positions
would be available for returning strikers, the Union
was informed on January 15 that only one mechanic’s
position was available because replacements had been
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 My colleagues refer to the physical examination, polygraph test, and motor
vehicle records check required of applicants for employment by the Respond-
ent as ‘‘some posthire testing.’’ Their choice of terminology begs the question.
By simply characterizing the testing as ‘‘posthire,’’ my colleagues permit the
employer asserting that a striker’s position is not available to avoid its proper
burden of showing that a firm commitment to hire a replacement predated the
offer to return. By contrast, I maintain, as I did in Solar Turbines, supra, that
when an employer decisively conditions a job offer on meeting certain require-
ments, the Board must analyze the nature of the employer’s commitment to
the employee to determine whether the offer satisfies the Board’s standards
for replacement status.
hired before the strike ended; however, the replace-
ments could not start work until they had passed a
physical, a polygraph test, and a motor vehicle records
check. Garibay, a mechanic, applied for a position as
a replacement on January 9 and was scheduled for the
various tests required by the Respondent. However, he
did not start work until January 19, 6 days after the
Union’s offer to return. He did not complete the phys-
ical required by the Respondent until January 14, the
day after the strikers’ offer to return. Thus, the strik-
ers’ offer to return to work interrupted his preemploy-
ment screening, and, at the time the strike ended,
Garibay was not free to begin work.
The judge stated the standard applicable here: ‘‘if
the employer makes a commitment to the applicant for
a striker’s job, we will normally regard that commit-
ment as a legitimate replacement even though the strik-
er requests reinstatement before the replacement actu-
ally begins to work,’’ quoting H. & F. Binch Co., 188
NLRB 720, 723 (1971) (citations omitted). My dis-
agreement with the judge and with my colleagues goes
to the quality of the commitment made to Garibay by
the Respondent. In my view, Garibay did not have a
firm offer of employment—one that he could ‘‘take to
the bank’’ and act on by actually beginning to work—
until he had completed the conditions imposed by the
Respondent. The facts plainly show that successful
completion of the preemployment testing was required
to obtain a job with the Respondent, and that
Garibay’s failure to submit to the tests, or their yield-
ing unsatisfactory results, would have meant that he
would not be hired. As I have explained more fully in
my dissent in Solar Turbines, supra, in which an em-
ployer requires applicants to fulfill certain require-
ments, such as physical or drug tests as a condition of
hire, a firm commitment to hire occurs only when the
applicant has successfully completed the requirements
and the employer has received the results, so that the
applicant is free to begin work. In this case, as in
Solar Turbines, it is plain that the applicant at issue
could not start work until he had removed the condi-
tions imposed by the Respondent. Garibay’s efforts to
remove these conditions were interrupted by the strik-
ers’ offer to return. Thus, in my view, he was not
hired as a permanent replacement before the end of the
strike, and the Respondent has not carried its burden
of demonstrating that the mechanics’ position that
Garibay occupied after January 19 was unavailable
when the Union ended the strike.3 I therefore dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with the Automobile
Mechanics’ Local No. 701, International Association
of Machinists and Aerospace Workers, AFL–CIO as
the exclusive representative of the employees in the
bargaining unit. The bargaining unit is:
All employees in the bargaining unit, namely
Foreman or Head Mechanic, Automobile Machin-
ist, Mechanic, Welder, Painter, Skilled Tireman,
Helper, Truck, Tractor and Tank Cleaners and
Apprentices coming under the jurisdiction of
Automobile Mechanics Local No. 701, IAM and
AW, AFL–CIO, 133 S. Ashland Avenue, Chi-
cago, Illinois 60607; but excluding office clerical
employees, guards, and supervisors as defined in
the Act.
WE WILL NOT refuse to bargain with the Union by
unilaterally ceasing to make contributions to the
Union’s pension, health and welfare funds on behalf of
certain unit employees who continued to work during
the strike.
WE WILL NOT refuse to furnish the Union relevant
information on request.
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 NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and bargain collectively with the
Union as the exclusive bargaining representative of our
employees in the bargaining unit concerning terms and
conditions of employment.
WE WILL make contributions into the Union’s pen-
sion, health and welfare funds on behalf of certain em-
ployees who continued to work during the strike and
WE WILL make these employees whole for any losses
attributable to our failure to make the contributions,
with interest.
WE WILL bargain with the Union by providing it, on
request, relevant information, including the names and
addresses of all our unit employees and information
25TRANSPORT SERVICE CO.
pertaining to our insurance, hospital, and pension plan,
and copies of those plans.
WE WILL offer Thomas McClain, Ron Golden, and
Paul Anderson 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 pre-
viously enjoyed, discharging, if necessary, any employ-
ees hired after January 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 re-
fusal to timely reinstate them, with interest.
TRANSPORT SERVICE CO.
Douchan Pouritch, Esq., for the General Counsel.
Leonard R. Kofkin, Esq. (Fagel, Haber & Maragos), of Chi-
cago, Illinois, for the Respondent.
J. Peter Dowd, Esq. (Dowd & Resnick), of Chicago, Illinois,
for the Charging Union.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These consoli-
dated cases were heard in Chicago, Illinois, on May 2, 3, and
4, 1988. The underlying charges in Case 13–CA–26615 were
filed by Thomas McClain on January 27, 1987, alleging that
Transport Service Co. (the Respondent), violated Section
8(a)(3) and (1) of the Act by failing and refusing to reinstate
him and other former striking employees on their uncondi-
tional offer to return to work.
The original charges in Case 13–CA–26859 were filed by
Automobile Mechanics’ Local No. 701, International Asso-
ciation of Machinists and Aerospace Workers, AFL–CIO (the
Charging Union or Union) on May 1, 1987. These charges
allege that the Respondent failed to bargain in good faith by,
inter alia, making regressive proposals, refusing to provide
relevant information on the Union’s request, and failure to
provide the Union access to employees on the company
premises. The Charging Union filed amended charges on
May 13, 1987, alleging that the Respondent also unlawfully
withdrew recognition from the Union.
The charges in Case 13–CA–26892 were filed by former
striking employee James F. DeMoss on May 14, 1987, alleg-
ing that the Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to reinstate him and other striking em-
ployees who had been employed in the same job classifica-
tion as DeMoss on their unconditional offer to return to
work.
The aforenoted charges gave rise to complaints and
amended complaints and to an order consolidating cases and
setting date for hearing in Cases 13–CA–26615 and 13–CA–
26859 dated June 5, 1987, and an order further consolidating
cases dated July 1, 1987, to include allegations contained in
Case 13–CA–26892. The consolidated complaints were
amended further at the hearing to allege that the Respondent
violated Section 8(a)(5) of the Act additionally, by hiring
strike replacements at higher wages than Respondent’s im-
plemented final contract offer to the Union. (Tr. 336.) Still
further, counsel for the General Counsel contends that the
record supports an additional finding that the Respondent
violated Section 8(a)(3) and (5) of the Act by giving a wage
increase to an employee to induce him to cross the picket
line.
The Respondent filed corresponding answers conceding,
inter alia, certain jurisdictional factors, supervisory and agen-
cy status of certain individuals, and the appropriateness of
the bargaining unit but denying that it committed any unfair
labor practices.
Issues
The principal issues are:
1. Whether the Respondent failed to recall certain former
striking employees in violation of Section 8(a)(3) of the Act.
2. Whether the Respondent violated Section 8(a)(3) and
(5) of the Act by giving a wage increase to employee J.
McCormack to induce him to cross the picket line.
3. Whether the Respondent violated Section 8(a)(3) and
(5) of the Act by hiring replacements during the strike at a
wage rate higher than its final contract offer to the Union.
4. Whether the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally changing the fringe benefits of
certain employees without first bargaining with the Union.
5. Whether the Respondent violated Section 8(a)(5) and
(1) of the Act by offering regressive and onerous bargaining
proposals to the Union.
6. Whether the Respondent unlawfully withdrew recogni-
tion from the Union on or about April 20, 1987.
7. Whether the Respondent failed and refused to provide
relevant information as requested by the Union in violation
of Section 8(a)(5) of the Act.
8. Whether the Respondent denied access to the Union to
the Respondent’s premises in violation of Section 8(a)(5) of
the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after careful consideration of
the posttrial briefs, I find as follows.
I. JURISDICTION
The Respondent, Transport Service Co., an Illinois cor-
poration with two facilities in Chicago, Illinois, is engaged
in the business of a motor carrier transporting bulk commod-
ities for major chemical and food-grade shippers throughout
48 States. During the past calendar year, in connection with
the aforenoted business operations, the Respondent has per-
formed services valued in excess of $50,000 directly in
States other than the State of Illinois. It is admitted, the
record supports, and I find that the Respondent is now, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
It is admitted, the record supports, and I find that the
Union is now, and has been at all times material, a labor or-
ganization within the meaning of Section 2(5) of the Act.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereinafter refer to 1987 unless otherwise indicated.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
1. Prestrike backdrop
The Respondent, a motor carrier, operates 10 terminal lo-
cations in eight States. Its Chicago, Illinois terminal is the
only facility involved. There, the Respondent’s employees
have long been represented by three separate unions. The
majority of Respondent’s approximately 45 unionized drivers
are represented by Teamsters Local 705 while other drivers
are represented by an independent union, the Chicago Driv-
ers Union, Independent. (The complaint allegations do not
relate to any of the drivers.) At the same Chicago location,
the Respondent also employs 10 mechanics and utilitymen
and 3 tank cleaners (also called washers). These employees
have been represented as a separate bargaining unit by the
Charging Machinists Union, Local 701 (the Union) since
1946. (This is the only unit encompassed by the pleadings.)
The last collective-bargaining agreement between the Re-
spondent and the Union expired on October 31, 1985 (G.C.
Exh. 2). By letter dated August 23, 1985, the Respondent
served notice to the Union to terminate the then-existing con-
tract on its expiration and of its willingness to negotiate a
new agreement. (Jt. Exh. 1A.) The negotiations for a new
contract commenced in the fall of 1985. In large part, the ne-
gotiations were carried out by mail (exchange of proposals)
rather than directly face to face and continued long after the
expiration of the last contract.
The Respondent was seeking, inter alia, reductions in
wages, fewer holidays, and fewer and different job classifica-
tions. On the other hand, the Union’s proposal included in-
creases in personal days, fund contributions, and higher
wages. By letter dated December 6, 1985, from the Respond-
ent’s chief negotiator Robert Schurer, executive vice presi-
dent to Edward Wojtczak, the Union’s business representa-
tive and chief negotiator, Schurer noted, that nothing ‘‘con-
structive’’ had transpired over many weeks and suggested a
face-to- face meeting. (Jt. Exh. 1F.)
The parties conducted bargaining sessions on February 28,
and March 6 and 18, 1986. By letter dated March 21, 1986,
Schurer presented Respondent’s final offer (Jt. Exh. 1K). The
offer was rejected by the union membership. Over the next
6 months there was no contact between the Respondent and
the Union. While the contract had long terminated, the terms
and conditions of that agreement continued to be imple-
mented until late September 1986.
By letter dated September 26, 1986, Schurer notified the
Union that the Company’s final offer of March 21, 1986,
would be implemented ‘‘at the start of business on Sunday,
September 28, 1986.’’ (Jt. Exh. 1N.) In that letter Schurer
noted, inter alia, ‘‘[a]fter eleven months of negotiations, it is
clear that we can no longer sit by idly in a stalemated posi-
tion.’’ (Id.) On the same date, the Respondent posted the
same information on the unit employees’ bulletin boards.
(G.C. Exh. 3.)
By letter dated October 6, 1986, Wojtczak informed
Schurer that the membership had rejected the implemented
final offer and requested that the latter meet with him to dis-
cuss the Union’s new proposal. (Jt. Exh. 1O.) Schurer met
with Wojtczak twice in October and they discussed the im-
plemented offer as well as the Union’s new proposal. These
meetings resulted in a revised offer by the Respondent on
November 6, 1986, which, inter alia, accepted a number of
items contained in the Union’s new proposal (Jt. Exh. 1R).
Schurer met with Wojtczak on December 8, 1986, to dis-
cuss the Respondent’s revised offer. The parties did not
move any closer to an agreement on that occasion. That
same day, Schurer withdrew his revised offer in a letter to
Wojtczak asserting therein that ‘‘no progress whatsoever has
been made in negotiations’’ and reinstating the Respondent’s
final offer of March 21, 1986, which had been implemented
on September 28, 1986 (Jt. Exh. 1U). (It is not alleged that
the Respondent negotiated in bad faith or otherwise violated
the Act at any time through the calendar year 1986.)
2. The strike
At around midnight, Sunday, January 4, 1987,1 most of
the unit employees commenced a union-supported economic
strike and established a picket line. At that time there were
13 unit employees including 8 mechanics, 1 utilityman, and
4 washers. One of the washers, H. Phillips, had suffered a
prestrike injury and was then out of work on total disability.
Phillips has not been replaced and was still out of work on
disability at the time of the hearing.
The bargaining unit also included a shop foreman’s posi-
tion which was open at the time the strike commenced and
was not filled until March 12 or approximately 3 months
after the strike ended. (On March 12, the Respondent hired
E. Pietrzak, a new applicant to fill the shop foreman’s slot.)
Three of the prestrike employees continued to work during
the course of the strike: R. Taylor (utility), L. O’Connor
(mechanic), and J. McCormack (mechanic). By letter dated
January 5, 1987, the Respondent notified the strikers as fol-
lows:
Please be advised that unless you return to work imme-
diately, we intend to begin the process of permanently
[emphasis added] replacing all mechanics and tank
cleaners. [R. Exh. 4.]
Within a few days of the aforenoted letter, the Respondent
began interviewing replacements. The strike ended at ap-
proximately 3:30 p.m. on January 13. In dispute is whether
certain individuals were actually hired as permanent replace-
ments before their starting date and before the strikers uncon-
ditionally offered to return to work. (This issue will be treat-
ed more fully separately, infra.)
3. Poststrike activity
On the morning of Tuesday, January 13, Schurer sent a
letter to Wojtczak informing him that Respondent was with-
drawing all offers including its final offer made back in 1986
(G.C. Exh. 5). Later that same day, at around 3:30 p.m.,
Wojtczak telephoned Schurer and told him that the striking
employees were unconditionally offering to return to work
and that the strike was over. In turn, Schurer informed
Wojtczak, that the Respondent had hired permanent replace-
ments but that he, Schurer, was uncertain of the number or
how many positions were then available for the returning
strikers. According to Schurer, Wojtczak had difficulties un-
derstanding the concept of permanent replacements.
27TRANSPORT SERVICE CO.
Wojtczak and Schurer agreed to meet and discuss the matter
more fully at the union office on January 15 at 9 a.m. Still
that same day and shortly after the telephone conversation,
Wojtczak sent Schurer the following telegram:
This is to confirm that on January 13, 1987 all mem-
bers of Automobile Mechanics Local 701 offered un-
conditionally to terminate strike and to return to work
immediately. Local 701 members have been directed to
report at regular starting times notwithstanding your re-
fusal to reinstate any employees. Suggest you recon-
sider position. Reinstate all employees pending negotia-
tions and avoid unfair labor practice. Also this is to
confirm that Local 701 and Company representatives
are to meet at 9 a.m. Thursday, January 15, 1987 at
Union Hall 533 South Ashland Chicago for negotia-
tions. [G.C. Exh. 6.]
Schurer responded by telegram the same day:
No refusal to reinstate was stated or implied. Issue is
only number of employees required due to extent of
permanent replacements and method of reinstatement to
accommodate permanent replacements. All tank wash-
ers have been replaced but three mechanics have not.
Please select three mechanics [emphasis added] to re-
port to work immediately at commencement of regular
shift. Your version of our conversation in which you
expressed no real understanding of the permanent re-
placement issue is incorrect and contrary to fact. I con-
firm meeting with you at 9:00 a.m. Thursday, January
15, 1987 at your office. [G.C. Exh. 7.]
Schurer testified that after he sent the aforenoted telegram,
he learned from his staff that there was only two mechanic
slots (working foreman and building maintenance) rather
than three such positions. The next morning, January 14,
Schurer sent the Union a second telegram stating:
In my haste to accommodate your expected offer late
yesterday to return all strikers and respond to your alle-
gations, I misstated the substantial amount of permanent
replacement and the availability of work in view of the
limited amount of equipment at the terminal during the
strike.
I will collect all information for review and discus-
sion at tomorrows meeting. [G.C. Exh. 8.]
The parties met as agreed at the Union’s office on Thurs-
day, January 15. The Respondent was represented by
Schurer, Attorney Leonard Kofkin, and Mid-Western Re-
gional Manager Thomas Dennis; the Union by Wojtczak and
Attorney J. Peter Dowd. This was the first session attended
by Dowd. At this meeting, Kofkin and Dowd were the chief
spokesmen for their respective sides. Kofkin told the union
representatives that only one slot was available to be filled
by the former strikers and that was in building maintenance,
a mechanic position. The Respondent conveyed the view that
none of the strikers were qualified to handle the working
foreman position, assertedly, the only other open slot. Ac-
cording to Dowd, the Union did not take a position. ‘‘It was
something we needed to look into.’’ As for the building
maintenance position, the Company expressed the view that
mechanic Danhoff was the most qualified and although he
was not the most senior mechanic, he was designated to fill
that slot with the Union’s concurrence.
However, at the aforenoted meeting, there was no agree-
ment regarding the status of the so-called permanent replace-
ments, and much confusion. Dowd asked for and was pro-
vided the starting date and date of hire of all the replace-
ments. Some of these replacements had not actually begun
working until after the strike ended and, in one case, me-
chanic J. Koonce, did not begin working until Monday, Janu-
ary 19. Kofkin represented to the Union that all the replace-
ments were hired before the strike had ended but explained
that starting dates were conditioned on such factors as pass-
ing a company physical, polygraph test, and/or a motor vehi-
cle record check. Also, in a few cases, the replacements had
to provide some notice to their employers. (As noted pre-
viously, the status of the replacements and strikers will be
treated more fully infra.) The parties agreed to meet again
although no date was set at that time. At the hearing, Dowd
acknowledged that Kofkin invited Wojtczak to visit the ter-
minal to ‘‘take a look’’ which the latter did some 20 minutes
after the aforenoted meeting ended. (The record is unclear to
what extent Wojtczak was able to verify the Respondent’s
representations when he appeared at the terminal; Wojtczak
did not testify.)
By letter dated February 2, 1987, the Respondent advised
Wojtczak that it was prepared to meet with him at his con-
venience. (R. Exh. 8.) A meeting was scheduled for February
17. In connection therewith, Schurer prepared revised con-
tract proposals. (R. Exh. 9.) Kofkin, Schurer, and Dennis at-
tended for the Respondent; the Union was represented by
Dowd, Wojtczak, and Tom Altpeter, a new business rep-
resentative. (Wojtczak was near retirement and Altpeter was
expected to assume the former’s responsibilities.)
At the February 17 meeting, the Union asked the Respond-
ent to reintroduce its implemented offer of September 1986
rather than to negotiate over the Respondent’s new revised
proposals. This, the Respondent refused to do. Instead,
Schurer and Kofkin presented a revised package which in-
cluded, inter alia, a 3-year contract to be effective from the
date of execution, shorter vacations, fewer holidays, a new
company health and insurance plan and eliminating the union
plan, eliminating the working foreman from the bargaining
unit, and eliminating the checkoff and union-security provi-
sions. The wage levels remained the same as implemented in
1986. (The General Counsel contends that Respondent’s re-
vised contract package consisted of regressive proposals
which were offered in bad faith in violation of Section
8(a)(5).) Schurer testified without contradiction that each of
the items were discussed at this meeting. He also denied that
the revised proposals constituted a final offer or that the Re-
spondent indicated an unwillingness to meet and negotiate
further.
At the February 17 meeting, the parties also discussed the
then-current status of the replacements and strikers. The
Company informed the Union that all the employees who
were hired as permanent replacements were still employed
and that the former unreinstated strikers were on a pref-
erential hiring list. Kofkin noted that the Company had a
temporary vacancy for a mechanic and had offered the job
to former striker M. Morrissey but the latter declined. The
job included some additional fabricating and welding skills.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The status of the ‘‘washers’’ will be treated separately infra.
As such, the Company expressed the view that other than
Morrissey, no other mechanic was qualified to perform that
particular job and therefore subcontracted the work in ques-
tion when Morrissey turned down the offer. The Union did
not make any counterproposal. Dowd testified, ‘‘At that
point I had no information about Morrissey’s skills or any-
body elses.’’
Before the aforenoted meeting ended, Dowd requested ad-
ditional information regarding the Company’s new pension
plan proposal and the names and addresses and phone num-
bers of the replacements which Kofkin promised to provide.
However, Kofkin denied the Union’s request to hold a meet-
ing of the replacements at the Respondent’s terminal.
In mid-March, Dowd telephoned Kofkin and informed him
that the Union had not yet received the requested informa-
tion. Kofkin told Dowd that he didn’t know why that infor-
mation had not been supplied but he would communicate
that to the Company and have someone contact the Union on
this subject. The requested information was never furnished.
According to Schurer, over the following months there were
sufficient factors tending to militate against the Union’s ma-
jority status. (The factors relied on by Schurer will be noted
and discussed more fully infra.)
In a position letter dated April 20, 1987, to the Board’s
Regional Office, Kofkin stated, in pertinent part:
The Company does not believe the Union represents
a majority of its employees in an appropriate unit and
thus has no obligation to provide the information
sought or to permit this union onto its premises. [G.C.
Exh. 9.]
It is also alleged that the above position constituted an un-
lawful withdrawal of recognition in violation of Section
8(a)(5).
B. Discussion and Conclusions
1. Whether the Respondent failed to recall certain
former strikers in violation of Section 8(a)(3)
It is undisputed that an economic strike ended on January
13 at approximately 3:30 p.m. and at that time, the strikers
through the Union offered unconditionally to return to work.
It has long been settled, that in such circumstances, absent
legitimate and substantial business justifications, economic
strikers are entitled to immediate reinstatement to their
prestrike job unless that position is already filled by a perma-
nent replacement. Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970). In such circumstances the employer carries the bur-
den of showing the bona fides of the replacements or other
legitimate and substantial justifications. NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378–379 (1967); see also J. E.
Siegerwald Co., 263 NLRB 483, 492 (1982); Home Insula-
tion Service, 255 NLRB 311, 312–313 (1981).
Here, it is alleged that since on or about January 14, 1987,
the Respondent unlawfully refused to reinstate Roosevelt
Carter, Thomas McClain, and Ron Golden, all mechanics, to
their former positions. (G.C. Exh. 1(c).) It is also alleged that
‘‘[s]ince on or about March 1987,’’ the Respondent unlaw-
fully refused to recall former striking employees James
DeMoss, Paul Anderson, and Ephriem Norwood (all em-
ployed as ‘‘washers’’ prior to the strike), ‘‘to utilitymen po-
sitions for which they are qualified.’’ (G.C. Exh. 1(v).)
With regard to the mechanics in issue,2 the Respondent
contends that at the time they made their unconditional offer
to return to work, each of them had already been perma-
nently replaced during the strike. In Carter’s case, he was re-
instated as a utilityman and when a position subsequently
opened for a mechanic, he filled that opening and continues
to be so employed. As for McClain and Golden, the Re-
spondent noted that the permanent replacements still occupy
these positions.
The Respondent named J. Koonce, J. Garibay, and R.
Clark as the permanent replacements hired during the strike.
Each of them had submitted their employment application,
each had been interviewed, and each were at least scheduled
to take their physical and polygraph test before the striking
employees offered to return to work (at approximately 3:30
p.m. on January 13). However, Koonce and Garibay did not
begin working until January 16 and 19, respectively; Clark
commenced working at 7:45 a.m. on January 13.
While there does not appear to be any issue with regard
to the bona fides of Clark’s replacement status, the parties
are in dispute regarding the hiring date and replacement sta-
tus of Koonce and Garibay. The Board has provided the fol-
lowing guideline: ‘‘If the employer makes a commitment
[emphasis added] to the applicant for a striker’s job, we will
normally regard that commitment as a legitimate replacement
even though the striker requests reinstatement before [empha-
sis added] the replacement actually begins to work.’’ H. &
F. Binch Co., 188 NLRB 720, 723 (1971), citing Anderson,
Clayton & Co., 120 NLRB 1208 (1958); see also Superior
National Bank, 246 NLRB 721 (1979). Thus, the hiring date
turns on whether a commitment to hire was timely made.
In the instant case, I find on the total state of the record
and on the basis of Anderson, Clayton & Co., supra, and its
progeny, that J. Koonce and J. Garibay were hired as perma-
nent replacements (as was Clark) notwithstanding the fact
that the starting dates for both of them postdated the offer
by the strikers to return to work. First, it is noted that on
Monday, January 5 (strike began January 4), the Respondent
handed each striker a letter on the picket line stating ‘‘that
unless you return to work immediately we intend to begin
the process of permanently [emphasis added] replacing all
mechanics and tank cleaners (washers).’’ (R. Exh. 4.) Com-
pare Cutting Inc., 255 NLRB 534 (1981). (The strikers’ re-
turn met the employer’s specified deadline.)
The record disclosed that the Respondent began carrying
out the message of hiring ‘‘permanent’’ replacements the
very next day. Thus, Clark was interviewed for a mechanics
position on January 6 and early arrangements were made for
his physical, polygraph test, and MVR confirmation. This
was done so that Clark could begin working as soon as these
postinterview matters were completed. The Company has fol-
lowed this hiring procedure for the past 5 years. Clark’s
MVR confirmation was made the same day he was inter-
viewed. He also completed his physical and polygraph test
on January 12 and began working at 7:45 a.m. on January
13, approximately 8 hours before the strikers offered to re-
turn to work.
29TRANSPORT SERVICE CO.
3 While Garibay testified that he learned that he was hired on January 16,
I find that the commitment to hire him was made on January 9 as contended
by the Respondent. Thus, Garibay also acknowledged that he was interviewed
on January 9 and told then that he would be scheduled to take a physical and
polygraph test. In the main I found Garibay’s testimony unreliable. He exhib-
ited poor recall, his responses were often disjointed, inconsistent, and at times
incoherent. It is also noted that Garibay’s name was provided to the Union
on January 15 along with other named replacements.
As for J. Koonce and J. Garibay, their status is somewhat
complicated by their starting dates which occurred on Janu-
ary 16 and 19 respectively or 3 and 6 days respectively after
the strikers offer to return to work. On the other hand, both
had their interviews and MVR confirmations completed and
arrangements were made for their physicals and polygraph to
be taken before the offer to return to work was made. In
Koonce’s case, he completed his physical and polygraph test
before the strikers offered to return to work. As for Garibay,
he appeared for his physical on the morning of January 13
but had to complete his examination the following day be-
cause the x-ray machine had became inoperative. It is noted
that the Company, through its safety department, arranges for
the physical and other postinterview tests at a cost to it of
$150 per person. As such, it tends to support the Respond-
ent’s contention that a serious commitment to hire was made
subject only to the routine completion of the postinterview
checks and tests.
Superintendent Roscoe Stajkovich testified, without con-
tradiction, that he told J. Koonce on January 8 that he would
be starting on January 16 with the understanding that he sat-
isfactorily complete the postinterview requirements, i.e., pass
his physical. Garibay, unlike Koonce, was employed else-
where at the time he was hired. Stajkovich was told by
Garibay that he had to provide some notice to his employer
and therefore the latter was unable to start working until Jan-
uary 19.3 Koonce voluntarily quit and was subsequently re-
placed by Carter in June 1987 when the latter was recalled.
Garibay was still employed at the time of the hearing.
Having found that Clark, Koonce, and Garibay were hired
as permanent replacements, I turn now to consider whether
there were openings for which the Respondent was obligated
to offer Carter, McClain, and Golden as contended by the
General Counsel.
The record disclosed that the Respondent employed eight
mechanics immediately before 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 me-
chanics, L. O’Connor and J. McCormack, worked during the
strike. Danhoff returned to work on January 16 as the build-
ing maintenance mechanic with the consent of the Union, al-
though he was not the most senior mechanic. As previously
noted R. Clark, J. Garibay, and J. Koonce were hired as per-
manent replacements. Thus, excluding Danhoff, of the seven
remaining pre-strike positions, three were filled by permanent
replacements, two positions continued to be held by O’Con-
nor and McCormack. 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 sub-
stantial business justification. In fact the Respondent’s initial
written response to the Union immediately after it learned
that the strike was over was to confirm that there were me-
chanic positions open. Thus, Schurer, by telegram stated, in
pertinent 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. However, 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 discovered that he made a mistake regarding the
number of slots open for mechanics. As for Schurer’s second
telegram which was sent the following day assertedly cor-
recting the mistake, I find its contents ambiguous, self-serv-
ing, 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 mechan-
ics or even both groups. There, Schurer merely noted that
‘‘[H]e misstated the substantial amount of permanent re-
placements 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 discussion’’ at the pre-
viously 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. However, even
as to these two asserted openings, one turned out to be illu-
sory. That ostensible position involved the shop foreman
classification, a unit job. The record disclosed 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 Respondent hired E. Pietrzak, a new
employee. The Respondent told the Union that none of the
strikers were qualified to fill that position. In these cir-
cumstances, the conclusion is inescapable that the vacant
shop foreman’s position vis-a-vis the strikers had no rel-
evance as a job opening. Thus, of the three mechanic open-
ings referred 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 uncorroborated
assertion that the Company learned to operate more effi-
ciently 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 duration, approximately 10 days. In fact,
Kofkin indicated 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 Respond-
ent to at least notify the Union at the meeting of January 15
and the last bargaining session of February 17 that it had de-
cided to eliminate two mechanic positions tends to militate
against Respondent’s good faith in dealing with the strikers.
While the Respondent did not hire any new mechanics
after the strike, it hired some utilitymen and they performed
some of the work previously assigned to the mechanics al-
though the record is unclear as to what extent. The Respond-
ent’s treatment of D. Koonce, brother of J. Koonce, as a per-
manent replacement is another case in point. Schurer testified
that D. Koonce, a utilityman, was hired during the strike as
a permanent replacement. However, at the time of the strike,
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Schurer testified that the Company had added some new equipment and
is now looking for a permanent mechanic. (Tr. 438.) According to Schurer no
offer has been made to fill that opening to any of the former mechanics in-
cluding McClain and Golden because the Company had not received ‘‘any re-
sponse from previous attempts [regarding their employment interests].’’ (Tr.
439.) The record disclosed, however, that neither McClain nor Golden received
a viable offer to be reinstated on a ‘‘permanent’’ basis. (Tr. 288–289; see also
R. Exh. 3; Tr. 485–486.) As for former striking mechanics Morrissey and
Fukar, they are not alleged as discriminatees in the complaint and the General
Counsel made no claim on their behalf. In this connection, the General Coun-
sel represented that during the investigation of the underlying charges,
Morrissey and Fukar advised the Region ‘‘that they would have turned down
any offers by Respondent of recall.’’ (G.C. Br. 21.)
5 I find that this testimony is highly suspect noting, inter alia, that neither
witness brought the matter to the General Counsel’s attention until the hearing,
more than 15 months after the statements were allegedly made.
the Company had only one utilityman, R. Taylor, and he
worked during the strike. Thus, any reliance by the Respond-
ent on the status of D. Koonce at any time material is mis-
placed.
The record disclosed that R. Taylor resigned in March (2
months after the strike ended) and that opening was offered
to and accepted by Carter. Subsequently, when J. Koonce, a
mechanic, resigned, Carter filled that vacated position. In
turn, this left open the utilityman position vacated by Carter
(previously held by Taylor). As noted previously, the Gen-
eral Counsel contends that the Respondent was obligated to
offer that vacated utilityman position to Paul Anderson,
James DeMoss, and Ephriem Norwood (all washers) for
which they were assertedly qualified.
I find that the General Counsel’s position with regard to
Anderson and DeMoss has merit but not so for Norwood. In
dealing with Norwood first, I find little support for the Gen-
eral Counsel’s contention that because washers earn $11.50
per hour as compared with $8.50 for utilitymen that it man-
dates a presumption that they possess the necessary skills or,
at least with a little training, to perform satisfactorily as
utilitymen. As noted by the Respondent, ‘‘[T]he washer job
may be arduous, dangerous, hazardous, hot, wet, and un-
pleasant, all of which could justify higher wages, but that is
not relevant to the issue here.’’ (Br. 53.)
The record disclosed that the Respondent maintains one
separate seniority list for mechanics and utilitymen and an-
other for washers and that mechanics and utilitymen are sep-
arately supervised and work in an area apart from washers.
Further, utilitymen must demonstrate mechanical aptitude and
skills not required of washers. Thus, utilitymen, unlike wash-
ers, inter alia, make safety checks on brakes, repair brakes,
repair electrical problems, oil axles, and go on service calls.
(R. Exh. 16.) In Norwood’s case, aside from some ability to
drive a trailer, there is a dearth of evidence reflecting either
interest by him or his qualifications, to work as a utilityman.
As such I find that the General Counsel has not established
on the basis credible record evidence that the Respondent
was obligated to offer the slot to Norwood. Cf. Arlington
Hotel Co., 273 NLRB 210 (1984) (where the parties stipu-
lated that the unrecalled strikers were qualified to perform
the lower paid jobs).
With regard to Anderson, the record disclosed, inter alia,
that he worked previously for the Respondent as a utilityman
for approximately 12 months under the supervision of
Stajkovich. The latter acknowledged at the hearing that An-
derson’s performance as a utilityman was good. (Tr. 448.) As
for DeMoss, Stajkovich admitted that the former had on oc-
casion expressed an interest in doing utility work. According
to Stajkovich, he once offered that position to DeMoss prior
to the strike but that DeMoss was not interested. Stajkovich
also opined that DeMoss was not qualified. Given
Stajkovich’s admitted offer to DeMoss, I am hardly per-
suaded and reject this belated assessment. Overall, I found
the testimony of Stajkovich to be conclusionary, elusive, and
considerably less than forthright as evidenced by his inability
to state whether he was serious when he made his offer to
DeMoss (Tr. 379). In any event, while DeMoss may have
turned down the job prior to the strike, circumstances
changed after the strike; he was without a job. See Arlington
Hotel Co., supra at 215.
In sum, I find that the Respondent violated Section 8(a)(3)
and (1) of the Act with regard to mechanics Roosevelt
Carter, Thomas McClain, and Ron Golden4 and washers Paul
Anderson and James DeMoss, as alleged. I shall recommend
dismissal of the allegation only insofar as it relates to
Ephriem Norwood.
2. Whether the Respondent violated Section 8(a)(3) and
(5) by giving a wage increase to J. McCormack
Counsel for the General Counsel in his brief urged that I
make independent findings that the Respondent violated Sec-
tion 8(a)(3) and (5) by giving J. McCormack a wage increase
to induce him to cross the picket line. The General Counsel
relies principally on the testimony of former strikers Paul
Anderson and Thomas McClain and a stipulation by the par-
ties regarding changes in McCormack’s hourly wage rate.
The parties stipulated that McCormack’s hourly wage rate, as
a new employee in October 1986, was $10 which was raised
to $12.50 for the week ending January 17, 1987, and there-
after. (Tr. 548.)
Essentially, Anderson and McClain testified that McCor-
mack told them, independently, on the picket line, that the
Company offered him a $2.50 hourly raise to work during
the strike.5 The Respondent objected to this testimony on the
basis of relevance and hearsay. In this connection, the Re-
spondent noted that the only substantive amendment made at
the hearing was the allegation dealing with the payment to
replacements and other employees of a higher wage rate than
the Company’s last offer to the Union in violation of Section
8(a)(5). (Tr. 336.) As such, the Respondent argues that the
amendment did not embrace any 8(a)(3) allegation or other-
wise relate to an inducement to cross the picket line.
The General Counsel did not offer the testimony to dem-
onstrate the truth of McCormack’s asserted admission that he
was given the raise to induce him to cross the picket line but
rather to cast doubt on the Company’s records. These records
erroneously carried McCormack’s starting salary at $12.50
per hour rather than $10, as stipulated at the hearing. (Tr.
468–469, 480–481.)
In the circumstances of this case, noting particularly that
this matter was never specifically alleged nor encompassed
by other allegations; that the testimony was not offered for
the truth nor subject to connection (McCormack was not
called as a witness); that the Respondent raised timely and
continuous objections; that the Respondent did not cross-ex-
amine regarding such testimony; I find, that this allegation,
first made in the General Counsel’s brief, was untimely
31TRANSPORT SERVICE CO.
6 Even if timely alleged, this did not relieve the counsel for the General
Counsel of his affirmative burden of establishing prima facie unlawful motiva-
tion, to wit, that the raise was given as an inducement to cross the picket line.
See generally Wright Line, 251 NLRB 1083 (1980); cf. Frank Black Mechani-
cal Services, 271 NLRB 1302, 1316 (1984).
7 At times, the General Counsel appeared to argue that Taylor, McCormack,
and O’Connor were not permanent replacements (Tr. 316–320). However, the
record clearly disclosed that their status as prestrike employees was never in
dispute.
made, not fully litigated, and should not be entertained.6 Ac-
cordingly, I shall recommend that this untimely allegation be
dismissed.
3. Whether the Respondent violated Section 8(a)(3) and
(5) by paying new hires and strike replacements a
higher wage than its final contract offer to the Union
Deep into the Respondent’s case, counsel for the General
Counsel amended the consolidated complaint to allege that
the Respondent violated Section 8(a)(5) by paying the re-
placements and prestrike employees (nonstrikers) Taylor,
McCormack, and O’Connor ‘‘a higher wage rate than the last
offer of the company.’’7 (Tr. 336.) In his brief, counsel for
the General Counsel also contended for the first time that the
same conduct additionally violated Section 8(a)(3). (G.C. Br.
28.)
The record disclosed that the Respondent’s final offer, as
stated in its letter to Wojtczak dated March 21, 1986, pro-
vided, inter alia, that new hires in all classifications receive
80 percent of the applicable hourly rate paid other employ-
ees. It is undisputed that the Respondent’s final offer of
March 21, 1986, was implemented on September 28, 1986.
The Respondent hired McCormack, O’Connor, and Taylor
respectively in October, November, and December 1986. The
latter two employees and the strike replacements were hired
at the higher prevailing rate paid other employees rather than
80 percent of that rate. McCormack was hired at $10 or 80
percent of the hourly rate paid other mechanics. As noted
previously, McCormack’s hourly wage rate was increased to
$12.50 in January 1987.
The Respondent contends that the General Counsel’s alle-
gation is based on an erroneous premise that new employees
must be paid a maximum of 80 percent of the hourly rate
paid other employees in their respective classifications. Ac-
cording to Schurer’s uncontradicted testimony, the 80-percent
rate represented the ‘‘minimum’’ for new hires; ‘‘we could
hire them at a higher rate if we wanted to.’’ (Tr. 325.) In
support thereof, the Respondent noted, inter alia, that the last
collective-bargaining agreement referable to wages under-
scored ‘‘MINIMUM WAGE RATES.’’ (G.C. Exh. 2, art.
XXVIII, p. 18.) Schurer explained that new hires were paid
over the 80-percent minimum because ‘‘it was difficult to get
good people at those rates.’’
I find, that there is virtually no documentary or other pro-
bative evidence tending to contradict the Respondent’s asser-
tion that it paid new hires including the strike replacements
in a manner consistent with its past practice and its final im-
plemented offer. For example, no union representative testi-
fied contrary to Schurer insofar as whether the 80-percent
figure represented only the ‘‘minimum’’ rate. Compare Bur-
lington Homes, 246 NLRB 1029, 1030 (1979), where a clear
inference was drawn on testimony establishing that new em-
ployees would start at a lower rate than employees who had
completed their probationary period.
As the General Counsel has failed to establish by a pre-
ponderance of the evidence that the Respondent paid a higher
hourly wage rate to its new hires and replacements in viola-
tion of Section 8(a)(3) and (5) of the Act, I shall recommend
that these allegations be dismissed.
4. Whether the Respondent violated Section 8(a)(5) by
unilaterally changing the fringe benefits bargaining
with the Union
It is undisputed that the Respondent never contributed to
either the Union’s health and welfare fund or the Union’s
pension fund on behalf of employees McCormack, O’Con-
nor, and Taylor. It is also undisputed that these employees
were hired in 1986 after the last collective-bargaining agree-
ment expired and that each of them continued to work during
the strike in 1987.
The Respondent argues that the aforenamed individuals
were relatively new employees and that the Company simply
‘‘overlooked’’ making payments on their behalf. (Tr. 262; R.
Br. 69.) In any event (according to the Respondent), as the
aforenamed employees were all hired after the contract ter-
minated any ‘‘obligation [for them] ended with the expiration
and termination of the agreement.’’ (R. Br. 69.) For reasons
noted below, I find that the Respondent’s contentions are un-
tenable.
First, I reject the Respondent’s effort to discount its failure
to make the disputed contributions as an oversight. The short
answer is to make those payments. This the Respondent has
failed and refused to do even as late as the instant hearing.
As for the collective-bargaining agreement having termi-
nated, it is noted, inter alia, that the contract imposed a con-
tinuing obligation on the Respondent to make contributions
‘‘during periods when the collective bargaining agreement is
being negotiated.’’ (G.C. Exh. 2, art. XVIII, sec. 3(d).) In
this connection, it is noted that negotiations for a new con-
tract continued even after the Respondent implemented its
final offer. Moreover, the same expired collective-bargaining
agreement expressly provided that the Employer’s fringe
contributions ‘‘shall apply to new employees from the date
of hire.’’ (Id. at sec. 3(a).)
However, even in the absence of the aforenoted contrac-
tual provisions, it has long been held that absent some legal
impediment (none shown here), ‘‘an employer has a continu-
ing obligation [emphasis added] to make contributions to
contractual fringe benefit funds even after the expiration date
of the contract [emphasis added].’’ Chemung Contracting
Corp., 291 NLRB 773 at 775 (1988), citing Hen House Mar-
ket No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th
Cir. 1970), and Buck Brown Contracting Co., 272 NLRB
951 (1984). While the record disclosed that a lawful impasse
existed at the time that Respondent’s final offer was imple-
mented in September 1986, it is noted that the Respondent
continued to make pension, health and welfare contributions
for then-existing employees under the expired contract. The
Respondent continued to make these fund contributions (ex-
cept for McCormack, O’Connor, and Taylor) until the strike
in January 1987. While it is not contended that the Respond-
ent was obligated to make fringe contribution payments for
the strikers, it failed, as noted above, to make such payments
for McCormack, O’Connor, and Taylor although these em-
ployees (as noted above) continued to work during the strike.
The Respondent also continued to make health, welfare, and
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pension contributions on behalf of reinstated striker J.
Danhoff (Tr. 262).
Given these circumstances, I find no basis for treating the
bargaining impasse of September 1986, as the type of ‘‘legal
impediment’’ to justify the Respondent’s failure to make the
disputed fund contributions. Accordingly, I find that the Re-
spondent violated Section 8(a)(5) in failing to make such
payments vis-a-vis McCormack, O’Connor, and Taylor, as
alleged.
5. Whether the Respondent bargained in bad faith since
on or about February 17, 1987, by offering regressive
and onerous bargaining proposals to the Union in
violation of Section 8(a)(5)
It is alleged that the Respondent’s contract proposals at the
February 17, 1987 bargaining session were offered in bad
faith in violation of Section 8(a)(5). The General Counsel ac-
knowledged that regressive proposals, as here, by themselves,
do not establish bad faith, citing Barry-Wehmiller Co., 271
NLRB 471 (1984), where no violation was found. According
to the General Counsel, the instant case is ‘‘very similar’’ to
the cited case with one vital and fundamental difference:
Here, unlike Barry-Wehmiller Co., the Respondent commit-
ted serious unfair labor practices.
I find, contrary to the General Counsel, that while certain
factors are common to both cases, the differences far out-
weigh any similarities. In both cases, the employer offered
less attractive proposals than previously made, after having
successfully weathered a strike. However, there, the similar-
ities end. In the instant case, the Respondent’s final offer was
made approximately 11 months before it reduced that offer
and 15 months after the previous contract terminated. The
Respondent’s new proposal contained, inter alia, a new con-
tract term commencing on the execution date rather than on
the date the last contract expired (as urged by the Union).
The temporal sequence in Barry-Wehmiller Co., bares little
resemblance. There, the final offer came approximately 1
month after the most recent contract expired and the revised
proposals came approximately 1 month later. Moreover there,
unlike the instant case, the employees were still on strike
when the revised proposals were offered.
As for the alleged unfair labor practices relied on by the
General Counsel, I find, in large part, that they had not been
established. For example, I have found for reasons discussed
previously, that the General Counsel failed to establish that
McCormack was given a wage increase to induce him to
cross the picket line. Further, the General Counsel failed to
demonstrate that the Respondent paid striker replacements a
higher hourly wage rate than provided for in the Company’s
final offer. Significantly, the striker replacements were not
paid more than the strikers.
However, even as to those allegations found to be meri-
torious, the General Counsel failed to establish a nexus be-
tween such misconduct and the Respondent’s bargaining pos-
ture, vis-a-vis a new contract. In other words, contempora-
neous misconduct away from the bargaining table by itself,
falls short of establishing bad faith at the bargaining table.
See, e.g., Challenge-Cook Bros., 288 NLRB 387 (1988).
There are still other significant factors which tend to mili-
tate against the General Counsel’s allegation. Thus, it is un-
disputed that the Respondent explained or discussed each re-
vision contained in the new proposal at the February 17 bar-
gaining session. As noted above, given the fact that some 15
months had elapsed from the expiration date of the last con-
tract, the Respondent now wanted a new full ‘‘three-year
contract period from the date of signing.’’ (R. Exh. 9.) In the
circumstances of this case, I cannot find that the aforenoted
proposal is so impermissibly regressive as to manifest bad
faith on the part of the Respondent. See, e.g., Massillon
Community Hospital, 282 NLRB 675 (1987). As for the
elimination of the union-security provision (another change),
the Respondent explained that this proposal was made out of
concern for its hired replacements. It is noted that the ‘‘exist-
ence of such a clause in previous contracts does not by itself
obligate the parties to include it in successive contracts.’’
Challenge-Cook Bros., supra at 388.
On the other hand, the Respondent left alone some other
key areas at the February 17 meeting, i.e., wages were not
lowered and remained the same. Significantly, the revisions
were merely proposals and subjects for consideration. They
were not offered on a take-it-or-leave-it basis. The Union, for
its part, made no counterproposals. In fact, for many months
the Union made no effort to contact the Company after it re-
ceived a final offer. It is not alleged nor does the record dis-
close that the Respondent bargained in bad faith over the
many months preceding the February 17 session.
In view of the foregoing and on the total state of this
record, I find that the General Counsel has failed to dem-
onstrate that the Respondent’s proposals at the February 17
meeting were offered in bad faith. Accordingly, I shall dis-
miss this allegation.
6. Whether the Respondent withdrew recognition from
the Union in violation of Section 8(a)(5)
It is alleged in the amended complaint that on or about
April 20, 1987, the Respondent withdrew recognition from
the Union. While the allegation is denied in the Respondent’s
answer, the record clearly disclosed, and I find, that the Re-
spondent refused to continue to recognize the Union as the
exclusive collective-bargaining representative of the unit em-
ployees involved, as alleged. Thus, counsel for the Respond-
ent, in his position paper to the NLRB Regional Office re-
garding other 8(a)(5) allegations, including a failure to pro-
vide information, stated in pertinent part as follows:
The company has recently reviewed the request
made by the charging party for information. . . . Al-
though the company never refused to provide the infor-
mation and indeed offered to provide it, it is now a fact
that this union no longer represents the majority of em-
ployees in the unit. The company has a good faith
doubt about the majority status of the [Union] and de-
cided in the past few weeks not to provide it any infor-
mation unless it demonstrate majority status. [G.C. Exh.
9, emphasis added.]
In Hajoca Corp., 291 NLRB 104 (1988), the Board noted
that in Station KKHI, 284 NLRB 1339 (1987), it had re-
cently reaffirmed long-standing legal principles regarding the
presumption of a collective-bargaining representative’s ma-
jority status and the circumstances in which that status may
be challenged. In Station KKHI, the Board stated as follows:
33TRANSPORT SERVICE CO.
8 As such, I find it unnecessary to discuss more fully the circumstances of
McCormack’s letter except to note that it was obtained from him by the Com-
pany only after considerable prodding. The Respondent also noted that only
Carter responded to its March 11, 1987 letter to the former striking mechanics
about an opening for a utility position. (R. Exh. 3.) The record disclosed, inter
alia, that the utility position was a lesser job which also paid less. Further,
there was only one such position available at the time of the letter and Carter
was the most senior employee. In the circumstances of this case, even if the
unreinstated strikers subsequently obtained other employment, without more,
I reject the Respondent’s position that they had lost interest in the Union or
future employment with the Respondent.
Absent unusual circumstances, there is an
irrebuttable presumption that a union enjoys [a] major-
ity status during the first year following its certification.
On expiration of the certification year, the presumption
of majority status continues but may be rebutted. An
employer who wishe[d] to withdraw recognition after a
year may do so in one of two ways: (1) by showing
that on the date recognition was withdrawn the union
did not in fact enjoy majority status, or (2) by present-
ing evidence of a sufficient objective basis for a reason-
able doubt of the union’s majority status at the time the
employer refused to bargain. [Id. at 1340.]
Similarly, there is an irrebuttable presumption regarding
the Union’s majority status during the term of a collective-
bargaining agreement; which, at its expiration may be rebut-
ted by either of the two grounds described above thereby
permitting the Employer to withdraw recognition. See
Hajoca Corp., supra at 105 and cases cited therein. In either
case, however, for the challenge to the Union’s majority to
be entertained, it must come in a context free of unfair labor
practices. See, e.g., KBMS, Inc., 278 NLRB 826, 846 (1986);
Robertshaw Controls Co., 263 NLRB 958, 959 (1982).
In the instant case, the Respondent failed to demonstrate
either that the Union in fact lost its majority status or that
it had a reasonably grounded good-faith belief on objective
considerations that the Union no longer represented a major-
ity. First, it is noted that the Respondent relied largely on
factors expressly rejected by the Board. In this regard, coun-
sel for the Respondent noted that of 11 employees in the
poststrike complement, 3 of them were prestrike employees
who had crossed the picket line and another 7 employees
were hired as permanent replacements and they too had
crossed the picket line. (R. Br. 71.) However, as observed by
the Board recently, ‘‘the hiring of permanent replacements
who cross a picket line, in itself, does not support an infer-
ence that the replacements repudiate the union as collective-
bargaining representative.’’ Station KKHI, supra at 1344; see
also Hajoca Corp., supra at 105. Here, the Respondent of-
fered no independent or probative evidence reflecting any
opposition to the Union on part of the striker replacements.
As for the three nonstriking employees, the Board has long
observed that their nonparticipation in a strike does not dem-
onstrate that they oppose the union as their bargaining rep-
resentative. See Alexander Linn Hospital Assn., 288 NLRB
103 (1988). The only other evidence of union rejection by
the nonstriking employees was a union resignation letter
written by McCormack and obtained by the Company under
questionable circumstances. In any event, even counting
McCormack’s resignation letter as reflecting his opposition
to the Union, the Respondent still falls far short of satisfying
its burden of showing a good-faith belief that the Union lost
its majority.8 Moreover, any asserted good faith must be dis-
counted by other findings (previously discussed) of contem-
poraneous misconduct, including the Respondent’s unlawful
failure to reinstate a number of the strikers.
Counsel for the Respondent also argued that in the ‘‘total-
ity of the picture,’’ the ‘‘Union’s long-standing indifference
to bargaining’’ or ‘‘at best,’’ its ‘‘lackluster’’ interest in ne-
gotiations, justified the Respondent’s decision to question the
Union’s representation status. (R. Br. 71–72.) The record dis-
closed that the last bargaining session was conducted on Feb-
ruary 17, 1987. At that session, the Union requested and was
promised information with regard to the replacements and
the Company’s health and welfare pension plans. The
Union’s majority status was not questioned at any time prior
to and including that last bargaining session. Thereafter, the
Union continued to press for this information. It is undis-
puted that the Union’s attorney called Kofkin, the Respond-
ent’s attorney, to remind him that the Union wanted that in-
formation. In the circumstances of this case, I reject the Re-
spondent’s contention regarding the Union’s action or inac-
tion in negotiations as a basis for questioning the Union’s
representative status as without record support.
In view of the foregoing and on the record as a whole, I
find that the Respondent has not established that the Union
lost its majority nor that the Respondent entertained any such
good-faith belief. Accordingly, I find that the Respondent
withdrew recognition from the Union in violation of Section
8(a)(5), as alleged.
7. Whether the Respondent violated Section 8(a)(5) by
not providing relevant information as requested
by the Union
It is undisputed that at the February 17 bargaining session,
the Union requested, and the Respondent promised, to fur-
nish the Union with the names and addresses of the unit em-
ployees and information pertaining to Respondent’s insur-
ance, hospital and pension plans, as well as copies of those
plans. (R. Br. 44–49; Tr. 249.) According to Schurer, he in-
tended to comply fully with the Union’s request over the
next 2 or 3 weeks but subsequently decided not to because
of an evolving doubt as to the Union’s majority status. (Tr.
251.)
For reasons noted previously, I have found that any pro-
fessed doubt by the Respondent concerning the Union’s ma-
jority was not predicated on objective considerations or made
in good faith. It is also noted that the Respondent does not
deny that the requested information is relevant.
In view of the foregoing and in the total circumstances of
this case, I find that the Respondent is obligated to furnish
the requested information to the Union, as alleged. See, e.g.,
Massillon Community Hospital, 282 NLRB 675 (1982). Ac-
cordingly, I find that the Respondent, by failing to furnish
such relevant information to the Union, on request, thereby
violated Section 8(a)(5) of the Act, as alleged.
8. Whether the Respondent denied access to the Union
to the Respondent’s premises in violation of
Section 8(a)(5)
Peter Dowd, the Union’s attorney, testified that at the Feb-
ruary 17, 1987 bargaining session, he asked the Respondent’s
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representatives to permit Wojtczak ‘‘to meet with the em-
ployees at the Company’s facilities’’ to discuss the Respond-
ent’s new proposal. (Tr. 93.) According to Dowd, the Re-
spondent replied that it was not ‘‘appropriate . . . if the
Union wanted to meet with people . . . they could find their
own location, contact the people and set up a meeting.’’ (Tr.
94.)
According to Schurer, the Company merely denied permis-
sion to the Union to conduct a ‘‘meeting’’ of all the employ-
ees at the same time at its premises. (Tr. 268, 306–307.)
Schurer’s testimony, in part, was corroborated by Dennis, al-
though it is noted that the latter’s recollection was admittedly
limited. Dennis also testified, without contradiction, that the
Union had never conducted ‘‘group meetings on Company
property.’’ (Tr. 410.)
The expired collective-bargaining agreement expressly pro-
vided union access as follows:
Accredited representatives of [the Union] shall be per-
mitted to enter the shop of the Company for business
purposes during day or night shifts. [G.C. Exh. 2, art.
XXII, sec. 2.]
There is no showing, nor is it contended, that the Union
had ever been denied access to the Respondent’s facility
prior to February 17, 1987. Dowd testified that Wojtczak
told him that he had visited the facility ‘‘regularly and fre-
quently.’’ (Tr. 106.) The record also disclosed that on Janu-
ary 15, 1987, 2 days after the strike, the Respondent invited
Wojtczak to visit the facility and gave him access to look
around. (Tr. 104.)
In these circumstances, contrary to the General Counsel, I
am unpersuaded and reject the assertion that the Respondent
departed from past practice or otherwise improperly denied
access to the Union on February 17. It is noted that Dowd’s
testimony on this subject is largely conclusionary, ambigu-
ous, and without corroboration. At best, the circumstances
dealing with union access on February 17 was ambiguous.
On the other hand, the record clearly disclosed that at least
from on or about April 20, 1987, the Company admittedly
denied access. Thus, by letter dated April 20, 1987, Kofkin
wrote to the Board agent, inter alia, ‘‘The Company does not
believe the union represents a majority of its employees in
an appropriate unit and thus has no obligation . . . to permit
this union onto its premises.’’ (G.C. Exh. 9, p. 3.)
Having previously found that the Respondent was obli-
gated to continue to recognize and bargain with the Union,
I find no justification for its denial to the Union of appro-
priate access, consistent with past practice, to its premises to
conduct union business. Accordingly, I find its refusal and
failure to provide such access is violative of Section 8(a)(5)
of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Transport Service Co., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Automobile Mechanics’ Local No. 701, Inter-
national Association of Machinists and Aerospace Workers,
AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent (the unit) con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees in the bargaining unit, namely Foreman
or Head Mechanic, Automobile Machinist, Mechanic,
Welder, Painter, Skilled Tireman, Helper, Truck, Trac-
tor and Tank Cleaners and Apprentices coming under
the jurisdiction of Automobile, Mechanics Local No.
701, IAM and AW, AFL–CIO, 133 S. Ashland Avenue,
Chicago, Illinois 60607; but excluding office clerical
employees, guards, and supervisors as defined in the
Act.
4. At all material times, the Union has been the exclusive
collective-bargaining representative within the meaning of
Section 9(a) for all the Respondent’s employees in the unit
described above.
5. By unilaterally ceasing to make contributions to the
Union’s pension and welfare funds on behalf of certain unit
employees who continued working for the Respondent during
a strike, the Respondent engaged in, and is engaging in, un-
fair labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By failing and refusing to furnish relevant information
as requested by the Union, the Respondent engaged in, and
is engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
7. By departing from past practice in denying the Union
access to the Respondent’s premises, the Respondent en-
gaged in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
8. By withdrawing recognition from the Union as the ex-
clusive collective-bargaining representative of the unit de-
scribed above, the Respondent engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
9. By failing to recall certain former striking employees,
the Respondent engaged in, and is engaging in, unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
10. The aforesaid unfair labor practice affect commerce
within the meaning of Section 2(6) and (7) of the Act.
11. The General Counsel has not established by a prepon-
derance of the evidence that the Respondent has otherwise
violated the Act as alleged.
THE REMEDY
Having found that the Respondent has engaged in, and is
engaging in, certain unfair labor practices, I shall recommend
that it be required to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act by failing to make contributions into the
pension and health and welfare funds included in Respond-
ent’s contract with the Union which contract terminated on
August 23, 1985, on behalf of certain members of the bar-
gaining unit who had continued to work during the strike, I
shall recommend that the Respondent make all pension,
health and welfare contributions in the aforenoted funds
which have not been paid and which would have been paid
but for the unlawful conduct found herein, and continue such
35TRANSPORT SERVICE CO.
9 The record disclosed that Carter, a mechanic, returned to work as a
utilityman on March 16, 1987, and subsequently, on June 8, 1987, he was re-
instated to his former mechanic position; DeMoss was reinstated 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 compli-
ance stage of this proceeding. See, e.g., Challenge-Cook Bros., supra at 390
fn. 8.
payments until such time as the Respondent negotiates in
good faith with the Union to a new contract or impasse is
reached. See Antonio’s Restaurant, 246 NLRB 833 (1979);
see also KBMS, Inc., 278 NLRB 826, 851 fn. 68 (1986).
Having found that the Respondent additionally violated
Section 8(a)(5) and (1) of the Act by unlawfully withdrawing
recognition from the Union as the exclusive collective-bar-
gaining representative for the unit, and, concomitantly, by
unlawfully denying the Union access to its premises to con-
duct business and by unlawfully refusing to furnish the
Union relevant information as requested, I shall recommend
that the Respondent recognize and bargain with the Union as
the exclusive collective-bargaining representative for the unit
concerning terms and conditions of employment. Further, I
shall recommend that the Respondent provide access to the
Union to the Company’s premises to conduct union business
and, forthwith, to furnish the Union, on request, all relevant
information including the names and addresses of all unit
employees, and information pertaining to Respondent’s insur-
ance, hospital and pension plans, and copies of those plans.
Having also found that the Respondent violated Section
8(a)(3) and (1) of the Act by not timely reinstating former
strikers Roosevelt Carter and James DeMoss,9 and not at all
reinstating former strikers Thomas McClain, Ron Golden,
and Paul Anderson, 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, without prejudice
to their seniority or other rights, dismissing, 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
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Having found, inter alia, that the Respondent’s withdrawal
of recognition was not grounded in good faith and that it oth-
erwise engaged in serious contemperaneous misconduct in-
cluding a failure to reinstate strikers under Laidlaw prin-
ciples, I find that a broad cease-and-desist order is necessary.
See Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]