Safeway Trails, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1977

233 N.L.R.B. 1078 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safeway Trails, Inc. and United Transportation
Union, Local No. 1699. Case 5-CA-5975
December 9, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 10, 1975, the Board issued a Decision
and Order' in the above-entitled proceeding, dis-
missing in toto a complaint alleging that the Respon-
dent had refused, in violation of Section 8(a)(5) and
(I) of the National Labor Relations Act, as amended,
to bargain collectively with the Charging Party,
United Transportation Union, Local No. 1699
(hereinafter called the Union or the Charging Party).
Thereafter, the Union filed a petition for review and
the Board filed a cross-application for enforcement
with the United States Court of Appeals for the
District of Columbia.
On December 9, 1976, the court issued its deci-
sion,2 remanding the case to the Board for reconsid-
eration of its dismissal of that part of the complaint
which alleged that the Respondent had sought to
undermine the bargaining representative of the
Union, thereby demonstrating that it had no inten-
tion of reaching an agreement with the Union. The
court's rejection of the Board's dismissal rested on its
finding that the Administrative Law Judge commit-
ted error by concluding that the General Counsel
had conceded that the Respondent's conduct at the
bargaining table was in good faith. The court
concluded that an 8(a)(5) violation can be made out
in the absence of any evidence of bad faith at the
bargaining table. Accordingly, the court remanded
the case to the Board with instructions to apply the
test set out in the court's opinion to the facts of this
case.
On February 22, 1977, the Board, through its
Associate Executive Secretary, notified the parties
that it had decided to accept the court's remand and
that any of them wishing to do so might now file a
statement of position concerning the issues raised
thereby. Such statements have been filed by the
General Counsel, the Respondent, and the Union.
The Board has duly considered the decision of the
Court of Appeals for the District of Columbia in light
of the statements of position filed by the parties in
this proceeding and makes the following findings:
I 216 NLRB 951.
2 546 F.2d 1038.
3 The Administrative Law Judge stated that he was applying a test as to
whether the Respondent's "away from the bargaining table conduct was so
233 NLRB No. 171
In its decision, the court stated that it viewed
General Electric Company, 150 NLRB 192 (1964),
enfd. 418 F.2d 736 (C.A. 2, 1969), as standing for the
following proposition:
If [Respondent's] away-from-the-bargaining-table
activities with respect to its employees were
directed toward undermining the bargaining
representative of those employees, bad faith and a
Section 8(aX5) violation have been established
even though overt evidence of that bad faith does
not appear at the bargaining table itself. If the
authority of the employees' bargaining represen-
tative at the bargaining table has been subverted,
as far as the interests of the employees are
concerned it matters little where or when the
subversion took place. [546 F.2d at 1041.]
In our earlier Decision, it was not our intention to
state that there can never be an 8(a)(5) violation
unless evidence of bad faith has been shown at the
bargaining table. 3 Rather, we interpreted the test
applied by the Administrative Law Judge to be a
recognition of the difficulty of determining whether a
violation has occurred when the parties have provid-
ed us with a less than complete picture of what took
place during the period of negotiations. In most
cases, the Board can more accurately evaluate a
party's conduct by examining the conduct at the
table in light of the conduct away from the table, and
vice versa. As we stated in Baldwin County Electric
Membership Corporation, 145 NLRB 1316 (1964), an
employer's ambiguous conduct may be made clear
by having a total picture of what occurred both at
and away from the bargaining table.
In the case before us, we interpret the court's
decision to instruct us to regard the lack of evidence
in this case as to what occurred at the bargaining
table as a neutral factor, favoring neither sustaining
nor dismissing the allegations of the complaint.
Accordingly, we shall reevaluate the Respondent's
conduct to determine whether-as alleged by the
General Counsel and the Charging Party-it estab-
lishes an intent to undermine the bargaining represen-
tative of the employees.
The background facts, as more fully set out in the
Decision of the Administrative Law Judge, may be
briefly summarized as follows. The Union represent-
ed Respondent's motor coach operators for about 37
years, under a series of contracts, the last from April
1, 1969, to March 31, 1972. Between February 1972
and January 1974, the parties met on numerous and
frequent occasions in an attempt to reach an
pernicious as to warrant a conclusion that Respondent could not have been
bargaining in good faith at the table no matter what was shown to have
taken place during the bargaining sessions."
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SAFEWAY TRAILS
agreement on a new contract, by never reached
agreement. A strike of the operators commenced
April 2, 1972. The Respondent ceased operations
when the strike began, but thereafter resumed
operations in January 1973. During the bargaining
sessions, Marvin Walsh, the Respondent's president
and its chief negotiator for the last 30 years,
represented the Respondent, and John Lantz was the
Union's chief negotiator.
The strike apparently ended on or about March 12,
1975. An RM petition was filed June 4, 1975, on the
basis of which an election was held August 18, 1976,
resulting in the loss of certification by the Union. See
Safeway Trails, Inc., 224 NLRB 1342 (1976).
In evaluating the conduct alleged by the General
Counsel and the Charging Party to violate the Act,
we must first examine conduct occurring outside the
10(b) period. This case involves a situation where
"occurrences within the 6 month limitations period
in and of themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier events
may be utilized to shed light on the true character of
matters occurring within the limitations period." 4
Here, we must decide not only whether the Respon-
dent's conduct interfered with the Section 7 rights of
the employees but also whether it evidenced an
intent to undermine the Union's representative,
thereby constituting a refusal to bargain.
The following events, occurring outside the 10(b)
period, shed considerable light on the purpose and
intention of the Respondent's away-from-the-table
conduct.
On or about April 5, 1972, Walsh sent a letter to all
employees, with copies to the Union's negotiating
committee stating, in part, that two-thirds of the
previous 18 negotiating meetings "were meaningless,
or at least fruitless, because the Union chairman was
not prepared, did not have full committee, and met
either by himself or with one member most of the
time," and that the "chairman insisted upon ridicu-
lous demands. . . which made it impossible to reach
an agreement."
On or about May 4, 1972, Walsh sent a letter to the
Federal mediator, with copies to all employees and
to the United Transportation Union's International
president and vice president. In that letter, Walsh
stated that Lantz was lacking in "responsibility and
sincerity" and that it was "high time the UTU grand
lodge . . . assumes its responsibility for the people
they represent ... ."
On or about May 11, 1972, in a letter to employees,
Walsh accused Lantz of having misrepresented a
number of items to the membership and having not
N. L.R. B. v. Bryan Manufacturing Co., 362 U.S. 411 (1960).
5 The Administrative Law Judge concluded that the "I" referred to either
company official H. L. Glisas or McGraw.
presented various other proposals made by the
Respondent to the employees.
In June 1972, Walsh telephoned James Gore, a
former president of the Union, and told him that he
could not get along with Lantz, that Lantz changed
proposals every time they had a meeting, and that
Lantz was not telling the membership all that was
going on.
The above-mentioned incidents occurred outside
the 10(b) period and therefore cannot form the basis
for finding any violations of the Act. However, they
are relevant as background information and clearly
demonstrate the Respondent's predilection for sug-
gesting to employees that the major stumbling block
preventing an agreement and labor peace was the
presence of John Lantz as chief negotiator for the
Union.
Finally, one additional matter relied on heavily by
the General Counsel and the Charging Party as
background for evaluating the Respondent's action is
a company resume, prepared May 1, 1972, which
evaluates the negotiating session that had been held
on April 28, 1972. The resume is set out fully in the
Administrative Law Judge's original Decision in this
case. The part of that document deemed most
relevant by the General Counsel and the Charging
Party is its "conclusions" which read as follows:
At this time 15 see no possibility of settling a
contract with Lantz and it appears to me that we
have but three possibilities.
(1) Inform the membership and the employees of
the absolute irresponsibility of their repre-
sentation in an effort to get them to boot
Lantz out.
(2) The UTU International taking over these
negotiations and putting in someone who
can intelligently negotiate and reach an
agreement.
(3) Failing to achieve Nos. I and 2, it appears that
this will be a long work stoppage with the
definite possibilities of having to put this
company back to work without a settlement
with the UTU.
The Company's resume was an internal matter not
for publication, but the General Counsel and the
Charging Party nonetheless contend that it indicates
the Respondent's strategy to "boot Lantz out."
Certainly, the resume serves to demonstrate that in
May 1972 the Respondent desired to have Lantz
removed as the Union's representative and was
considering possibilities so that that end might be
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached. It is unclear-and of secondary impor-
tance-whether, as stated by the Administrative Law
Judge, the resume expressed only that the Respon-
dent believed it could not-rather than would not-
sign a contract with Lantz. The real significance of
the resume is that it shows the Respondent was
specifically considering taking action to secure the
removal of Lantz as chief negotiator for the Union.
The following incidents are those within the 10(b)
period that we must evaluate to determine whether or
not-applying the test as stated by the court of
appeals-they constitute an attempt by the Respon-
dent to subvert and undermine the authority of the
representative chosen by the employees to represent
them.
At an August 22, 1972, meeting the Respondent
presented a revised contract proposal to the Union,
but thereafter the Union determined it would not
submit the new proposal to the membership. On
August 24, 1972, Walsh sent the following letter to
employees: 6
You are in receipt of our proposal for a new
contract, which I handed to your Chairman and
Negotiating Committee in the presence of Media-
tor Nicholas Fidandis in Washington, D.C. on
Tuesday, August 22, 1972.
This proposal was at the request of your
Chairman on Saturday, August 19, 1972.
This offer concludes nearly five months of
efforts on our part to bring this strike to an end.
With Mr. Lantz's refusal to take our proposal
to you for your acceptance, we are all back to our
starting point of February 22, 1972. We have
spent the intervening time and thirty-eight meet-
ings trying to reach common grounds on which a
settlement could be reached but to no avail,
principally because your Chairman has constant-
ly made more and more demands that we cannot
possibly accede to, and, moreover, the fact that he
won't approve for the record those issues which
we have agreed upon.
We feel that this type of negotiating has gone
on for too long and that time for action on your
part is past due. Besides denying yourselves and
your families, you have caused many innocent
employees to suffer by reason of being furloughed
for lack of work.
In the new proposal you will find many
concessions that were purportedly stumbling
blocks in our first proposal. We hope that they
meet your needs and for those issues that fail to
satisfy you, we must say our position is taken only
6 The allegation of the complaint regarding the August 24, 1972, letter
was added pursuant to an amendment made at the hearing. The
Administrative Law Judge ruled, and we agree, that this letter was sent to
employees within the 10(b) period.
after careful consideration of our economic needs
to operate a successful and competitive business.
You are all aware of our loss incurred from
January through March due to weather condi-
tions and slow business. You know the impact
made by AMTRAK on our Washington-New
York runs and you can well imagine the damage
done to our business by GREYHOUND han-
dling our passengers for the past five months.
If you are going to keep your job and the
Company is to stay in business, we had better get
back to work and find a way to settle our
differences while our wheels are rolling, not by
destroying our income and thereafter expect to
increase your benefits.
I feel that it is time for each of you to reflect
that to date no one has won anything, instead we
are all much poorer for our experience.
I sincerely hope that each of you will act in the
interest of your own personal welfare and aid in
getting an early settlement of this strike.
You are offered the best contract in the
business. Take it apart and learn for yourself what
an opportunity you really have.
In October 1972, Walsh telephoned employee John
Mathias and spoke with Mathias, whose wife was
listening in on the extension. In discussing the strike
and related circumstances, Walsh informed Mathias
to the effect that "I can't negotiate with Lantz," or
with "somebody with all the whiskers or beard on his
face." 7 Walsh also stated that he was having a
"rough time" bargaining with Lantz.
On or about December 14, 1972, the Respondent
sent letters to some 26 senior striking employees. The
letter in question read as follows:
Dear Operator:
It is almost Christmas and the strike is now well
into its 9th month. If you will carefully read the
company's last and final offer good until Decem-
ber 31st, you can see it is an extremely good offer
taking in consideration the mileage rate, cost of
living, holidays and funded pension plan.
It is very puzzling to me why the operators,
who have been with this company so many years,
would allow a chairman with a 1967 seniority
date to take over and control the operators as he
has done.
It would be my recommendation that you give
this offer serious consideration and then let Lantz
know how you feel as a body of men as this
7 Our recitation of Walsh's statements is based on the factual findings
and credibility resolutions of the Administrative Law Judge.
1080
SAFEWAY TRAILS
adversely effect the future welfare of y. u and
your families.
I am extremely sorry the strike occurred as it
has never been my intention to do anything to the
older operators who have worked so many loyal
years for Safeway Trails.
My best wishes to you and your families for a
happy holiday season.
The above-mentioned letter was sent out over the
signature of Walsh to those operators who had been
in the service of the Respondent for many years.
Prior to this letter, Walsh had sent a letter to Lantz
(with copies to all employees, the Federal mediator,
and the UTU International president) with a
"complete contract document" and a summary of the
"improvements made" therein, representing the
Respondent's "final offer." In the earlier letter,
Walsh stated his availability "to answer any ques-
tions you [Lantz] or the operators may have during
the meantime." Walsh testified that his December 14
letter was a result of numerous calls from striking
drivers, particularly calls from senior drivers.
On or about February 28, 1973,8 Walsh was
telephoned by Mrs. Sarah Stevens, the wife of a
striking employee. In their discussion of the labor
problems, Walsh informed Mrs. Stevens that "I can
tell you how it can be settled. I will meet with any
three men on the roster other than John, John Lantz,
and I will guarantee that I can have this contract
settled within 2 to 3 hours."
In March 1973, Walsh, in a conversation with
employee Kenneth Day, stated that he (Walsh)
"couldn't understand why the men were letting John
Lantz keep them in the streets and that he couldn't
understand why they couldn't do something to get
this thing settled, that the older men get together and
do something to get this thing settled."
In March 1973, L. Hilton Warwick, the Company's
vice president, in a conversation with striking
employees at the Respondent's Philadelphia, Penn-
sylvania, terminal told the strikers that they were
"following the wrong man" (i.e., referring to Lantz).9
In evaluating the Respondent's conduct and
applying the test set forth by the court of appeals, we
believe that it is essential to view the aforementioned
incidents as a whole rather than individually. It is
frequently the case that certain statements or
conduct, in and of themselves, may not rise to being
a We reaffirm our earlier conclusion that the statements of Paul Miller in
January 1973, under all the circumstances involved therein, did not violate
the Act. Further, we find that Miller was not in a position to state company
policy, and therefore we shall not consider his statements in reaching our
decision herein.
9 In regard to Supervisor Sam Athey referring to Lantz as a "radical," we
find that, although the Respondent may have been responsible for Athey's
conduct, Athey was not in a position to state compan) policy, and therefore
a violation of the Act. Where the issue, in essence, is
whether or not the Respondent conducted an entire
campaign to undermine and remove the Union's
negotiator, we must examine all the conduct taken
together, and examine it in light of the pre-10(b)
conduct, in order to decide the lawfulness of the
Respondent's statements and conduct.
The Board has long held that it is permissible for
an employer to communicate the provisions of
bargaining offers to the membership of the unit and
even to urge ratification of an offer submitted to the
union negotiators.10 However, having examined
Respondent's entire course of action away from the
bargaining table, we find that the Respondent's
efforts here were not within the purview of permissi-
ble communications, but were directed to having the
Union's representative replaced with someone more
amenable to accepting the Respondent's proposals.
Treating the at-the-table bargaining negotiations as
a neutral factor, language set out in a recent Board
Decision becomes applicable to the facts herein. In
The General Athletic Products Company, 227 NLRB
1565 (1977), the Board affirmed a Decision of an
Administrative Law Judge finding a violation where
"the tack taken by this [r]espondent was to insist
upon acceptance [of] its offer and no other by
disparaging the [u]nion and by casting doubt in the
minds of the membership as to the bonafides of the
efforts of union representatives in advancing the
interest of its membership, thus driving a wedge
between union representatives whom it had previous-
ly invited to step aside from active negotiations and
the employees on whose behalf they were negotiat-
ing."
In this case, the Respondent's efforts were similarly
directed toward driving a wedge between the Union's
chosen negotiator, John Lantz, and the union
membership. Despite the Union's membership
adhering to its support of Lantz, the Respondent
insisted on continuing a campaign with numerous
not-so-subtle suggestions that the presence of John
Lantz as union negotiator was the primary reason
that labor peace had not been reached and the men
returned to work. It is well settled that, while an
employer may communicate its offers to employees,
an employer has no responsibility for determining or
selecting who should bargain on behalf of employ-
ees."1
his remarks are not helpful in evaluating whether the Respondent's conduct
was directed at undermining the Union's negotiator.
io See, e.g., The Proctor & Gamble Manufacturing Company. 160 NLRB
334 (1966); N.L R.B. v. Movie Star, Inc., Movie Star of Poplarville Inc., 361
F.2d 346 (C.A. 5, 1966).
iI See Astro Electronics, Inc., 188 NLRB 572 (1971), enfd. 463 F.2d 176
(C.A. 9, 1972).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the Respondent's statements and entire
course of conduct away from the bargaining table,
the conclusion is inescapable that the Respondent
was attempting to undermine and subvert Lantz'
authority as the bargaining representative of the
motor coach operators. Time after time the Respon-
dent, primarily through Walsh, reiterated its constant
theme that Lantz' presence was preventing accord on
a new agreement. For example, the Respondent told
employees that (a) [referring to Lantz' bargaining in
the August 24, 1972, letter] "this type of negotiating
has gone on for too long and that time for action on
your part is past due"; (b) he (Walsh) "can't
negotiate with Lantz"; (c) he (Walsh) found it "very
puzzling" that senior employees would allow Lantz
to take over and control the operators; (d) a new
contract could be "guarantee[d] . . . within 2 to 3
hours" if other men on the roster were to take over
for Lantz; and (e) the "older men" should "get
together and do something to get this thing settled."
The message of such statements - evaluated in light
of the Respondent's pre-l0(b) conduct - adds up to
an effort by the Respondent to destroy Lantz'
credibility and to lead employees to replace Lantz.
Nor is the Respondent's effort redeemed because the
Respondent at times stated - as in the December 14,
1972, letter - that employees should "let Lantz
know" about their position. The tenor of the
Respondent's entire campaign belies an intent or
desire to engage in good-faith bargaining with the
employees' chosen representative, Lantz. Rather, it
manifestly suggests that the Respondent's intent was
to rid itself of Lantz because he would not agree to
the contract proposals offered by the Respondent.
Thus, the Respondent's actions were wholly inconsis-
tent with its statutory obligation to bargain in good
faith.
Accordingly, having concluded that the Respon-
dent's away-from-the-bargaining-table activities con-
stituted a campaign to employees directed toward
undermining the status and authority of John Lantz,
the chosen bargaining representative of the employ-
ees, we find that bad faith and an 8(a)(5) violation
have been established.' 2
Further, we find that the Respondent's unfair labor
practices aggravated and prolonged the strike,
thereby converting the economic strike herein into an
unfair labor practice strike. The Respondent con-
tends that there is no proof showing a causal
connection between the unfair labor practices and
the prolongation of the strike. The Respondent
argues that the strike, which was concededly eco-
nomic in its inception, remained an economic strike.
12 In his statement of position, the General Counsel addresses himself to
various independent 8(aXI) allegations in the complaint. In light of our
Decision herein and as such matters were not included in the court's
However, it is clear that the Respondent's actions
- in seeking to undermine the union representative
- were well known to employees and, according to
Lantz' uncontradicted testimony, the Respondent's
communications were discussed at various meetings
of the union membership. Under these circumstanc-
es, the inference is clear that the Respondent's
actions and communications served to aggravate and
prolong the strike. The fact that the Respondent was
not successful in undercutting Lantz does not negate
our finding that the Respondent's misconduct was a
concern to employees and a factor in the prolonga-
tion of the strike. Moreover, the very nature of the
Respondent's misconduct - appealing directly to
employees in an attempt to undercut the union
representative - is such as could not help but
prevent and inhibit good-faith bargaining, thereby
prolonging the strike.
Accordingly, we find that the Respondent's mis-
conduct converted the economic strike herein into an
unfair labor practice strike. In order not to rely on
matters outside the 10(b) period, we shall date the
conversion of the economic strike to an unfair labor
practice strike as of August 24, 1972, the date of the
initial misconduct on which we have relied in finding
a violation of Section 8(a)(5).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce in an industry affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Transportation Union, Local No. 1699,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All motor coach operators, excluding office
clerical employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein, United Transpor-
tation Union, Local No. 1699, has been the exclusive
collective-bargaining representative within the mean-
ing of Section 9(a) of the Act for all of the
Respondent's employees employed in the unit
described above in paragraph 3.
5. Since on or about August 24, 1972, the
Respondent, by seeking to undermine and subvert
the authority of the Union's bargaining agent, has
refused and continues to refuse to bargain collective-
ly in good faith with the Union as the exclusive
collective-bargaining representative of its employees
remand, we need not reconsider our original rulings on the independent
8(a)(1) allegations.
1082
SAFEWAY TRAILS
employed in the unit described in paragraph 3. Such
action violates Section 8(a)(l) and (5) of the Act.
6. By the conduct set forth in paragraph 5, above,
the Respondent has prolonged a strike of its
employees.
7. The unfair labor practices recited above have a
close, intimate, and substantial effect on the free flow
of commerce within the meaning of Section 2(6) and
(7) of the Act.
The Remedy
We have found, contrary to the Administrative
Law Judge, that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5)
of the Act. It is necessary, in order to effectuate the
purposes of the Act, that the Respondent be ordered
to cease and desist from engaging in such unlawful
activity and to take other actions designed to
effectuate the purposes and the policies of the Act.
It is the Board's established policy to require
employers to reinstate unfair labor practice strikers
within 5 days after said strikers make a full and
unconditional offer to return to work. Accordingly,
we shall include such a provision in our Order.
Should the Respondent fail or refuse to grant such
reinstatement, any striker who has made a full and
unconditional offer to return to work will be entitled
to backpay, computed as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest computed thereon in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977),13
beginning 5 days after such offer is made.14
Subsequent to the Board's initial Decision and
Order in this case and pursuant to an RM petition
filed by the Respondent on June 4, 1975, an election
was held among the Respondent's motor coach
drivers at the Respondent's facility on August 18,
1976. At that election, a majority of employees voted
against the Union, and the Union thereby lost its
certification.
When an election has been held, the Board
normally, under the doctrine of Irving Air Chute,15
does not grant a bargaining order unless there is a
basis for setting aside the election. However, Irving
Air Chute presupposes that it was appropriate to have
conducted the election. Where, as here, the Board,
after accepting a remand from a court, decides to
reverse its dismissal of a complaint and find a
violation of the Act, it must further decide whether,
had it initially found a violation, an election would
have been proper. In this case, had we found in our
original Decision that the Respondent was in
13 See, generally. Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
14 Chairman Fanning, for reasons set out in his and Member Jenkins'
partial dissent in Drug Package Company, Inc.. 228 NLRB 108(1977). would
commence backpay for the unfair labor practice strikers on the date they
unconditionally offer to return to work.
violation of Section 8(a)(5) of the Act, it is clear that
the petition in Case 5-RM-777 would have been
dismissed and no election held. Under these circum-
stances, we find it necessary to set aside the results of
the election in Case 5-RM-777 and to issue a
bargaining order to correct the violations found
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Safeway Trails, Inc., Washington, D.C., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with United
Transportation Union, Local No. 1699, by engaging
in activities with respect to its employees which are
directed toward undermining the bargaining repre-
sentative of those employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the purposes and policies of the Act:
(a) Upon request, bargain collectively with United
Transportation Union, Local No. 1699, as the duly
designated exclusive collective-bargaining represen-
tative of all its motor coach operators, excluding
office clerical employees, guards, and supervisors as
defined in the Act, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if understandings
are reached, embody any such understanding in a
written signed agreement.
(b) Within 5 days after their unconditional applica-
tion for reemployment, offer to all striking employees
reinstatement to their former positions or, if those
jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or other
rights and privileges, discharging if necessary any
replacements, and make whole employees who have
made such a request for reinstatement but who have
not been offered reemployment for any loss of pay
from the day beginning 5 days after the date of their
unconditional offer to return to work and terminat-
ing on the date of the Respondent's offer of
reinstatement, in the manner set forth in the section
of this Decision entitled "The Remedy."
15 Irving Air Chute Company, Inc., Marathon Division, 149 NLRB 627
(1964).
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Washington, D.C., facility and all of
its other terminals copies of the attached notice
marked "Appendix." 16 Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by an authorized represen-
tative of the Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amounts of
backpay due under the terms of this Order.
(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the election held on
August 18, 1976, in Case 5-RM-777 be, and it
hereby is, set aside, and that Case 5-RM-777 be, and
it hereby is, dismissed.
I6 In the event that 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 Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith
with United Transportation Union, Local No.
1699, by engaging in activities with respect to our
employees which are directed toward undermin-
ing the bargaining representative of our employ-
ees.
WE WILL bargain, upon request, in good faith
with United Transportation Union, Local No.
1699, as the exclusive collective-bargaining repre-
sentative of all of our motor coach operators, and
if an understanding is reached, we will embody
the terms of said understanding in a signed
agreement.
Within 5 days after their unconditional offer to
return to work, WE WILL offer to all strikers who
make such a request full and immediate reinstate-
ment to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions,
discharging if necessary any replacements who
have been hired.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by the
National Labor Relations Act.
SAFEWAY TRAILS, INC.
ORDER CLARIFYING SUPPLEMENTAL
DECISION AND ORDER
On March 10, 1975, the Board issued a Decision
and Order' in the above-entitled proceeding, dis-
missing in toto a complaint alleging that the Respon-
dent had refused, in violation of Section 8(aX5) and
(1) of the National Labor Relations Act, as amended,
to bargain collectively with the Charging Party,
United Transportation Union, Local No. 1699
(hereinafter called the Union or the Charging Party).
On December 9, 1976, the United States Court of
Appeals for the District of Columbia issued its
decision,2 remanding the case to the Board for
reconsideration of its dismissal of that part of the
complaint which alleged that the Respondent had
sought to undermine the bargaining representative
status of the Union, thereby demonstrating that it
had no intention of reaching an agreement with the
Union.
After reconsideration, the Board, on December 9,
1977, issued a Supplemental Decision and Order3 in
the above-entitled proceeding in which it found that
the Respondent had violated Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, by
seeking to undermine and subvert the authority of
the Union's bargaining agent and that the Respon-
dent's 8(a)(1) and (5) violation had converted the
economic strike of the Respondent's employees into
an unfair labor practice strike.
Thereafter on December 22, 1977, the Charging
Party filed a "Motion for Clarification of Board
Remedy." On January 11, 1978, the Respondent filed
an "Answer in Opposition to Charging Party's
Motion for Clarification of Board Remedy." On
February 24, 1978, the Charging Party filed a "Reply
to Respondent's Answer to Charging Party's Motion
for Clarification of the Remedy." Finally, on March
9, 1978, the Respondent filed a "Supplemental
i 216 NLRB 951.
2 546 F.2d 1038.
3 233 NLRB No. 171.
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SAFEWAY TRAILS
Answer in Opposition to Charging Party's Motion
for Clarification of Board Remedy."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In order to remedy the unfair labor practices
found, the Board's Supplemental Decision and Order
required, in paragraph 2(b), that the Respondent
take the following affirmative action:
Within 5 days after their unconditional applica-
tion for reemployment, offer to all striking
employees reinstatement to their former positions,
or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their
seniority or other rights and privileges, discharg-
ing if necessary any replacements, and make
whole employees who have made such a request
for reinstatement but who have not been offered
reemployment for any loss of pay from the day
beginning 5 days after the date of their uncondi-
tional offer to return to work and terminating on
the date of the Respondent's offer of reinstate-
ment, in the manner set forth in the section of this
Decision entitled "The Remedy."
In its motion, the Charging Party requests that the
Board reaffirm its finding in Case 5-RM-7774 that
the Charging Party, on March 12, 1975, made an
unconditional offer to return to work on behalf of all
striking employees. The Charging Party further urges
that the March 12, 1975, date relate to the remedy of
reinstatement and backpay so that it will be found-
in regard to paragraph 2(b) of our Order-that the
striking employees satisfied their obligation to make
unconditional application for reemployment on
March 12, 1975.
In its answer, the Respondent, while not disputing
that the Charging Party ended its strike action and
made application on behalf of all strikers to return to
work on March 12, 1975, contends that the Board's
Order must be prospective in nature and that
backpay should accrue only for periods after the
Board's Supplemental Decision and Order of De-
cember 9, 1977. Relying on Ferrell-Hicks Chevrolet,
Inc., 160 NLRB 1692 (1966), the Respondent argues
that this is one of those "occasional cases" with
"special factors" warranting the tolling of backpay.
The Respondent further states that subsequent to the
Board's original Decision and Order of March 10,
1975, it sent letters to all strikers (with the exception
4 See 224 NLRB 1342 (1976). The proceedings in Case 5 RM-777 were
vacated and the petition dismissed in our Supplemental Decision in this
case.
I Neither Fibreboard Paper Products Corporation, 138 NLRB 550 (1962),
nor Kohler Co., 148 NLRB 1434 (1964)., cited by the Respondent, mandates
that backpay be tolled here.
of six who allegedly had engaged in misconduct)
inquiring of their availability and desire for recall.
Thereafter, according to the Respondent, it placed
those seeking recall on a preferential hiring list and
eventually extended the offers of reemployment to
approximately 184 strikers, about 100 of whom
accepted. The Respondent requests that the Board
find that approximately 44 strikers who did not
respond to its inquiry as to availability for recall be
held no longer entitled to receive offers of reinstate-
ment.
In Ferrell-Hicks, the Board stated that it would
consider sympathetically requests by respondents for
a less-than-full backpay award when the equities
indicated that such would effectuate the purposes of
the Act. However, in the case before us, we cannot
conclude that a tolling of backpay would be
appropriate.
In this case, the Respondent has not received an
adverse decision because of a major change of Board
doctrine or law. Rather, as we stated in our
Supplemental Decision and Order, we reconsidered
this case based on the conclusion of the court of
appeals that the General Counsel, in the original
hearing, had not conceded that the Respondent's at-
the-table bargaining had been in good faith. Thus,
the different result reached in our Supplemental
Decision was not based on the Board's failure to
adhere to past precedent but on a reevaluation (after
eliminating consideration of the at-the-table bargain-
ing) of the evidence. In this situation, where an
adverse decision has resulted from a reappraisal of
the evidence, a respondent must normally bear the
burden inherent in litigation-that after extended
litigation, an earlier favorable decision will be
reversed and an adverse decision issue.
Nor do we find that the equities herein dictate that
backpay be tolled. Upon reconsideration, we con-
cluded-in our Supplemental Decision-that the
Respondent conducted a lengthy campaign aimed at
undermining and subverting the Union. That cam-
paign resulted in an economic strike being converted
to an unfair labor practice strike. With the possible
exception of 6 out of over 200 strikers, there is no
allegation of striker misconduct. Under these circum-
stances, where unfair labor practice strikers have
made an unconditional application to return and
have engaged in no misconduct, we find that the
equities favor a full backpay remedy for strikers not
properly reinstated. 5 As we stated in Ferrell-Hicks,
once a final determination has been made that a
Fibreboarda unlike this case, involved a significant Board decision in an
unsettled area of law-finding an employer had a duty to bargain about a
decision to contract out the work of an entire bargaining unit. As noted
heretofore, the Board's Supplemental Decision in this case resulted from a
(Continued)
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent has engaged in wrongdoing, a full
backpay award will be presumptively appropriate.
Here, neither the fact that our Supplemental Deci-
sion reached a different conclusion from our original
Decision nor the equitable considerations involved
are sufficient to overcome the presumption favoring
a full backpay award. Accordingly, we conclude that
it will effectuate the purposes of the Act to award full
backpay to strikers, beginning 5 days after their
unconditional offer to return on March 12, 1975.6
The Respondent further has contended that certain
strikers are not entitled to reinstatement offers
because they did not respond to its inquiries as to
availability in March 1975. In this regard, the
Respondent's argument appears primarily to be that
it has already fulfilled its obligation to make
reinstatement offers. We shall leave to the compli-
ance stage of this proceeding a determination as to
whether the Respondent has previously made valid
reappraisal of the evidence rather than from a major change or new
innovation in the law.
In Kohler, the respondent's refusal to reinstate was based on the serious
matter of striker misconduct. After a court remand, the Board applied the
Thayer doctrine (see N.L.R.B. v. Thayer Company and H.N. Thayer, 213 F.2d
748 (C.A. I, 1954) to determine whether certain strikers who had engaged in
misconduct were nonetheless entitled to reinstatement. Thayer mandated a
weighing of an employer's unfair labor practices against the strikers'
unprotected acts of misconduct in determining whether reinstatement was
an appropriate remedy. Where the refusal to reinstate was based on
misconduct that did in fact occur but reinstatement was later ordered, after
reconsideration of the case, for certain strikers on the basis that the
reinstatement offers that would satisfy its obligations
under our Supplemental Decision and Order.
ORDER
It is hereby ordered that the Board's Supplemental
Decision and Order in this matter be, and it hereby
is, clarified to provide in a footnote (to be designated
fn. 16 and the subsequent footnote renumbered
accordingly) to paragraph 2(b) of the Order as
follows:
16 The Board found in Case 5-RM-777 (see Safeway Trails, 224 NLRB
1342), that the Union advised the Employer (the Respondent herein) on
March 12, 1975, that it was terminating the strike action and making an
unconditional offer to return to work on behalf of the striking operators.
Our Order in paragraph 2(b) refers to an unconditional offer for
reemployment whenever made, and we do not find it appropriate, under the
circumstances of this case, to make our order prospective or to toll backpay.
Accordingly, the March 12, 1975, date shall serve as the date upon which all
striking employees satisfied their obligation under our Order to make an
unconditional offer to return, and the remedy of reinstatement and backpay
will relate to that date. Other contentions and questions regarding the
reinstatement obligation and backpay may best be dealt with in the
compliance phase of these proceedings.
employer's unfair labor practices outweighed the strikers' misconduct, the
equities favored the tolling of backpay. Here, except for an allegation
regarding 6 of over 200 strikers, there is no striker misconduct involved.
Thus, the equities favor the unfair labor practice strikers who, having
engaged in no misconduct, applied for reinstatement. Reliance on a Board
decision which is later reversed upon a reappraisal of the evidence does not
shift the equities to the same extent which occurs when reliance is placed on
striker misconduct later found, upon reconsideration of the case, insufficient
to bar reinstatement.
6 Chairman Fanning would commence backpay for the unfair labor
practice strikers on March 12, 1975, the date on which they unconditionally
offered to return to work.
1086