Safeway Trails, Inc.

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." 1078 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). 1081 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. 1084 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