Grumman Allied Industries, Inc.

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Olson Bodies, Inc., a Subsidiary of Grumman Allied Industries, Inc. and International Union, United Au- tomobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 3-CA-3326 and 3-CA-3326-2 September 26, 1975 DECISION AND ORDER REMANDING PROCEEDING TO THE ADMINISTRATIVE LAW JUDGE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 14, 1967, the National Labor Relations Board certified the Charging Party as collective-bar- gaining representative of the production and mainte- nance employees employeed by Respondent at its Athens and West Athens, New York, plants, herein called the Athens plant. Respondent, however, un- lawfully refused to bargain with the Charging Party, thereby causing the Board to issue its Olson 1 deci- sion.' Several years later, the Board issued its Olson 2 decision,' wherein it found, in substance, that while Olson 1 was pending Respondent further violated the Act by, inter alia, discriminatorily discharging and refusing to reinstate 70 employees in the certified unit. Accordingly, the Board ordered reinstatement and backpay. Subsequently, the Board had occasion to issue its Olson 3 decision 3 wherein it found, inter alia, that Respondent unlawfully ceased, and refused to continue, bargaining with the Charging Party, and also failed to effect substantial compliance with the Board's Order issued in Olson 2. These factors led, subsequently, to the instant case, Olson 4, which presently is in litigation as a supplementary backpay proceeding derived from Olson 2. The specific matter now before us concerns the attached interim Deci- sion and Order which Administrative Law Judge Herzel H. E. Plaine issued in Olson 4. That Decision and Order was prefaced by the hearing in Olson 4 which the Administrative Law Judge placed in its present state of temporary sus- pension in order to: (1) permit Respondent to amend its answer and otherwise perfect its affirmative gen- eral defenses relative to the General Counsel's back- pay specification; (2) provide the General Counsel with an opportunity to study Respondent's revised defenses and pursue his motion to strike Respondent's general defenses, and (3) provide Re- 1 170 NLRB 1729 ( 1968), enfd 420 F.2d 1187 (C.A. 2, 1970), cert . denied 401 U S 954 (1971). Z 181 NLRB 1063 (1970). '206 NLRB 779 (1973) spondent with an opportunity to oppose the motion to strike. Pursuant to the foregoing, Respondent revised its affirmative general defenses by proposing five alter- native backpay plans, each of which also is an alter- native to the General Counsel's backpay specifica- tion. The General Counsel then filed with the Administrative Law Judge a "Motion To Strike Respondent's Affirmative Defenses And To Adopt General Counsel's Backpay Formula," to which Re- spondent filed an opposition. On April 4, 1975, Administrative Law Judge Plaine issued the Decision and Order here under consideration wherein he granted the General Counsel's motion and ordered the proceeding to con- tinue solely on the basis of the General Counsel's backpay specification. Thereafter, the General Coun- sel filed a brief and Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision and Order in light of the exceptions and briefs and has decided to affirm the findings and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge, relying on the doc- trine of res judicata, found that Respondent is pre- cluded from litigating in this proceeding its affirma- tive general defenses embodying its proposed backpay plans 1, 2, and 3 because those defenses "rest upon an alleged fact situation that was litigated and discredited in Olson 2." That "fact situation," the Administrative Law Judge found, is based on Respondent's claim that since the 1967 termination of 70 employees, which reduced the Athens plant work force from 200 to 130, Respondent has had a fixed amount of work at that plant but only enough for not more than 130 employees. He found that Ol- son 2 decided that the work reduction was a con- trived result which Respondent achieved by assign- ing new work to other of its plants, and that, after considering evidence in this regard both before the discharges and "up to and including the time of [the Olson 2] trial in 1968," Olson 2 also concluded that the discharges, and Respondent's refusal to reinstate the dischargees, were for discriminatory, not eco- nomic, reasons. He then found that Respondent can- not now relitigate the economic defenses contained in its plans 1, 2, and 3 because they are based on the economic defense which was discredited in Olson 2. He further found that since Respondent does not now contend that the fixed amount of work at the 220 NLRB No. 114 OLSON BODIES, INC. 757 Athens plant varied substantially since the foregoing findings were made in Olson 2 its plans 1, 2, and 3 "do not raise new matter that was not raised or could not have been raised in the underlying unfair prac- tice case [Olson 2], or that could only be advanced in the compliance or backpay case." Therefore, he con- cluded, it is unnecessary to examine post-Olson 2 facts pertaining to Respondent's backpay obligation, i.e., "to examine into a new and different (substan- tially reduced work) situation arising after" the 1968 Olson 2 trial. We do not agree with these findings. Quite obviously, the 1968 findings contained in Ol- son 2 did not, and could not, cover post-Olson 2 mat- ters relative and pertinent to Respondent's present backpay liability. See Rogers Furniture Sales, Inc., 213 NLRB 834, fn. 8 (1974), wherein we stated that " . . . although in the [underlying] unfair labor practice decision . . . we adopted Administrative Law Judge Ross' finding that Respondent's failure to replace the claimants reflected a continued effort to conceal the real reason for their discharge, that find- ing is not conclusive as to the entire backpay period. The availability of work during the entire backpay period was not, of course, litigated in the earlier pro- ceeding." What we said in Rogers Furniture is fully applicable here. Accordingly, we find that the doc- trine of resjudicata is not applicable to Respondent's backpay plans 1, 2, and 3.4 For the same reasons, Respondent likewise is not precluded from adducing evidence with regard to specific defenses relating to individual backpay claims. The Administrative Law Judge struck Respondent's affirmative general defenses encom- passing its proposed backpay plans 4 and 5 in part because, in his view, the evidence pertinent to those plans is dependent upon present testimony concern- ing events which occurred "ten years ago" and, therefore, is speculative in nature and "would be an intolerable burden and probably provide a morass of subjective testimony." The short answer to this un- warranted conclusion is that the grounds ascribed are legally insufficient to preclude Respondent from adducing its proffered evidence in support of these plans.' We find, therefore, that the General Counsel's mo- tion to strike Respondent's affirmative defenses and to adopt the General Counsel's backpay specification is without merit, and that the Administrative Law Judge improperly granted said motion. Accordingly, the General Counsel's motion is hereby denied, and the Administrative Law Judge's grant of said motion is hereby overruled. We further find that Respondent is not foreclosed from setting forth, adducing evi- dence with regard thereto, and litigating in this pro- ceeding its five affirmative general defenses compris- ing five alternative plans for calculating gross back- pay due the claimants in this proceeding, including those portions of its answer and amendments there- to, and all exhibits from which the five alternative plans are derived or in which they are described. We also find that Respondent is not foreclosed from ad- ducing evidence with regard to specific defenses per- taining to individual claims for backpay. We shall, therefore, remand this proceeding to the Administra- tive Law Judge who shall resume and conduct this proceeding in a manner consistent with our Decision herein. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to the Administrative Law Judge. IT IS FURTHER ORDERED that this proceeding shall be resumed at such time as the Administrative Law Judge deems appropriate, and continued in accor- dance with our Decision herein. 4 The Administrative Law Judge reached the foregoing conclusion by, in effect, equating the remedy ordered in Olson 2, which goes to the right to backpay and, therefore, is not properly a matter for compliance , with the issue of the extent of Respondent's liability and/or ability to comply (i.e, whether the former or substantially equivalent positions are available), which is a proper matter for compliance Therefore, Respondent is not col- laterally estopped to raise such issues as to the extent of its liability in the instant proceeding Fibreboard Paper Products Corporation, 180 NLRB 142, 149 (1969), enfd . 436 F.2d 908 (C.A D C, 1970), cert. denied 403 U S 905 (1971) 5 The Administrative Law Judge also struck Respondent's plans 4 and 5 because he found them to be "unfair on their face ." We, however, cannot determine that issue with any certainty until after Respondent has adduced its evidence thereon ON MOTION TO STRIKE RESPONDENT'S AFFIRMATIVE DEFENSES ETC. DECISION AND ORDER HERZEL H. E. PLAINE, Administrative Law Judge: This is a supplementary proceeding in an unfair labor practice case to determine the amount of backpay due 70 produc- tion and maintenance employees and former employees of Respondent's Athens, New York, plant discharged on Sep- tember 22, 1967 (one of the 70 discharged on August 4, 1967), for discriminatory reasons in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act), and variously denied reinstatement for the same rea- sons. The hearing of the case is temporarily in suspense, on a consent arrangement discussed herein, in order to deal with General Counsel's motion of January 7, 1975, to strike Respondent's five affirmative defenses and to adopt Gen- eral Counsel's backpay formula, and Respondent's opposi- tion of January 24, 1975, to the motion. Because General 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's motion draws heavily on the prior litigation it has been necessary to examine it and make reference to it here. The history of the labor relations litigation involving Respondent's Athens plant employees has been complicat- ed and protracted. In Olson 1, after the Board on April 14, 1967, certified the Charging Party (Union) as collective- bargaining representative of the production and mainte- nance employees at the Athens truck body manufacturing plant, Respondent unsuccessfully sought to challenge the Board certification by refusing to bargain with the Union, 170 NLRB 1729, enfd. 420 F.2d 1187 (C.A. 2, 1970), cert. denied 401 U.S. 954 (1971). While Olson 1 was pending, Respondent engaged in ex- tensive violations of Section 8(a)(1), (3), and (5) of the Act, including the discriminatory termination and refusal to re- instate the 70 employees noted above. This case became known as Olson II, 181 NLRB 1063 (1970, affg. the June 25, 1969 decision of Administrative Law Judge Ross, enfd. from the bench (C.A. 2, order filed May 16, 1973). Following the Supreme Court's denial of certiorari in Olson I, supra, Respondent commenced bargaining with the Union in May-June 1972, but broke off negotiations with, and withdrew recognition of, the Union in July 1972 on an alleged good-faith doubt of the Union's majority status, resulting in a holding that Respondent violated Sec- tion 8(a)(5) and (1) of the Act, in Olson Ili, 206 NLRB 779 (October 1973), essentially affirming the April 26, 1973, decision of Administrative Law Judge Lieberman. When Respondent broke off its bargaining relationship with the Union in July 1972, the Board's order in Olson II was pending before the court of appeals and there had not been substantial compliance by Respondent with that order. Among other things, Respondent had made no backpay payments to any of the discriminatees, had made no offers of reinstatement to 16 discriminatees and invalid offers to 14 other discriminatees, and had not complied with the notice-posting requirements of the order. The continued existence of these serious unremedied unfair labor practic- es, said the Board, deprived the Respondent of any other- wise lawful basis for its questioning the Union's majority representative status, and the withdrawal of recognition from and refusal to bargain with the Union in Olson III violated Section 8(aX5) and (1) of the Act. In the instant case, Olson IV, which is the supplementary backpay proceeding deriving from Olson 11, the backpay specification was filed February 27, 1974, and the case came on for trial at Albany, New York, November 11-14, 1974, when it was temporarily halted in order to permit Respondent to file a further (third) amended answer and fairly voluminous new or revised exhibits in order to revise, sharpen, and clarify its already complicated set of defen- ses; to provide General Counsel an opportunity to study the revised papers and pursue his postponed motion to strike the general defenses; and to provide Respondent an opportunity to oppose the motion to strike. Incidentally, the procedure of postponing (written) argument of the mo- tion to strike the general defenses until after General Counsel's compliance officer went through direct and cross-examination to explain aspects of, and in effect prove up, the backpay specification-which has been done-and until after Respondent orally explained what proved to be five alternative general defenses-also done, over the bet- ter part of a day,-was adopted at the suggestion of Re- spondent, and has proved useful if not necessary in order to deal intelligently with the motion and opposition, as Re- spondent predicted,' 1. BRIEF HISTORY OF OLSON 11 As found in Olson II, 181 NLRB 1063 (1970), Respon- dent, Olson Bodies, Inc., is a subsidiary of Grumman Al- lied Industries, Inc. (Grumman Allied), which in turn is a subsidiary of Grumman Aircraft Engineering Corp. (Grumman Aircraft). Grumman Allied performs all of the parent company's nonaeronautical activities, and Grum- man Allied's subsidiary, Respondent Olson Bodies, oper- ates plants at Athens and West Athens, New York (Athens, treated as one plant herein unless otherwise specified), at Sturgis, Michigan (Sturgis), and at Sherman, Texas (Sher- man), for the manufacture of aluminum bodies for route delivery trucks and related products. In general, Respon- dent turns out finished trucks, placing the bodies, which it makes, on truck chassis, made by the principal automobile manufacturers (General Motors, Ford, etc.), on orders from customers who are substantial truck fleet owners or operators. Respondent produces the bodies and finished trucks at the Athens, Sturgis, and Sherman plants, and at the Athens plant also produces subassemblies and truck body parts used in the bodymaking process at the Sturgis and Sherman plants (181 NLRB at 1082). The Union had gone through a long period of organizing and attempts at achieving representative status at the Ath- ens plant in the face of Respondent's opposition, and in Olson I, though the Union had not attempted to organize the Sturgis and Sherman plants, Respondent had sought to include the production and maintenance workers of all three plants in the appropriate unit for bargaining, because of the integrated operation of the three plants (181 NLRB at 1084-85). However the Board had found that the work- 1 It was therefore surprising that Respondent urges in its written opposi- tion (of January 24, 1975) that I not consider the merits of General Counsel's January 7 , 1975, motion to strike all five affirmative defenses, on the ground that General Counsel had already had his bite of the apple in a pretrial motion to strike certain paragraphs of the answer, partly dealt with pretrial by Administrative Law Judge Leff, in an opinion issued July 2, 1974 (Exh. G.C Ibb). There are good reasons to disregard Respondent's belated urging and contention, not the least of which is the fact that Respondent has revised and sharpened its defenses since Judge Leff ruled Two of the defen- ses were not in existence when he ruled on July 2, 1974. Thus, Respondent's No. I most preferred , alternative defense, the "Apportionment Plan," first appeared in Respondent's first amended answer of September 23, 1974 (Exh. G C I v, p. 4, para. 14), and Respondent's fifth preferred , alternative defense, the "Limited Overtime-Group Plan," was derived, says Respon- dent, from a suggestion in Judge Leff 's opinion. Neither counsel for the General Counsel nor his compliance officer, let alone the trial judge, had understood Respondent's second preferred, alternative defense, the "Prefer- ential Recall Plan" (originally called the Compliance Plan), until it had been properly and more fully explained by Respondent' s counsel in the oral ex- planation of November 14, 1974 . Moreover, Judge Leff's opinion was large- ly a tentative decision on incomplete pretrial information and is in no stronger a position against alteration than if I had made it at the time in the same circumstances and have now reached firmer or different conclusions as a result of exposure to more information and enlightening argument. I will therefore deal with the merits of the motion to strike. OLSON BODIES, INC. ers of the Athens plant constituted an appropriate unit for bargaining and the Union achieved representative status at Athens by an election in February 1967 and Board certifi- cation on April 14, 1967. At the time of the election in February 1967, Respon- dent had 225 employees in the Athens unit. A year prior there had been 240 employees, and in September 1967, just prior to September 22, the number was at its lowest ebb for many years at 200, solely by attrition (181 NLRB at 1080). In the month before, on August 4, 1967, Respondent dis- charged employee George Hildenbrand, the leading union proponent among the employees ; and on September 22, 1967, without advance notice, discharge an additional 69 employees, 56 of whom (constituting 81 to 85 percent) were union members, out of a force of 200 that had only 50 percent union membership ( 181 NLRB at 1085, 1089). The Board found that Respondent discharged employee Hildenbrand in August 1967 on a pretext, to rid itself of the principal union advocate among the employees; and, on a thorough examination of the predischarge and post- discharge facts (up to June 1968), that the discharge of the 69 employees on September 22, 1967, was for antiunion reasons to discourage employee support of the Union, and not for economic reasons, as urged by Respondent, and that Respondent had failed to reinstate or reemploy the discharged employees , for the same antiunion reasons, in the postdischarge period up to the time the trial ended in June 1968 (181 NLRB at 1079-86, 1089). The Board ordered Respondent to offer the 70 employ- ees immediate and full reinstatement to their former or substantially equivalent positions and to make them whole for any loss of pay they may have suffered as a resplt of the discrimination against them ( 181 NLRB at 1090). 11. OLSON IV-THE BACKPAY SPECIFICATION In the case at bar, General Counsel's backpay specifica- tion for the 70 discriminatees is founded on a formula un- der which there was computed the average hours of straight time and overtime worked in each of the calendar quarter years of the overall backpay period for 85 represen- tative employees (stipulated by the parties to be representa- tive employees), who worked before as well as during the over 7 years of backpay periods.2 In computing the backpay due each of the 70 discrimina- tees, the average hours are converted to dollars by applying the pertinent wage rates for time and overtime for each discriminatee in his backpay period to determine his gross backpay. The value of certain benefits are added, and the known interim earnings of each discriminatee deducted, in arriving at net backpay for each. (Interest on the amounts due has not yet been figured in.) 2 The compliance officer testified, and Respondent stipulated , as Judge Ross had found in Olson I!, that Respondent did not have rigid job classifi- cations in its production and maintenance unit , and therefore it would be almost impossible to identify "replacement " employees, hence the use of the group of representative employees. 3 The preference is related to the cost to Respondent, No. I costing Re- spondent the least, No. 5 costing Respondent the most, and Summary of Plans attached to third amended answer of December 10, 1974, noted under heading IV, 6, infra. III. RESPONDENT'S DEFENSES 759 Respondent has two types of defenses to the backpay specification. Under the heading of general defenses, Respondent says, that while the General Counsel's formula of averaged straight and overtime hours of representative employees may be a fair method in some cases, it is not as fair to Respondent, in the circumstances of this case, as would be the plans or formulas that Respondent proposes. Of these there are five, presented in descending order of preference. Under the heading of specific defenses, Respondent claims a variety of deductions or setoffs, that differ in the individual cases, against amounts alleged due the several discriminatees. These specific defenses are not in issue on this motion to strike. The general defenses, or the five alternative plans or for- mulas, are in issue. IV. RESPONDENT'S GENERAL DEFENSES-THE FIVE ALTERNATIVE PLANS FOR CALCULATING BACKPAY In order of preference,3 Respondent's proposed plans for calculating backpay, each an alternative to the backpay specification, are as follows: 1. Apportionment plan This is derived from Respondent's first amended answer of September 23, 1974 (Exh. G.C. Iv) p. 4, para. 14. The apportionment plan is based on the fact, says Re- spondent, that "the Respondent for the period from Sep- tember 23, 1967, to date [September 23, 1974] had a fixed amount of production and maintenance work to be per- formed" at the Athens plan. Ibid. The plan is also factually related (by Respondent) to the second alternative plan-the preferential recall plan-in that Respondent contends that since the mass discharge of September 22, 1967, when the work force at Athens was 200 employees, and in the succeeding 7 years, Respondent has been able to handle the Athens plant work load with the reduced work force of 130 employees and sometimes less in a few periods. In other words, says Respondent, since September 22, 1967, there was not enough work at Athens for more than 130 employees. Hence, under the apportionment plan, the 70 discrimina- tees would "share" a portion of the actual payroll in the following manner. Total wages (straight time and overtime) of the actively working employees for each calendar quar- ter would be added up and the sum divided by the number of actively working employees plus discriminatees entitled to reinstatement. The divisor might be 200 or thereabouts in the early calendar quarters (immediately following Sep- tember 22, 1967), or, in the example given for the second quarter 1972, when Respondent stated there were 116 ac- tive payroll employees and 29 discnminatees not reinstated and entitled to backpay, the divisor would be 145. Contin- 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uing with this latter example, the total payroll for the 116 active employees in that calendar quarter was $248,000, divided by 145, produced a quotient of $1,700, called the average gross backpay for discriminatees. To determine the amount due each of the 29 discriminatees in that calendar quarter, multiply 29 times the average $1,700, giving a total of $50,000 which would be divided proportionately among the 29 discriminatees on a ratio determined by whether the individual was rated to be a $4-per-hour man or a $3- per-hour man, etc., in that period (recognizing wage in- creases that have occurred). Some of the 29 discriminatees would receive less than $1,700 for that calendar quarter, others would receive more than $1,700; but in any event, as Respondent concedes, each would get less of the "pot" than if he were regarded to be entitled to full reinstate- ment, as under the General Counsel's backpay specifica- tion. 2. Preferential recall plan This is derived from Respondent's second amended an- swer of November 11, 1974 (Exh. G.C. laa) and its new Exhibit B-I (which was the so-called Compliance Plan, in- troduced in para. 12 of the original answer of May 3, 1974, exhibit GC-1 I and its Exhibit B, further revised in Exhibit B-I of the first amended answer of September 23, 1974- Exh. GC- l v). As was indicated under plan 1, the apportionment plan, above, alternative plan 2, the preferential recall plan, also rests on the concept that Respondent had a relatively fixed amount of work for the work force at Athens over the past 7 years since the mass discharge of September 22, 1967,4 and that Respondent was able to perform that work with a force of about 130 employees. Respondent says that the Board, by its reinstatement and backpay order, does not require the employer to create work for the 70 discharged discriminatees but only to distribute the available work on a nondiscriminatory basis. Hence Respondent proposes to do this by establishing two groups or lists of employees, the first showing the retained or actively working group of em- ployees, and the second a preferential hiring or recall list of the discriminatees listed by their original seniority. As the actively employed list is depleted by attrition (quits, retire- ments, etc.) those at the head of the preferential recall list would move over, theoretically, to vacancies on the active- ly employed list and those below them would move up on the preferential recall list, until ultimately the recall list is exhausted. However, the backpay period for each discrimi- natee would not commence until the theoretical date of his recall or transfer to the actively employed list. (Actual re- call or reemployment of the discriminatee, if and when it occurred, would of course toll or terminate his backpay period.) According to Respondent, the preferential recall list 4 In the various plans, and discussions, employee Hildenbrand who was discriminatorily discharged on August 4, 1967, is included with the 69 em- ployees discriminatorily discharged on September 22, 1967, with appropri- ate extra credit for him for the earlier date . However the references herein to "mass discharge" will usually connote a discharge of 70 employees out of the 200 employed at Athens on September 22, 1967 would be exhausted by September 1, 1972, and everyone on it would theoretically have been recalled by that date. Any discriminatee not actually reinstated and back on the payroll by then, and whose backpay period had not other- wise been terminated, would be entitled to full backpay. Respondent has an additional hypothetical variation of the overall or long-term recall plan, a proposed temporary variation affecting the approximate 2-1/2 month period al- most immediately following the mass discharge of Septem- ber 22, 1967; namely, from October 13, 1967, to January 2, 1968. This variation rests on the hypothesis that if Respon- dent had not made the permanent reduction in force of 70 employees in September 1967, it would have been obliged to invoke a temporary layoff in the following month of 50 percent or 100 of the 200 employees, only 30 of whom would have been recalled on January 2, 1968 to constitute a work force of 130 employees, as the temporary condition, that would have caused the layoff, disappeared. The tem- porary condition was an alleged shortage and erratic flow of truck chassis to the plant that began in the second and third calendar quarters of 1967, mostly because of a strike at Ford Motor Company and a wildcat strike at General Motors, that had its effect by mid-October 1967. If the work force at Athens had been 200 employees at that time, says Respondent, it would have been necessary to layoff 100 employees, until the shortage disappeared by the end of December. However the layoff did not occur on October 13, or at all, says Respondent, because it had permanently cut its Athens work force by 70 employees 3 weeks earlier on September 23. Nevertheless, Respondent contends, it should be permitted, in effect, to increase the recall list by 30 in the temporary period and thereby reduce the backpay obligation even further. The result would be to eliminate all backpay in the approximate 2-1/2 month period for 18 or 19 discriminatees on the recall list. 3. No overtime plan This is derived from Respondent's answer of May 3, 1974 (Exh . G.C. 1-1), paras. I and 2, in particular para. 1(a), and Respondents Exhibit A- 1 annexed to the first amended answer of September 23, 1974 (Exh. G.C. Iv). Alternative plan 3 would deny the allowance of any overtime prior to July 1973 in calculating the packpay of the 70 discriminatees , again, as in the case of plans I and 2, above, on the contention that Respondent had a fixed amount of work available at the Athens plant, which work was done, since the mass discharge of September 1967, with about 130 employees . Each of these 130 employees, says Respondent, performed 6.53 hours average overtime perweek . If there were 70 more employees, Respondent contends, with a work force of 200 employees rather than 130, there would have been an abundance of straight time without need for overtime , until July 1 , 1973. Since it would not have been obliged to create artificial work or pay for unneeded work , says Respondent, it has the right to offset the hypothetical surplus straight time hours against the claim for overtime that General Counsel has included in the backpay specification . If this plan were adopted, there would be no overtime allowed in backpay to the discriminatees prior to July 1973. OLSON BODIES, INC. 761 4. Limited overtime-individual plan This is derived from Respondent's Answer of May 3, 1974 (Exh. G.C. 1-1), p. 2, para. 1(c). Assuming that the discriminatees are entitled to over- time in the backpay calculations , plan 4 is an alternate method of calculation. Instead of paying on the basis of the average overtime of the 85 representative employees in the backpay periods, as General Counsel has proposed in the backpay specification, Respondent proposes that over- time calculations be based upon the past (predischarge) "work habits" of the discriminatee in the 10 calendar quar- ters preceding September 1967 to establish an "overtime work tendency" thereafter. Respondent would compare the discriminatee's average overtime with the average, in the same 10 quarters, of the 85 representative employees. Be- cause Respondent has found that a goodly number of the discriminatees each had a lower average than the average of the 85 representative employees in the pre-September 1967 period, Respondent would assign the discriminatee his proportionate fraction of the average of the representa- tive employees and allow the discriminatee only that pro- portion of the average overtime computed by General Counsel for the backpay periods. 5. Limited overtime-group plan This, like plan 4, is also derived from Respondent's an- swer of May 3, 1974 (Exh. G.C. 1-1) p. 2, para. 1(c). Re- spondent claimed that plan 5 was more particularly de- rived from pp. 3-4 of Judge Leff's opinion of July 2, 1974 (Exh. G.C. lbb) dealing with General Counsel's pretrial motion to strike certain paragraphs of the answer, noted supra. The warrant for this credit is not apparent from reading Judge Leff's opinion; and it now appears, from the revision of plan 5, filed December 10, 1974, with the third amended answer, that Respondent purports to credit coun- sel for the General Counsel with inspiring the idea in the said pretrial motion to strike. Plan 5 is a variation of plan 4 for calculating backpay overtime due the discriminatees, again using so-called work habits regarding overtime in the predischarge period. Instead of comparing the individual discriminatee 's aver- age overtime in the predischarge period (10 calendar quar- ters prior to September 1967) with the group average of the 85 representative employees in the same predischarge peri- od (plan 4), under plan 5 the group average overtime of the 70 discriminatees would be compared with the group aver- age overtime of the 85 representative employees in the pre- discharge 10 calendar quarters. Respondent has made such a comparison and claims that the 70 discriminatees as a group averaged 75 percent of group average overtime of the 85 representative employees . Therefore Respondent proposes to pay to the discriminatees, as a group, only 75 percent of the total overtime found owing the group under the backpay specification. Respondent pointed out that while the cost to it of plan 5 was about the same or slightly higher than plan 4, the individual discriminatees, of course, would fare differently under the two plans in the amounts of overtime backpay received by each. 6. Overall cost comparisons To complete the explanation of the dollar significance of the several plans in relation to the backpay specification, Respondent provided oral estimates of the costs, and has also submitted, as one of the attachments to its third amended answer of December 10, 1974, a summary of plans purporting to show how each of the 70 discriminatees would fare, and the total cost to Respondent, under the backpay specification and each of Respondent's five alter- native plans. The figures are, of course, not complete, since interest and benefits must be added, and there are certain individual adjustments to be resolved under the specific (as distinct from the general) defenses. Nevertheless the rough comparisons help understanding the significance of the proposals. Using round numbers (thousands of dollars) as derived from the December 10, 1974 attachment, the cost to Respondent would be: Backpay specification, $630,000; plan 1-apportionment plan, $299,000; plan 2-preferential recall plan, $438,000; plan 3-no overtime plan, $456,000; plan 4-limited over- time-individual plan, $577,000; plan 5-limited over- time-group plan, $586,000. V. THE MOTION TO STRIKE A. General Objection to Plans 1, 2, and 3 The General Counsel has moved to strike the first three affirmative defenses embodying Respondent's plans 1, 2, and 3, on the ground that they rest upon an alleged fact situation that was litigated and discredited in Olson II, and that Respondent is not entitled to relitigate these underly- ing facts. I see merit in this position. The underlying facts claimed by Respondent are that since the mass discharge of September 1967, reducing the work force at Athens from 200 to 130 employees, Respon- dent has had a fixed amount of work at the Athens plant but only enough for not more than 130 employees. In Olson II evidence was taken and findings made con- cerning events and matters both before and after the mass discharge of September 1967 (up to and including the time of trial in 1968, which ran from February 26 to June 13), leading to the conclusions that the mass discharge and the refusals thereafter to reinstate dischargees were for dis- criminatory reasons and not for economic reasons. Among other things it was found that: 1. The sudden termination of 69 employees on Septem- ber 22, 1967, was not based on any lack of work for them to perform. As of September 1, the Respondent had a backlog of orders for 443 truck bodies. The average pro- duction of truck bodies at the Athens plant for the first 8 months of 1967 had been 182 per month. There was thus enough work for the Athens employees to keep them fully occupied for 2.4 months even assuming that no new orders for production at Athens were received thereafter. (181 NLRB at 1080.) 2. The massive discharge could not reasonably have been based on the relation of backlog orders to number of employees. Thus, Respondent's records disclosed that on January 1, 1966, when Respondent employed about 240 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production and maintenance employees, the backlog of or- ders for truck bodies was 457, whereas on September 22, 1967, the number of employees was 200 and the backlog of orders was 443. (181 NLRB at 1080.) 3. In June 1967, 3 months before the mass discharge Respondent's President Spielman forecast to the Athens employees increased business and earnings prospects at the plant, noting a big backlog of orders on hand and that there would be an increase in production. Simultaneously, he announced an immediate increase in pay to all employ- ees and additional sick leave and hospitalization insurance benefits. In addition, in August, 1 month before the mass discharge, there was a further increase in pay to 137 of the 200 employees, including 31 of those who were among the employees discharged 1 month later. The August increases were given at the very time when President Spielman and Vice President Loar were conducting discussions which professedly resulted in Spielman's decision to effectuate the massive reduction in force of September 22. (181 NLRB at 1080-81.) 4. The September 22, 1967, reduction in the Athens plant force ordered by Spielman and Loar for the alleged reason that Athens was overstaffed for the volume of truck bodies produced in comparison with the Sturgis plant and Sherman plant operations using fewer employees, was found to be specious for several reasons. Among these was the finding that the number of truck bodies produced each month at the three plants was not a proper criterion (and known to Spielman and Loar) for assessing comparative productivity of the Athens workers or proper staffing of Athens, because, first, Respondent manufactured several models of truck bodies mounted on different chassis made by different auto manufacturers and the figures for the three plants, with no significant staff changes , showed sub- stantial variations in numbers of truck bodies produced each month. Consequently, differences in monthly produc- tion of bodies varied on account of kinds and sizes of trucks, more or less difficulty in building bodies, and the kind of finish. Second, in the critical period considered, at the end of the first 5 months of 1967, when Athens had 213 employees, Sturgis 162 employees, and Sherman 78 em- ployees, Athens produced 100 more truck bodies than Stur- gis and 515 more than Sherman; and Athens in that same time produced subassemblies and truck body parts for Sturgis and Sherman and all replacement parts for users of Respondent's truck bodies-equivalent to an additional 19 truck bodies in that period-all of which reduced the amount of work Sturgis and Sherman had to perform in production of truck bodies and provided those two plants more time for that work. In addition, only Athens made the prototypes of new truck body models for future sales promotion and repaired truck bodies of Respondent's cus- tomers that were damaged in accidents ; and the Athens layout department made 95 percent of the jigs, templates, router boards, and dies used for production at Sturgis and Sherman. For these several reasons, the Athens plant could not be compared with either Sturgis or Sherman on the basis of the number of employees versus the number of truck bodies produced, President Spielman and Vice Presi- dent Loar knew this, and their assignment of the specious ground for the reduction of the Athens force was a pretext to conceal the true motive. (181 NLRB at 1081-82.) 5. The claim for the hurried reduction in force on Sep- tember 22, 1967, that business prospects at Athens were poor, based on the alleged diminishing backlog of truck body orders, was held deceptive. Respondent provided fig- ures of its backlog of orders for each month in 1966, 1967, and the first 3 months of 1968. These showed that the backlog of January 1, 1966, was 457 truck bodies, that it swelled to a high of 1,219 on March 1, 1966, but thereafter diminished continuously until it was down to 498 on Au- gust 1, 1967. However, it was found that the great influx of orders in early 1966 resulted from a deferred price increase under which customers accelerated orders they would have given later to take advantage of the lower price, and that the high figures for February 1 and March 1, 1966 were not representative of orders Respondent had normally for Ath- ens production. In the circumstances it was held that the subsequent gradual decrease of the backlog was neither surprising nor indicative that Athens' future backlogs would be less than that which preceded the price increase. On the other hand, it was regarded as more significant that in early August 1967, when concern was allegedly ex- pressed about the decreasing backlog, that the backlog was then greater, at 498 truck bodies with fewer workers em- ployed (200) than it was on January 1, 1966, when the backlog was 457 truck bodies with more workers employed (225). The diminishing backlog was therefore rejected as a relevant consideration for the hurried reduction in force, since on the basis of average production at Athens there still remained work for the entire staff for 2-2-1/2 months, even if no new orders were received. (181 NLRB at 1082-83.) 6. The contention that business prospects for Athens were poor because of its location was rejected. More spe- cifically the contention was that Respondent's customers pay the freight charge for delivery of each truck chassis (usually from Detroit) to the Respondent and for delivery of the completed truck to the customer, and, because it was said that the customer controls the choice of Respondent's plant to which the chassis would be sent (Athens, New York, Sturgis, Michigan, or Sherman, Texas), prospects of business for Athens were poor since its location was advan- tageous only to customers in northeastern United States. Acceptance of the contention depended upon the prem- ise that the customer controls designation of which of the three plants will make the truck body. It was found that, in fact, Respondent controls where the truck bodies will be manufactured. Respondent's testimony and position before the Board in Olson I were drawn upon, wherein Respondent pointed out that most of its sales are for fleet operators , large na- tional companies, on whose account Respondent closely integrates and supervises the operations of its three plants in New York, Michigan, and Texas to provide quick and efficient delivery to customers. Hence, said Respondent, some of the operations at the plants are parallel to give it flexibility in meeting customer demands. Thus, if the Sher- man plant is operating at full capacity or if for some other reason it could not meet a delivery deadline, the truck bod- ies will be produced at one of the other two plants. Inter- changeability among the three plants is maintained to pro- OLSON BODIES, INC. vide better customer service and avoid loss of business to competitors, even though in some instances Respondent might not be able to pass the increased freight cost on to the purchaser if the truck bodies are produced at other than the plant closest to the purchaser. Additionally, the work orders for each plant are pre- pared at Athens Plant No. 2 and subsequently forwarded to the plant designated by Vice President Loar. While nor- mally truck bodies would be produced at the plant in the area of the customer where his freight charges would be least, this is not controlling and Loar's decision of the plant to be designated depends on Respondent 's delivery sched- ules, plant capacity, and customer's needs for delivery. It was testified to be a recurring situation that orders were assigned to a plant or plants where the freight cost to the customer was not the most advantageous. In Olson II, evidence was adduced that Respondent has built and still builds truck bodies at plants which are unre- lated to the lowest freight charges for its customers; and it was found that there is no consistent pattern from which it is possible to determine that a truck body , destined for delivery at a particular location, will be built at the plant nearest the destination, and that many orders were deliv- ered from plants that had a less favorable proximity to the destinations. Accordingly, it was found that Respondent, and not its customers, determines and controls the selection of the plant at which the truck bodies are built. A fortiori, it was found that the premise for asserted poor business prospects of the Athens plant because of its location had no validity. (181 NLRB at 1084-85.) 7. Respondent's contention, that its economic motiva- tion for the reduction in force was clearly established by the fact that it has been able to operate the Athens plant since the massive termination of September 22, 1967, with- out hiring additional workers, was found to be without merit, for two reasons . First, Respondent has available two other plants, Sturgis and Sherman, for the production of truck bodies, and (as indicated in para. 6 above) controls selection of the plants at which the bodies will be built. Second, Respondent exercised that control following certi- fication of the Union in April 1967, prior to the massive discharge in September, as disclosed by its backlog and production statistics. These showed that before the Board- conducted election in February 1967 and the Union's certi- fication in April 1967, the Athens plant was designated for the greater percentage of Respondent's production, and that since then the bulk of the new business has been sent by Respondent principally to the Sturgis plant and less proportionately to Athens. Respondent 's claim that this re- sult emanated from elimination in February 1966 of a $50 surcharge it previously put on truck bodies produced at Sturgis and Sherman and its claimed lack of control over the designation of the plant at which the body will be built, was held lacking in validity , not only because Respondent does control the plant selection for building the bodies (para. 6, supra) but also because Respondent's backlog and production figures disclosed that notwithstanding elimina- tion of the surcharge on trucks made at Sturgis and Sher- man, in most of the months that followed February 1966 more new orders were assigned to Athens for production. 763 For example, before the election, out of 896 new orders received in September 1966, 405 were assigned to Athens, 238 to Sturgis, and 253 to Sherman. (181 NLRB at 1085.) 8. Under the heading of postdischarge developments at Athens, it was found that since the massive discharge of September 22, 1967, none of the discriminatees have either been reinstated, offered reinstatement, or considered for reemployment, notwithstanding a history of accretion and work availability since September 22, 1967. In this regard it was found that in February 1968, Re- spondent discontinued its own plant guard force, and of the five guards transferred three (the other two retired) to production and maintenance jobs without comparing the relative ability of the three guards with those of the dis- charged employees who had worked at the jobs to which the guards were assigned. Since Easter 1968, over 50 percent of the retained pro- duction and maintenance workers have regularly and con- tinuously worked 6 to 8 hours overtime each week, and before that maintenance employees worked overtime when emergency situations occurred, but no effort was made by Respondent to recall any terminated employees for the ad- ditional work. In June 1968, without inquiring whether any of the dis- charged employees might need the employment, Respon- dent hired three sons of employees for full 40-hour weeks of production and maintenance employment for the sum- mer until school reopening in the fall, and admittedly plan- ned to hire a total of about a dozen of such sons with no intention to offer such work to any of the terminated em- ployees. (181 NLRB at 1079-80.) 9. Without having referred here to all of the underlying data and findings, the major conclusory finding was: Respondent failed to establish any economic necessity for its unprecedented and drastic reduction in force of 69 employees on September 22, 1967; and in the light of Respondent's substantially accurate knowledge of the identity of its prounion employees, its undisputed hostility to the representation of the employees by the Union, the numerous unfair labor practices in which it engaged to dis- courage support of the Union, its disproportionate selec- tion for termination of 56 union members out of 69 termi- nated (81 percent) in a plant of 200 where union membership was precisely 50 percent, its failure to thereaf- ter offer reemployment to any of the discharged senior and experienced employees, notwithstanding that it thereafter utilized for production work inexperienced plant guards and students on vacation and provided overtime work for the retained employees, and in view of the specious and incredible (economic) reasons assigned for the reduction in force, the massive termination of September 22, 1967, was motivated by antiunion considerations and Respondent thereby discriminated against its employees (including, as also found, the 13 nonunion member employees among the dischargees) to discourage support of the Union, and en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. (181 NLRB at 1085-86.) 10. A secondary conclusory finding, without having re- ferred here to much of the underlying data and findings, was: Assuming arguendo that a reduction of the Athens force 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was required by economic considerations, the selection of the employees for termination was motivated by antiunion considerations in violation of Section 8(a)(3) and ( 1) of the Act. (181 NLRB at 1086-89.) Looking at these findings in Olson II, it is apparent that Respondent has already litigated the basis on which rests its first three alternative plans for computing backpay, and that basis has been found wanting. Repeating, the heart of Respondent's claim is that since the mass discharge of Sep- tember 22, 1967, reducing the work force at Athens from 200 to 130 employees, Respondent has had a fixed amount of work at the Athens plant but only enough for not more than 130 employees. Under the findings already made, in Olson II, particular- ly paras. 6 and 7 above, the reduction in work at Athens to an amount that would support about 130 employees was a contrived result, contrived by Respondent assigning great- er proportions of new work to its Sturgis and Sherman plants, beginning after the Union was certified by the Board as collective-bargaining representative of the Athens employees in April 1967, and continuing into the postdis- charge period. Actually, Respondent makes no contention that the fixed amount of work varied substantially after September 22, 1967 (other than the hypothetical variation in the 2-1/2 month period October 13-Dec. 31, 1967, see plan 2, supra, which hypothesis is discussed later), or after January 2, 1968, which is covered by the findings (to June 1968) in Olson II. Hence in the proceeding at bar we are not encumbered with the necessity to examine into a new and different (substantially reduced work) situation arising after June 1968 or indeed after January 1968. Accordingly there is no reason to allow, and every rea- son to disallow, Respondent a further opportunity to reliti- gate its discredited contentions that there was an economic drop, over which it had no control, in the amount of work at Athens in September 1967, which amount has remained about the same lower order of magnitude thereafter. The Board, supported by the reviewing court, has found that it was not uncontrollable economics but Respondent 's delib- erate discriminatory action to discourage employee sup- port of the Union, coupled with Respondent's control over work assignments to the plant, that brought about this re- sult, and has continued the result, witness Respondent's discriminatory failure and refusal to consider let alone re- call any of the discriminatees for work opportunities that arose in the immediate postdischarge period covered by Olson II, see para. 8, supra.s Notwithstanding the findings and references to postdis- charge events and evidence in Olson II, Respondent con- tends that the presiding Administrative Law Judge Ross was not interested in, and precluded Respondent on, three occasions from discussing or introducing data on postter- mination developments. The examples are not persuasive. 5 Respondent's continued intransigence in the matter of refusing to recall discnmmatees well into mid-1973 was further adjudged in Olson III, supra, 206 NLRB 779, where 16 discriminatees were still without any offer of reinstatement and fourteen had been given invalid offers of reinstatement Note also, within the same time frame , Respondent's attachment entitled "Terminations and Additions" to the third amended answer of December 10, 1974, indicating (and admitting) that there were 22 new hires at Athens between May 1969 and November 1971. Respondent cites Olson II, where Judge Ross made a reference to not loading up the record with immaterial matters and apparently suggested that what happened after the termination was immaterial except insofar as what the witness did when he terminated 69 employees. Put in con- text, the matter comes out quite differently. In Olson 11, Respondent offered exhibit R-45, which listed two men (Henry and Herman) doing "crabwork" and the same two men doing this work in the future after the termination of September 22, 1967. The exhibit was offered supposedly as a "compilation" of work done in the crab department of the final inspection assembly department. Plant Manager Simmons was on the stand, and according to him there were two men employed in that department before and after the September 22, 1967, terminations. Simmons was asked by Respondent's counsel whether there was a change in duties in the crab department after the terminations. At this point Judge Ross interrupted with the remarks cited by Respondent, above, then took over the questioning and asked Simmons whether the decision to change the duties had been made before September 22. Simmons replied that it had. When asked by Judge Ross what changes he had decided to make, Simmons answered that he added grill guards to the work at the crab department. (Exh. R-45 was received in evidence, Olson II.) Respondent cites exclusion of two proffered exhibits which were excluded without any argument or reasons pro or con by either counsel or judge other than the simple allegation, immaterial. At the time, there was already in evidence Respondent's Exhibit R-15 which was a summa- ry by monthly numerical totals of production of truck bod- ies, separately at Athens, Sturgis, and Sherman, for 1966, 1967, and for January and February 1968. Respondent, on June 11, 1968, offered Exhibit R-78 for identification which would have provided the monthly totals at the three plants for the additional 3 months of March, April, and May 1968, "to complete the story," said Respondent's counsel. There was also in evidence Respondent's Exhibit R-19 which was a summary by monthly numerical totals of the backlog of orders for truck bodies, separately at Athens, Sturgis, and Sherman, for 1966, 1967, and January, February, and March 1968. Respondent, on June 12, 1968, offered Exhibit R-91 for identification, which would have provided the monthly totals at the three plants for the addi- tional 2 months of April and May 1968. Olson II. Exclusion of these two updating documents seemingly may have been inconsistent with what had come in before, however, the very existence of R-15 and R-19 in evidence, which covered 5 months and 6 months, respectively, of the postdischarge period in 1967 and 1968 refutes the claim that Judge Ross was not interested in, and that Respondent was precluded from, dealing with postdischarge devel- opments in Olson II. From the standpoint of Respondent's alleged economic basis underlying proposed backpay for- mulas 1, 2, and 3, and the ruling on it by Olson 11, the absence or presence of these two items of additional 2- month or 3-month data in the record of Olson II, was and is of no consequence. Respondent's position is that it had a fixed amount of work since at least January 1968, and that the drop from a higher amount occurred before then. Contrary to Respondent, and on the side of positive in- OLSON BODIES, INC. terest in Olson II in gathering evidence concerning the postdischarge period, General Counsel points to a portion of the record, where Plant Manager Simmons was testify- ing as to which of the employees, not terminated on Sep- tember 22, 1967, retired thereafter and took their pensions. Simmons named three such employees-one retiring in Oc- tober 1967, another in January 1968, and the third in Feb- ruary or March 1968-and also identified two other re- tained employees who left voluntarily in October or November 1967 without retiring. Judge Ross asked Sim- mons, when these employees left were any of the terminat- ed employees called back, and Simmons answered no. Respondent's counsel objected to the line of questioning on what happened after the terminations , and moved to strike the question and answer . Judge Ross overruled the objection and motion to strike on the ground that the com- plaint alleged a dismissal of 69 employees and a refusal to reinstate them. Accordingly , the postdischarge evidence re- mained in the record and was drawn upon along with other postdischarge evidence, in the findings already discussed. In essence, then, the underpinnings or basis of Respondent's first three alternative formulas or plans for computing backpay was not only litigated adversely to Re- spondent, but also do not raise new matter that was not raised or could not have been raised in the underlying un- fair labor practice case (Olson II ), or that could only be advanced in the compliance or backpay case. Respondent's case is not unlike the situation that evolved in N.L.R.B. v. Biscayne Television Corporation, 337 F.2d 267 (C.A. 5, 1964), affg. the Board's refusal to reduce backpay, 137 NLRB 430, where the employer Biscayne , had engaged in discriminatory discharges, in August 1958, but claimed in diminution of backpay that it could show economic changes in the business, after the discharges, that would have resulted in the discharges anyway for purely econom- ic reasons. However, Biscayne's case was primarily a reliti- gation of the contention that the discharges occurred for economic reasons, and it did not meet the burden of its claim. The only other evidence was evidence tending to show that after the August 1958 discharges , Biscayne's op- erations were carried on successfully with the reduced work force . Said the court : "This success proves only that Biscayne realized an economic dividend from its antiunion activity; it does not establish that economically motivated discharges would have occurred, and when they would have occurred, absent the antiunion discharges of August 12, 1958." B. Additional Specific Objections to Plans 1, 2, and 3 Plan 1: In addition to the general attack on the basis for alternative plans 1, 2, and 3, which attack, in my view, is sustained by the record and decision in the prior litigation and eliminates the basis for either of these plans, General Counsel has made certain additional objections to the plans, individually. He points out that the apportionment plan is inherently unfair to each discriminatee, who, under the plan, would receive a substantially lesser share of wages than the wages actually paid to the retained employees during a period of time when the discriminatee had a right to be reinstated under the Board's order. Moreover, while 765 crediting the discriminatee with only a fraction of the wag- es actually paid, Respondent would offset against this amount the total interim earnings of the discriminatee. It was held in Brown and Root, Inc., 132 NLRB 486, 490 (1961), enfd. 311 F.2d 447 (C.A. 8, 1963), that crediting the backpay claimants with only a fraction of the, work actual- ly performed and offsetting against this fraction the total interim earnings of the claimant "would be contrary to Board practice and unfair even under a lump sum method of computation." Plan 2. In addition to the general objection, General Counsel makes several points regarding Respondent's pro- posed variation of its preferential recall plan, plan 2, to obtain an additional credit or offset against backpay in the period October 13, 1967-January 2, 1968, when, due to an alleged chassis shortage, Respondent said, if it had not al- ready discharged 70 employees it would have been obliged to layoff 100 employees assuming the force was 200 on October 13, and recall only 30 of the 100 on January 2, 1968, to constitute a work force thereafter of 130. First, General Counsel correctly points out that the theo- ry is sheer hypothesis and the facts are to the contrary, that Respondent, admittedly, continued with the work force of 130, reduced from 200 by discriminatory discharge on Sep- tember 22, 1967, right through the fourth quarter of 1967 into 1968. Second, in making the hypothetical estimates for the hy- pothetical temporary layoff period, Respondent disregards the portion of the decision in Olson II that productivity at Athens can not be measured simply by comparing the number of truck bodies with workers employed, since Ath- ens produces subassemblies and truck body parts and does layout work for Respondent's other plants, makes all re- placement parts for Respondent's truck bodies, repairs the damaged trucks of Respondent's customers, and makes the prototypes of new body models for Respondent' s sales pro- motion. See findings, para. 4, under heading V, A, supra. Third, Respondent was aware by at least September 7, 1967 (see Olson II, testimony of Plant Manager Simmons), of the impending strike in the automobile industry that could limit the number of truck chassis available to be worked on at the Athens plant, and the possible shortage was alluded to by Simmons as one of the factors which could necessitate a reduction in force. Though Olson II was tried between February 26 and June 13, 1968, Respondent did not raise, as it might have raised, the defense of a chas- sis shortage to the charge of discriminatory refusal to rein- state dischargees after September 22, 1967, which charge was in issue and of which Respondent was found in viola- tion, see finding para. 8, under heading V, A, supra, and also the noted record of ruling by Judge Ross on the rele- vance of such postdischarge evidence, Olson II, supra. In these circumstances, I agree with the General Counsel that this claim of special offset to backpay, sought for the greater part of the fourth calendar quarter of 1967 under plan 2, is barred, were we to reach the plan. As the Board noted in Fibreboard Paper Products Corp., 180 NLRB 142, 150-151 (1969), affd. 436 F.2d 908 (C.A.D.C., 1970), cert. denied 403 U.S. 905, quoting from N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 228 (1947), the Labor Act does 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not require that ground be covered a second time , or piece- meal. Plan 3: In addition to the general objection to plan 3, under which Respondent would eliminate all overtime from backpay calculations prior to July 1973, General Counsel points out that if Respondent were permitted to take credit for the hypothetical hours of straight time the discriminatees would have worked , if not discharged, to offset the overtime worked by the retained employees, Re- spondent would be permitted to profit from its wrongdoing at the dischargees' expense, because, without the discrimi- nation, even if Respondent had to lay off or discharge em- ployees for economic reasons, it would have used criteria other than anitunion motivation that would largely have left the discharged employees among those retained. In Controlled Alloy, Inc., 208 NLRB 881 (1974), where the Board recognized the propriety of including overtime in backpay, the Board rejected an employer's similar claim of offset by hypothetical straight time hours against actual overtime hours, on the ground that the layoffs were dis- criminatory and, absent the discrimination , other employ- ees would have been laid off for economic reasons, and "to allow Respondents to claim there was more overtime only because of their unlawful conduct would give them the benefit of uncertainties caused by their misconduct. This we refuse to do ." Ibid. C. Objections to Plans 4 and 5 In computing gross backpay under the backpay spec- ification, the General Counsel has taken the average of the straight time hours worked and the average of the overtime hours worked by the 85 representative employees in the several backpay periods and assigned the average straight time and overtime hours to the discriminatees entitled to backpay in those periods . Respondent proposes to desert the calculations for the 85 representatives in arriving at the allowed average overtime. Instead, Respondent would ap- ply a "work habit" or "work tendency" test by comparing overtime hours worked by each discriminatee to the aver- age of the 85 representatives (plan 4) or by comparing the average overtime hours worked by the 70 discriminatees, as a group, to the average of the 85 representatives (plan 5), in the 2-1/2 year period prior to discharge , September 22, 1967, and project that "tendency" forward in the form of a fraction which would be applied to the average overtime hours worked by the 85 representative employees in the backpay periods. The effect would be to allow the discrimi- natees less in backpay overtime than would be paid by equating the discriminatees to the average of the 85 repre- sentative employees. General Counsel objects on the ground that , in using the 85 representative employee method of the backpay spec- ification, there has already been taken into account the disparities between individuals by averaging out the over- time of employees who worked little or no overtime and others who worked moderate and excessive amounts of overtime. Additionally, says General Counsel, arriving at a factor on which to base a forecast as to the amount of overtime each discriminatee might have worked in the backpay periods, is speculative, involving subjective evi- dence, of which the variables, that may have affected the overtime earnings of the past , cannot be predicted to reoc- cur in precisely the same pattern in future years , citing Atlantic Marine Inc., 211 NLRB 230 (JD) (1974). Respondent intends to rely on the business records of the 10 calendar quarters in 1965 , 1966, 1967, prior to Sep- tember 1967, providing the overtime hours figures, as its evidence of future "tendency" in the over seven years thereafter (see Respondent's Opposition to Motion to Strike of January 24, 1975). In a system of voluntary overtime, unfortunately, the record of such hours worked does not indicate the circum- stances and changing circumstances of each of the 70 dis- criminatees in those predischarge years , which motivated each to take or seek or to avoid or decline, overtime at various times, such as family, educational, and monetary needs; nor does that record reflect supervisors' varying methods or preferences of individuals in making available the overtime opportunities in a plant of this size, or wheth- er the opportunities were fairly equal throughout the shop. Without such evidence, and evidence that the circum- stances have not materially changed, it seems to me, that the "tendency" test here is just guessing. On the other hand to go back, starting 10 years ago , for testimony of employ- ees and supervisors concerning individual circumstances, motivations, opportunities, and selections, even if possible of accomplishment, would be an intolerable burden and probably provide a morass of subjective testimony. Moreover, the state of the record suggests that Respondent's two alternative proposals for computing overtime are not appropriate. Respondent has conceded that there is nothing inherently unfair in the representative employee method adopted by General Counsel in arriving at gross backpay, and stipulated, that it was not possible to identify a group of replacement employees to provide an earnings history for backpay purposes. Respondent has further stipulated, that the 85 representative employees are indeed representative employees, who worked in both the predischarge and postdischarge periods and who were se- lected, in consultation between General Counsel and Re- spondent, in order to compute an average number of straight time hours and overtime hours for backpay pur- poses. Respondent now implies , by its alternative methods for recalculating overtime, that the 85 representative employ- ees were not really representative of all the employees in the predischarge period but were , collectively, in effect, an elite group in overtime earnings in the predischarge period, against whom the overtime earnings of the other employ- ees, the dischargees, should be measured individually or by group average. I believe the General Counsel is right in his objection to this dual standard for representative purposes . As he said, among the representatives of the employees the propensi- ties for high and low overtime have already been averaged out, using the actual overtime earnings in the backpay peri- ods. D. Summary Conclusion For the reasons ascribed , I will therefore strike all five of Respondent's affirmative general defenses, more specifical- OLSON BODIES, INC. ly its five alternative plans or formulas for calculating gross backpay. The first three, plans 1, 2, and 3, cannot stand because the premise or basis on which each of them rests has al- ready been litigated, adversely to Respondent, in the unfair labor practice proceeding, Olson II, and may not be reliti- gated.S Further, as set out above, there are additional rea- sons, applicable separately to the three plans, which would make them untenable. The last two plans , plans 4 and 5, cannot stand because they are speculative and unfair on their face. On the other hand, the General Counsel's method of calculating gross backpay under the backpay specification, is a reasonable and fair method , sanctioned by Board prac- 6 Whether this bar to relitigation be termed res adjudicata, as General Counsel calls it (and as the Board has usually phrased it in backpay suits where such a bar was applied , e.g., Interurban Gas Corp., 149 NLRB 576, 577 (1964), affd. 354 F.2d 76 (C.A. 6, 1965); Flora and Angus Construction Co., 149 NLRB 583, 585 (1964), affd. 354 F.2d 107 (C.A. 10, 1965) ), which appears to disturb Respondent, or whether it be termed collateral estoppel, would not appear to affect the principle applied here . In Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955), the Supreme Court said: "rhus, under the doctrine of res adjudicata, a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action . Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit." And see I B Moore , Federal Practice (2d ed. 1974) §410.405 at 622. 767 tice. Brown and Root, Inc., 132 NLRB 486, 488-491, enfd. 311 F.2d 447 (C.A. 8, 1963). Accordingly, the trial should proceed on the basis of the General Counsel's backpay specification, which has largely been proved, and any outstanding specific defenses of Re- spondent to individual claims for backpay not foreclosed by this decision and order or by any prior ruling. WHEREFORE, IT IS ORDERED : I. Good cause having been shown, Respondent's five affirmative general defenses comprising five alternative plans for calculating gross backpay due the claimants in this case, each plan alterna- tive to the General Counsel's backpay specification, and the portions of Respondent's answer and amendments thereto and appended exhibits from which the five alterna- tive plans are derived or in which they are described, are stricken. 2. Trial of the case shall continue on the basis of the General Counsel's backpay specification, and such specific defenses of Respondent to individual claims for backpay in the backpay specification not foreclosed by this decision and order or by any prior ruling. 3. Trial will resume at Albany, New York, at a time to be fixed by me, or suggestion of counsel. For expedition, it is requested that counsel for the General Counsel inquire among counsel on proposed suitable times for resumption of trial and report the collective suggestions by telephone.