Transport Service Co.

458 314 NLRB No. 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 A third discriminatee, mechanic Ron Golden, is not entitled to any backpay because his interim earnings exceeded the gross back- pay claimed in the backpay specification. 2 All subsequent dates refer to 1987 unless otherwise specified. 3 The bargaining unit is composed of mechanics, utilitymen, and washers. Utilitymen performed less skilled work than mechanics, al- though both groups performed some of the same tasks prior to the strike. 4 The Respondent argues that its proffered evidence relating to this issue was precluded by Judge Sherman’s refusal to admit informa- tion about utilitymen’s prestrike duties. While it is not clear what evidence the Respondent sought to elicit, our holding eliminates its possible relevance, even if the evidence would have related to prestrike allocation of duties between utilitymen and mechanics. 5 In accord with his partial dissent in the underlying unfair labor practice case, Member Devaney would have found that four mechan- ics’ positions were open at the end of the strike. See Transport Serv- ice Co., 302 NLRB 22, 24 (1991). Transport Service Co. and Thomas McClain and Automobile Mechanics’ Local No. 701, Inter- national Association of Machinists and Aero- space Workers, AFL–CIO and James DeMoss. Cases 13–CA–26615, 13–CA–26859, and 13–CA– 26892 July 20, 1994 SUPPLEMENTAL DECISION BY MEMBERS STEPHENS, DEVANEY, AND BROWNING On February 3, 1994, Administrative Law Judge Nancy M. Sherman issued the attached supplemental decision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an answer- ing brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings as modi- fied, and conclusions and to adopt the recommended Order. At issue is the backpay owed two employees for the Respondent’s unlawful failure to reinstate them fol- lowing an economic strike.1 See Transport Service Co., 302 NLRB 22 (1991), enfd. in relevant part 973 F.2d 562 (7th Cir. 1992). Judge Sherman found that the backpay periods of mechanics Roosevelt Carter and Thomas McClain commenced on January 14, 1987.2 The judge observed, however, that the Respondent might have attempted to show that there was insufficient work available for the two mechanics on that date, based on the manner in which work was allocated between mechanics and utilitymen prior to the strike.3 The Respondent com- plains that the judge asserted at the hearing that she would not consider such evidence relevant and that it was, therefore, unfairly precluded from introducing evidence it was prepared to adduce. We agree with Judge Sherman’s finding that the two mechanics’ backpay periods commenced on January 14. For the reasons that follow, we disavow the judge’s suggestion that the Respondent could have at- tempted to show that the backpay periods commenced on a later date by introducing evidence of its prestrike work allocation.4 When the strike began on January 4, the Respondent employed eight mechanics, one utilityman, and four washers in the unit. At the time of the Union’s January 13 unconditional offer to return, the Respondent’s complement of mechanics consisted of two nonstrikers and three permanent replacements. The Respondent’s executive vice president, Robert Schurer, advised the Union, on January 13, that three mechanics positions were available, and asked the Union to select three striking mechanics to return to work. The Respondent and the Union agreed on the return of one less senior mechanic for a particular position, but the Respondent refused to fill the other two positions at that time. In- deed, it did not recall other mechanics until June 8, when Carter accepted a mechanic job, and August 1988, when McClain and Golden were recalled.5 In the underlying unfair labor practice proceeding, the Board affirmed Judge Kaplan’s finding that ‘‘the Respondent failed to demonstrate any legitimate and substantial business justification’’ for failing to fill the two vacant mechanic positions at the end of the strike. Transport Service Co., supra, 302 NLRB at 29. Spe- cifically, Judge Kaplan discredited the testimony that the Respondent’s initial statement to the Union that three mechanic positions were available was in error. Id. Further, observing that the Respondent hired some utilitymen to perform work previously assigned to me- chanics, Judge Kaplan rejected the assertion that the Company reduced its complement of mechanics be- cause it learned to operate more efficiently during the strike. Id. Instead, as the court summarized, Judge Kaplan concluded that the Respondent shifted me- chanic work to utilitymen to circumvent its obligation to recall striking mechanics. Id.; NLRB v. Transport Service Co., 973 F.2d 562, 571 (7th Cir. 1992). Thus, as Judge Sherman held, Judge Kaplan, the Board, and the court in the underlying case all found that as of January 14 the Respondent had tasks which, if allocated in the prestrike manner, would have been performed by two additional mechanics. That holding necessarily precludes any argument in the compliance proceeding that the Respondent did not have sufficient work for two additional mechanics on January 14 based on either prestrike or poststrike allocation. Such an argument would be inconsistent with the underlying 459 TRANSPORT SERVICE CO. 1 As issued, the compliance specification included allegations that the Board’s Order required certain payments into the pension fund and health and welfare fund of the Charging Union, Automobile Me- chanics Local No. 701, International Association of Machinists and Aerospace Workers, AFL–CIO (the Union). At the hearing, the Gen- eral Counsel, the Union, and Respondent requested the receipt into evidence of a stipulation which included an undertaking by Respond- ent to pay certain amounts into these funds, an agreement by the Union to accept these amounts in order to settle only the claims raised in the compliance specification concerning money owed to the funds, and an agreement by the General Counsel that completion of the payment to the funds settles the contribution liability in full. By letter to me dated September 29, 1993, the General Counsel advised me that based on the terms of the stipulation, Respondent had settled the monetary obligations to the funds in full. Accordingly, the alle- gations of the compliance specification as to these funds are not be- fore me. finding that the Respondent actually had work for the additional mechanics but that such work was shifted to utilitymen. Issues litigated and decided in an unfair labor prac- tice proceeding may not be relitigated in the ensuing backpay proceeding. See Baumgardner Co., 298 NLRB 26, 27–28 (1990), enfd. mem. 972 F.2d 1332 (3d Cir. 1992); Best Glass Co., 280 NLRB 1365, 1367 (1986); Sumco Mfg. Co., 267 NLRB 253, 255 (1983), enfd. 746 F.2d 1189 (6th Cir. 1984), cert. denied 471 U.S. 1100 (1985). In its exceptions, the Respondent contends that Judge Kaplan’s decision preserved its right to litigate the date on which backpay commences by stating ‘‘that the determination of the precise dates on which the aforenamed strikers should have been reinstated [will] be left to the compliance stage of this pro- ceeding.’’ Transport Service Co., supra, 302 NLRB at 35 fn. 10. We disagree with the Respondent’s interpre- tation. The language used in footnote 10 of Judge Kaplan’s decision is a standard provision commonly found in Board unfair labor practice decisions, and in context may have referred to strikers other than the mechanics. It may also have contemplated postdecision changes in circumstances, striker availability, and the like. Judge Kaplan’s footnote 10 cannot, however, be interpreted (as the Respondent urges) to eviscerate a critical find- ing that was vigorously challenged before the Board and the court of appeals and that was the sole raison d’etre of the compliance proceeding. To read footnote 10 as permitting relitigation of the issue of the amount of work available for mechanics runs counter to the sense of Judge Kaplan’s substantive findings and to the Board’s consistent policy of precluding the relitiga- tion of issues previously concluded in an underlying procedure. We will not ascribe such an anomalous in- tention to Judge Kaplan. Accordingly, we agree with Judge Sherman’s sup- plemental decision regarding the dates of reinstatement and the amounts of backpay due. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Transport Service Co., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Richard Kelliher-Paz, Esq., for the General Counsel. Leonard R. Kofkin, Esq., of Chicago, Illinois, for the Re- spondent. Thomas McClain, of Markham, Illinois, pro se. John Baker, of Chicago, Illinois, for the Union. SUPPLEMENTAL DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. On March 11, 1991, the Board issued a Decision and Order find- ing, inter alia, that Respondent had violated Section 8(a)(3) and (1) of the National Labor Relations Act by failing to re- call strikers Roosevelt Carter, Thomas McClain, and Ron Golden. The Board’s Order included a requirement that Re- spondent offer reinstatement to McClain and Golden (Carter having been reinstated, although allegedly belatedly) and make these three employees whole for any loss of pay they may have suffered by reason of the discrimination against them. Transport Service Co., 302 NLRB 22 (1991). On Au- gust 26, 1992, the Court of Appeals for the Seventh Circuit entered a judgment enforcing the foregoing provisions of the Board’s Order (973 F.2d 562). These proceedings are herein referred to as Transport I. A dispute having arisen as to the amounts due under the foregoing provisions of the Board’s Order, enforced by the court of appeals on December 7, 1992, the Regional Director for Region 13 issued a compliance specification and notice of hearing alleging, inter alia, amounts due and owing to these three discriminatees. On December 18, 1992, Respond- ent Transport Service, Inc. filed its answer and affirmative defense to the compliance specification. The hearing was held before me in Chicago, Illinois, on September 23, 1993. Thereafter, briefs were filed by Respondent and by counsel for the General Counsel (the General Counsel). After due consideration of these briefs and the entire record made be- fore me, I make the following1 FINDINGS OF FACT I. PROCEDURAL HISTORY OF THE UNFAIR LABOR PRACTICE PROCEEDING A. The Proceedings Before Administrative Law Judge Irwin Kaplan On March 24, 1987, the Regional Director for Region 13 issued a complaint which alleged, inter alia, that ‘‘On or about January 14, 1987, Respondent . . . failed and refused to reinstate’’ striking employees Roosevelt Carter, Thomas McClain, and Ron Golden after an application for reinstate- ment had been made on their behalf, ‘‘and since said dates 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has continued to fail and refuse to reinstate said employees to their former positions of employment,’’ in violation of Section 8(a)(1) and (3) of the Act. Respondent’s answer, dated March 31, 1987, denied that it had engaged in any un- fair labor practices, and alleged: [T]he named employees are and were economic strikers who were permanently replaced . . . . Roosevelt Carter has been returned to work as a result of a vacancy among the persons employed and permanent replace- ments for the other named employees remain employed. A hearing on this complaint, which for hearing purposes was consolidated with two other complaints, was held on May 2, 3, and 4, 1988, before Judge Irwin Kaplan. Mean- while, on June 8, 1987, Roosevelt Carter, who had been a mechanic before the strike and had accepted employment with Respondent to a lower paid position as a utilityman after the strike ended, was offered and accepted reinstatement as a mechanic. Respondent contends that his reinstatement to the mechanics’ position was occasioned by the June 1987 resignation of mechanic J. Koonce, who had been hired as a permanent replacement during the January 1987 strike. Respondent’s July 1988 posthearing brief to Judge Kaplan alleged in part as follows (p. 42): [T]he record shows that the pre-strike complement con- sisted of eight mechanics (excluding utility for the mo- ment); Danhoff, Carter, McClain, Fukar, Golden, O’Connor, Morrissey, and McCormack (Joint Exhibit No. 2; [Tr.] 197). That number was reduced to six dur- ing the strike. McCormack and O’Connor crossed the picket line, worked during the strike and continue to be employed ([Tr.] 196). Danhoff’s position of building maintenance mechanic was not filled during the strike. He returned to that position after the strike ended and remains employed. Three mechanic replacements were hired: they were J. Koonce (who quit in June, 1987, and whose position was filed by Carter, the Senior striking mechanic), J. Gariby (still employed) and R. Clark (still employed). Two [mechanics’] positions were not filled. It was explained that the elimination of the two mechanic’s positions resulted from learning to operate better and more efficiently during the strike ([Tr.] 198–199). There is no allegation, evidence or in- ference that Respondent thereafter hired any mechanics to fill those two positions. This is true despite the fact that the terminal has the same complement of equip- ment as before the strike ([Tr.] 199). In August 1988, after the close of the hearing before Judge Kaplan, Respondent offered McClain (who is junior to Carter) reinstatement as a mechanic, and he accepted the offer; Respondent contends that this offer was occasioned by the resignation of mechanic O’Connor, who worked during the strike. Also in August 1988, Respondent offered Golden (who is junior to McClain) reinstatement as a mechanic; Re- spondent contends that this offer was occasioned by the res- ignation of R. Clark, a permanent replacement who was hired during the strike as a mechanic. Golden did not accept this reinstatement offer; the General Counsel concedes that Golden’s interim earnings exceeded his gross backpay during his at least alleged backpay period, and that, therefore, he is not entitled to any backpay. Judge Kaplan’s decision issued on May 16, 1989 (302 NLRB 22, 25). He agreed with Respondent that J. Koonce, J. Gariby, and R. Clark were hired as permanent replace- ments for mechanics; 302 NLRB at 28–29. Judge Kaplan then went on to find as follows (302 NLRB at 29–30): Respondent employed eight mechanics immediately be- fore the strike. Of these, six of them became strikers: R. Carter, J. Danhoff, R. Fukar, R. Golden, T. McClain, and J. Morrissey. The other two mechanics, L. O’Conner and J. McCormack, worked during the strike. Danhoff returned to work on January 16 as the building maintenance mechanic with the consent of the Union, although he was not the most senior mechanic. As pre- viously noted R. Clark, J. Garibay, and J. Koonce were hired as permanent replacements. Thus, excluding Danhoff, of the seven remaining pre-strike positions, three were filled by permanent replacements, two posi- tions continued to be held by O’Conner and McCor- mack. This left two mechanic slots still open at the time the offer to return to work was made for which the Respondent failed to demonstrate any legitimate and substantial business justification. In fact the Respond- ent’s initial written response to the Union immediately after it learned that the strike was over was to confirm that there were mechanic positions open. Thus, [execu- tive vice president] Schurer, by telegram stated, in per- tinent part: All tank washers have been replaced but three me- chanics have not. Please select three mechanics [em- phasis added] to report to work immediately at com- mencement of regular shift. [G.C. Exh. 7.] As noted above, the Union agreed to the Company’s choice of Danhoff to fill one of these positions. How- ever, the other two slots were not filled. I reject Schurer’s uncorroborated and implausible testimony where he asserted that soon after sending the aforenoted telegram he checked the facts with his staff and discov- ered that he made a mistake regarding the number of slots open for mechanics. As for Schurer’s second tele- gram which was sent the following day assertedly cor- recting the mistake, I find its contents ambiguous, self- serving, and more likely in the circumstances of this case sent to afford the Respondent some documentary protection for its refusal to recall strikers. Thus, Schurer’s second telegram could be viewed as dealing with washers rather than mechanics or even both groups. There, Schurer merely noted that ‘‘[He] mis- stated the substantial amount of permanent replace- ments and the availability of work in view of the lim- ited amount of equipment at the terminal during the strike.’’ (G.C. Exh. 8.) There, Schurer also represented that he would have ‘‘all information for review and dis- cussion’’ at the previously arranged meeting set for the following day. This (the information) proved to be largely illusory. According to Schurer, there were two positions open and not the three as stated in his first telegram. How- ever, even as to these two asserted openings, one turned out to be illusory. That ostensible position involved the shop foreman classification, a unit job. The record dis- 461 TRANSPORT SERVICE CO. 2 Quotations are from the decision as signed by him and included in the record before me. The version which appears in the printed Board volumes contains a few small typographical changes, and does not include Judge Kaplan’s recommended notice. closed that at the time of the strike, the shop foreman position was already open and remained open until March, 2 months after the strike ended, when the Re- spondent hired E. Pietrzak, a new employee. The Re- spondent told the Union that none of the strikers were qualified to fill that position. In these circumstances, the conclusion is inescapable that the vacant shop fore- man’s position vis-a-vis the strikers had no relevance as a job opening. Thus, of the three mechanic openings re- ferred to by Schurer in his first telegram, only one, the building maintenance position filled by Danhoff proved to be meaningful. I also reject Schurer’s conclusionary and uncor- roborated assertion that the Company learned to operate more efficiently during the strike as a basis for reducing the number of mechanics (Tr. 198–199). It is noted that the strike was of relatively short durations, approxi- mately 10 days. In fact, [company attorney] Kofkin in- dicated to the Union that the Company had no plans to ‘‘decrease the number of positions.’’ (Tr. 124–125.) In these circumstances, I find that the failure of the Re- spondent to at least notify the Union at the meeting of January 15 and the last bargaining session of February 17 that it had decided to eliminate two mechanic posi- tions tends to militate against Respondent’s good faith in dealing with the strikers. While the Respondent did not hire any new mechan- ics after the strike, it hired some utilitymen and they performed some of the work previously assigned to the mechanics although the record is unclear as to what ex- tent. The Respondent’s treatment of D. Koonce, brother of J. Koonce, as a permanent replacement is another case in point. Schurer testified that D. Koonce, a utility man was hired during the strike as a permanent replace- ment. However, at the time of the strike, the Company had only one utility man, R. Taylor, and he worked during the strike. Thus, any reliance by the Respondent on the status of D. Koonce at any time material herein is misplaced. Under the the remedy, Judge Kaplan stated, in part: Having also found that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by not timely reinstating former strikers Roosevelt Carter and James De Moss,9 and not at all reinstating former strikers Thomas McClain, Ron Golden and Paul Anderson [see infra fn. 3], I shall recommend that the Respondent offer McClain, Golden, and Anderson immediate reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights, dis- missing, if necessary, any employee hired after January 13, 1987, to replace them and make them whole as well as Carter and DeMoss for any loss of pay by reasons of its refusal to timely reinstate them.10 9 The record disclosed that Carter, a mechanic, returned to work as a utility man on March 16, 1987, and subsequently, on June 8, 1987, he was reinstated to his former mechanic position; DeMoss was rein- stated to his former washer position on or about June 15, 1987. (Jt. Exh. 2.) 10 I recommend that the determination of the precise dates on which the aforenamed former strikers should have been reinstated be left to the compliance stage of this proceeding. See, e.g., Challenge-Cook Bros., [288 NLRB 387], 390 fn. 8 [1988]. In addition, Judge Kaplan recommended an order requiring Respondent to, inter alia, ‘‘Cease and desist from . . . . Fail- ing and refusing to reinstate former striking employees to their former positions or to substantially equivalent posi- tions;’’ to ‘‘Offer Thomas McClain [and] Ron Golden . . . immediate and full reinstatement to their former jobs or, if such positions no longer exist, to [substantially] equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary any employees hired after January 13, 1987 and [make] them whole as well as Roosevelt Carter and James DeMoss for any loss of pay by reasons of its refusal to timely reinstate them in the manner set forth in the section of this Decision entitled ‘The Remedy.’’’ In addition, Judge Kaplan rec- ommended that Respondent be required to post a notice to employees stating, in part: WE WILL NOT fail and refuse to reinstate former strikers to their former positions or to substantially equivalent positions . . . . WE WILL offer Thomas McClain [and] Ron Golden . . . immediate and full reinstatement to their former jobs or, if such positions no longer exist, substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging, if necessary any employees hired after Janu- ary 13, 1987, and [make] them whole as well as Roo- sevelt Carter and James DeMoss for any loss of earn- ings by reason of our refusal to timely reinstate them in the manner set forth in the section of this Decision entitled ‘‘The Remedy.’’2 B. The Proceedings Before the Board Thereafter, both the General Counsel and Respondent filed exceptions to Judge Kaplan’s decision, together with sup- porting briefs. Respondent’s exceptions included exceptions to practically all of the above-quoted findings of Judge Kaplan (see Exceptions 1–5, 9–10, 30), and such exceptions were discussed at length in Respondent’s brief to the Board (see pp. 13–26). On March 11, 1991, the Board issued a Decision and Order which adopted Judge Kaplan’s findings and conclu- sions as to (inter alia) McClain, Carter, Golden, and DeMoss, 302 NLRB 22. The Board issued an order which, inter alia, required Respondent to ‘‘Cease and desist from . . . . [f]ailing and refusing to reinstate former striking employees to their former positions or to substantially equivalent posi- tions, if their former positions no longer exist’’ and to offer reinstatement and make employees whole in substantially the language used by Judge Kaplan. In addition, the Board re- quired Respondent to post notices to employees which stated, in part: 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to reinstate former strikers to their former positions or to substantially equivalent po- sitions if their former positions no longer exist. . . . . . . . WE WILL offer Thomas McClain [and] Ron Golden . . . immediate and full reinstatement to their former jobs or, if such positions no longer exist, substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging, if necessary, any employees hired after Janu- ary 13, 1987, and we will make them whole as well as Roosevelt Carter and James DeMoss for any loss of earnings by reason of our failure to timely reinstate them, with interest. C. The Proceedings Before the Court of Appeals Thereafter, the Board filed a petition to enforce the Board’s Order with the Court of Appeals for the Seventh Circuit. Respondent’s opening brief to the court of appeals contended, in substance, that as to Carter, McClain, and Golden, Judge Kaplan and the Board had erred in finding the existence of openings for three mechanics (pp. 9–35). On August 26, 1992, the Court of Appeals for the Seventh Circuit issued an opinion which affirmed the Board’s find- ings as to, inter alia, Carter, McClain, and Golden. The court stated, in part (973 F.2d at 566, 570–572): The ALJ [Judge Kaplan] determined that, in viola- tion of sections 8(a)(3) and (1), Transport failed to rein- state three returning strikers (Anderson, McClain and Golden) and to timely recall two returning strikers (Carter and DeMoss). . . . The NLRB accepted virtually all of the ALJ’s find- ings of fact and conclusions of law. Accordingly, the NLRB issued an order requiring Transport, among other things, to . . . . reinstate Anderson, McClain, and Golden to their former positions or substantially equiva- lent positions and make them as well as Carter and DeMoss whole for any loss of pay by reason of Trans- port’s failure to timely reinstate them . . . . . . . . A head count of the pre-strike and post-strike me- chanics at Transport’s facility serves as a springboard into the NLRB’s decision regarding the reinstatement of the mechanics. Transport employed eight mechanics be- fore the strike: O’Connor, McCormack, Carter, McClain, Fukar, Golden, Morrissey and Danhoff. Two mechanics worked during the strike (O’Connor and McCormack), and Transport hired permanent replace- ment mechanics giving Transport a total of five me- chanics during the strike. That left three unfilled posi- tions at the end of the strike. Transport, however, filled only one of those positions with a former striker (Danhoff) and left two positions unfilled. Carter took a utility position, and when one of the replacement me- chanics left in June 1987, Carter (the senior former striking mechanic) took a mechanic position. The ALJ found all the permanent replacements were legitimately hired before the end of the strike. Relying on several intermediary findings, the ALJ re- jected Transport’s contention that it had eliminated two mechanic positions. . . . We will address each of Transport’s arguments in turn. First, Transport attacks the ALJ’s credibility deter- minations. The ALJ noted that Schurer had initially telegrammed the Union that it had three mechanic posi- tions open and then within 24 hours sent a second tele- gram stating that ‘‘[h]e had misstated the substantial amount of permanent replacements and the availability of work in view of the limited amount of equipment at the terminal during the strike.’’ Although Schurer ex- plained that between telegrams he had checked with the staff and discovered his mistake, the ALJ rejected the testimony as ‘‘uncorroborated and implausible.’’ Fur- thermore, the ALJ found the second telegram to be ‘‘ambiguous, self-serving and more likely . . . sent to afford [Transport] some documentary protection for its refusal to recall the strikers.’’ Although the telegram mentioned a reduction in the complement of equipment, Schurer testified at the hearing that there was no change in the complement of equipment before and after the strike. Noting that the strike lasted only ten days, the ALJ also rejected Schurer’s uncorroborated assertion that Transport could reduce the number of mechanics because it learned to operate more efficiently during the strike. In response to these findings, Transport argues that Schurer’s office was not at the facility so it is en- tirely plausible that he did not know the extent of per- manent replacements hired or the extent to which the facility had managed to operate with fewer mechanics. Transport argues that it was plausible that Transport could conclude in ten days that increased efficiency eliminated its need for two mechanics. Credibility de- terminations, however, are outside our domain, and we will not second guess the ALJ. . . . Second, Transport confronts the ALJ’s finding that Transport added utility men who did some of the work formerly handled by mechanics during and after the strike. In effect, the ALJ concluded that although Transport claimed that it ‘‘eliminated’’ mechanic posi- tions, Transport circumvented its duty to hire back striking mechanics by shifting work from mechanics to utility men and hiring new employees into the utility positions without offering the utility positions to the re- turning striker mechanics. Although Transport maintains that the record shows mechanics did utility work, not that utility men did mechanic work, the record is open to conflicting interpretations. On the whole, the record shows that many of the tasks formerly performed by both mechanics and utility men became exclusively the tasks of utility men after the strike.4 For example, one witness testified that some of the inspections formerly done by mechanics were shifted to utility men. We will not disturb the ALJ’s reasonable inference that Trans- port engineered these shifts in responsibility to cir- cumvent its duty to reinstate former strikers. . . . Third, Transport attempts to undermine the ALJ’s finding that Transport vacillated about the number of available mechanic positions, which heightened the ALJ’s skepticism regarding Transport’s candidness. The ALJ noted that at the January 15, 1987 meeting, Schurer initially referred to two mechanic positions but one proved to be illusory since it was the working fore- 463 TRANSPORT SERVICE CO. 3 The court rejected other Board findings, including its finding that Respondent unlawfully failed to recall striker Anderson and timely to recall striker DeMoss, both washers. The Board had found that Respondent had unlawfully discriminated against a total of five em- ployees—Anderson, DeMoss, Carter, McClain, and Golden. man’s position which was not filled before the strike and which the Union and Transport agreed none of the strikers were qualified to fill. Transport points out that the ALJ misquoted the record and erroneously con- cluded that Transport did not notify the Union at the January 15, 1987 meeting about its plans to reduce the number of mechanic positions.5 Nevertheless, even if Transport did not put the Union on notice of its inten- tion to reduce the number of positions, notice would not satisfy the ALJ’s overriding concern that Transport was less than forthright with the Union since Schurer vacillated before the meeting regarding the number of mechanic positions available. Moreover, even if Trans- port had notified the Union on January 15 of its plan to reduce the number of mechanics, it would not have affected the ALJ’s final decision since the ALJ did not believe that Transport really ‘‘eliminated’’ the posi- tions. Instead, the ALJ concluded that Transport shifted mechanic work to utility men, created two additional utility positions, and filled the two positions with new employees. . . . . Substantial evidence on the record supports the NLRB’s decision that Transport violated sections 8(a)(3) and (1) by failing to recall two mechanics, McClain and Golden, and failing to timely recall one mechanic, Carter. Therefore, we will grant the NLRB’s application for enforcement of the order as it pertains to McClain, Golden, and Carter.3 4 While there is some dispute concerning precisely when these changes in responsibility occurred, there is substantial evidence that the changes did not take full effect until after the strike. 5The witness did not testify that Transport indicated to the Union that Transport had no plans ‘‘to decrease the number of positions’’ as the ALJ stated . . . Instead, the witness testified that Transport indi- cated it ‘‘had no plans to increase or decrease the number of positions then filled.’’ On September 29, 1992, the court of appeals issued a judgment which included all provisions of the Board’s cease- and-desist order quoted herein. In addition, the court’s judg- ment required Respondent to [o]ffer Thomas McClain and Ron Golden immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any employees hired after January 13, 1987, and make them whole as well as Roosevelt Carter for any loss of pay by reasons of its refusal to timely rein- statement [sic] them in the manner set forth in the rem- edy section of the judge’s decision. Also, the court’s judgment required the posting of notices to employees which included the following provisions, inter alia: WE WILL NOT refuse to reinstate former strikers to their former positions or to substantially equivalent po- sitions if their former positions no longer exist. . . . . WE WILL offer Thomas McClain and Ron Golden immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging, if necessary, any employees hired after Janu- ary 13, 1987, and WE WILL make them whole as well as Roosevelt Carter for any loss of earnings by reason of our refusal to timely reinstate them, with interest. D. The Instant Proceeding The instant compliance specification alleges, in part (1) that the backpay period as to Carter and McClain begins on January 14, 1987, the day following the Union’s offer to re- turn to work; (2) that the backpay period as to Carter ends on June 8, 1987, the date on which Respondent reinstated him to a position as a mechanic; (3) that the backpay period as to Golden begins on June 8, 1987, ‘‘the day on which the first mechanic position became available as a result of the resignation of a lawful strike replacement’’; (4) that the backpay period as to Golden ends on August 5, 1988, the day of the last opportunity he had to accept Respondent’s offer of reinstatement; and (5) that the backpay period as to McClain ends on August 5, 1988, the date on which he was reinstated by Respondent. The parties agree that the backpay calculations set forth in the compliance specification are cor- rect if the backpay period is found to begin on January 14, 1987, for McClain and Carter; and to begin on June 8, 1987, for Golden. No backpay as claimed as to Golden, because the General Counsel admits that the claimed gross backpay as to him was exceeded by his interim earnings. My reasons for discussing the backpay period as to Golden will appear hereafter. The evidence adduced before me in December 1993 shows that Respondent increased its active utilitymen complement to two (by hiring D. Koonce) on January 12, 1987, during the strike; and to three on April 28, 1987, after the strike had ended. At the May 1988 unfair labor practice hearing, Lead Superintendent Rosko Stojkovich testified that the utilitymen’s duties were to perform pretrip safety inspections, to do minor mechanical work, and to check that equipment has been properly cleaned and that the licensing is in order (Tr. 363). He went on to testify that mechanics ‘‘repair’’ the equipment (that is, do whatever is necessary to maintain and to keep the equipment in safe operating condition), and are also qualified to fill utility positions (Tr. 363). In addition, he testified (Tr. 453–454) that utilitymen and mechanics have the same training procedure because, if utilitymen are ‘‘all caught up with their hook-ups and everything,’’ they assist mechanics in performing mechanics’ work. Also, he testified that in the winter of 1986, he noticed that when mechanics should have been fixing the equipment, they were out in the yard starting trucks, parking equipment, hooking up, and bringing up fifth wheels. He went on to testify that before about December 1986, the utilitymen checked out and hooked up equipment, performed minor repairs, and, if they had the time, were required to change a tire and ‘‘could as- sist’’ the mechanics. He testified that around December 1986 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 As previously noted, the General Counsel admits that Golden is not entitled to any backpay, on the ground that during his at least alleged backpay period beginning on June 8, 1987, his interim earn- ings exceeded his gross backpay. Golden’s situation is discussed herein solely because of Respondent’s contention that the General Counsel claim as to Carter and McClain is rendered logically unten- able by his claim as to Golden. 5 See Baumgardner Co., 298 NLRB 26, 27–28 (1990), enfd. 972 F.2d 1332 (3d Cir. 1992); Sumco Mfg. Co., 267 NLRB 253, 255 (1983), enfd. 746 F.2d 1189 (6th Cir. 1989), cert. denied 471 U.S. 1100 (1985); Best Glass Co., 280 NLRB 1365, 1367 (1986); Over- seas Motors, 277 NLRB 552, 556–557 (1985), remanded on other grounds 818 F.2d 517 (6th Cir. 1987); Laborers Local 38 (Hancock- Northwest), 268 NLRB 167, 178 (1983), enfd. in material part 748 F.2d 1001 (5th Cir. 1984), cert. denied 470 U.S. 1085 (1985); EDP Medical Computer Systems, 293 NLRB 857, 858 (1989); Unico Re- placement Parts, 286 NLRB 738, 739 (1987); and cases cited. and after the January 1987 strike, utilitymen were given more responsibility because he needed the mechanics to be more productive. (Tr. 456–459.) Mechanic McClain testified at the unfair labor practice hearing that before the strike, he spent 50 to 55 percent of his time on utility work, and that inspection work was performed by mechanics until 2 or 3 weeks before the strike, at which time utilitymen began to perform some of the inspection work (Tr. 483–484). On May 3, 1988, during the unfair labor practice hearing, Respond- ent’s counsel asked Stojkovich why Respondent’s com- plement of utilitymen, and the amount of their overtime, had increased from one before the January 4–13, 1987 strike to two during and for several months after the strike and three in April or May 1987. Stojkovich replied: Before the strike we only had one utility man, and he was working on the midnight shift. The prior to strike, most of our mechanics were doing utility man duties; throughout the day. They would go in and hook up equipment and they would spend most of the time doing utility men’s duties. After, or during the strike, I had . . . some problems with [utility man Robert Taylor, a nonstriker] so we put another utility man on and found that with the added utility man, the mechanics were a little more productive[,] they were doing [mechanics’] work then, instead of yard work. He went on to testify that thereafter, Respondent hired a third utilityman because equipment was no longer leaving and arriving between 10 p.m. and 6 a.m. alone but, instead, was constantly arriving and departing. Stojkovich further tes- tified that this expansion of arrival/departure hours had begun about early 1986, ‘‘but we had mechanics that if we had put utilitymen in, I would have too many people then, I would not be able to keep everybody busy, so the mechan- ics were doing the utility [men’s] work and they were not doing their [mechanics’] work, they were doing utility [men’s] work.’’ When asked why Respondent worked with fewer mechanics during and after the strike, Stojkovich re- plied, ‘‘because they are working a little more efficiently now.’’ (Tr. 359–363.) II. ANALYSIS AND CONCLUSIONS So far as material here, Transport I found as follows: On January 13, 1987, at the conclusion of a 10-day protected economic strike, the Union made an effective application for reinstatement on behalf of the strikers, including Carter, McClain, and Golden, all three of whom had been classified as mechanics before the strike. Respondent failed to offer them such jobs at that time, and during the litigation offered the defense that no mechanics’ vacancies existed after the re- instatement of former striker Danhoff, also classified as a mechanic before the strike. At all material subsequent times, Respondent’s active employees included two fewer employ- ees classified as mechanics than Respondent had actively em- ployed with that classification before the strike. However, during the strike and during the poststrike period, Respond- ent increased (mostly by new hires) the number of its em- ployees with the classification of utilityman above the num- ber of prestrike employees with that classification, and as- signed to utilitymen alone certain tasks which before the strike had been performed by both utility and mechanic clas- sifications; Respondent engineered these shifts in responsibil- ity in order to circumvent its duty to reinstate former strikers. Moreover, upon receiving the Union’s request for reinstate- ment, Respondent had initially advised the Union that it had two vacancies for mechanics in addition to the vacancy filled by Danhoff; and later advised the Union that the alleged de- crease in the number of mechanics’ jobs was due to a reduc- tion in the complement of equipment, although Respondent’s testimony showed that no such reduction in equipment had in fact occurred. Accordingly, Respondent violated Section 8(a)(3) and (1) by failing to recall mechanics McClain and Golden, and failing to timely recall Carter as a mechanic. As to the beginning of the respective backpay periods with respect to these employees, the General Counsel argues as follows: Transport I found that as of January 14, 1987, the day after the Union’s application for reinstatement, Respond- ent had tasks to be performed which, if they had been grouped in the manner used by Respondent before the strike, would have amounted to two jobs coming within the classi- fication of mechanic and which were not filled in January 1987 by either strike replacements or returning strikers. Ac- cordingly, the General Counsel contends, the date on which mechanics’ jobs should have been offered to discriminatees Carter and McClain (the two senior unreinstated striking me- chanics) was January 14, 1987, which, therefore, was the be- ginning of the backpay period as to them. The General Counsel goes on to argue that an additional mechanic va- cancy became available on June 8, 1987, upon the departure that day of a permanent replacement; and that, because the two senior mechanic discriminatees (Carter and McClain) should have been offered reinstatement several months ear- lier, the existence of the June 8, 1987 vacancy (which Re- spondent gave to Carter, thereby admittedly terminating his backpay period) triggered the beginning of the backpay pe- riod as to the third, junior, mechanic—namely, Golden.4 I agree with the General Counsel that the foregoing anal- ysis is required by Transport I and the state of the record made before me. Respondent’s contention before me that these three mechanics were promptly offered the first job va- cancies to which they had a statutory right is precluded by the procedural limitations on relitigating, in a backpay pro- ceeding, issues litigated and decided in the underlying unfair labor practice case.5 Such a contention by Respondent in- cludes (at least) the contention that before the May 1988 close of the hearing before Judge Kaplan, the only such va- cancy arose in June 1987, and this vacancy was filled by 465 TRANSPORT SERVICE CO. 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board, and all objections thereto shall be deemed waived for all purposes. Carter, the senior unreinstated mechanic. However, because the existence before May 1988 of vacancies to which the unreinstated mechanics had a statutory right was necessary to any finding in Transport I that Respondent violated the Act by failing to offer them reinstatement, Respondent’s conten- tion as to the absence of such vacancies is irreconcilable with Transport I’s conclusion, on the basis of the May 1988 record made before Judge Kaplan, that Respondent violated the Act by failing to recall McClain and Golden and failing to timely recall Carter. Transport I may perhaps have af- forded Respondent the right to adduce evidence in compli- ance proceedings that as of January 14, 1987, the tasks which it had available would not have been sufficient to oc- cupy the time of two additional mechanics (or even one) if allocated between mechanics and utilitymen in the prestrike fashion; and that a later date prior to the close of the May 1988 hearing was the date of its action in ‘‘engineer[ing] these shifts in [mechanics’ and utilitymen’s respective re- sponsibilities] to circumvent its duty to reinstate former strik- ers’’ (973 F.2d at 571). However, Respondent made no effort to show this during the proceeding before me. Accordingly, and in view of management’s January 13, 1987, telegram to the Union stating (in effect) that two vacancies for mechan- ics (in addition to the mechanic job to which Danhoff was reinstated) were available, I find that the backpay period for Carter and McClain began on January 14, 1987. Because Re- spondent otherwise admits the allegations in the compliance specification, I find that the backpay owed by Respondent in connection with the discrimination against Carter and McClain is the amounts claimed in the specification. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondent, Transport Service Co., Chicago, Illinois, its officers, agents, successors, and assigns, shall make, as net backpay, payments in the following amounts, plus inter- est as called for by the Board’s Order as enforced by the court of appeals, less tax withholdings required by Federal and state laws: To the estate of the late Roosevelt Carter $7,364.80 To Thomas McClain $40,475.06