Garrett Railroad Car & Equipment, Inc.

1032 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD Garrett Railroad Car & Equipment , Inc. and . United Steelworkers , of America and its Local 8089, AFL-CIO-CLC. Case 6-CA-16116 9 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND 'MEMBERS HUNTER AND DENNIS _ On 25 January 1985 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a memorandum in response to the Respondent's exceptions and a brief in support of the judge's decision. The Board has considered the decision and, the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,,[ findings, and conclusions and. to adopt the recommended Order. ORDER The National - Labor Relations Board adopts the recommended Order of the administrative -law judge and orders that, the Respondent,' Garrett Railroad Car `Equipment, Inc., New ' Castle; i The Respondent has excepted to some of the Judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 28 362 (3d Cir 1951) We have carefully 'examined the record and find no basis for reversing the findings - - We agree with the judge that the instant charge is not time-barred under Sec 10(b) for the following reasons Contrary to the Respondent's assertion , the allegations in the instant charge were 'not the subject of a prior withdrawn charge On 19 October .1979 the Union filed its original charge against the Respondent alleging violations of Sec 8(a)(1), (3), and (5) The charge included language that "On or about July 30. 1979 [the Respondent] refused to recall and illegally hired replacements for 46 employees ' " On 21 December -1979 the Union filed an amended charge deleting this language We find that the language quoted 'above did not allege violations of the Act regarding reinstatement . rights of economic strikers based on the Board's decision in Laidlaw Corp, 171 NLRB.1366 ( 1968) This language referred to events occurring "on or about July 30, 1979 " As the Union did not make an unconditional offer on the part of the strikers to return to work until 30 September 1979 and as the Respondent did'not subse- quently hire any new employees until 8 October 1979, no possible Laid- law violations could have occurred prior to ,8 October 1979 Accordingly, the language in the 19 October 1979 charge clearly did not raise or en- compass any Laid/aw violations Further, the Respondent , by refusing from October 1979 until Novem- ber 1982 to furnish the Union with the requested names of new hires and their dates of hire, unlawfully concealed from the Union the information necessary to put the Union on notice of the Laidlaw violations Once pro- vided with the information , the Union filed the instant charge within the limitations period Under these circumstances , we conclude that the instant charge is not barred by Sec 10(b) of the Act and, contrary to the Respondent 's asser- tion, nothing in our recent decision in Ducane Heating Corp , 273 NLRB 1389 (1985), compels a contrary finding . In so concluding, we find it un- necessary to rely on the cases cited by the judge We also find it unnecessary to pass on the judge's finding that no new charge would have been required to litigate and remedy these Laid/aw violations Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the- Order. DECISION STATEMENT OF THE CASE FRANK H . ITKIN,, Administrative Law Judge The Union filed an unfair labor . practice charge in this case on January 26, 1983 . An amended charge was filed on March 28, 1983. A complaint issued on November 7, 1983, alleging, inter alia, that Respondent Employer vio- lated Section 8(a)(1) 'and (3) of the National Labor Rela- tions Act by hiring four new employees rather than rein- stating economic strikers upon their unconditional appli- cation to return .to work' and , further, by also reinstating one economic striker out of seniority .2 Respondent Em- ployer denies violating the Act as - alleged and argues, inter alia, that "the Unioa failed to make an uncondition- al- offer to return to work until November 15, 1979, which occurred after the hiring and reinstatement of the five individuals ' involved [as named supra] : ' . . so that Respondent did not violate the Act by failing to recall strikers in place of these individuals '. the instant "1983 charge, which alleges violations occurring in 1979, is barred by the six-month , statute of limitations set forth in Section 10(b) of the Act"; the "General Counsel is barred under Winer Motors, 265 NLRB 1457 (1982), from litigating issues which were raised but withdrawn by the Union from [an earlier] .1979 charge"; and the "General Counsel is . barred under Jefferson Chemical, 200 NLRB 992 (1972), from litigating issues which were raised in the [earlier] 1979 charge but which he did not pursue " (R. Br. 5-7.)3 A hearing was conducted on the issues thus raised on October 18 and 19, 1984, in Pittsburgh, Pennsylvania. On the entire record , including my obser- vation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel , I make the following' . ' FINDINGS OF FACT A. Introduction; the Prior Proceedings - The Union was certified by the Board as 'collective- bargaining agent of Respondent's New. Castle production and maintenance employees in 1973. The parties thereaf- ter entered into a series of collective-bargaining agree- ments, the most recent agreement prior to this dispute was effective until March 31, 1979 On February 20, 1979, the parties began negotiations for a new agreement. i The four new employees and the dates when they were allegedly hired are A G Lumley, 10-8-79, J T Mains, 10-9-79, T G Farah, 10- 9-79, P E Martin, 10-15-79 2 The less semor employee, L A Johnson, was allegedly reinstated on 10-22-79 Initially, the General Counsel claimed ' that an additional sink- er, Cherozzi, was also reinstated out of seniority, however, at the hear- ing, the General Counsel removed "Cherozzi's name from the complaint" (Tr 10-11) 3 Respondent also contends with respect to reinstated striker Johnson that the Employer made a "commitment," prior to the alleged uncondi- tional application to return, "to reinstate former striker Johnson" and, under the circumstances, did not violate the Act by "recalling" Johnson rather than "another striker, out of seniority " 275 NLRB No. 151 GARRETT RAILROAD CAR Negotiations continued until September 28, 1979. During this period, on April 25, 1979, the employees went on strike in support of their contract demands. On July 25, 1979, the Employer notified the striking employees that it intended to resume operations and would replace strik- ers who did not return to work. -On September 27, 1979; it discharged certain strikers for misconduct during the strike and, by,letter dated October 5, 1979, withdrew recognition from the Union The instant proceeding, as noted above, principally,in- volves the poststrike reinstatement rights of the econom- ic'strikers However, before discussing these rights and related contentions, it is necessary to review the findings of the Board and the court in earlier proceedings pertain- ing to this same sequence of events. Thus, on October 19, 1979, the Union filed with the Board an unfair labor practice charge in Case 6-CA-12842, alleging violations of Section 8(a)(1), (3), and (5) of the Act. In particular, this charge averred that since July 25, 1979, the Employ- er has failed and refused to bargain in good faith with the Union and, further, on August, 17, . 1979, the Employ- er terminated certain employees. In addition, the second paragraph of this charge recited-(G.C. Exh. 2)• On or about July 30,_ 1979, [Respondent] refused to recall and illegally hired replacements for 46 em- ployees . . . because they engaged in concerted ac- tivities with other employees . •.• . for the purpose of collective bargaining and other mutual aid and pro- tection and in order to discourage membership in said labor organization. At all times since said date and for the aforesaid- reasons [Respondent] has re- fused and does now refuse to employ the above named employees. - Thereafter, on December 21, 1979, the Union filed an amended charge in Case 6-CA-12842. The above-quoted language of the second paragraph was deleted from the initial charge. Instead, the amended charge alleged 8(a)(1), (3), and (5) violations becausel"on or about Sep- tember 28, 1979," the Employer unlawfiilly terminated three striking employees and, "since on or about October 5, 1979," the Employer refused to bargain in good faith "by refusing to acknowledge or be bound by the ' terms of a collective bargaining agreement entered into . . . on or about September 30, 1979," and, further, by "with- drawing recognition from" the Union. (See'G.C. Exh. 3.) As Howard Grossinger, attorney for the Union, credibly explained (Tr. 46-53), the second paragraph of the 'Union's initial charge "was intended . .. to raise the al- legation that the Employer had involved itself in bad- faith bargaining so as to make the employees who had been on strike, unfair labor practice strikers"; the amend- ed charge made no reference to the "46 replacements"; and the second paragraph of the initial charge was thus deleted because - . .. the Board, during its investigation, determined that a . . complaint would not issue on the allega- tion of bad faith bargaining ... so as to make the employees on strike unfair labor practice strikers. ,We [the Union] did not choose to have the Board dismiss that allegation . . . and agreed to amend the 1033 charge so as to remove the,allegation of unfair labor practice strikers. Grossinger credibly recalled that he was not then aware of the hiring of,new employees or reinstatement of strik- ers -"after October 1,, 1979"; the initial charges had no purpose "with respect to any post-October 1, 1979 hir- ings or reinstatements"; and • we knew -of no post-October ' ], 1979 replace- ments or hires by [Respondent] for those who were on strike or in jobs formerly held by those on strike. Based on the'foregoing amended charge, the General Counsel issued a complaint in Case 6-CA-12842 , alleg- ing, inter alia,' that Respondent Employer violated Sec- tion 8(a)(1), (3), and (5) of•the Act by inducing employ- ees to sign a petition asserting that they no longer wished to be represented by the Union; by discharging three employees for alleged misconduct during the strike; by refusing to acknowledge, reduce to writing, execute, or be bound by a collective-bargaining agreement alleged to have been agreed to by the parties at strike's end; and by withdrawing recognition from the Union.4 The Board, in agreement with the administrative law judge, found in Case 6-CA-128,42,- reported at 255 NLRB 620 (1981), in pertinent part as follows (id. at 622-625): . At the end of the negotiating session on- Septein- ber 28 [1979], the Union advised Respondent that it would submit Respondent's _proposal on contract terms to the Union's membership for ratification, on Sunday, September 30. Respondent's counsel, James Ferber, advised Union Representative Clarence Mannarino that the latter should notify Ferber of the results of the ratification meeting, - and gave Mannarino his home phone - number for that pur- pose.-According to Ferber, he told Mannarino that "if the contract is ratified, we're going to have to prepare some kind of summary." He_ further says that Mannarino at that point made a written offer on behalf of the strikers to return to-work in the event the agreement was ratified. However, • when Mannarino called during the- evening of September 30 to announce that the members had ratified the agreement, that the strikers were ready to go back to work, and that he wanted an immediate meeting to sign a summary agreement, Ferber asserts that he told Mannarino that this could not be done because, Ferber stated, the parties had- not come to full agreement on the contract issues. Mannarino disput- ed this, asserting that- they had come to full agree- ment. '.. The parties nevertheless agreed to meet on October 3 in Ferber's office.=The Union ceased picketing Respondent at this, time. . , 4 The initial complaint in Case 6-CA-12842 issued on December 27, 1979 The complaint was later amended Hearings were conducted before an administrative law judge on April 28 and 29, and May 6, 1980 The judge issued his decision on October 15, 1980 The Board, as discussed below, issued its decision on April 6, 1981 (255 NLRB 620) 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 2, at 2:30 p.m., Respondent's man- agement received two sheets of paper signed by 67 employees out of a total of 108 in the appropriate unit (see R. Exh. 2) reading: "We the following un- 'dersigned employees, with- your help and approval, no longer wish to be represented by the U.S. Steel- workers Union or any other existing union. Instead, we would prefer to be represented by an in-plant committee, with a representative from each depart- ment." Also on October 2, Ferber called Mannarino to advise that, because of a conflict of which he was unaware on' September 30, he would be unable to meet on October 3. The two agreed to meet on October 8. However, before this meeting could take place, Respondent's , management , on October 5, sent Mannarino -a letter stating: This letter is to advise you that the Company has received a petition signed by a majority of our em- ployees in which they stated- that they'do not wish to be represented any longer by -the Steelworkers for collective bargaining or any -other purposes. In view of this petition, the Company has no choice but to go along with the desires of a majority_of our employees. Accordingly this letter is to advise you that the Company is withdrawing `recognition. from the Steelworkers as the collective bargaining repre- sentative of our employees. The Board held (id. at 625): - Based on all the testimony, there is no question . . . but that at the end of the session on September 28 both Respondent and the' Union considered that they had arrived at a meeting of the minds' on a complete bargaining agreement. There are several factors, in particular, that are convincing. Thus all the parties are agreed- that at the end of the meeting on that day it was understood that the Union would take the matters agreed or offered by, Respondent back to the membership for ratification, and that, if ratified, the strikers would call off their strike. It was further understood that the Union would call -Respondent counsel at his home on Sunday if the agreement was ratified, and that, in that case, it would be necessary to draw up a summary agree- ment. It is most unlikely in the extreme that these expectations would be held by both parties unless they understood that the Union would be,voting on a final agreement which would end the strike which had been in progress for five months. Respondent seems to suggest that the Union was taking a partial package to the employees for approval or disap- proval, as the Union had done - on other occasions during the negotiations. However, it is not credible, on this record, that, the Union would be talking about callirig off the strike for less than a complete contract, or that the parties would consider it neces- sary to call counsel at home on Sunday evening to report acceptance of some parts of,.but less than all of an agreement, rather than waiting for the next bargaining -session to report what was accepted and what rejected. -= , - The Board, -on the evidence presented, concluded that Respondent Employer had violated Section 8(a)(1), (3), and (5) of the Act by- withdrawing recognition from the Union; by refusing to acknowledge, reduce to writing, execute, and abide by the contract agreed to by the par- ties; by inducing, encouraging, and aiding employees on Respondent's premises during worktime to circulate and sign antiunion petitions; and by discharging strikers for alleged misconduct.s The United States Court of Appeals for the Third Cir- cuit, insofar as pertinent here, sustained the Board's find- ings, in its decision reported at 683 F.2d 731, 737 (1982), noting- - • - . . . where a collective bargaining agreement has expired and a strike has occurred and the company submits a complete and final proposal which is rati- fied by the union's rank-and-file, resulting in the end of the strike, we agree -with the Board and. the ALJ that the company violated the Act by refusing to reduce the"agreement to,wntmg.'- The court agreed that the Employer's "objection" was "a last minute afterthought designed to avoid the bar- gaining ' contract to which the [Company] had agreed." B. The Union's Application on Behalf of the Strikers to Return to Work , The . General Counsel alleges here that the Union, on September 30, 1979, made an unconditional application to return to work on behalf of the striking -employees. The Employer argues. (Br: 7-13) that no unconditional application was made until November 15, 1979, and, con- sequently, the hiring of four new employees from Octo- ber 8 through October 15, 1979, and the recalling of one striker out of seniority on October 22, 1979, did not vio- late the reinstatement rights of the economic strikers. See Laidlaw Corp., 171- NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). In particular, the .Employer claims (Br. 11): - • Even the most cursory review of [Union Represent- ative] Mannarino's September 30, 1979, oral state- merit readily reveals that it removed only one con- dition imposed by the September 28, 1979 written -offer, viz: acceptance of Respondent's final contract offer. None of the other three conditions (taking_ back all' strikers, immediately, and as a group) were in any way removed. ' For the 'reasons stated below , I am persuaded here that the Union made an unconditional application to return to work on September 30, as alleged. . This record amply demonstrates , and I find and con- clude,"that on September 30, 1979, the Union made an unconditional application 'on behalf of the remaining strikers to return to work. Thus, as the Board found in the initial proceeding (255 NLRB at 622-623), the em- ployees commenced an economic strike against the Em- The Board modified the administrative law judge's findings on this latter issue - , . GARRETT RAILROAD CAR ployer on April 25, 1979. The Employer, on July 25, after summarizing its bargaining position, "advised the strikers that it intended to resume operations and replace those strikers who did not return to work." During the period from July 30 through September 30 (as A. Exh. 15 shows) some 20 employees abandoned the strike and returned to work; the Employer hired about 50 perma- nent striker replacements; and, by September 30, there were approximately 38 employees who remained on strike. f The Union, on September 30,'1979, made an applica- tion to return to work on behalf of these remaining 38 strikers. The Board, in the initial proceeding, expressly found that the parties had arrived at a complete agree- ment on September 28-"all the'parties are agreed that at the end of the meeting on that day it was understood that the Union would take the matters agreed or offered by Respondent back to the membership for ratification, and that, if ratified, the strikers would call off -their strike; . . . [the parties] understood the Union would be voting on a final agreement which would end the strike which had been in progress for five months." According- ly, following the ratification vote, on September 30, Union Representative Mannarino - . . called [company counsel Ferber] during the evening of September 30 to announce that the mem- bers had ratified the agreement, that the strikers were ready to go back to work, and that he wanted an immediate meeting to sign a summary agreement. The picketing thereafter ceased. However, the Employer, instead, induced, encouraged, and aided employees on its premises during worktime to circulate and sign antiunion petitions; refused to ac- knowledge, reduce to writing, execute, or abide by the contract agreed to by the parties; withdrew recognition from the Union; and unlawfully discharged one striker for alleged misconduct, during the strike, all in violation of Section 8(a)(1), (3), and (5) of the Act The court, in sustaining the Board, pertinently noted (683 F.2d at 736- 737): . . . where a collective bargaining agreement has expired and a strike has occurred and the company submits a complete and final proposal which is rati- fied by the union's rank-and-file, resulting in the end of the strike . . . the company violated the Act by refusing to reduce that agreement to writing The testimony of Mannarino and Ferber pertaining to their September 30 communication, • following ratifica- tion, in support of the above findings, was again received in evidence in this proceeding as Joint Exhibits 18 and 19. Thus, Manna'rino testified (Jt. Exh. 19): The Union membership had ratified the agreement and were ready to go back to work, October 1, 1979. The employees were all willing to go back to work, all the membership that were on strike. I made that remark to Mr. Ferber. 1035 Likewise, Ferber testified (Jt. Exh. 18): He [Mannarino] called me up and he said that the membership had agreed to accept the Company's proposal and that they were now ready to go back to work. The controlling legal principles in determining wheth- er or not an unconditional application to return to work has been made were restated by the United States Court of Appeals for the Tenth Circuit in NLRB v. Okla-Inn, 488 F.2d 498, 505 (10th Cir. 1973), in part as follows: The employer has the burden of showing that the offer to return to work was not unconditional. The respondent cites an impression that the offer was conditional on the return of all the employees. But nowhere is evidence cited to affirm or dispel this "impression." It does not appear to have been beyond the employer' s means to have inquired into what "[we], the undersigned" meant or to have so- licited the employees individually to discover the true meaning of the letter. Rather than make a rea- sonable effort to clarify the situation, the employer embarked on a course of unfair labor practices . . .. Based on the facts and circumstances, the em- ployer has not borne the burden of proof to show that the offer was less than unconditional. To accept the employer's contention in this case that the request for reinstatement was less than uncondi- tional and that therefore the employer's inaction was justified, would do great damage to the intents and purposes of the Act And, in Soule Glass & Glazing Co. v. NLRB, 652 F 2d 1055, 1107 (1st Cir. 1981), the United States Court of Appeals for the First Circuit similarly noted, in part as follows: A threshold issue is whether, as the company contends, the reinstatement request was in fact con- ditional. The company bases this contention on the union's March 8 letter "unconditional(ly)" applying for "immediate reinstatement" of 22 named strikers, including David Bates, and the union's March 11 letter clarifying that "unconditional reinstatement, as a group" was requested. [T]he request was intended by the union to be, and was as a matter of law, unconditional.. "The em- ployer has the burden of showing that the offer to return was not unconditional " .. . The company has not met that burden. Indeed,-in view of the fact that it failed to raise its contention regarding Bates and conditionality during the exchange of corre- spondence concerning the reinstatement request, the company's argument has more the appearance of a post-hoc rationalization than a serious legal conten- tion. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The court distinguished H &_ F Binch Co.' v. NLRB, 456 F.2d 357 (2d Cir. 1972), because, inter alia, that case "held to be conditional a request for group reinstatement which was explicitly conditioned on all being reinstated together." 652 F.2d at 1107 fn. 47. And compare Pepsi- Cola Bottling Co., 251 NLRB 187, 190 (1980), enfd..659 F.2d 87 (8th Cir. 1981); Consolidated Dress Carriers, 259 NLRB 627, 636 (1981), modified 693 F.2d 277 (2d Cir. 1982); and Presto Casting Co., 262 NLRB 346, 358-359 (1982), modified 708 F.2d 495 (9th Cir. 1983). . Counsel for Respondent argues that it "is readily ap- parent that the Union did not make an unconditional offer to return to work until November 15 1979" and, therefore, this complaint should be dismissed (Co.'Br. 7- 14). In support of this contention, counsel for Respond- ent principally relies on language contained in Union Representative Mannarino's "handwritten offer" at the September 28 bargaining session (Jt. Exh. 2); statements made earlier at the August 17 bargaining session by union representatives (Jt. Exh. 16); and, lastly, the Union's letter of November 15 "again stat[ing] an uncon- ditional offer on the part of all [Respondent's] employees to return to their work with the Employer" (Jt. Exh. 3). However, these and related proofs, when assessed in context, fall far short of sufficiently establishing that the Union's September 30 notification to the Employer (i.e., "the members had ratified the agreement . .. the strikers were ready to go back to work") was not unconditional. On the contrary, these and related proofs amply support the finding that the Union on September 30 made a clear and unmistakable signal to the Employer that the mem- bership had, accepted the Employer's final offer; the strike was over; and they were ready to return to work. Their offer to return, viewed in the context of the bar- gaining and its ultimate outcome, was not conditioned on "taking back all strikers, immediately, and as a group" (Co. Br. 11). Thus, at the August 17 bargaining meeting, Company Attorney Ferber "said that we would bring the.strikers back, to the extent there were openings, but there had been some permanent replacements who were hired." (See Co. Br. 12 and R. Exh. 16). The union representa- tives, "wanted everybody back:" Mannarino' emphasized: ... fuck no, we're not going to talk with these c- s, and they can go fuck-themselves, incentive stays. Everyone of those guys are going back and we'll give them all the trouble they want, see how long they flourish. The August 17 meeting then "broke up" (ibid.) Never- theless, as the. record shows, the parties did meet again and ultimately the Union and its membership accepted the Company's final offer; the strike was settled; and the Employer was informed: "the strikers were ready to go back 'to work." The Union did not limit this acceptance and offer to return with a proviso requiring all 38- strik- ers to be reinstated immediately. Likewise, Mannarino's longhand note of September 28 contains no such condi- tion or proviso. It states: Be advised that the Union requires the Company to call back all the regular employees to work. This action to be taken as soon as the membership ac- cepts the Company's final offer of September 28, 1979. Counsel for Respondent cites no timely attempt on 'its part to clarify any ambiguity or equivocation here. And, certainly, by September 30, Respondent fully understood that its final offer was accepted; the strike over; and the remaining strikers wanted to return to their jobs. Finally, the Union, on November 15, in an attempt to avoid this issue now being raised; notified the Company's attorney: Although 'I [Mannarino] believe that we have clear- ly and repeatedly informed you of the fact, I wish to again state, an unconditional offer- on the part of all [the] employees . . to return to their work In sum, Respondent has not established here that the Union did not make an unconditional offer on September 30, 1979.6 C. The Employer's Contention That This Proceeding Is Time-Barred Counsel for Respondent argues (Br 14-37) that the in- stant proceeding is time-barred. Counsel for Respondent cites the 6-month limitations period provided in Section 10(b) of the Act. Alternatively, counsel for Respondent cites Jefferson Chemical Co., 200 NLRB 992 (1972),-and contends that the "General Counsel was clearly on notice of the issues during 1979 and, if he' so desired, should have proceeded on them at that time-. He did not do so then and cannot do so now." For the reasons stated below, I reject these and related contentions. Section 10(b) of the Act provides that "no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board." The Board, however, "has uni- formly held that this 6-month limitation period does not begin to run until the injured party has become, or should have become, aware of the respondent's unlawful action." Allied- Products Corp., 230 NLRB 858, 859 (1977). In Truck & Dock Services, 272 NLRB 592 (1984), the Board restated this principle: [T]he limitations period does not begin to run on an alleged unfair labor practice until the person ad- versely affected is actually or constructively put on notice of the alleged offending act. And, as the Board explained in Strick Corp., 241 NLRB 210 fn. 1(1979), "notice, whether actual-or constructive, must . be clear and unequivocal, and . . the burden of 6 Counsel for Respondent's reliance upon Containair Systems Corp, 218 NLRB 956 (1975), and Woodlawn Hospital, 233 NLRB 782, 792 (1977), is misplaced In Containair, the Board, in agreement with the administrative law fudge, noted "There is no persuasive evidence that the stokers of- fered to come back only as a group " In Woodlawn, the administrative law judge noted that the "August 19 letter" was, in effect, "notice that the labor dispute was still in existence " The Board, in any event, found it unnecessary to rely on the administrative law judge's related conclusion that the August 19 letter "did not state that any reinstated strikers would walk out on September 5 [and] no such threat could reason- ably be inferred " GARRETT RAILROAD CAR 1037 showing such notice is on- the party raising the affirma- tive defense of Section 10(b)." Cf. AMCAR Division, AFC Industries, 234 NLRB 1063 (1978), modified 596 F.2d 1344 (8th Cir. 1979), and cases cited. The Jefferson Chemical rationale, -cited by counsel for Respondent, is not predicated upon the 6-month limita- tion period of Section 10(b), instead,'this rule attempts to avoid expensive and time-consuming multiplicity of liti- gation Thus, in Peyton Packing Co.; 129 NLRB 1358, 1360 (1961), the Board stated: Generally speaking, sound administrative prac- tice, as well as fairness to respondents, requires the consolidation of all pending charges into one com- plaint. The same considerations dictate that, wher- ever practicable, there be but a single hearing on all outstanding violations of the ' Act involving the same respondent. To act otherwise results in the un- necessary harassment of respondents - Later, in Jefferson Chemical-Co., 200 NLRB 992 fn. 3 ( 1972), the Board explained:. . . we believe that*., . '. the General Counsel is du- tybound to investigate all matters which are encom- passed by the charge , and.to proceed appropriately .. thereafter. We believe that such multiple litigation of issues, which should have been presented in the initial pro- ceeding , constitutes a waste of resources and an abuse of our processes and that we should not permit it to occur. - In Teamsters, Local 705 (Gasoline Retailers), 210 NLRB 210 (1974), the Board, after quoting Peyton'Pack- ing, further explained: Separate litigation of roughly concurrent alleged violations has been held proper where the violations alleged in the second case "occurred after the com- plaint issued in the earlier case, were not known to the General Counsel at the time of the earlier hear- ing, were independent acts; and 'were not the type of alleged violation commonly known or readily discoverable, even after an exhaustive investiga- tion." And, the Board, in declining to apply this principle in Harrison Steel Castings, 255 NLRB 1426 (1981), noted: "There is nothing in the record to indicate that the Gen- eral Counsel was aware of the .allegations of the.present complaint at the time of the earlier proceeding"; the "prosecution of the instant case does not subject Re- spondent to unnecessary harassment"; and the "allega- tions of the instant complaint are not intertwined with those of the earlier consolidated complaints, but rather are completely separate from the prior litigation." The Board concluded-(id. at 1427): To accept Respondent's argument that the General Counsel be compelled' to,-litigate all unfair labor practices occurring during the pendency of litiga- tion of other, unfair labor practice charges against the same respondent would not only severely re- strict• the General Counsel's discretion, but also allow a respondent to delay indefinitely the ultimate litigation of any charges by simply engaging in fur- ther unlawful conduct. Cf.•Maremdnt Corp., 249 NLRB 216 (1980), and Giddings &'Lewis, Inc, 264 NLRB 561 (1982). • The • essentially undisputed and credited evidence of record. here shows that on July 25, 1979, the Employer notified the striking employees that it intended to resume operations and would replace strikers who did not return to work (255 NLRB at 622). The Employer, starting about July 31, commenced hiring striker replacements; 50 such replacements were hired between July 30 and September 28, 1979 (Jt Exh. 15) On August 17, Ferber; attorney for the Employer, apprised the Union at a nego- tiating session that the Employer had hired striker re- placements and the remaining strikers would be brought back to the extent'there were openings (Jt. Exh. 16). On September 17, Ferber, at a negotiating session, gave the Union a document stating generally that 48 striker-re- placements had been hired. (See Jt. Exhs. 1, 15, and 17.) There-were, as Ferber 'acknowledged, no "names" of .,new employees" furnished to the Union, just " numbers" (Tr. 182-183): At the end of the September' 28 negotiat- ing session, the Union advised the Employer that it would take the Company's "proposal on contract terms to the Union's membership for ratification on Sunday September 30" (255 NLRB at 622). On September 30, the Union notified the Employer that the "members had ratified the -agreement" and the "strikers were ready to go back to work" (255 NLRB at 622). 'As of September 30, there were some 38 employees still on strike; approxi- mately 20 strikers had returned to, work before the strike's end (Jt. Exh. 15). 'On October 5, the Employer, as discussed above, unlawfully withdrew recognition from the Union (255 NLRB at 622-623, 625-629). On October 8, the Union "request[ed] the names of the em- ployees who were hired on or after July 30, 1979; the date of hire and the job that 'they were hired for" (Jt. Exh. -4). On that same date, October 8, the Employer hired new employee Lumley. On October 9, the Em- ployer hired new employees Farah and Mains. On Octo- ber 15, the Employer, hired new employee Martin (Jt. Exh 21). On October 16, the-Employer-in response to the Union's October 8 request-refused to furnish the Union 'with the requested information because, asserted- ly, "the Company has no legal -obligation to furnish you with any information" (Jt. Exh 5) On October 19, the Union filed its initial unfair labor practice charge in Case 6-CA-12842 (G.C. Exh. 2). As noted supra, this charge included an allegation pertaining to "illegally hired re- placements for 46 employees" "on or about July 30, 1979." The' Union, when later apprised that General Counsel would not allege the strike to be an unfair labor practice strike, filed an amended charge on December 21, 1979, deleting reference to the above "illegally hired replacements for 46 employees"- "on or about July. 30, 1979" (G.C. Exh. 3). On December 27, 1979 , a complaint issued in the earlier - proceeding. The complaint was amended on: March 21, 1980,• and following hearings in April and May, the administrative - law judge issued his 1038 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision on October 15, 1980 (255 NLRB at 620). Then, the Union, by letter dated November 3, 1980 (Jt. Exh. 6), requested that the Employer: Please provide me with a. list of all new employees hired since the last day of September 1979, includ- ing the address and telephone number of each indi- vidual. Further, kindly provide information with re- spect to each individual explaining the reason why each such individual was hired, instead of one of your former employees who has been on strike prior to October. 1, 1979, but has not yet been re- called to work with you. On November 10, 1980, the Employer refused to supply this requested information because, assertedly, "there is no obligation on the Company's part to recognize, deal with or furnish any information to your organization" (Jt. Exh. 7). The Board, on April 6, 1981, issued its deci- sion in the earlier case (255 NLRB 620). The Employer thereafter again persisted in its refusal to "meet with" the Union or "comply with any of [its] requests" (Jt. Exh. 9). Finally, following issuance of the court's decision, the Union, on October 8, 1982, again renewed its request (Jt. Exh. 9). The Employer first furnished this repeatedly re- quested data on November 15, 1982 (Jt. Exh. 11). The Union filed the instant charge on January 26, 1983. At this hearing, Union Attorney Grossinger credibly testified that, during the investigation of Case 6-CA-- 12842, he never raised "with the investigator the issue of post-October 1, 1979 hires and reinstatements as a possi- ble violation." Grossinger explained that he was "un- aware of post-October 1, 1979 hiring by Garrett Railroad in- the particular jobs in dispute." Grossinger, "up to and including the time that the hearing took place in April of 1980 in Case 6-CA-12842," "didn't know that any hir- ings had taken place."• Union Representative Mannarino also credibly testified that prior to the receipt of Joint Exhibit 11, dated November 15, 1982, he too had "no in- formation, from the Company" that Lumley or Mains or Farah or Martin had -been hired or that Johnson had been reinstated during October 1979; he had "no infor- mation from the Company whatsoever who was hired or when they hired, them or whatever"; "Prior to the re- ceipt of that letter [he had] no knowledge whatsoever." Mannarino further explained that, "during the investiga- tion" of Case 6-CA-12842, he did not "raise with the NLRB any allegation that the Company violated the Act by hiring new employees after October 1, 1979, or rein- stating employees after October 1, 1979." Local Union President. Richard Luffey, in like vein, credibly testified that, prior to mid-November 1982, he, too, had no knowledge that the- .Company had hired Lumley or Mains or Farah or Martin or had reinstated Johnson during October 1979. Luffey denied that, "in [his] capac- ity. as president of the Local Union, during the investiga- tion and processing of 6-CA-12842 [he] . ; . . had any discussions with any representative of the NLRB in which [he] contended that the Company violated the Act by -hiring Lumley, Mains,' Farah and Martin in October 1979." He also denied "raising any contention that the Company violated the Act by reinstating L.A. Johnson." Finally, Dennis Boots, head of the union grievance com- mittee, similarly denied such "knowledge." (See also Exh. K annexed to G.C. Exh. 1(i), where counsel for Re- spondent states the "only issues" in the prior case.) Union Representative Mannarino also credibly noted that, after the 1979 strike commenced, "no Union dues [were] paid." Joint" Exhibit 15 shows that some 20 strik- ers abandoned the strike before its end. And, apparently, as the General Counsel asserts (see Jt. Exh. 15), Local Union officers were not included in the group of recalled remaining strikers.7 On this record, I find and conclude that Respondent Employer has not proven that the Union had actual or constructive 'notice of the Employer's October 1979 Laidlaw violations and therefore should now be barred under Section '10(b) of the Act. The essentially undis- puted and credible evidence falls far short of sufficiently demonstrating that the Union had actual or constructive notice of these October 1979 poststrike violations until the Employer finally disclosed this pertinent and relevant data to the Union during late 1982, following Board and court proceedings to enforce the Employer's compliance with Section 8(a)(1), (3), and (5) of the Act. Counsel for the Employer asserts that he has in fact demonstrated the requisite notice or knowledge citing, inter alia, the- fol- lowing (Br. 15-22): "individuals- were working in the plant during the strike" and "all these individuals were Union members and former strikers who had crossed the picket line and returned to work by July 31, 1979" before the.strike's end; the Employer gave the Union at the September 19, 1979 bargaining session "the number of striker replacements and returned strikers in each de- partment" and discussion ensued over "grievances" and "arbitration"; "as of October 5, 1979, there were 70 em- ployees working in the plant" including the approximate- ly 50 permanent striker replacements and 20 strikers who had abandoned the strike; the Union initially, and with- out success, had requested the relevant and pertinent striker replacement information from the Employer on October 8, 1979; and the Union, at the earlier unfair labor practice hearings, was in fact "furnished with a list of the names and dates of hire or reinstatement for all re- placements,and returned strikers as of October 5, 1979," which, of course, did not show the new hires of Lumley, Mains, Farah, and Martin or the reinstatement out of se- niority of Johnson. These and related indicia, cited by counsel for Respondent, do not demonstrate actual or constructive knowledge of poststrike Laidlaw violations. The Employer, after the strike ended, was repeatedly asked for this relevant and pertinent information and per- ° L A Johnson testified that he had "a conversation" with Union President Luffey "at a grocery store or school" "probably a month, maybe more, [he] didn't know exactly when" where Luffey assertedly "said that he knew that [Johnson] was back to work " Luffey denied having such a conversation I find Luffey's denial more reliable here.than the vague, incomplete, and general assertion of Johnson On this record, I am persuaded that Grossmger, Mannarino, Luffey, and Boots have credi- bly and truthfully related the pertinent sequence of events Their testimo- ny is in significant part mutually corroborative and they impressed me as trustworthy witnesses The testimony of Ferber is essentially undisputed I credit his testimony to the extent consistent with the above findings and undisputed documentary evidence. GARRETT -RAILROAD CAR 1039 listed in its unlawful refusal to bargain with the certified representative of its employees, steadfastly refusing until the General Counsel ultimately obtained enforcement of the Board's Order in the court of appeals. -I therefore reject this contention. This proceeding is not barred by Section 10(b).8 Further, counsel for Respondent's effort to invoke Jef- ferson Chemical is without substance. As demonstrated, the Jefferson Chemical rationale is aimed at avoiding mul- tiplicity of litigation and the consequent harassment of a respondent. Here, however,, Respondent • Employer, al- though repeatedly requested by the Union to furnish- it with pertinent and relevant Laidlaw data, persistently re- fused in clear derogation of its outstanding bargaining obligation. This record does not show that the General Counsel, or the Union, were apprised of poststrike Laid- law violations. Under all the circumstances, the present Laidlaw issue was not raised in the earlier proceedings; the General Counsel and.the Union were not informed of this violation; and Respondent Employer cannot now reasonably complain that-because of its persistent and unlawful refusal to supply this pertinent, and 'relevant ,data-it is now being harassed.9 D The Laidlaw Violations This record sufficiently demonstrates that Respondent Employer violated the poststrike Laidlaw rights of its economic strikers when it, hired new employees Lumley, Mains, Farah, and Martin for unit positions after having received the Union's September • 30, 1979 unconditional application on behalf of the remaining strikers to return to work. See Joint Exhibit 11, counsel for Respondent's November 15, 1982 letter to the Union, providing, inter alia, the names of "all new employees hired since Sep- tember 30, 1979." (Cf. Tr. 36-41. Also see Jt. Exh. 22,. Respondent's "striker recall list" by seniority, and Jt. Exh. 12.) Further, as for L. Johnson, recalled out of se- niority by the Employer following the Union's uncondi-, tional application, counsel for Respondent asserts - (Br. 37-40): It is undisputed that, prior to the Union's September 30, 1979, offer to return, Johnson contacted the Re- spondent, offered to return to work, and received a firm commitment from Respondent that 'he would be reinstated. Therefore, even assuming arguendo that the Union's September 30, 1979 offer was an unconditional one, nonetheless, the Respondent had, 8 The argument , although not pressed by counsel , could also be made here that, in the context of this sequence of events, the initial charges filed in Case 6-CA- 12842 were sufficient, without more, to support a subsequent or supplemental complaint alleging, as here, poststrike Laid- law violations In short, no new charge would be required to support this supplemental and continuing effort to bring the Employer into compli- ance with its outstanding obligations under the National Labor Relations Act Cf Circle Transport, 257 NLRB 902, 912 fn. 19 (1981). t Counsel for Respondent's related contention under Winer Motors, supra, is also without basis The Union's withdrawal, in the earlier pro- ceeding, of its charge and contention that, in effect, the strikers were unfair labor practice strikers and therefore could not be permanently re- placed, is different from its contention now that economic strikers' Laid- law rights have been violated Cf Super X Drugs Corp, 272 NLRB 1232 (1984) prior to that time, clearly obligated- itself to rein- state Johnson. - Johnson, at one point, testified that he had telephoned the Employer before the strike's end and "was more or less asking them if there was work . . . when [he] would call." Johnson elsewhere testified: . - Q. Okay, before the strike ended, did you ask to come back to work? A. Yes, I did. - - • ' ' Q. Okay, what-did they say? A. As soon "as they could, that I felt safe crossing the-picket line, that I -could come back to work. - On cross-examination,. , Johnson claimed, that he tele- phoned the Employer,at least twice a month before the strike ended; that he, "asked them if [he] could, if there was- work for" him; and that he was informed "that there was no work at, the present, time." Shortly prior to Octo- ber 22, Johnson was told by Company Representative Brian Donahue "to come back to. work . .. as soon as [he] felt safe." - , Company Representative Brian. Donahue testified that Johnson repeatedly telephoned him - before the strike's end and asked "to come back ' ', Donahueassertedly re- sponded: - There 'were no "openings at that time, but we wanted him back, we'would"like him to come back when there is an opening. ' Donahue added: "We' said-he could have his job back when.there's an opening." There 'were no "openings in the air brake shop before he was recalled." ' The testimony "of Johnson- and Donahue, assessed in the context of this entire record, if credited, does not, in my view, show any prestrike's end commitment, firm or otherwise, to reinstate Johnson. Johnson simply indicated a desire to return when he "'felt safe" and he was re- called by the Employer during October when there- was an opening 10 In short, we have here an employee who manifested a desire, during the strike, to -abandon the strike, when it was "safe"; management's general indica- tion of a willingness to 'recall him when' he was needed; and his reinstatement out of seniority during ' October. This disparate treatment of an employee, recalling him out of seniority after the strike's end, has not been shown to be for some legitimate business reason or- purpose and, assessed in the background of the Employer's 8(a)(1), (3), and (5) violations as detailed above, was inherently de- structive of employee, Section 7 rights. Cf. George Banta Co':, 256 NLRB "1197,' 1220 (198-1), -enfd.' 686 F.2d 10 (D.C. 'Cir. ' 1982). 'Alternatively, this 'record' provides'•suf- ficient evidence of the requisite union animus:' Thus, management, apprised that, a, striker wanted to, abandon the strike, singled 'him out-for_disparate favorable treat- ment some 3 weeks'after' the-strike ended. I find that the 10 I find the testimony of both Johnson and Donahue to be, in part, contradictory, unclear, vague, and incomplete As noted supra, I have discredited Johnson's attempt here to attribute " actual" notice of his out- of-sentonty reinstatement to Union Representative Luffey 1040 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD pose of this disparate treatment, viewed in context here, was to discourage further employee union support and activities. In sum, the Employer granted Johnson favor able treatment because he had indicated a desire to aban- don the strike before its end: CONCLUSIONS OF LAW 1. Respondent Company is an employer - engaged in commerce as alleged. 2. Charging Party Union is a labor organization as al- leged. 3. Respondent Company violated Section 8(a)(1) and (3) of the Act by failing and, refusing to reinstate- certain of its employees engaged in an economic strike, on the Union's unconditional application on their behalf to return to work, and by instead hiring four new employ- ees and reinstating one striker out of seniority, as found herein. 4. The unfair labor practices found above affect com- merce as alleged. - REMEDY 'To remedy the unfair labor practices found, Respond- ent will be directed to-insofar as it has not already done so-offer reinstatement to the economic striking employ- ees who were thus discriminated against, to their former positions or, if their former positions no longer .exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses sustained as a result of Re- spondent's discriminatory and unlawful conduct, _ by making payment to them of a sum of money equal to what they normally would have earned from the date of Respondent's discriminatory and unlawful conduct to the date of Respondent's offer of reinstatement or the lawful termination. of such obligation, less net earnings during such period, with backpay and interest thereon to be computed as provided in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962) 11 Respondent will also be directed to cease and desist from engaging in the conduct found unlawful here, in like or related conduct, and to post . the attached notice. 'On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 - - 11 The General Counsel, in his brief, would apparently not seek an order requiring' any offer to the affected employees , and- would further limit the extent of any backpay obligation It would appear that, in so limiting his requested remedy, he relies on subsequent events and negotia- tions between the parties not fully developed or explicated here The identity of the discnminatees, the monetary effect of the discrimination, and the impact of later events and negotiations on the above remedy may be fully developed if necessary in a backpay proceeding 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the' findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the ORDER The Respondent, Garrett Railroad Car & Equipment, Inc., New Castle, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in United Steelworkers of America and its Local 8089, AFL-CIO-CLC, or any other labor organization, by failing and refusing to rein- state its employees engaged in an economic strike, on the Union's unconditional application on . their behalf to return to work, and by, instead, hiring. new employees and•reinstating strikers out of seniority. _ ;• (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their Section 7 rights. ' - 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act.' (a) Offer, insofar as it has not already done so; rein- statement to its economic striking employees who' were discriminated against,' as found by the Board, to•'their former positions or,- if their former positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses sustained as a result' of its discriminatory and unlawful conduct, with interest, as provided in the Board's Decision and Order. (b) Pieserve and, on request, make available to the Board or its agents. for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in New Castle, Pennsylvania, copies of the attached notice marked "Appendix." t a Copies of the notice, on forms provided by-the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken. by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any-other material. - (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and, all objections to them shall be deemed waived for all pur- poses is If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " •GARRETT RAILROAD CAR • • 1041 APPENDIX NOTICE To EMPLOYEES POSTED BY•ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discourage membership in United Steel- workers of America, and its Local 8089, AFL-CIO- CLC, or any other labor organization, by failing and re- fusing to reinstate our employees engaged in an econom- ic strike, upon the Union's unconditional application on their behalf to return to work, and by, instead, hiring new employees and reinstating strikes out of seniority. WE- WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. - WE WILL offer-Insofar as we have not already done so-reinstatement to our economic striking employees who were discriminated against to their former positions or, if their former positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses sustained as a result of our discriminatory and unlawful conduct, with interest. GARRETT RAILROAD CAR & EQUIPMENT, INC.