Garrett Railroad Car & Equipment, Inc.

158 DECISIONS OF THE 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 June 15, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On February 24, 1988, Administrative Law Judge Frank H. Itkin issued the attached supple- mental decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to reaffirm its Order previously issued in this proceeding at 275 NLRB 1032 (1985). ORDER The National Labor Relations Board reaffirms its Order previously issued in this proceeding at 275 NLRB 1032 (1985). 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.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Donald J. Burns, Esq., for the General Counsel. John E. Lyncheski and Charles M. Greenberg, Esqs., for the Employer. Clarence Mannarino, Esq., for the Union. SUPPLEMENTAL DECISION AND ORDER FRANK H. ITKIN, Administrative Law Judge. On July 9, 1985, the Board found in the instant case that Re- spondent Employer had 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 September 30, 1979 unconditional application on their behalf to return to work, and by instead thereafter hiring four new employees and reinstating one striker out of seniority." The Board's Decision and Order are re- ported at 275 NLRB 1032. The Employer had argued, inter alia, that the underlying unfair labor practice charge, filed by the Union in the instant case on January 26, 1983, and amended on March 28, 1983, was time- ' The four new employees are A G Lumley, J T Mains, T G Farah, and P E Martin The reinstated striker is L A Johnson barred under Section 10(b) of the Act. The Board, in re- jecting this contention, found: Respondent, by refusing from October 1979 until November 1982 to furnish the Union with the re- quested names of new hires and their dates of hire, unlawfully concealed from the Union the informa- tion necessary to put the Union on notice of the Laidlaw violations. Once provided with that infor- mation, the Union filed the instant charge within the limitations period ... . On October 28, 1986, the United States Court of Ap- peals for the Third Circuit, on cross-applications for review and enforcement of the Board's Order in the in- stant case, vacated the Board's Order and remanded the case for further proceedings. The court found that sub- stantial evidence supports the Board's finding that the Union had made an unconditional application on behalf of the strikers to return to work on September 30, 1979. The court, in discussing the 10(b) issue, stated: "Whether this is viewed as a case of unlawful concealment or an application of the general rule that the statute of limita- tions does not begin to run until the moving party dis- covers or should have discovered the relevant facts, the Union must meet the due diligence requirement"; "there is absent any discussion of the due diligence factor by either the ALJ or the Board"; and The ALJ and the Board therefore may have applied an incorrect legal standard in failing to consider whether the Union had exercised due diligence in discovering the operative facts giving rise to its claim of an unfair labor practice when the Compa- ny hired replacement employees. Accordingly, the court remanded this case "in order that the NLRB may ascertain whether the Union exercised due diligence in discovering the facts giving rise to its claim."2 On May 19, 1987, the Board issued its Order remand- ing the instant proceeding to the administrative law judge. The Board noted that it had accepted the court's remand and had notified the parties that it would take appropriate action consistent with the court's remand; that, having considered the entire record, it "finds that the fact-finding desired by the Court cannot be made on the basis of the evidence in the existing record"; and that, consequently, it is remanding the case to the admin- istrative law judge for a further hearing. On May 27, 1987, the administrative law judge there- upon issued a notice of hearing on remand. A supple- mental hearing was held on July 7, 1987, in Pittsburgh, Pennsylvania. On the entire record in this proceeding, in- cluding my observation of the demeanor of the wit- nesses, I make the following 2 Circuit Judge Weis, in his concurring and dissenting opinion, joined in the opinion of the court "explaining the legal error in the standard used by the Board to toll", however, he would not have remanded the case to the Board 289 NLRB No. 22 GARRETT RAILROAD CAR 159 FINDINGS OF FACTS The Union was certified by the Board as collective- bargaining agent of the Employer's New Castle, Pennsyl- vania production and maintenance employees in 1973. The parties thereafter entered into a series of collective- bargaining agreements. On February 20, 1979, the parties began negotiations for a new agreement. On April 25, 1979, the employees went on strike in support of their contract demands. There were at the time some 108 pro- duction and maintenance employees. On June 25, 1979, the Employer notified the striking employees that it in- tended to resume operations and would replace strikers who did not return to work. On September 27, 1979, the Employer discharged certain strikers for strike miscon- duct. On September 30, 1979, the Union made an uncon- ditional application on behalf of the strikers to return to work. The Employer, by letter dated October 5, 1979, withdrew recognition from the Union. On October 19, 1979, the Union filed unfair labor practice charges in Case 6-CA-12842. An amended charge was filed on December 21, 1979. The General Counsel issued a complaint in that proceeding alleging, inter alia, that the Employer had violated Section 8(a)(1), (3), and (5) of the Act by inducing employees to sign a petition asserting that they no longer wished to be repre- sented by the Union; by discharging three employees for alleged strike misconduct; by refusing to acknowledge, reduce to writing, execute or be bound by the collective- bargaining agreement agreed to by the parties at strike's end; and by withdrawing recognition from the Union. Hearings on this complaint were held before an adminis- trative law judge on April 28 and 29 and May 6, 1980. The administrative law judge issued his decision on Oc- tober 15, 1980. The Board, on review, issued its Decision and Order on April 6, 1981, reported at 255 NLRB 620. The Board found that the Employer had violated Sec- tion 8(a)(1), (3), and (5) of the Act by withdrawing rec- ognition from the Union; by refusing to acknowledge, reduce to writing, execute, and abide by the contract agreed to by the parties at strike's end; by inducing, en- couraging, and aiding employees on the Employer's premises during worktime to circulate and sign anti Union petitions; and by discharging strikers for alleged misconduct. On June 29, 1982, the United States Court of Appeals for The Third Circuit, insofar as pertinent here, sustained the Board's findings, in its Decision re- ported at 683 F.2d 731. The instant case involves, as noted, the poststrike rein- statement rights of the economic strikers. The earlier proceedings, as demonstrated above, did not involve this issue. For, as the Board explained in 275 NLRB at 1032 fn. 1, the reinstatement rights of the economic strikers were not the subject of the earlier charges; the Union did not make its unconditional application on behalf of the strikers until September 30, 1979; the Employer did not 8 "S.Tr " references are to the supplemental transcript of hearing, "S G C Exh " references are to supplemental General Counsel 's Exhibits, and "S R Exh " references are to supplemental Respondent 's Exhibits "Tr," "G C Exh," "R Exh," and "It Exh " references are to the initial transcript, General Counsel's Exhibits, Respondent's Exhibits, and Joint Exhibits, respectively, in the instant proceeding subsequently hire any new employees until commencing on October 8, 1979; and the charge filed on October 19, 1979, "did not raise or encompass any Laidlaw viola- tions." Moreover, Howard Grossinger, attorney for the Union, as previously found (275 NLRB at 1033), credi- bly explained that he was not then aware of the hiring of new employees or reinstatement of strikers "after Octo- ber 1, 1979"; the earlier charges had no "purpose with respect to any post-October 1, 1979 hirings and reinstate- ments"; and we knew of no post-October 1, 1979 replacements or hires by [Respondent] for those who were on strike or in jobs formerly held by those on strike. There were some 108 production and maintenance unit employees as of April 25, 1979. As previously found (275 NLRB at 1037-1038), the Employer hired some 50 strik- er replacements between July 30 and September 28, 1979. On September 17, 1979, James Ferber, the Em- ployer's attorney, gave the Union a document stating generally that 48 striker replacements had been hired. Ferber acknowledged that no "names" of "new employ- ees" were furnished to the Union, " just numbers." As of September 30, when the Union made its unconditional application to return on behalf of the strikers, there were some 38 employees still on strike; approximately 20 stnk- ers had returned to work before strike's end. On October 5 the Employer unlawfully withdrew recognition from the Union. On October 8 the Union "request[ed] the names of the employees who were hired on or after July 30, 1979, the date of hire and the job that they were hired for." On October 8 the employer hired new em- ployee Lumley; on October 9 it hired new employees Mains and Farah; on October 15 it hired new employee Martin; and on or about October 22 it reinstated less senior employee Johnson. On October 16 the Employ- er-in response to the Union's request of October 8-re- fused to furnish the Union with the requested informa- tion because "the Company has no legal obligation to furnish you with any information .. .." Later, follow- ing issuance of the administrative law judge's decision in the earlier proceeding, the Union, on November 3, 1980, again requested the Employer to provide , inter alia, "a list of all new employees hired since the last day of Sep- tember 1979 . ..." On November 10 the Employer again refused because "there is no obligation on the Company's part to recognize, deal with or furnish any information to your organization ... ." The Board issued its Decision and Order in the initial case on April 6, 1981. The Employer again persisted in its refusal to "meet with" the Union or "comply with any of [its] re- quests . . . ." Following issuance of the Court's decision in the initial case, the Union, on October 8, 1982, again renewed its request. The Employer first furnished the re- quested data on November 15, 1982, and the instant charge was filed on January 26, 1983. (See Jt. Exhs. 4-7 and 9-11.) As previously found (275 NLRB at 1038), Union At- torney Grossinger credibly testified that, during the in- vestigation of Case 6-CA-12842, he never raised "with the investigator the issue of post-October 1, 1979 hires 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and reinstatements as a possible violation." Grossinger explained that he was "unaware of post-October 1, 1979 hiring by Garrett Railroad in the particular jobs in dis- pute." 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 hirings had taken place." Union Representative Clarence Mannarino credibly testi- fied that prior to the receipt of Joint Exhibit 11, dated November 15, 1982, he too had "no information from the Company" that Lumley or Mains or Farah or Martin had been hired or Johnson had been reinstated during October 1979; he had "no information from the Compa- ny whatsoever who was hired or when they hired them or whatever"; "Prior to the receipt of that letter [he had] no knowledge whatsoever." Mannarino explained that "during the investigation" of Case 6-CA-12842, he did not "raise with the NLRB any allegation that the Com- pany violated the Act by hiring new employees after Oc- tober 1, 1979, or reinstating employees after October 1, 1979." Local Union President Richard Luffey 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 Johnson." Dennis Boots, head of the union grievance committee, similarly denied such "knowledge." Union Representa- tive Mannarino also credibly noted that, after the 1979 strike commenced, "no Union dues [were] paid." Joint Exhibit 15 shows that some 20 strikers abandoned the strike before its end. And, local union officers were not included in the group of recalled remaining strikers. Clarence Mannarino, who has since retired as a union representative, testified again in these supplemental pro- ceedings. He again explained that, prior to receipt in No- vember 1982 of the requested information concerning hires by the Employer since September 30, 1979, he had no independent knowledge that Lumley, Farah, Martin, or Mains had been hired from October 8 to October 15 and that Johnson had been reinstated shortly thereafter. Mannarino was asked whether he had attempted to get this "information from any other source." He explained that "there is no other source of information"; the Em- ployer "did not recall any Union officers to work" fol- lowing the strike; "the employees that were working in the plant . . . did not support the Union"; "no one was paying any Union dues"; and the only thing we did was keeping our ears open to see if we could get any information or rumors, and there were none [concerning the hirings in ques- tion.] He also explained that "there was no basis to file" an unfair labor practice charge before the November 1982 disclosure of the poststrike hires because We had no general information or specific informa- tion that such hinngs took place. Consequently, the Union would not have been in a position with the evidence to be presented [to] support . . . that charge. Further, he did not ask counsel for the General Counsel during the initial proceedings "to attempt to secure that information" because "such requests would have been fruitless." The Employer had made clear "that they were not going to comply" with the earlier outstanding admin- istrative law judge's and Board's decisions. On cross-examination, Mannarino acknowledged that, prior to the strike, he "knew a lot of the employees that worked there"; however, "There was a heck of a lot of people I know of by face, but not a name. Mannarino was present periodically at the picket line during the strike, which ended on September 28, 1979. Local Union President and senior employee Richard Luffey was present at the picket line "regularly." Union Officer Jen- nings Dean was also at the picket line. Further, Mannar- ino recalled, during the strike, We [the pickets and union officials] never seen the employees, the scabs that they hired, the replace- ments, because the Company transported those people by vans . . . enclosed, they were closed up, no windows . . . . You couldn't see who was going in, how many was going in . . . . From the strike's end in September 1979 until the Em- ployer furnished the requested information in November 1982, Mannarino admittedly did not go to the Employ- er's premises "to observe who was going in and out of the plant." Mannarino was questioned if he had asked the local union representatives "to find out the identities of the people that was back at work." He explained that he did ask and was informed "none of the boys would want to say anything. They were strictly-they were just anti- Union." James Hill, general foreman for the Employer, testified that Johnson was a member of the Union prior to the strike; that Local Union Representatives Luffy and Dean knew Johnson "by sight"; that Johnson drove to work at the plant after the strike and parked on the lot; that Union Representative Luffy never asked Hill "how many people were working at Garrett after September 30, 1979" or "whether any individuals were hired after Sep- tember 30, 1979"; that Union Representative Dean also did not ask him similar questions; and that he never saw Union Representatives Luffy, Dean, or Boots in the plant parking lot "observing who was coming or going from the plant." It is undisputed that Luffy was seventh on the plant "seniority list" and Johnson was 28th. (See Jt. Exh. 23.) On cross-examination, Hill was asked "If Mr. Luffy or Mr Dean had asked you about who had been hired after the strike ended, would you have told them?" Hill re- plied: "I wouldn't have answered them."4 4 I credit the supplemental testimony of Mannarino and Hill as summa- rized above Their testimony is essentially undisputed. The conflicts, if Continued GARRETT RAILROAD CAR 161 Discussion The Board has accepted the remand of the court of appeals. The law of the case was stated by the court, as follows: Congress has adopted a policy under the Nation- al Labor Relations Act "to bar litigation over past events after records have been destroyed, witnesses had gone elsewhere, and recollections of the events in question have become dim and confused . . . and of course to stabilize existing bargaining -relation- ships." Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 419 (1960). Section 10(b) of the statute was en- acted in response to the complaint that people were being required to respond to stale charges. Id. at 424. [Quotation of Sec. 10(b) of the Act omitted.] Clearly more than six months had elapsed before the Union filed the unfair labor charge in this pro- ceeding, but federal statutes of limitations are sub- ject to the equitable discovery doctrine. This tolling rule provides that a limitation period begins to run when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation. NLRB v. Don Burgess Constr. Co., 596 F. 2d 378 (9th Cir. 1979); NLRB v. Allied Prod. Corp., 548 F.2d 644 (6th Cir. 1977). Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946), articulated a refinement of the doctrine for cases of fraudulent concealment: Where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circum- stances or efforts on the part of the party com- mitting the fraud to conceal it from the knowl- edge of the other party. The court observed further, "[t]his equitable doc- trine is read into every federal statute of litpita- tions." Id. Subsequent case law confirms that due diligence is an essential constituent of the tolling rule. It is ap- plied even where there has been fraudulent conceal- ment. In those instances, the courts have stated that "merely intoning the word `fraudulently' is not suf- ficient to avoid the statute . . . [T]he elements of this counterpoise . ..." include the exercise of due diligence. Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 574 (4th Cir. 1976). A party's mere ignorance of the circumstances "does not con- stitute due diligence to discover the operative facts of his claims." Shapiro v. Cook United, Inc., 762 F.2d 49, 51 (6th Cir. 1985); see also Demars v. General Dynamics Corp., 779 F.2d 95, 99 (1st Cir. 1985); Metz v. Tootsie Roll Indus., Inc., 715 F.2d 299 (7th Cir. 1983). any, arise in the inferences and interpretations to be drawn from their supplemental testimony. The equitable discovery doctrine, as shown in the court's opinion, has been considered on many occasions by the Board and courts. See also Ladies Garment Work- ers v. NLRB, 463 F.2d 907, 921-923 (D.C. Cir. 1972) ("the company actively concealed from the union its de- cision to relocate .. .. but also the circumstances sur- rounding the decision"); ACF Industries v. NLRB, 592 F.2d 422, 429-431 (8th Cir. 1979) ("fraudulent conceal- ment of vital information" pertaining to subcontracting); Baskin v. Hawley, 807 F.2d 1120, 1130-1131 (2d Cir. 1986) ("active concealment" in an action arising out of loss of pension benefits). The court explained in Baskin v. Hawley, supra: There was evidence of active concealment. Con- cealing the actionability of a known injury is suffi- cient to toll the statute of limitations. . . . [See cases cited.] Nor was the proof of [claimant 's] diligence inad- equate to support this finding . It is settled that rea- sonable diligence does not require a person to com- mence a lawsuit in order to procure court -ordered discovery of concealed facts. And in Glazier Steel Corp. v. Toyomenka, Inc., 392 F.Supp . 500 (D.C.S.D.N.Y. 1974), the court also ob- served: Defendants' resistance to discovery made it impossi- ble for plaintiff to obtain information regarding its cause of action . It is true that "mere silence, where there is no duty to speak , does not toll the statute" . ... However, the history of discovery in this case contains several instances in which judges and magistrates held that defendants were under a "duty to speak." In these circumstances , their failure to do so may well have constituted an active conceal- ment. For, courts have tolled statutes of limitations in cases where, inter alia, a party failed "to disclose information which he had a statutory duty to disclose and such non- disclosure prevented a plaintiff from realizing that he possessed an actionable claim." Cf. Knight v. Brown Transport Corp., 806 F.2d 479, 484 (3d Cir. 1986). The credible evidence of record in the instant case shows that the Union did not know which employees the Employer may have hired or reinstated following the strike, when they may have been hired or reinstated and for what jobs they may have been hired or reinstated. The Union repeatedly requested such information from the Employer. The Employer, as part of its adamant re- fusal to recognize and bargain with the Union, refused to disclose this and related information . The Employer was under a statutory duty to disclose such information to the Union . Thus, as the Board found, the Employer, by refusing from October 1979 until November 1982 to furnish the Union with the requested names of new hires and their dates of hire , unlawfully con- 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cealed from the Union the information necessary to put the Union on notice of the Laidlaw violations. Union Representative Mannarino, in the initial and supplemental hearings, credibly testified that prior to re- ceipt in November 1982 of the requested information concerning the hires and reinstatements since September 30, 1979, he had no independent knowledge that Lumley, Farah, Martin, or Mains had been hired from October 8 to October 15, 1979, or that Johnson had been reinstated shortly thereafter. He credibly explained that there was "no other source" for such "information"; the Employer "did not recall any Union officers to work" following the strike; the "employees that were working" (including the some 20 persons who had abandoned the strike and 50 striker replacements) "did not support the Union"; ,.no one was paying Union dues"; and there were no "rumors" concerning such hirings. He credibly recalled asking local union representatives "to find out the identi- ties of the people that was back at work" and he was told that "none of the boys would want to say anything . . . [t]hey were just anti-union." Indeed, General Fore- man Hill, a former employee and union official, candidly acknowledged that if local union representatives "had asked [him] about who had been hired after the strike ended," he "wouldn't have answered them." This record makes it clear that any additional requests for such infor- mation would have been an exercise in futility. The Employer suggests in its brief that the Union should have gone to the plant entrance at strike's end and observed who was going to work. The Employer does not adequately explain how, by such observation of some 70 persons going to work including 50 striker re- placements covertly transported to and from the plant during the strike, the Union would have been able to de- termine that new employees Lumley, Farah, Mains, and Martin had been hired after the strike, when they had been hired, and for what jobs they had been hired. The Employer also suggests that the Union, by standing at the plant entrance after the strike, would have ultimately spotted Johnson going to work; he was a more junior employee than senior unreinstated employees; and "thus the Union would have discovered a Laidlaw violation. However, the Employer does not adequately explain how, by such observation, the Union would have been able to determine exactly when Johnson was recalled or for what job he was recalled. Significantly, the Employ- er previously argued in this case that it had made a "commitment," prior to the strike's end, "to reinstate former striker Johnson." 275 NLRB at 1032 fn. 3. In addition, Union Representative Mannarino credibly explained why no unfair labor practice charges were filed before the November 1982 disclosure of this infor- mation. The Union had "no basis to" file such charges; it had no "general information or specific information that such hirings took place"; and, consequently, it would not have been able to support such charges and would have thus risked a dismissal or withdrawal. Moreover, Man- narino credibly explained that he did not ask the General Counsel "to attempt to secure that information" during the earlier proceedings because, in view of the Employ- er's steadfast refusal to recognize and bargain, such a re- quest would have been "fruitless." In sum, I find and conclude that the Employer, in vio- lation of its statutory duty, actively and unlawfully con- cealed from the Union the requested information pertain- ing to its poststrike hires and reinstatement; this request- ed information was necessary for the Union to file the in- stant unfair labor practice charge; the Union, in the exer- cise of reasonable due diligence, was unable to obtain this necessary information from any other source; and, therefore, under the circumstances of this case, the stat- ute of limitations should be tolled during the pertinent 1979-1982 period. I would therefore recommend to the Board that it again adopt the findings, conclusions, and order as set forth in 275 NLRB 1032.5 5 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 Board and all objections to them shall be deemed waived for all pur- poses