N.L.R.B. v. Transport Service Co., 91-2049

Citation973 F.2d 562
Decision Date26 August 1992
Docket NumberNo. 91-2049,91-2049
Parties141 L.R.R.M. (BNA) 2163, 123 Lab.Cas. P 10,339 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPORT SERVICE COMPANY, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Robert J. Englehart (argued), N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Aileen A. Armstrong, Collis Suzanne Stocking, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.

Leonard R. Kofkin (argued), Fagel & Haber, Chicago, Ill., for respondent.

Before FLAUM, and MANION, Circuit Judges, and CURRAN, District Judge. *

MANION, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order remedying Transport Service Company's ("Transport") violations of the National Labor Relations Act, 29 U.S.C. § 151 et seq. ("Act"). The NLRB found that Transport violated 29 U.S.C. §§ 158(a)(5) and (1) ("sections 8(a)(5) and (1)") by unilaterally ceasing to make contributions to the charging Union's 1 pension and welfare fund on behalf of certain unit employees who worked before and during a strike; by failing and refusing to furnish relevant information requested by the Union during collective-bargaining; and by withdrawing recognition from the Union as the employees' collective bargaining representative. The Board also found that Transport violated 29 U.S.C. §§ 158(a)(3) and (1) ("sections 8(a)(3) and (1)") by failing to reinstate certain former striking employees in a timely manner. As explained below, we grant in part and deny in part the NLRB's application for enforcement of its order.

I. Background

Transport is an Illinois corporation that transports bulk commodities for major chemical and food-grade shippers throughout the continental United States. Transport operates from ten terminals in eight states, but only one of its two Chicago, Illinois, facilities figures in the events leading to the NLRB's decision. The Union has been the exclusive collective bargaining representative of the employees at the Chicago terminal since 1946.

The last collective bargaining agreement between the Union and Transport expired October 31, 1985. Negotiations for a new agreement began in the fall of 1985 but were unsuccessful, and the employees continued to work under the terms of the expired agreement. After further unsuccessful bargaining sessions, Transport's chief negotiator, Robert Schurer, extended Transport's final offer in a letter to Edward Wojtczak, the Union's chief negotiator, dated March 21, 1986. The Union rejected the offer. No negotiations took place for six months, but Transport and the Union continued to observe the terms of the expired collective bargaining agreement.

On September 26, 1986, Schurer notified the Union that the terms of the March 21 offer would be implemented as of September 28. In response, Wojtczak initiated another round of proposals and counterproposals with Schurer. Finally, in December 1986, Schurer announced that Transport would reinstate the terms of the March 21, 1986 offer. The Union has not alleged that Transport bargained in bad faith.

On January 4, 1987, the unit employees began an economic strike and established a picket line. At the time of the strike, the unit included 13 employees: eight mechanics, one utilityman and four washers. 2 One of the four washers had suffered a pre-strike injury and was out of work on total disability. Three of the pre-strike employees continued to work during the strike: one utilityman and two mechanics. That left nine unit positions unfilled as a result of the strike: six mechanics and three washers.

On January 5, 1987, Transport notified the strikers that it would begin the process of permanently replacing them if they did not return to work immediately. Transport began interviewing permanent replacements shortly thereafter and hired three mechanics, three washers and an additional utilityman to supplement the utilityman who had worked during the strike. That left Transport with only three mechanics less than it had at the beginning of the strike.

The strike ended on January 13, 1987. By this time, all of the permanent replacements had been hired, although not all of them had started working.

On January 13, 1987, Wojtczak notified Schurer by telephone that the strike was over. Schurer explained that Transport had hired some permanent replacements but that Schurer, whose office was not in Chicago, did not know how many. Schurer agreed to meet Wojtczak on Thursday, January 15. Wojtczak subsequently sent Schurer a telegram reiterating that all employees would return to work unconditionally and warning that Schurer should reconsider his position that all employees would not be reinstated. Schurer responded with a telegram stating:

No refusal to reinstate was stated or implied. Issue is only number of employees required due to extent of permanent replacements and method of reinstatement to accommodate permanent replacements. All tank washers have been replaced but three mechanics have not. Please select three mechanics to report to work immediately at commencement of regular shift. Your version of our conversation in which you expressed no real understanding of the permanent replacement issue is incorrect and contrary to fact. I confirm meeting with you at 9:00 a.m. Thursday, January 15, 1987 at your office.

(emphasis added). The next day, Schurer sent a second telegram which stated:

In my haste to accommodate your unexpected offer late yesterday to return all strikers and to respond to your allegations, I misstated the substantial number of permanent replacements and the availability of work in view of the limited amount of equipment at the terminal during the strike. I will collect all information for review and discussion at tomorrow's meeting.

The parties met as agreed. At the meeting, Transport told the Union that only one mechanic's position in building maintenance was available to a returning striker. Transport recommended striking mechanic Danhoff should fill the position because although he was less senior than other striking mechanics he held the job prior to the strike. The Union agreed that Danhoff could take the position.

On February 17, 1987, Transport and Union representatives met again. At the meeting, the parties discussed contract proposals. Furthermore, Transport informed the Union that the permanent replacements were still employed and that the unreinstated striking employees were on a preferential hiring list. Finally, Transport agreed to provide the names, addresses and phone numbers of permanent replacements as well as information regarding Transport's pension plan proposal.

In mid-March, the Union had not yet received the requested information and telephoned Transport's attorney. On April 20, 1987, Transport notified the NLRB's regional office that Transport did not believe that the Union represented a majority of its employees in an appropriate unit and thus Transport had no obligation to provide the information that the Union sought.

The ALJ determined that Transport violated the Act in three respects. First, in violation of sections 8(a)(5) and (1), Transport failed to make payments to the Union's Health and Welfare Fund or the Union's Pension Fund on behalf of three strikers (McCormack, O'Connor and Taylor) who were hired after the collective bargaining agreement expired but before the strike and who continued to work during the strike. Second, in violation of sections 8(a)(3) and (1), Transport failed to reinstate three returning strikers (Anderson, McClain and Golden) and to timely recall two returning strikers (Carter and DeMoss). Third, in violation of sections 8(a)(5) and (1), Transport withdrew recognition from the Union and failed to provide relevant information that the Union requested. The ALJ rejected the General Counsel's other allegations.

The NLRB accepted virtually all of the ALJ's findings of fact and conclusions of law. Accordingly, the NLRB issued an order requiring Transport, among other things, to recognize the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit; make contributions into the Union's pension, health and welfare funds on behalf of McCormack, O'Connor, and Taylor and make them whole for any losses attributable to Transport's failure to make the contributions; furnish the requested information to the Union; reinstate Anderson, McClain, and Golden to their former positions or substantially equivalent positions and make them as well as Carter and DeMoss whole for any loss of pay by reason of Transport's failure to timely reinstate them; and, provide information to the Union necessary to calculate the backpay due under the terms of the order.

Transport contests enforcement of the NLRB's order in three respects. First, because Transport provided a health and pension benefits plan to employees hired after the expiration of the collective bargaining agreement but before the strike, Transport argues that the employees were not harmed by Transport's failure to pay into the Union fund on behalf of the employees and are not entitled to any remedy. Second, Transport argues that it should not have to reinstate Anderson, McClain, and Golden or make whole any returning strikers because the ALJ's findings on these questions were not supported by substantial evidence on the record. Third, Transport contends that the ALJ's findings that Transport unlawfully failed to provide information to the Union and unlawfully failed to recognize the Union were predicated on significant errors.

II. Discussion

"The General Counsel bears the burden of proving unfair labor practice allegations by a preponderance of the evidence." Louisiana Dock Co. v. NLRB, 909 F.2d 281, 286 (7th Cir.1990) (citing NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d...

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