Petition for Writ of Certiorari — Consolidated Freightways v. National Labor Relations Board

89-1839 FILES

JUN 4 1999

N Baten SPANIOL, J

oO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

CONSOLIDATED FREIGHTWAYS,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JEFFREY LEE MADOFF

MATKOV, SALZMAN, MADOFF &

GUNN

100 West Monroe Street

Suite 1500

Chicago, Illinois 60603-1906

(312) 332-0777

Counsel of Record

June 4, 1990

i

QUESTION PRESENTED

1. In determining whether an employer’s backpay liability is

reduced by losses wilfully incurred by a discharged employee,

may the Board abandon any inquiry into the validity of the

employee’s reasons for rejecting a reinstatement offer, solely

because the offer contained a condition unknown to the employee

when he refused it and unrelated to the refusal.

PARTIES TO THE PROCEEDINGS

In addition to the parties identified in the caption, Charles

Hennessey, the charging party, appeared below in the initial pro-

ceedings before the Board and the court of appeals.

The corporate identities and relationships of petitioner, its par-

ent, and the non-wholly-owned subsidiaries thereof are listed in

the Appendix (App., infra, 79a-80a).

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

PAGE

CASES

Consolidated Edison v. NLRB, 305 U.S. 197 (1938) 7

Eastern Die Co., 142 N.L.R.B. 601 (1963),

; enforced, 340 F.2d 607 (1st Cir. (1965), cert.

denied, 381 U.S. 951 (1965) .............. 4

. Ekco Products Co., 117 N.L.R.B. 137 (1957) .... 4

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ... 7

Hribar Trucking, Inc., 166 N.L.R.B. 745 (1967),

enforced in part, 406 F.2d 854 (7th Cir. 1969) . 4

Leroy W. Craw, d/b/a Craw & Son, 244 N.L.R.B.

241 (1979), enforced, 622 F.2d 579 (3d Cir.

I I 5, 9

NLRB v. Financial Institution Employees, 475

eee eeeee 6

; NLRB v. Gullett Gin Co., 340 U.S. 361 (1951) ... 7

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) 6,7, 8, 9, 10

Research Designing Service, Inc., 141 N.L.R.B.

, CO 4

4

d L. Ronney & Sons Furniture Ma:vufacturing Co.,

97 N.L.R.B. 891 (1951), enforced as modified,

206 F.2d 730 (9th Cir. 1953), cert. denied, 346

i kk pee ee teeter teens 4

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .... 8

Statute:

National Labor Relations Act, 29 U.S.C. 151 et

seq.:

IE MPD, SONG) 2 0 ee eee ee 2

Miscellaneous:

Elkouri & Elkouri, How Arbitration Works

(Fourth Edition, 1985 and 1985-87 Supp.) ... 7

C. McCormick, Handbook on the Law of Damages

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

CONSOLIDATED FREIGHTWAYS,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Consolidated Freightways petitions for a writ of certiorari to

review the judgment and opinion of the United States Court of

Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The most recent opinion of the court of appeals (App., infra,

la-15a) is reported at 892 F.2d 1052. The supplemental decision

and order of the National Labor Relations Board (NLRB or

Board) (App., infra, 16a-26a), on earlier remand from the court of

appeals, are reported at 290 N.L.R.B. No. 85. The original opin-

ion of the court of appeals remanding the case to the Board (App.,

infra, 27a-42a) is reported at 669 F.2d 790. The original decision

and order of the Board (App., infra, 43a-47a) are reported at 253

N.L.R.B. 988. The decision of the administrative law judge

(App., infra, 48a-74a) is also reported at 253 N.L.R.B. 988.

2

JURISDICTION

The opinion of the court of appeals (App., infra, la) was

entered on December 29, 1989,! and a timely petition for rehear-

ing with suggestion for rehearing en banc was denied by the court

of appeals on March 5, 1990. (App., infra, 75a-76a). The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 10(c) of the National Labor Relations Act (NLRA), 29

U.S.C. 160(e) (App., infra, 77a-78a), concerning the remedial

power of the National Labor Relations Board.

STATEMENT

The petitioner (employer) discharged a union-represented

employee. Pursuant to the exact terms of a final and binding

arbitration award resolving the employee’s grievance, the

employer offered the employee reinstatement to his prior posi-

tion, with full seniority and health and welfare benefits, but

without backpay and with a “final warning letter.” The dis-

charged employee, who was admittedly unaware of the warning

letter term of the award when he responded to the employer’s

offer, flatly refused the apparently unconditional offer of rein-

statement, expressly stating that he would not return to work

unless he received backpay—a condition which the employee

could not lawfully place on his reinstatement under this Court’s

decisions.

The employee subsequently filed an unfair labor practice

charge with the Board and, after a hearing, an administrative

law judge ordered full reinstatement, without the warning letter

and with backpay, finding that the employer’s previous reinstate-

ment offer, rejected by the employee, did not toll backpay or a

second reinstatement offer, since it was rendered conditional by

1 Judgment was entered on the same date for mandate purposes only.

ae: a at it ane,

9.

the absence of back pay and by the warning letter requirement of

the award. The employer appealed to the Board, which held that

the offer had not tolled backpay or reinstatement, solely because

of the warning letter term, found by the Board to be an invalid

condition on the offer.

The employer petitioned for review of the Board’s order, citing

long-standing precedent that conflicted with the Board’s deci-

sion. The court of appeals denied enforcement, remanding the

case to the Board for explanation and clarification of the rule it

was applying to the case. On remand, the Board overruled its

long-standing rule, relied upon by the employer, that an

employer’s backpay liability is tolled when an employee rejects

an offer of reinstatement without knowledge of, and regardless

of, the conditionality of the offer. The Board held that, in assess-

ing the tolling claim, it will no longer make any inquiry into an

employee’s reasons for refusing tu accept an apparently valid

reinstatement offer, if the offer is subsequently found not to be

“facially valid.” Thus, if the offer is subsequently found to be

conditional and therefore invalid, then no examination of the

employee’s reasons for rejecting the offer will be conducted, even

if the employee was not aware of the condition at the time of his

refusal, and even if the employee’s reason was unlawful and

unrelated to the condition.

Upon review, the court of appeals enforced the Board’s order.

The petitioner seeks review of this decision, which is in conflict

with this Court’s decisions and which it believes presents an

important and recurring question.

1. The petitioner is engaged in the intrastate and interstate

transportation of freight by truck. On March 22, 1979, the

employment of driver Charles Hennessey (employee or Hennes-

sey) was terminated as the result of a dispute regarding the

safety of a truck. Hennessey filed a grievance under the applica-

ble collective bargaining agreement and, on May 1, 1979, peti-

tioner was ordered by an arbitration panel to reinstate Hennessey

with full seniority and health and welfare benefits, but without

4

backpay and with a “final warning letter.” Petitioner immedi-

ately complied with the award and offered Hennessey reinstate-

ment, but Hennessey, who testified he was completely unaware of

the warning letter term of the award, App., infra, 3a, 17a-18a,

39a-41a, flatly rejected the apparently unconditional reinstate-

ment offer, expressly stating that he would not accept any rein-

statement offer that did not include backpay. App., infra, 2a-3a,

28a-29a, 38a-39a, 68a.

2. Ten (10) weeks later, Hennessey filed an unfair labor prac-

tice charge alleging a violation of the NLRA. On July 30, 1980,

an administrative law judge ruled that Hennessey’s discharge

violated the NLRA and that the reinstatement offer, made pur-

suant to the arbitration award, did not toll the petitioner’s

backpay or reinstatement liability. App., infra, 3a-4a, 28a-30a.

The administrative law judge did not consider Hennessey’s state

of mind and invalid reason for rejecting the offer, since he found

petitioner’s offer to be conditional due to the lack of backpay and

the warning letter term, citing no authority for his decision.

App., infra, 68a-69a.

3. The petitioner appealed to the Board, but on January 5,

1981, the Board upheld the administrative law judge. The Board

found, however, that the prior reinstatement offer had been ren-

dered conditional solely by the warning letter required under the

arbitration award, and not by the lack of backpay. App., infra,

44a. The Board ordered petitioner to offer reinstatement with full

backpay to Hennessey once again.

4. The employer petitioned for review of the Board’s order on

the question whether the previous reinstatement offer tolled any

backpay or reinstatement liability, relying on Research Designing

Service, Inc., 141 N.L.R.B. 211 (1963); L. Ronney & Sons Furniture

Manufacturing Co., 97 N.L.R.B. 891 (1951), enforced as modified, 206

F.2d 730 (9th Cir. 1953), cert. denied, 346 U.S. 937 (1954); Hribar

Trucking, Inc., 166 N.L.R.B. 745 (1967), enforced in part, 406 F.2d

854 (7th Cir. 1969); Eastern Die Co., 142 N.L.R.B. 601 (1963),

enforced, 340 F.2d 607 (1st Cir. 1965), cert. denied, 381 U.S. 951

(1965); and Ekco Products Co., 117 N.L.R.B. 137 (1957). These

5

cases all required an examination of the employee’s state of mind

and reasons for rejecting an apparently unconditional, pre-adju-

dication reinstatement offer, in order to determine whether the

employee would have turned down the offer of reinstatement even

if it had not contained an invalid condition, and applied tolling

when the employee rejected an offer of reinstatement without

knowledge of the conditionality of the offer. App., infra, 36a-37a.

5. On December 11, 1981, the court of appeals denied enforce-

ment of the Board’s order, and remanded the case to the Board

because of the Board’s “failure to reconcile its decision in this

case with its precedent, and its failure to explain its reason for

abandoning any inquiry into the reason why a conditional offer is

refused.” App., infra, 41a. The court of appeals instructed the

Board to “explicate the circumstances, if any, under which an

inquiry into whether an employee would have rejected a valid

offer of reinstatement is proper.” App., infra, 41a.

6. On July 29, 1988, the Board issued its supplemental deci-

sion on remand. App., infra, 16a. The Board discussed its long

line of pre-adjudication decisions, sought to distinguish some,

overruled others and, on the basis of its decision in Leroy W.

Craw, d/b/a Craw & Son, 244 N.L.R.B. 241 (1979), enforced, 622

F.2d 579 (8d Cir. 1980), announced that it would no longer

examine an employee’s reasons for refusing a reinstatement offer

if the offer is subsequently found to be conditional. App., infra,

18a-21a.

7. The court of appeals treated the Board’s order as the

promulgation of a “new rule,” and enforced it, after expressly

finding the Board’s treatment of its own precedent, in which the

employee’s perception of the reinstatement offer had always been

examined, to be “unpersuasive,” App., infra, 7a, and the Board’s

new rule to be a “substantial departure” from existing law. App.,

infra, 12a-13a.? The court of appeals denied a petition for rehear-

ing with a suggestion for rehearing en banc. App., infra, 75a-76a.

2 The court of appeals approved the retroactive application of the

new rule in this case to the date of the administrative law judge’s

6

REASONS FOR GRANTING THE PETITION

The question presented in this case is whether, in determining

if an employer’s backpay liability is reduced by losses wilfully

incurred by a discharged employee, the Board may abandon any

inquiry into the validity of the employee’s reasons for rejecting a

reinstatement offer, solely because the offer contained a condition

unknown to the employee when he refused it and unrelated to the

refusal.

The Board’s new rule abandons any inquiry into an employee’s

state of mind or reasons for refusing a reinstatement offer, even if

the inquiry is to determine whether the employee even had

knowledge of the conditionality of the offer when he rejected it,

or to determine whether the employee rejected the offer solely for

an invalid reason (here, the absence of backpay) wholly unrelated

to any condition in the offer, or to the employee’s knowledge of

such condition. (In this case, Hennessey rejected any: offer of

reinstatement that did not include backpay, in ignorance of and

regardless of its conditionality). This new rule is plainly irra-

tional and inequitable in application, and is not entitled to defer-

ence from the courts, because it conflicts directly with this

Court’s decision in Phelps Dodge Corp. v. NLRB, 313 U.S. 177

(1941), holding that an employer is not obligated to provide

backpay for any period when a discharged employee wilfully

incurs losses in compensation. NLRB v. Financial Institution

Employees, 475 U.S. 192, 202 (1986). The court of appeals decision

grants excessive deference to the Board’s new rule, which

broadly excuses the employee from mitigating his damages

(footnote continued from preceding page)

decision, even though (1) that decision neither examined existing prece-

dents nor suggested a new rule; (2) the Board did not suggest a new rvle

or even cite the Craw case in its first decision; and (3) the court of

appeals remanded the case to the Board precisely because it could not

ascertain what the Board was trying to do in its 1981 decision. The new

rule was not even arguably articulated until the Board’s supplemental

decision in 1988.

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7

before any dispute has even been presented to the Board, and

which ignores the undisputed fact in this case that the proximate

cause of the employee’s lack of work after May 1, 1979 was his

wilful refusal of any reinstatement offer devoid of backpay, a

condition he could not legally place on accepting re-employment.

The Board’s new rule is punitive and exceeds the Board’s reme-

dial authority, since the wilful loss doctrine of Phelps Dodge

compels an examination of the employee’s state of mind and

reasons for declining the reinstatement offer when it was made.®

This is an important issue which is likely to recur in all work-

places, including unionized settings, where compromise arbitra-

tion awards, requiring some form of corrective discipline along

with reinstatement, are in fact commonplace, and many employ-

ers will face the same dilemma as petitioner if the Board’s new

rule excusing pre-adjudication mitigation by employees is

enforced. See Elkouri & Elkouri, How Arbitration Works, 688-707

(Fourth Edition, 1985) and 134, 139-45 (1985-87 Supp.). Further

review of the court of appeals decision is therefore warranted.

1. a. It is the touchstone of this case that the Board’s

authority is remedial, and not punitive. Consolidated Edison

v. NLRB, 305 U.S. 197 (1938); NLRB v. Gullett Gin Co., 340

U.S. 361 (1951). It is also axiomatic that wrongfully dis-

charged employees are required to accept interim reinstate-

ment offers without backpay to satisfy their affirmative

obligation to mitigate their losses, pending resolution of the

labor dispute. See Phelps Dodge, 313 U.S. at 199-200. Cf. Ford

Motor Co. v. EEOC, 458 U.S. 219, 231 (1982) (Title VII claim-

ants are subject to the statutory duty to mitigate damages,

3 Furthermore, the condition found in the reinstatement offer in this

case resulted from good faith adherence to a final and binding arbitra-

tion award, and, when viewed in context, was a de minimis burden on the

employee’s terms of reinstatement Cf. Ford Motor Co. v. EEOC, 458 U.S.

219 (1982) (reinstatement offer lacking retroactive seniority not encum-

bered by condition in Title VII context). If the Board’s rule must stand,

such good faith and circumstances should be an exception to the penal-

izing result of the application of the Board’s new rule. App., infra, 12a.

8

which is rooted in an ancient principle of law), quoting from

C. McCormick, Handbook on the Law of Damages, 127-158

(1935). See also, Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 901

(1984) (the Board is required to give due consideration to the

employee’s responsibility to mitigate damages in fashioning

an equitable backpay award).

In Phelps Dodge, this Court held that losses wilfully

incurred by employees must be deducted from amounts

owed them. 313 U.S. at 197-98. Wilfulness, by definition,

requires an analysis of an employee’s state of mind, the

reasons and motivation for action. The Board’s new rule

directly conflicts with Phelps Dodge, which compels an anal-

ysis of the employee’s reasons for refusing reinstatement.

The Board’s new rule is not a reasonable or permissible

interpretation of its remedial authority under the NLRA

because it utterly disregards the employee’s reasons for

refusing the offer, the very basis for any examination of

wilfulness.

b. The bizarre and punitive effect of the Board’s jet-

tisoning of any inquiry into the employee’s reasons for

rejecting an apparently unconditional offer of reinstatement

could not be clearer than in the present case. Here, the

arbitration award-mandated condition on the employee’s

reinstatement—the warning letter unknown to Hennessey

when he rejected the offer, and only subsequently found by

the Board to be an invalid condition on the offer—had

nothing whatsoever to do with the employee’s refusal to

return to work. Hennessey wilfully refused to work solely

because the offer lacked backpay, a condition he could not

lawfully place on his working. The employee’s own, wilful,

improper action was the proximate cause of his unemploy-

ment after May 1, 1979, since, even if the reinstatement offer

had not “facially” included a warning letter, he would not

have returned to work. The Board’s new rule blindly ignores

this real reason for the employee’s continuing “losses,”

thereby conflicting head-on with the wilful loss doctrine of

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9

Phelps Dodge and punishing the petitioner for the

employee’s unequivocal imr osition of an impermissible con-

dition on his return to work. In sharp contrast to the new

rule, in all of the Board cases relied on below by petitioner

the decision to toll backpay turned precisely on the

employee’s individual awareness of the terms of the rein-

statement offer, and it was considered essential by the Board

to focus on the terms of the offer as perceived by the

employee, because it is precisely the employee’s willingness

to fulfill his duty to mitigate that must be examined under

Phelps Dodge.

ce. The Board bases its new rule, and the “facial valid-

ity” test therein, on its decision in Leroy W. Craw, d/b/a

Craw & Son, supra, whose facts and rationale are totally

inapposite to a pre-adjudication context. The conditional

offer of reinstatement in Craw violated an express, post-

adjudication order of the Board, issued pursuant to a find-

ing, after evidentiary hearing, of illegal conduct by the

employer. In contrast, pre-adjudication offers are made so

that the parties can resume their relationship, mitigate

their damages and maintain industrial peace and stability

pending resolution of any continuing labor dispute. The

Craw rule applies the premise that employers already adju-

dicated by the Board to be in violation of the Act ought not

be allowed to take advantage of conditional reinstatement

offers in order to toll their liability for their proven unfair

labor practices, thereby effectively defying the Board’s

processes. In sharp contrast, at the time the petitioner

offered Hennessey reinstatement pursuant to the terms of

the arbitration award, it had not been adjudged a violator of

the Act (a charge was only filed ten weeks after the award),

was merely complying in good faith with the award, and

was offering the discharged employee an opportunity to

mitigate his damages. An employee’s express refusal to

work now and mitigate his damages pending resolution of

any dispute he subsequently may raise to the Board should

not be condoned.

10

d. The Board’s refusal to examine an e:mployee’s wilful-

ness, 1.¢., State of mind, for refusing an apparently uncondi-

tional reinstatement offer, because of the invalid condition

subsequently found in the offer, is punitive, not remedial.

By arbitrarily raising the “facially valid” hoop, the Board

approves the conduct of employees who would not mitigate

their damages and returned to work, even if the offer was

not conditional. To require the employer to make such

employees whole is indeed punitive, not remedial.

2. The Board’s new rule in the present case is unreasonable

and not entitled to deference from the courts. The court of

appeals decision deferring to the Board is mistaken in two

respects.

a. First, it does not reconcile the Board’s new rule with

this Court’s decision in Phelps Dodge. Under the new rule, no

examination of the employee’s wilfulness in rejecting the

offer is undertaken by the Board. An employee can refuse

an offer he perceives to be unconditional for an unlawful

reason unrelated to any condition actually in the offer, but

still be rewarded with full backpay. In this respect, the rule

is punitive, not remedial.

‘b. Second, the Board’s new rule does not distinguish ~

between pre-adjudication and post-adjudication contexts.

The adoption of the rule disrupts the notion of industrial

peace wherein the parties should mitigate their damages

and abide by arbitration awards pending the resolution of

any dispute before the Board. The new rule rewards employ-

ees who refuse to accept reinstatement offers for unlawful

reasons unrelated to any apparent or subsequently deter-

mined condition in them. The Board’s new rule is not a well-

reasoned policy and should be rejected. Further review by

this Court is warranted.

11

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JEFFREY L. MADOFF

Counsel for Petitioner

CONSOLIDATED FREIGHTWAYS

MATKOV, SALZMAN, MADOFF & GUNN

100 West Monroe Street

Suite 1500

Chicago, Illinois 60603-1906

(312) 332-0777

June 4, 1990

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APPENDIX A

Notice: This opinion is subject to formal revision before publication in

the Federal Reporter or U.S.App.D.C. Reports. Users are requested to

notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 1989 Decided December 29, 1989

No. 88-1630

CONSOLIDATED FREIGHTWAYS, Petitioner,

Lan

NATIONAL LABOR RELATIONS BOARD, Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD

Jeffrey L. Madoff, with whom James D. Shepherd and Fred S.

Sommer were on the brief, for petitioner.

Charles Donnelly, Attorney, National Labor Relations Board

(“NLRB”), of the Bar of the Supreme Court of Texas, pro hac vice,

by special leave of court, with whom Aileen A. Armstrong, Deputy

Associate General Counsel, NLRB, and William M. Bernstein,

Attorney, NLRB, were on the brief, for respondent. Peter D.

Winkler, Attorney, NLRB, also entered an appearance for

respondent.

Before WALD, Chief Judge, and BUCKLEY and SENTELLE, Cir-

cutt Judges.

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon

motions to file bills of costs out of time.

2a

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge: Consolidated Freightways petitions

for review of a supplemental decision of the National Labor

Relations Board affirming an earlier Board decision that ordered

Consolidated to reinstate a former employee with full backpay

because its previous reinstatement offer had been conditional and

therefore invalid. On review of the original decision, we noted the

Board’s failure to reconcile its decision with its own precedeni

and remanded with instructions that the Board explain the cir-

cumstances, if any, that would permit an inquiry into an

employee’s reasons for refusing a reinstatement offer. Consoli-

dated Freightways v. NLRB, 669 F.2d 790 (D.C. Cir. 1981).

Consolidated contends that the Board has failed to comply

with our remand instructions. Although we find the Board’s

treatment of its precedent unconvincing, we hold that the Board

has complied with our remand by announcing a new rule: An

employer’s reinstatement offer must be unconditional on its face

in order to terminate the accrual of backpay liability, regardless

of the employee’s reasons for declining the offer. We also hold

that, as a matter of equity, Consolidated is liable to its former

employee for backpay only from the date the Administrative

Law Judge articulated the new rule.

I. BACKGROUND

A. Factual Background and the Board’s First Decision

Consolidated Freightways is engaged in the business of intra-

state and interstate transportation of goods and materials by

truck. Charles Hennessey was hired by Consolidated as a truck

driver in 1977. Two years later, on March 22, 1979, Consolidated

discharged Hennessey after he refused to drive a tractor that he

believed to be unsafe. Hennessey filed a grievance challenging his

discharge and requesting reinstatement with full backpay and

health and welfare benefits. On May 1, 1979, the grievance was

heard before the Joint State Committee, an arbitration panel

established under the collective bargaining agreement between

3a

Consolidated and Hennessey’s union. Consolidated Freightways,

253 N.L.R.B. 988, 990-94 (1981). The parties later stipulated that

Hennessey’s grievance was covered by the collective bargaining

agreement; that Consolidated, the union, and Hennessey had

agreed to be bound by the Committee’s decision; and that the

entire grievance and arbitration procedure was fair ana regular

in all respects. Id. at 994.

After hearing the arguments of the parties, the Committee

ordered that Hennessey be reinstated to his former job with full

seniority and benefits, but without backpay, and that a “final

warning letter” be placed in Hennessey’s file. Jd. Under the terms

of the collective bargaining agreement, Consolidated may not

suspend or discharge an employee until at least one warning

notice of the particular complaint at issue has been given (except

for drug and alcohol use and certain other causes for discharge).

Warning letters remain in effect for a maximum of nine months.

Thus if he had accepted the offer, Hennessey would have been

subject, for a limited period, to immediate discharge if he again

engaged in the conduct for which he was first dismissed. Hennes-

sey did not learn about the warning letter until well after he had

refused an offer of reinstatement from Consolidated, explaining

that he would not return without backpay.

On July 11, 1979, Hennessey filed an unfair labor practice

charge with the NLRB. After a hearing, an Administrative Law

Judge (“ALJ”) found that Consolidated had discharged Hennes-

sey for engaging in protected activity in violation of sec-

tion 8(a)(1) of the National Labor Relations Act (“Act”),

29 U.S.C. § 158(aX1) (1982). 253 N.L.R.B. at 995. The ALJ

declined to defer to the arbitration award because by putting

Hennessey “under the gun of a ‘warning letter,’” the award “fails

to remedy the alleged unfair labor practices.” Jd. at 994. The

ALJ then determined that Consolidated’s obligation to reinstate

Hennessey “continues until a proper offer of reinstatement is

made.” Jd. Asserting that the accrual of backpay liability is not

terminated until a valid, unconditional reinstatement offer is

4a

made, the ALJ ordered that Hennessey be offered unconditional

reinstatement with full backpay. Jd. at 995.

Consolidated filed exceptions to the ALJ’s conclusion that its

reinstatement offer was conditional, but not to his finding that

Consolidated had engaged in an unfair labor practice or his

refusal to defer to the arbitration award. Jd. at 988 n.l. In a

Decision and Order dated January 5, 1981, the Board agreed that

the warning letter had rendered Consolidated’s reinstatement

offer conditional, and therefore invalid, and affirmed the AL,J’s

decision. Jd. at 988.

B. This Court’s First Decision

Consolidated petitioned this court for review, arguing that its

reinstatement offer was unconditional and thus terminated the

accrual of backpay liability. Furthermore, Consolidated claimed

that as Hennessey had refused the offer for an admittedly invalid

reason (the denial of backpay), he was not entitled to either a

second reinstatement offer or accrued backpay. The Board coun-

tered that as the offer was conditioned on the issuance of the

warning letter, it was invalid; and as it was a nullity, Hennes-

sey’s invalid reason for refusing the offer did not toll the accrual

of backpay liability.

On December 11, 1981, we remanded the case for reconsidera-

tion. Consolidated Freightways, 669 F.2d at 798. In our decision, we

found that the Board had “failed to take account of Board prece-

dent that emphasizes the actual reasons why an employee refuses

an offer of reinstatement even when the validity of the offer itself

is challenged.” Id. at 795-96. We also cited Research Designing

Service, Inc., 141 N.L.R.B. 211 (1963), L. Ronney & Sons Furni-

ture Mfg. Co., 97 N.L.R.B. 891 (1951), enforced as modified, 206 F.2d

730 (9th Cir. 1953), cert. denied, 346 U.S. 987 (1954), and other

cases in which the Board had held “that an employer’s backpay

liability is tolled when an employee rejects an offer of reinstate-

ment without knowledge of the conditionality of the offer.” 669

F.2d at 796.

5a

We acknowledged, however, that the Board might have been

relying on a more recent case, Leroy W. Craw, 244 N.L.R.B. 241

(1979), enforced, 622 F.2d 579 (3d Cir. 1980), which held that an

invalid conditional offer of reinstatement did not toll the

employer’s backpay liability even though the employees had

rejected the offer for reasons other than the invalid conditions.

669 F.2d at 796 & n.12. Faced with potentially conflicting prece-

dent, we observed that Leroy W. Craw could either “signal a

change of Board policy abandoning any inquiry into the reasons

why a conditional offer is refused” or be “reconcilable with ear-

lier Board precedent.” Jd. at 797. We therefore remanded the case

to allow the Board “to explicate the circumstances, if any, under

which an inquiry into whether an employee would have rejected

a valid offer of reinstatement is proper.” Jd. at 798. We did not

reach two other questions that had been presented; namely,

whether the offer to Hennessey was in fact conditional and

whether Consolidated’s good faith reliance on the arbitration

award would be sufficient in itself to toll backpay liability. Jd. at

792 n.4, 798 n.15.

C. The Board’s Supplemental Decision and Order

Six years ‘ater, in July 1988, the Board issued a Supplemental

Decision and Order affirming its prior decision. 290 N.L.R.B.

No. 85 (July 29, 1988) (“Supplemental Decision”). The Board

stated that because Consolidated was requived to file the warning

letter, its offer “would not have returned {Hennessey] to the posi-

tion he occupied before the discrimination against him.” Accord-

ingly, it was “clearly conditional on its face” and therefore

invalid. Jd. at 4. Under the circumstances, Hennessey was under

no obligation to respond. The Board concluded that where an

offer is invalid on its face, an employee’s reasons for refusing it

are irrelevant. Jd, at 5.

The Board distinguished Research Designing and other cases

cited by this court on the ground that in each instance the

reinstatement offer was facially valid while in the present case

6a

“reinstatement was expressly premised on the terms of the arbi-

tration award, which contains the invalid condition.” Jd.

Addressing L. Ronney, the Board said it could not determine

whether the reinstatement offer was valid on its face. But to the

extent that the case suggests that the NLRB will examine a

wrongfully discharged employee’s reasons for declining a

facially invalid reinstatement offer, the Board overruled L. Ron-

ney and any other similar case, stating that it adhered to its

holding in Leroy W. Craw Id. at 6.

Finally, the Board reaffirmed its conclusion that the arbitra-

tion award, which it found to be “repugnant to the Act,” was void

and did not warrant deferral. Therefore, Consolidated’s offer was

judged by the Board’s normal standards. As Hennessey had not

received “a facially valid offer of reinstatement,” the Board con-

cluded that he was entitled to full backpay. Jd. at 8-9.

II. DISCUSSION

This case concerns the Board’s authority under section 10(c) of

the Act “to take such affirmative action including reinstatement

of employees with or without back pay, as will effectuate the

policies of [the Act],” in the event the Board finds that an

employer has engaged in an unfair labor practice. 29

U.S.C. § 160(c) (1982). The Board’s remedial authority under this

section is extremely broad. Accordingly, its actions are entitled to

a high degree of deference by this court, and a remedial order

must stand “unless it can be shown that [it] is a patent attempt to

achieve ends other than those which can fairly be said to effectu-

ate the policies of the Act.” St. Francis Fed’n of Nurses & Health

Professionals v. NLRB, 729 F.2d 844, 849 (D.C. Cir. 1984) (quoting

Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)); see

also Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 (1964) (describing

remedial power of Board as “a broad discretionary one, subject to

limited judicial review”’).

7a

A. Did the Board Act Arbitrarily and Capriciously and

Fail to Comply with this Court’s Remand Instructions?

Consolidated’s chief complaint is that the Board acted arbi-

trarily and capriciously (and failed to comply with this court’s

instructions on remand) because when it held that Consolidated’s

offer did not toll the accrual of backpay liability, the Board did

not provide a convincing explanation for abandoning the rule

established in Research Designing and its progeny. Consolidated

argues that the Board’s attempt to distinguish its precedent was

disingenuous at best and that it failed to explain its rationale for

abandoning any inquiry into the reasons why an employee has

refused a reinstatement offer.

We agree that the Board’s attempts to reconcile and distin-

guish its precedents are unpersuasive. The Board claims that

Research Designing and the other cases cited by us are distinguish-

able from the one before us because the offers in those cases

appeared to be unconditional and thus were facially valid. Sup-

plemental Decision at 5. Unfortunately, that distinction -is

nowhere discussed in either Research Designing or any of the other

cases cited; in fact, in each instance the Board explicitly refers to

the employee’s perception of the reinstatement offer in determin-

ing whether the offer tolled the company’s backpay liability. See

Hribar Trucking, Inc., 166 N.L.R.B. 745, 756 n.19 (1967), enforced

in part, 406 F.2d 854 (7th Cir. 1969); Eastern Die Co., 142 N.L.R.B.

601, 604 (1963), enforced, 340 F.2d 607 (1st Cir.), cert. denied, 381

U.S. 951 (1965); Ekco Prods. Co., 117 N.L.R.B. 137, 150, 152 (1957).

Moreover, the Board made no attempt to reconcile its decision

in L. Ronney. Faced with a case that could not readily be distin-

guished from the one before us, the Board simply overruled

L. Ronney and similar cases to the extent that they support an

inquiry into an employee’s reasons for declining a facially condi-

tional offer. The Board explained only that it would follow its

previous decision in Leroy W. Craw. Supplemental Decision at 6.

While we reject the Board’s attempts at reconciliation, we

conclude that in reality it has simply enunciated a new rule

8a

based on its earlier decision in Leroy W. Craw—which (as Consoli-

dated conceded at oral argument) the Board has the authority to

do. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (Board

has “informed discretion” to “announcfe} new principles in an

adjudicative proceeding.”). Accordingly, we now assess the ade-

quacy of the reasons given by the Board in support of its new

policy.

As the Board has explained, reinstatement is “a public right

granted to vindicate the law against one who has broken it.”

Lipman Bros., Inc., 164 N.L.R.B. 850, 853 (1967). Its purpose is to

restore a wrongfully discharged employee to the same situation

he would have been in had he not been discharged. /d.; see also

NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 264-65 (1969). To that

end, the Board has long ijeld that an offer of reinstatement must

be “firm, clear, and unconditional. Only when a proper offer is

made and unequivocally rejected by the employee is the empioyer

relieved of his statutory duty to reinstate.” Lipman Bros., Inc.,

164 N.L.R.B. at 853.

In reaffirming its earlier order, the Board reasoned that a

conditional reinstatement offer may not be recognized for any

purpose because to do so would allow the employer to continue to

discipline the wronged employee for having engaged in a pro-

tected activity. As the equities lie with the wrongfully dis-

charged employee, the Board concluded that it is

incumbent on the Respondent to extend to the injured

employee a facially valid offer of reinstatement before the

burden shifts to the injured employee to accept or reject the

offer. Anything short of this is inconsistent with the statu-

tory policy that a transgressor should bear the burder. of the

consequences stemming from its illegal acts.

Supplemental Decision at 6-7.

In challenging the Board’s position, Consolidated cites the

undisputed rule that discharged employees must accept rein-

statement offers without backpay in order to preserve the

employer’s right to litigate the lawfulness of the discharge and

9a

argues that it should be applied in this case. See National Screen

Prods. Co., 147 N.L.R.B. 746, 748 (1964). That rule recognizes that

if an employer were required to offer an employee reinstatement

with backpay prior to an adjudication on the merits of the dis-

charge, as a practical matter the employer might not be able to

recover the backpay in the event of a favorable decision. See id. An

employee, on the other hand, would lose little by returning to

work without the receipt of accrued backpay, for he would be

entitled to recoup it if he ultimately were to prevail on the merits.

The rule, however, is predicated on a valid offer of reinstatement

because restoring the employee to his status quo ante is, in essence,

the price the employer is required to pay in exchange for the

employee’s agreement to return to work before the question of

backpay liability is finally settled. As Consolidated’s offer would

not return Hennessey to the position he occupied before his

wrongful discharge, Consolidated has failed to meet its end of the

implicit bargain and, therefore, has no claim to its benefits.

In sum, we find that the Board acted well within its authority

in enunciating the new rule and that it adequately explained how

the rule advances the policies of the Act. Accordingly, we reject

Consolidated’s contention that the Board acted arbitrarily and

capriciously in finding that its backpay liability had not been

tolled.

B. Was Consolidated’s Offer Conditional and Therefore

Invalid?

Consolidated also contends that even assuming the propriety

of the new rule, its offer to reinstate Hennessey was uncondi-

tional, regardless of the warning letter. Consolidated asserts that

had Hennessey accepted the offer, he would have been placed in

exactly the same position he had held prior to his discharge,

including full seniority rights and benefits, because the warning

letter would have had no discernible impact upon his post-rein-

statement employment status. More specifically, Consolidated

maintains that Hennessey would have continued to have recourse

10a

to the grievance and arbitration procedures in the event of dis-

charge and that, in any event, warning letters are common in the

industry. Consolidated then argues that as any adverse effect of

the letter is purely speculative, Hennessey should not be excused

from his general obligation to mitigate damages by accepting the

offer of reinstatement.

_ Consolidated’s suggestion that its offer would have restored

the status quo ante borders on the frivolous. The filing of the

warning letter subjected Hennessey to the risk of summary dis-

charge during a nine-month period, and it is irrelevant that he

would have had recourse to grievance and arbitration procedures.

Even if one were to concede that the requirement thai the letter

be filed did not impose an onerous condition, the treatment of the

offer as unconditional would be contrary to the Supreme Court’s

recognition that “[mjaking [employees] whole for losses suffered

on account of an unfair labor practice is part of the vindication of

the public policy which the Board enforces.” Phelps Dodge Corp. v.

N.L.R.B., 313 U.S. 177, 197 (1941). “Whole” means whole.

C. Did Consolidated’s Offer Toll its Backpay Liability

Because Made in Good Faith Reliance on a Binding

Arbitration Award?

Consolidated next argues that its good faith reliance on and

compliance with a final and binding arbitration award should

provide a separate basis for tolling its backpay liability. As Con-

solidated points out, in our opinion remanding the case we did not

reach that argument but nevertheless observed that “resolution

of this question depends on whether the Board could properly

further the strong national policy in favor of private settlement

of labor disputes without abdicating its responsibility to remedy

violations of national labor law.” Consolidated Freightways, 669

F.2d at 798 n.15 We noted that the Board’s determination of

whether Consolidated’s reliance on the arbitration award should

toll its backpay liability could turn on the nature of the arbitra-

tion committee’s decision and the specific circumstances follow-

ing its issuance, including the facts that ‘“(1) the arbitrator

lla

ordered reinstatement with a warning letter, (2) Consolidated

conformed its offer to the terms of the decree and (3) Hennessey

waited two and a half months after the decree before filing his

charge with the Board.” Jd.

We conclude that the Board acted within its discretion in

declining to toll the liability. See Supplemental Decision at 7-9.

Although the Board may defer to an arbitration award to

encourage voluntary settlement of labor disputes and promote

collective bargaining, it need not do so where the award is

“clearly repugnant to the purposes and policies of the Act.” E.g.,

Hribar Trucking, Inc., 166 N.L.R.B. at 754 (citations omitted). As

the Board noted, it had found (in agreement with the ALJ) that

the arbitration award was repugnant to the Act and accordingly

not entitled to deference. The question of deference, of course, is

not before us as Consolidated did not take exception to the ALJ’s

refusal to defer to the arbitration award. See Consolidated Freight-

ways, 669 F.2d at 793 n.6; 29 U.S.C. § 160(e) (1982). Yet, as the

Board pointed out, for it to toll Consolidated’s backpay obligation

becau:e of its compliance with a repugnant award would be

tantaraount to deference. See Supplemental Decision at 8. Consoli-

dated contends that “the strong national policy in favor of private

settlement of labor disputes” alone justifies terminating its

accrual of backpay liability. The Board, however, could reasona-

bly take the ‘position—even in light of the particular circum-

stances surrounding the arbitration award—that if it allowed an

employee to be penalized for engaging in protected conduct, it

would be “abdicating its responsibility to remedy violations of

national labor law.” See 669 F.2d at 798 n.15.

D. Did the Board Permissibly Apply its Rule Retroactively?

Having concluded that the Board acted within its discretion in

enunciating the new rule, that Consolidated’s offer was condi-

tional and thus invalid, and that its good faith compliance with

the arbitration order did not excuse it from its obligations under

the Act, we must next decide whether the Board’s retroactive

application of the rule was permissible. As a general principle,

12a

new rules announced in agency adjudications may be applied

retroactively absent any “manifest injustice.” E.g., Clark-Cowlitz

Joint Operating Agency v. FERC, 826 F.2d 1074, 1081 (D.C. Cir.

1987). In considering the equities, courts generally balance the

interests of the parties, taking into account such factors as the

degree of hardship they will experience, their justifiable reliance

on past practices, and the statutory interest in a retroactive appli-

cation of the new rule. See, eg., id.; Tennessee Gas Pipeline Co. v.

FERC, 606 F.2d 1094, 1115, 1116 n.77 (D.C. Cir. 1979), cert. denied,

445 U.S. 920 (1980); Laidlaw Corp. v. N.L.R.B., 414 F.2d 99, 107

(7th Cir. 1969), cert. denied, 397 U.S. 920 (1970).

~

We conclude that the equities in this case support retroactive

application of the rule, but only from the date of the ALJ’s

decision. We find retroactive enforcement of the Board’s order

warranted because payment of accrued backpay is “a remedy

designed to restore, so far as possible, the status quo that would

have obtained but for the wrongful act.” Rutter-Rex Mfg. Co., 396

U.S. at 265. Here, it is undisputed that Hennessey was disci-

plined for engaging in protected conduct. Thus there is a strong

statutory interest in awarding him full backpay as a remedy for

his wrongful discharge. To hold that a conditional reinstatement

offer tolled Consolidated’s backpay liability would both penalize

Hennessey and allow Consolidated to escape the consequences of

its own violation of the Act. In such circumstances, it is “not

arbitrary and capricious for the Board to conclude that complete

vindication of employee rights should take precedence over the

employer’s reliance on prior Board law.” Laidlaw Corp. v.

N.L.R.B., 414 F.2d at 107.

On the other hand, we acknowledge that the new rule repre-

sents a substantial departure from long-established practice.

Under the prior rule, Consolidated’s offer would clearly have

tolled its backpay liability because it is beyond question that

Hennessey rejected it without knowledge of its conditionality.

Moreover, the offer was made in good faith reliance on an arbitra-

tion award that Consolidated was contractually obligated to obey

and that had been issued in a proceeding that the parties agreed

$

13a

was fair and regular in all respects. Therefore, until the ALJ

issued his decision, Consolidated had no reason to question the

propriety of its actions. Thereafter, however, Consolidated was on

notice that the Board might affirm the new rule, and it could have

tolled the accrual of backpay at any time simply by making

Hennessey a new, unconditional offer of reinstatement.

E. Did the Board’s Delay in Deciding this Case on Remand

Violate the APA and Consolidated’s Due Process Rights?

Finally, Consolidated argues that the Board’s supplemental

order should be denied enforcement because of the excessive

amount of time (more than six years) that elapsed between our

remand and the issuance of the order. According to Consolidated,

this “egregious” delay violates section 555(b) of the Administra-

tive Procedure Act, which requires an agency to proceed to con-

clude a matter presented to it “within a reasonable time.” 5

U.S.C. § 555(b) (1982).

In a case involving a lapse of nine years, the Supreme Court

held that even a “deplorable” delay does not justify interference

with the Board’s broad remedial powers, as the “Board is not

required to place the consequences of its own delay, even if inordi-

nate, upon wronged employees to the benefit of wrongdoing

employers.” Rutter-Rex Mfg. Co., 396 U.S. at 265. By refusing to

toll Consolidated’s backpay liability, the Board reasonably

“shifted the cost of the delay” from the employee to the

employer. Cf id. at 266. While we do not condone the Board’s

extraordinary delay, we conclude that enforcement of its order is

appropriate because the remedy fashioned by the Board was well

within its discretion, and our failure to enforce it would return

the burden to the wrong shoulders.

III. CONCLUSION

We hold that the Board acted within its remedial discretion in

announcing a new rule designed to require employers who com-

mit unfair labor practices to restore discharge employees to the

l4a

status quo ante. In evaluating the equities of applying this princi-

ple retroactively, we conclude that Consolidated’s backpay liabil-

ity should accrue only from the date of the AL.J’s decision.

Accordingly, the petition for review is granted for the sole pur-

pose of modifying the Board’s order in accordance with this

opinion, and as so modified, the order is enforced.

It ts so ordered.

15a

PRINTED FOR

ADMINISTRATIVE OFFICE — U.S. COURTS

BY ELECTROGRAPHIC CORP. — SAN FRANCISCO

16a

APPENDIX B

SJB

290 NLRB No. 85 D—6099

Peru, IL

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

CONSOLIDATED FREIGHTWAYS

and Case 33—CA—4364

CHARLES HENNESSEY, an Individual

SUPPLEMENTAL DECISION AND ORDER

On January 5, 1981, the Board issued a Decision and Order!

finding that the Respondent has discharged Charles Hennessey

in violation of Section 8(aX1) of the National Labor Relations

Act. Thereafter, the Respondent filed a petition for review and

the Board filed a cross-application for enforcement with the

United States Court of Appeals for the District of Columbia.

On December 11, 1981, the court remanded the case to the

Board to reconsider requiring the Respondent to reinstate Hen-

nessey with backpay.? The court held that the Board has failed

to consider the significance of Hennessey’s motives for refusing

reinstatement.

On March 23, 1982, the Board notified the parties that it had

decided to accept the court’s remand and that they could file a

statement of position. Statements have been filed by the General

Counsel and the Respondent.

1 253 NLRB 988 (1982).

2 669 F.2d 790 (1981).

17a

D—6099

The National Labor Relations Board has delegated its author-

ity in this proceeding to a three-member panel.

The Board has considered the decision of the court in light of

the statements of position and makes the following findings:

The background facts, as more fully set out in the judge’s

decision, may be briefly summarized. The Respondent discharged

employee Hennessey for his refusal to drive a tractor-trailer.

Based on credited testimony, the judge concluded that Hennessey

refused to operate the tractor because it was dangerous and was

in violation of safety statutes. Further, the judge found that

under the collective-bargaining agreement, Hennessey’s refusal

constituted protected concerted activity for the purposes of

mutual aid and protection and his termination was in violation

of Section 8(a\1).

Approximately 3 weeks after his discharge, Hennessey filed a

grievance which was arbitrated pursuant to the collective-bar-

gaining agreement. The arbitrator awarded Hennessey his for-

mer job back with full seniority and paid up health and welfare

and benefits but no backpay. The award also ordered that a final

warning letter be placed in Hennessey’s personnel file. The day

the arbitration award was announced, the Respondent offered

Hennessey reinstatement on its terms. Hennessey rejected the

offer.

The judge found that the Repsondent’s offer of reinstatement

made in accordance with the arbitration award was not valid

because the award required that a warning letter be placed in

Hennessey’s file. The judge, therefore, ordered the Respondent to

offer Hennessey reinstatement with backpay.

The Respondent excepted, contending that its offer of rein-

statement was adequate because neither the warning letter nor

the lack of backpay made the offer conditional. In adopting the

judge’s decision, the Board, in order to clarify any ambiguity,

18a

D—6099

stated that the refusal to include accrued backpay in the other-

wise valid offer of reinstatement does not render the offer invalid.

In support of its argument that the warning letter did not

make the offer invalid, the Repsondent submits that at the time

the Respondent’s offer was made, Hennessey was not aware that

the offer was conditioned on a warning letter being placed in his

file. Rather, according to Hennessey’s undisputed testimony, his

rejection was based on the failure of the reinstatement offer to

include backpay. The Respondent contends that because Hennes-

sey did not view the warning letter as an impediment to his

return to work, the presence of the warning letter should not void

an otherwise valid offer of reinstatement.

The Board agreed with the judge that the Respondent’s offer

of reinstatement was invalid because placing the warning letter

in Hennessey’s personnel file as a prerequisite to his reinstate-

ment rendered the offer conditional and therefore inadequate.

On remand, the court has instructed us to explain our ratio-

nale for not inquiring into the reasons why Hennessey rejected

the Respondent’s offer and to reconcile our position with Research

Designing Service, 141 NLRB 211 (1963); L. Ronney & Sons Furni-

ture Myy. Co., 97 NLRB 891 (1951), enfd. as modified 206 F.2d 730

(9th Cir. 1953), cert. denied 346 U.S. 937 (1954), and the line of

eases holding that the Board will look to the reason why the

discriminatee rejects an offer of reinstatement to determine if the

offer is valid.

Initially, it is clear that the reinstatement obligation is satis-

fied only by a valid offer of reinstatement. As stated in Lipman

Bros., 164 NLRB 850 (1967), “An employer’s offer of reinstate-

ment must be firm, clear, and unconditional.” Until such time as

a valid offer of reinstatement has been made the discriminatee

3 We note that Hennessey was present during the arbitral proceed-

ings. However, Hennessey testified that he had no recollection of being

told about the condition.

ee

19a

D—6099

does not have to make a choice. Lyman Steel Co., 246 NLRB 712

(1979); Heinrich Motors, 166 NLRB 783 (1967), enfd. 403 F.2d 145

(2d Cir. 1968); Leeding Sales Co., 155 NLRB 755 (1965).

As stated in Craw & Sons, 244 NLRB 241 (1979):

However, where the offer of reinstatement has been condi-

tional and has not satisfied the Board’s and the court’s order

of reinstatement, the discriminatees are under no obligation

to reply to or to accept such conditional offer of

reinstatement.

See also W. C. McQuaide, Inc., 239 NLRB 671 (1978), enfd. 617 ©

F.2d 349 (3d Cir. 1980); Murray Products, 228 NLRB 268 (1977),

enfd. 584 F.2d 934 (9th Cir. 1978).

In the instant case, the offer made by the Respondent was

clearly conditional on its face. Hennessey was offered reinstate-

ment pursuant to the arbitrator’s award which required that a

warning letter be placed in his file. This clearly renders the offer

invalid because “a Board order for reinstatement of a dis-

criminatee is designed to place that individual in the same posi-

tion the individual would have been in had there not been

discrimination against him.” Craw & Son, supra at 242. The

placement of the warning letter in Hennessey’s personnel file

would not have returned him to the position he occupied before

the discrimination against him. Instead, he could return to work

only under the threat of the letter of warning. This condition

made the offer of reinstatement by the Respondent invalid.‘ Hen-

nessey was under no obligation to respond to the offer and we will

4 In finding the offer was invalid on its face, it is appropriate to focus

on the terms of the offer as required by the arbitration award. Thus, it is

not relevant that Hennessey could not recall being informed of the

condition at the time the arbitration award was announced.

As explained below, in our discussion of the issue whether the arbi-

trator’s award could properly be deferred to, the letter of warning itself

constitutes an interference with Sec. 7 rights. This is so because it

20a

D—6099

not look into his motivation or reasons for his refusal. We will not

allow a discriminatee’s response to an offer invalid on its face to

“retroactively validate [an offer] which [was] deficient when

made.” Murray Products, 584 F.2d at 942. If, and only if, an offer

of reinstateraent is fully valid on its face, then an examination of

a discriminatee’s reasons for declining the offer must be

undertaken.

Those cases cited by the court, i.e., Research Designing Service

and L. Ronney, supra, are distinguishable from the instant case.

In Research Designing, the judge found that certain offers of rein-

statement were invalid because it became apparent after several

employees accepted the employer’s offers and began working that

the offers were in effect conditioned on their working as new

employees insofar as seniority and vacation pay were concerned.

Because these proved invalid, the judge not only gave a remedy to

the employees who had accepted reinstatement, but also declined

to cut off the backpay of two other employees who had refused

reinstatement offers at the outset for reasons unrelated to the

invalid conditions. 141 NLRB at 230. The Board reversed as to

the two employees, holding that their refusal of reinstatement

for reasons other than the invalid conditions warranted terminat-

ing the respondent’s liability for reinstatement and backpay

when the offers were refused. Id. at 216-217. Although the Board

spoke in terms of the two employee’s lack of awareness of the

invalid conditions, the reinstatement offer, when made, appar-

ently had no invalid conditions attached—unlike the circum-

stance in the present case where reinstatement was expressly

(footnote continued from preceding page)

operates as a penalty for the exercise of the right to invoke the protec-

tions of a collective-bargaining agreement. See NLRB v. City Disposal

Systems, 465 U.S. 822 (1984). It can hardly be contended that a reinstate-

ment offer that includes what amounts to an independent violation of

the Act is valid offer.

2la

D—6099

premised on the terms of the arbitration award, which contains

the invalid condition.5

In regard to L. Ronney, we cannot determine, from the Board’s

decision, whether the offer of reinstatement (to employee Clinton)

- was valid on its face. The decision speaks of a letter sent to

Clinton but does not reveal whether it contained the invalid

condition (a requirement that the reinstated employee join an

illegally assisted union). 97 NLRB at 892. In any event, assum-

ing arguendo that L. Ronney indicates that the Board will

examine a discriminatee’s reasons for declining a reinstatement

offer even when the only offer made is invalid on its face, we

overrule it and other similar cases® and adhere to the rule of

Craw & Son, supra, that a reinstatement offer invalid on its face

obviates the obligations on the part of a discriminatee to respond

and that a discriminatee’s refusal of the offer, on whatever

5 Hribar Trucking, 166 NLRB 745, 756 fn. 19 (1967), modified on

other grounds 406 F.2d 854 (7th Cir. 1969); Eastern Die Co., 142 NLRB

601 (1963), enfd. 340 F.2d 607 (1st Cir. 1965), cert. denied 381 U.S. 951

(1965); and Ekco Products Co., 117 NLRB 137 (1957), cited by the court in

remanding this case, follow the analysis of Research Designing. In our

view, critical to all four cases is the fact that the respondents made

facially valid offers of reinstatement. The Board looked to the dis-

criminatees’ reasons for rejecting those offers to distinguish employees

who never learned that illegal conditions were attached to the offer

upon implementation from employees who tested the facially valid

offers only to discover that they were not, in fact, valid. The Board

tolled backpay for the former, who never uncovered the unlawful condi-

tions, but not the latter.

6 See, e.g., Atlantic Maintenance Co., 134 NLRB 1328, 1329 (1961),

enfd. 305 F.2d 604 (3d Cir. 1962), in which the Board found an unlaw-

fully conditioned offer of reinstatement did not toll backpay, but noted,

in dictum, that it had not been clearly established that the dis-

criminatees would have rejected a valid offer of employment.

22a

D—6099

ground, will not relieve the respondent employer of its obligation

to make a valid offer in order to toll the running of backpay.

Our requirement that an employer must first extend a facially

valid offer of reinstatement before we examine a discriminatee’s

reasons for declining the offer is fully consistent with the pur-

poses and policies of the Act. The reason is clear: it is the Respon-

dent who acted unlawfully in discharging Hennessey. The

equities of the situation fall with Hennessey, the wrongfully

discharged employee. It is thus incumbent on the Respondent to

extend to the injured employee a facially valid offer of reinstate-

ment before the burden shifts to the injured employee to accept or

reject the offer. Anything short of this is inconsistent with the

statutory policy that a transgressor should bear the burden of the

consequences stemming from its illegal acts. See Sheet Metal Work-

ers Local 355 (Zinsco Electrical Products), 254 NLRB 773 (1981),

enfd. in part, remanded in part 716 F.2d 1249 (9th Cir. 1982).’

Because, as noted above, we would require that a discriminatee

respond to a facially valid offer and, in those circumstances,

would place on him the burden of showing that any refusal of the

offer was based on invalid conditions that came to his attention,

7In urging that an unlawfully discharge employee’s motive for

rejecting an offer of reinstatement should be examined, the Respondent

argues that the Board has done so in the past. In support of this

petition, the Respondent, in its brief, relies on Alcan Cable West, 214

NLRB 236 (1974). While it is correct that the judge, in his decision in

Alcan, examined the unlawfully discharged employee’s reason for

rejecting the employer’s offer of reinstatement, the Board did not rely

on that finding. Rather, the Board found that the employee in question

was never offered substantially equivalent employment. Thus, contrary

to what the Respondent portrays as the Board’s holding in Alcan, the

Board clearly did not rely on the judge’s examination of the discharged

employee’s reason for rejecting the offer of reinstatement. Alcan, 214

NLRB at 237 fn. 3.

23a

D—6099

we believe that our overall policy respecting responses to rein-

statement offers establishes a proper balance between the vindi-

cation of Section 7 rights and a discriminatee’s duty to mitigate

damages.

In footnote 15 of its decision, the court indicated that it need

not reach the issue whether the Respondent’s good-faith reliance

on the arbitrator’s award was sufficient, in itself, to toll its

backpay liability. The court noted that resolution of this issue

depends on whether the Board could properly further the strong

national policy in favor of private settlement of labor disputes

without abdicating its responsibility to remedy violations of

national labor law. The Board has established under Spielberg

Mfg. Co., 112 NLRB 1080 (1955), Olin Corp., 268 NLRB 573 (1984),

and their progeny, a policy of deferring to a decision of an

arbitrator when (1) the unfair labor practice was presented and

considered by the arbitrator, (2) the arbitral proceedings were

fair and regular, (3) all parties agreed to be bound, and (4) the

decision is not repugnant to the purposes and policies of the Act.

The judge in his decision found that the award “fails to remedy

the alleged unfair labor practices so as to warrant the Board’s

deference to such award.” No exception was taken to this finding

and it was adopted by the Board.

Thus, the Board found here that the arbitrator’s award was

repugnant to the Act and deferral was not appropriate. If we

nonetheless find that the Respondent’s backpay obligation was

tolled because it complied with the repugnant award, we would,

in substantial effect, be deferring to the award.

Certainly, there may be circumstances in which the Board

will defer to an arbitrator’s award that does not include the same

remedy as the Board would require to remedy an unfair labor

24a

D—6099

practice.’ However, to defer here to the arbitrator’s remedy would

permit the Respondent to discipline an employee for activity

found by us and the arbitrator to be protected; clearly not an

“interpretation consistent with Board policy.”

In any event, in this case we have an arbitrator’s award that

did not warrant deferral. Accordingly, to determine whether the

Respondent in these circumstances has tolled its backpay obliga-

tion, it is proper to judge the Respondent’s offer by the standard

the Board normally uses. An award to which deferral was not

warranted is completely void.

Here, again, the offer was conditional on its face and thus was

not a valid offer to reinstatement. Therefore, the burden of the

loss must fall on the Respondent rather than the unlawfully

discharged employee. See Safeway Trails, Inc., 233 NLRB 1078

(1977), enfd. 641 F.2d 930 (D.C. Cir. 1979), cert. denied 103

LRRM 2668 (1980). Therefore, as Hennessey did not receive, as

we require, a facially valid offer of reinstatement, he is entitled to

8 See, e.g., Combustion Engineering, 272 NLRB 215 (1984). There the

Board noted, “The arbitrator’s remedy, though perhaps different from

what the Board would have ordered de novo, is reasonably based and is

susceptible to an interpretation consistent with Board policy.” Id. at

217.

9 Hypothetically, suppose an arbitrator awarded an employee rein-

statement on the condition that the employee not engage in any pro-

tected concerted activities? The award would clearly be repugnant to

the Act. Surely, an employer’s reliance on an offer of reinstatement

mace pursuant to such an award could not serve to toll an employer’s

backpay obligation.

D—6099

full backpay as set forth in the remedy section of our original

decision.!°

10 In fn. 16 of its remand, the court noted the Board’s willingness in

Abilities & Goodwill, Inc., 241 NLRB 327 fn. 5 (1979), and Marlene

Industries Corp., 255 NLRB 1446, 1449, fn. 12 (1981), to consider

whether an employee would have rejected a valid offer even in the

absence of such an offer. Both cases treat the backpay and reinstatement

rights of discharged strikers. Abilities & Goodwill, overruling precedent,

determined that discriminatorily discharged strikers should be treated

as other dischargees, running the backpay period from the date of the

discharge to the date of the respondent’s valid offer of reinstatement

without requiring the strikers to request reinstatement. In recognition

of their status as strikers prior to their discharge, the Board expressly

observed that the respondent could reduce or avoid its backpay liability

by establishing that the discriminatee would not have accepted the offer

if made, or by any other evidence demonstrating a willful loss of

earnings. While participation in an unfair labor practice strike does not

automatically defeat the right to backpay, it can affect the amount

recoverable if the employer can sustain the burden of showing willful

loss in that the strike hampered the efforts of the discriminatee to

mitigate damages by seeking new employment. Bon Hennings Logging

Co., 132 NLRB 97, 99 (1961), enfd. 308 F.2d 548, 558 (9th Cir. 1962); Ra-

Rich Mfg. Corp., 120 NLRB 503, 505 (1958), enfd. 276 F.2d 451 (2d Cir.

1960). The willful loss of earning doctrine, available in all backpay

determinations, ensures that only actual losses are compensated. Phelps

Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941). To the extent these cases

also allow an inquiry into a discharged striker’s desire for reinstate-

ment prior to receipt of a valid offer, the Board, we think, may properly

differentiate in its treatment of backpay between discriminatees whose

rights were violated while they were on the job and discriminatees who

were withholding their services at the time of their discriminatory

discharge.

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D—6099

ORDER

The National Labor Relations Board affirms iis Decision and

Order at 243 NLRB 988 and orders that the Respondent, Consoli-

dated Freightways, Peru, Illinois, its officers, agents, successors,

and assigns, shall take the action set forth therein.

Dated, Washington, D.C. July 29, 1988

James M. Stephens, Chairman

Wilford W. Johansen, Member

Marshall B. Babson, Member

(SEAL} NATIONAL LABOR RELATIONS

BOARD

27a

APPENDIX C

Notice: This opinion is subject to formal revision before publication in

the Federal Reporter or U.S. App.D.C. Reports. Users are requested to

notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1132

CONSOLIDATED FREIGHTWAYS, Petitioner

v.

NATIONAL LABOR RELATIONS BOARD, Respondent

CHARLES HENNESSEY, Intervenor

Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

Argued October 20, 1981

Decided December 11, 1981

Sandra P. Zemm with whom Zachary D. Fasman was on the

brief for petitioner.

Michael Stein, Attorney, National Labor Relations Board, of

the bar of the Supreme Court of Texas pro hac vice by special leave

of the Court, with whom Elliott Moore, Deputy Associate General

Counsel, and Peter Winkler, Attorney, National Labor Relations

Board, were on the brief for respondent.

Arthur L. Fox, II entered an appearance for intervenor.

Before: BAZELON, Sentor Circuit Judge, and WILKEY and

WALD, Circuit Judges.

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon

motions to file bills of costs out of time.

28a

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge: Petitioner, Consolidated Freightways

(“Consolidated”), seeks review of a decision of the National Labor

Relations Board (“NLRB” or “Board”’), 253 N.L.R.B. No. 137

(1981), ordering it to reinstate a former employee, Charles Hen-

nessey, with full backpay. Because we find that the Board failed

to address petitioner’s argument that Hennessey’s refusal of a

prior reinstatement offer tolled petitioner’s backpay liability, we

remand for further proceedings.

I. Factual Background

Consolidated discharged Hennessey on March 22, 1979, after

Hennessey refused to drive a tractor with faulty lights. Hennes-

sey filed a grievance challenging his discharge. His case was

brought before the Joint State Committee (“Committee’’), an arbi-

trati6n committee composed of three members of the union and

three representatives of the trucking industry.! On May 1, 1979,

the Committee ordered that Hennessey be reinstated with full

seniority and health and welfare benefits, but with a final warn-

ing letter and no backpay. Consolidated proceeded to put Hennes-

sey back on “the board” for work. Joint Appendix (“J.A.”’) 15.

Hennessey, however, did not return to work, explaining to a

supervisor that he would not return without backpay, Record

(“R.”) 61.2

! The parties to this action stipulated that the “entire grievance and

arbitration procedure was fair and regular in all respects.” Joint

Appendix (J.A.) 15.

? This explanation came several days after Hennessey was told that

he had his job back. According to the ALJ’s findings, the union steward

spoke to Hennessey immediately after the arbitrator rendered its deci-

sion, explaining that he could probably resume work that same night.

J.A. 15; see Record (R.) at 187. Hennessey’s testimony, however, indi-

cates that he was somewhat confused about when he could return to

work. Although he received two phone calls to return to work between

May 1, 1979, the date of the arbitrator’s award, and May 4, 1979,

Hennessey testified that he expected to receive “something in writing

stating [that he] had been reinstated.” R. 61. When the Operations

29a

On July 11, 1979, Hennessey filed a charge with the NLRB

asserting that he had been discnarged for protected concerted

activities in violation of section 8(aX1) of the National Labor

Relations Act, 29 U.S.C. § 158(aX1). The Administrative Law

Judge (ALJ) refused to defer to the Committee’s award,’ noting

that the award “required Hennessey to be reinstated but in effect

to be under the gun of a warning letter.” J.A. 15. Although the

ALJ made no specific findings regarding the effect of a warning

letter, his conclusion appears to be based on the terms of the labor

agreement between Consolidated and Local Union No. 710 of the

International Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America. That agreement provides that

no employee may be discharged or suspended before receiving at

least one warning notice regarding the particular complaint

against him. See Exhibit 6C-5 at 79-80. The ALJ concluded that a

reinstatement offer conditioned on receipt of such a letter failed

(footnote continued from preceding page)

Manager, Charles Schmalz, phoned Hennessey on May 4 to ask him if

he was planning to return to work, this confusion was cleared up. But

when asked whether he would resume work, Hennessey stated that he

would not, explaining that “under the conditions that I didn’t get the

money that I deserved .. . I didn’t see that I could come back to

work.” R. 61. Hennessey testified that he then agreed to send in a letter

of resignation, but never did so. R. 61. Consolidated subsequently sent

Hennessey a letter acknowledging his resignation, to which Hennessey

did not respond. R. 262.

3The Board’s policy of deference to arbitration awards was

announced in Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955). Under

Spielberg, deference to arbitration awards is justified if three criteria are

satisfied: (1) fair and regular arbitral proceedings; (2) the parties agree

to be bound by the arbitral award; and (3) the award is not clearly

repugnant to the National Labor Relations Act. We have added a fourth

requirement: that the statutory issue be congruent with the contractual

issue, so that a resolution of one is a resolution of both. See Banyard v.

N.L.R.B., 505 F.2d 342, 348 (D.C. Cir. 1974).

30a

to remedy the alleged unfair labor practice and that, conse-

quently, the Board need not defer to the arbitrator’s award.‘

On the substantive merits on Hennessey’s charge, the ALJ

found that Hennessey’s refusal to drive the tractor was based on a

reasonable belief that to do otherwise would be unsafe under

legislatively approved safety standards. Despite the fact that

Hennessey was acting alone, the ALJ concluded that absent any

evidence that other employees disavowed Hennessey’s actions,

Hennessey’s conduct constituted protected concerted activity,°

J.A. 13, and his discharge was therefore a violation of § 8(a)(1) of

the National Labor Relations Act, 29 U.S.C. § 158(aX(1). J.A. 16.

As a remedy, the ALJ ordered that Hennessey be reinstated with

full backpay up to the date of a valid offer of reinstatement.

J.A. 13. Consolidated appealed to the Board, arguing that its

offer of reinstatement following the arbitrators award tolled its

backpay liability and discharged its obligation to offer Hennes-

sey reinstatement. The Board sustained the ALJ’s order.®

4 The ALJ suggested that his decision not to defer to the arbitrator’s

award was based, in part, on its failure to include backpay. J.A. 15. On

appeal, the Board agreed that the warning letter placed an invalid

condition on reinstatement, but reaffirmed its previous holding that an

offer of reinstatement is valid even if it fails to include backpay. J.A. 21.

Since we find that the Board should have considered Hennessey’s rea-

sons for rejecting Consolidated’s offer, we do not reach the question

whether the offer was in fact conditional.

5 Consolidated suggests that our recent decision in Kohls v.

N.L.R.B., 629 F.2d 173 (D.C. Cir. 1980), cert. denied, 450 U.S. 931 (1981),

draws into question the ALJ’s determination that Hennessey was

engaged in protected concerted activity. Since Consolidated did not take

exception to this determination in its appeal to the Board, this question

is not before us. See 29 U.S.C. § 160(e).

6 The Board noted that Consolidated did not take exception to the

ALJ’s refusal to defer to the arbitrator’s award or to his ruling that

Consolidated had committed an unfair labor practice by discharging

Hennessey for engaging in protected concerted activity. J.A. 20.

3la

II. Analysis

Consolidated does not challenge the Board’s finding that it

violated § 8(a)1) by discharging Hennessey, Brief for Petitioner

25; nor does it challenge the Board’s refusal to defer to the

arbitrator’s award. Jd. Instead, Consolidated argues that by offer-

ing Hennessey reinstatement in accordance with the terms of the

arbitrator’s decision it discharged its legal obligation and

stopped the accumulation of backpay liability. In addition, Con-

solidated argues that since Hennessey refused reinstatement for

an admittedly invalid reason (the denial of backpay), Hennessey

is entitled to neither a second offer of reinstatement nor backpay

which might otherwise have accrued after that refusal. In

response, the Board argues that Consolidated’s offer of reinstate-

ment was invalid because it was conditioned on accepting a final

warning letter. Such a letter, it contends, would have subjected

Hennessey to continued discrimination for exercising protected

rights. Since this offer was invalid, the Board further argues that

there is no need to inquire into Hennessey’s reasons for refusing

to accept it. Finally, the Board contends that the question

whether Hennessey refused reinstatement for invalid reasons

was not raised before the Board and therefore cannot be raised on

appeal.

A. The Issues Before the Board

As an initial matter, we must consider whether Consolidated’s

argument that Hennessey improperly refused reinstatement is

barred by section 10(e) of the National Labor Relations Act, 29

U.S.C. § 160(e). Section 10(e) provides that:

No objection that has not been urged before the Board, its

member, agent, or agency, shall be considered by the court,

unless the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances.

29 U.S.C. § 160(e). This section furthers “the salutary policy .. .

of affording the Board opportunity to consider on the merits

32a

questions to be urged on review of its order.” Marshall Field &

Co. v. N.L.R.B., 318 U.S. 253, 256 (1943). Cases interpreting section

10(e) look to whether a party’s exceptions are sufficiently specific

to apprise the Board that an issue might be pursued on appeal.

Thus, a generalized objection to “ ‘each and every recommenda-

tion’ ” of an ALJ lacks the particularity needed to preserve

objections to the Board’s decisions. Jd. at 255; see also N.L.R.B. v.

Seven Up Bottling Co., 344 U.S. 344, 350 (1953) (objection to trial

examiner’s recommendation as unsupported by evidence and con-

trary to law does not provide adequate notice). Similarly, a party

who has limited his objections before the Board to one issue will

not be allowed to raise a different issue on appeal. See Dallas

General Drivers v. N.L.R.B., 389 F.2d 553, 555 (D.C. Cir. 1968)

(union could not attack standard by which trial examiner deter-

mined whether to order reinstatement when objections before the

Board were limited to issue of whether employees had been dis-

charged discriminatorily). But when the issues implicated by an

imprecisely drafted objection are made evident by the context in

which it is raised, section 10(e) does not shield the Board’s resolu-

tion of those issues from review. See May Department Stores Co. v.

N.L.R.B., 326 U.S. 376, 386 n.5 (1945) (vague exception to para-

graph including ceare and desist order as “not supported or

justified by the record” sufficient to preserve issue of the proper

scope of that order); N.L.R.B. v. Blake Construction Co., No. 80-1922

(D.C. Cir. August 17, 1981) (objections regarding scope of com-

plaint, substantiality of proof and ALJ’s conduct of proceeding

adequate to preserve due process objections); Florence Printing

Co. v. N.L.R.B., 376 F.2d 216, 222 (4th Cir. 1967), cert. denied, 389

U.S. 840 (1967) (objection to sufficiency of proof preserved objec-

tion to placement of the burden of proof). In each case, the

critical inquiry is whether the objections made before the Board

were adequate to put the Board on notice that the issue might be

pursued on appeal.’

7 The close factual inquiry required by this standard is illustrated

by our decision in Burinskas v. N.L.R.B., 357 F.2d 822 (D.C. Cir. 1966).

The Board, following remand from this court, had set aside an earlier

order and adopted the trial examiner’s original recommendations.

f

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*

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‘4

33a

In this case, we find that Consolidated’s objections before the

Board were sufficient to permit it to argue on appeal that Hennes-

sey’s improper grounds for refusing reinstatement relieved Con-

solidated of any obligation to make a subsequent reinstatement

offer and, correlatively, tolled Consolidated’s backpay liability.

In its exceptions to the ALJ’s recommendations, Consolidated

specifically objected to his failure to find “(t]hat the Charging

Party refused the May 1 1979 offer of reinstatement because it did

not include an offer of backpay. . . . ” Respondent’s Exceptions

to the Decision and Recommended Order of Administrative Law

Judge Dated July 30, 1980 3 (emphasis added). In addition,

Consolidated discussed Hennessey’s grounds for refusing the

reinstatement offer in its brief to the Board. It argued that “the

fact that the warning letter did not enter into Hennessey’s mind

when he rejected [Consolidated’s] unconditional offer of reinstate-

ment” was “of great significance,” and that it was “anomalous”

for the ALJ to “void an otherwise valid offer of reinstatement

because of what he perceived as a ‘condition’ to reinstatement

(footnote continued from preceding page)

These recommendations included ordering the employer to reinstate

discharged employees with full backpay. The employer then appealed

to this court, arguing that its backpay liability should be tolled for the

time between the Board’s two decisions. The Board countered by argu-

ing, inter alia, that the employer had failed to make such a tolling

argument before the Board, and was therefore barred from so arguing

on appeal. In rejecting the Board’s argument, this court first noted that

the employer had objected to “the remedy” proposed by the trial exam-

iner in its original objections to the Board. We then turned to the setting

in which the Board approved that remedy and cbserved that there were

a number of then recent Board decisions regarding the propriety of

tolling backpay liability between inconsistent Board decisions. Finally,

we concluded that it was “more likely than not that the Board, with its

expert sensitivities alerted by some considerable past familiarity with

the tolling issue in this context of a change in litigating fortunes took

[the] more limited [backpay] objection to be comprehended within the

broader exception.” Jd. at 825. We also noted that the Board’s compli-

ance officer had addressed the tolling question in a letter to the

employer following the Board’s second decision. Jd. at 825-26.

34a

when that alleged ‘condition’ (the letter) never entered the mind

of the Charging Party when he rejected-the offer.” See Respon-

dent’s Brief in Support of its Exceptions to the Decision and

Recommended Order of the Administrative Law Judge dated

July 30, 1980 16-17.

The Board argues that this discussion was insufficient to sat-

isfy section 10(e) because it appeared as part of Consolidated’s

argument that its offer was unconditional and was not accompa-

nied by citations to any of the authorities that Consolidated is

relying on in this appeal. Brief for Respondent 23. The General

Counsel’s own brief, however, set the issue of Hennessey’s

grounds for refusal in the proper context. The General Counsel

argued that “the fact that Hennessey declined the offer [should

not] relieve [Consolidated] of its obligation to tender a valid offer

of reinstatement.” Answering Brief in Response to Respondent’s

Exceptions to the Decision and Recommended Order of Adminis-

trative Law Judge Dated July 30, 1980 6-7. He then proceeded to

quote a recent Board opinion in which the Board ruled that an

employer who had been ordered to reinstate certain employees

was not excused from that order by letters from these employees

“ “to the effect that they did not wish to return to [his] employ.’ ”

Id. at 7 (quoting Leroy W. Craw, 224 N.L.R.B. 241, 242 (1979), enf'd,

622 F.2d 579 (3d Cir. 1980)). In addition, the question whether

Hennessey’s grounds for refusing Consolidated’s offer have any

independent legal significance was addressed by the ALJ who

Stated that:

Having discharged Hennessey for unlawful reasons, it was

and is Respondent’s responsibility to remedy the unfair

labor practices. The facts indicate that Hennessey made

statements indicating that his reason for not going back to

work was the lack of backpay in the award. Respondent’s

liability to reinstate Hennessey, however, continues until a

proper offer of reinstatement is made.

J.A. 16. In the light of both Consolidated’s emphasis on the

significance of Hennessey’s grounds for refusing Consolidated’s

offer, and the AL.J and General Counsel’s arguments that those

:

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35a

grounds were of no importance to the disposition of this case, we

find that the Board had adequate notice of the issue raised here

on appeal.

B. Hennessey’s Refusal of Consolidated’s Offer

Although the question whether Hennessey improperly

refused an offer of reinstatement was before the Board, the Board

did not address that question in its opinion, relying instead on

the findings and conclusions of the AL.J.8 The ALJ, however, had

simply assumed that Hennessey’s reasons for refusing Consoli-

dated’s offer were irrelevant to the determination of Consoli-

dated’s backpay liability. Consolidated argues that this

assumption is not in keeping with Board precedent and that by

failing to distinguish or overrule cases that require an inquiry

into an employee’s grounds for refusing reinstatement, the Board

has acted arbitrarily. Because we find that the Board’s policy as

to unjustified refusals of reinstatement offers remains unex-

plained, we remand this issue to the Board to reconsider its

opinion.

In stating that Hennessey’s reasons for not going back to work

were of no importance, the ALJ failed to take account of Board

precedent that emphasizes the actual reasons why an employee

refuses‘an offer of reinstatement even when the validity of the

offer itself is challenged. In Research Designing Service, Inc., 141

N.L.R.B. 211 (1963), for example, an employee who had been

unlawfully discharged refused an offer of reinstatement because

of the possibility of being laid off once again. Jd. at 224. The trial

examiner nonetheless ordered that the employee be reinstated

with full backpay since, had he accepted the offer of reinstate-

ment, he would not have been returned to his former status but

would rather have been treated as a new employee for seniority

and vacation pay purposes. Jd. at 230. In reversing this ruling,

the Board stressed that the employee “refused the offer of rein-

statement for other reasons.” Id. at 216 (emphasis in original). The

8 See p. 9 supra.

36a

Board therefore ruled that the employer’s liability for backpay

was tolled by the discharged employee’s refusal of an offer of

reinstatement.’ Similarly, in L. Ronney & Sons Furniture Manufac-

turing Co., 97 N.L.R.B. 891 (1951), enf’d as modified, 206 F.2d 730

(9th Cir. 1953), cert. denied, 346 U.S. 937 (1954, the Board tolled an

employer’s backpay liability for a discharged employee who

refused reinstatement because she was working at another job.!°

The Board noted that the reinstatement offer was invalid because

it was subject to an illegal union-security provision. It nonethe-

less tolled the employer’s backpay liability because it “appear{ed]

that [the discharged employee] would not have accepted [the

employer’s] offer, even had it been unconditional.” Jd. at 892.

Other cases pursue this same inquiry into the reasons why a

discharged employee rejected an offer of employment, holding

that an employer’s backpay liability is tolled when an employee

rejecis an offer of reinstatement without knowledge of the condi-

tionalit’ of the offer. See, e.g., Hribar Trucking, Inc., 166 N.L.R.B.

745, 756 n.19 (1967), modified on other grounds, 406 F.2d 854 (7th

Cir. 1969); Eastern Die Co., 142 N.L.R.B. 601, 604 (1963), enf’d, 340

9 The Board also reversed the trial examiner’s order with regard to

another employee who had refused reinstatement because “he was

working longer hours and making more money at his current job.”

Research Designing Service, Inc., 141 N.L.R.B. at 210. The trial exam-

iner had not made any specific findings regarding the latter employee’s

reasons for refusing reinstatement.

19 With regard to another employee, the Board in L. Ronney found

that there was sufficient evidence that he would have accepted the

employer’s offer had it not been conditional. L. Ronney & Sons Furni-

ture Mfg. Co., 97 N.L.R.B. at 893. In support of this ruling, the Board

emphasized the employee’s “express awareness of the conditional nature

of the . . . reinstatement offer.” On appeal, the Ninth Circuit found

that this portion of the Board’s order was not supported by substantial

evidence. N.L.R.B. v. L. Ronney & Sons Furniture Mfg. Co., 206 F.2d

730, 737-38 (9th Cir. 1958), cert. denied, 346 U.S. 937 (1954). Concluding

that the “evidence as a whole is inconsistent with the conclusion that

[the employee] refused employment on account of the implicit condition

in the offer,” the court ruled that the employee was only entitled to

backpay up until the offer of reinstatement. Jd. at 738.

37a

F.2d 607 (1st Cir. 1965), cert. denied, 381 U.S. 951 (1965); Ekco

Products Co., 117 N.L.R.B. 137, 150 (1957).! In each ease, the issue

is whether the evidence clearly establishes that the employee

would have turned down the offer of reinstatement even if it had

not contained the invalid condition. See, eg., Atlantic Maintenance

Co., 184 N.L.R.B. 1328, 1329 (1961), enf’d, 305 F.2d 604 (3d Cir.

1962); id. at 18329 n.1 (Member Rodgers, dissenting).

In ignoring the issue of Hennessey’s reasons for declining

Consolidated’s offer, the Board may have relied on a recent case

cited in the General Counsel’s brief. Brief to the National Labor

Relations Board In Answer To Respondent’s Exceptions Thereto

7. The question in Leroy M. Craw, 244 N.L.R.B. 241 (1979), enf'd,

622 F.2d 579 (3d Cir. 1980) was whether a conditional reinstate-

ment offer should be deemed to comply with an order of the

Board! to reinstate employees who had engaged in an unfair

labor practice strike when the employees either failed to respond

to the offer or refused it for other reasons. The employer had sent

11 Cases involving time conditions also support an inquiry into the

employee’s reasons for rejecting an offer of reinstatement. Time condi-

tions on acceptance are somewhat different from conditions that go to

the nature of an employee’s work because they do not prevent the

employee, if he accepts in a timely manner, from being made whole.

Time conditions are therefore not really conditions on the offer, but

rather limitations on the time for acceptance. As such, they must

comport with the employee’s “fundamental right to a reasonable time to

consider whether to return.” Penco Enterprises, Inc., 216 NLRB 734,

734-35 (1975). Accord, Murray Products, Inc. 228 NLRB 268, 268 (1977),

enf'd, 584 F.2d 934 (9th Cir. 1978). Nonetheless, the inquiry in such cases

is similar to that with invalid conditions on employment—that is,

courts look to the reasons why an employee failed to accept the offer of

reinstatement within the time imposed by the employer before inquir-

ing into whether that time condition is unreasonable. See, N.L.R.B. v.

Betts Baking Co., 428 F.2d 156, 158-59 (10th Cir. 1970); N.L.R.B. v.

Harrah’s Club, 403 F.2d 865, 871 (9th Cir. 1968).

12In Leroy W. Craw, 227 N.L.R.B. 601 (1976), modified on other

grounds, 565 F.2d 1267 (3d Cir. 1977), the Board had held that a com-

pany had engaged in an unfair labor practice by not reinstating unfair

38a

out letters offering striking employees reinstatement, but indicat-

ing that returning employees would be subject to physical exami-

nations and would only be paid at a substantially equivalent rate

to the one they had originally earned. The Board found that both

of these conditions were invalid—the physical examinations

because they treated returning employees as new employees; and

the rate of pay because it failed to include increases in wages that

the employees would have received had the employer accepted

their offers to return to work at the end of the strike. Jd. at 242.

After determining that the employer’s offers of reinstatement

were inadequate, the ALJ proceeded to consider whether the

employer’s backup liability should be tolled in the case of

employees who rejected those offers. He concluded that backpay

was not tolled, stating that: “(the discharged employees’] replies

to the effect that they did not wish to return to Respondent’s

employ do not obviate the need for Respondent to extend to them

an unconditional offer of reinstatement, nor do their replies ter-

minate their backpay periods.”

Although Leroy W. Craw could signal a change of Board policy

abandoning any inquiry into the reasons why a conditional offer

is refused, the case might also be reconcilable with earlier Board

precedent. The offer in Leroy W. Craw plainly stated its invalid

conditions and employees who rejected that offer because they

had procured “better jobs” might well have gone back to the

company if faced with a valid offer. Thus, the ALJ’s conclusion

may be seen as consistent with an inquiry into whether an

employee rejected an offer of reinstatement fcr reasons other

than its invalid conditions.

(footnote continued from preceding page)

labor practice strikers when they unconditionally applied for reinstate-

ment. Jd. at 609. The Board had therefore ordered the company to offer

those employees immediate reinstatement.

13 On appeal, the Board adopted the findings and conclusions of the

Administrative Law Judge. See Leroy W. Craw, 244 N.L.R.B. at 241.

;

:

i

1 RS RO IES MESO LEW EN LAEGER”

39a

In contrast, Hennessey’s refusal of Consolidated’s offer would

seem an appropriate case for applying the rule of Research Design-

ing and L. Ronney. The testimony regarding Hennessey’s reason

for refusing Consolidated’s offer was uncontradicted; he would

not return without backpay. R. 61. That reason was not valid

under Board precedent, because it violated Hennessey’s duty to

mitigate his damages. See National Screen Products Co., 147

N.L.R.B. 746, 748 (1964). On the other hand, while Hennessey

was present when the presumably invalid condition on his rein-

statement—the final warning letter—was announced, R. 99, 184,

Hennessey testified that he had no recollection of being told

about that condition, R. 100, and did not learn about it until five

weeks later.'4Id. There is therefore no reason to believe that the

_14 This testimony was given during questioning by the ALJ:

Judge Stone: ... As best you can [,] tell me exactly what [the

Joint State Committee] told you the results of the grievance hear-

ing were?

Hennessey: Well, sir, they told me that the discharge had been

overturned. That the pay claim had been denied. The company

was responsible to pick up my pension and health and welfare

benefits with full seniority rights.

Judge Stone: Now, was there anything else said to you at all?

‘Hennessey: No, sir, not that I remember.

Judge Stone: Did they give you anything in writing?

Hennessey: No, sir. I picked up a copy of the results of the

grievance about five weeks later. And it was at that time when I

finally realized there had also been a thing where the discharge

had been reduced to a final warning letter.

Judge Stone: .. . Now, did you know at the time the grievance

hearing was over, when you were orally told, did you know at that

time there was anything about a warning?

Hennessey: No sir, I did not.

R. 99-100.

The ALJ did not make any findings regarding Hennessey’s aware-

ness of the final warning letter, presumably because of his conclusion

that Hennessey’s reason for refusing Consolidated’s offer of reinstate-

ment were of no importance.

40a

invalid condition on Consolidated’s offer even entered Hennes-

sey’s mind when he decided to turn down the offer of reinstate-

ment. Looking to the actual reasons why Consolidated’s offer was

refused seems especially appropriate when there is every indica-

tion that Consolidated acted in good faith.’ Unlike the employer

15 Consolidated also argues that its good faith reliance on the arbitra-

tion award provides an independent basis for overturning the Board’s

decision. It suggests that even in cases in which the Board properly

refuses to defer to an arbitrator’s award, the Board should nonetheless

look to the award to determine the interim rights of the parties. Thus, it

argues, Hennessey should have been required to accept employment as

conditioned by the arbitrator’s decree, even though the Board ulti-

mately ruled that the arbitrator’s award contained an illegal condition.

Because we are remanding this case to the Board to reconsider the

significance of Hennessey’s motives for refusing Consolidated’s offer, we

need not reach the question whether Consolidated’s good faith reliance

on the arbitrator’s decree, in itself, would be sufficient to toll backpay

liability. We note, however, that resolution of this question depends on

whether the Board could properly further the strong national policy in

favor of private settlement of labor disputes without abdicatiny its

responsibility to remedy violations of national labor law. See Local

Union No. 2188, International Bth’d of Elec. Workers v. N.L.R.B., 494

F.2d 1087, 1091 (D.C. Cir., cert. denied, 419 U.S. 835 (1974); Associated

Press v. N.L.R.B., 492 F.2d 662, 667 (D.C. Cir. 1974). Thus, the Board

might well reach different conclusions regarding the employer’s right

to rely on an arbitrator’s decree pending a Board decision on a charged

unfair labor practice depending on the nature of the arbitrator’s deci-

sion and the specific circumstances following its issuance. In this case,

among the significant factors the Board would have to consider are

(1) the arbitrator ordered reinstatement with a warning letter, (2) Con-

solidated conformed its offer to the terms of the decree and (3) Hennes-

sey waited two and a half months after the decree before filing his

charge with the Board. Although Hennessey filed his charge within

the statutory period of six months, and the Board ruled that the offer

was improperly conditioned, a more refined consideration of the policy

in favor of private settlement might lead the Board to find that Consoli-

dated’s good faith reliance on the arbitrator’s award should work to

suspend its backpay liability. Different considerations would of course

be implicated if the arbitrator’s award had been plainly conditioned on

4la

in Leroy W. Craw, who made a conditional offer of reinstatement

in violation of an express order from the Board, Consolidated

offered Hennessey reinstatement in accordance with the terms of

the arbitrator’s decree; no Board precedent at that juncture spe-

cifically held that this offer would be inadequate; and Hennessey

gave no indication that the warning Jetter bore any significance

in his decision not to return to work. It was only after Hennessey

filed his charge with the Board, which was several months after

the arbitrator’s decision, that Consolidated received notice that

the warning letter presented any problem at all.

In view of the Board’s failure to reconcile its decision in this

case with its precedent, and its failure to explain its reasons for

abandoning any inquiry into the reasons why a conditional offer

is refused, we have no choice but to remand this case to the Board

to explicate the circumstances, if any, under which an inquiry

into wheth-r an employee would have rejected a valid offer of

reinstatement is proper.!® See generally Road Sprinkler Fitters Local

(footnote continued from preceding page)

a surrender of the employee’s statutory rights, or if the arbitrator had

upheld the discharge, thereby requiring no reinstatement offer at all. In

these cases, the Board might find that allowing the arbitration award to

reduce the remedy received by a wrongfully discharged employee

would seriously compromise the remedial purposes of the Act.

16 We are especially hesitant to decide this question without the

benefit of the Board’s reasoning in the light of contradictory signals

from the Board regarding the analogous situation in which an

employer who has made no reinstatement offer at all seeks to reduce his

backpay liability by proving that an offer would have been rejected.

Compare Roadway Express, Inc., 254 N.L.R.B. No. 26, 48-49 (1981)

(evidence that employee intended to quit does not obviate need for a

valid offer of reinstatement) and Lyman Steel Co., 246 N.L.R.B. 712, 715

(1979) (employer must make a genuine offer of reinstatement to toll

backpay liability) with Marlene Industries Corp., 255 N.L.R.B. No. 192,

14 n.12 (1981) (even in the absence of an offer of reinstatement, employer

may reduce liability by demonstrating that employee would not have

accepted the offer if made) aid Abilities & Goodwill, Inc., 241 N.L.R.B.

27, 27 n.5, enf. dented on other grounds, 612 F.2d 6 (1st Cir. 1979 (same).

42a

No. 669 v. N.L.R.B., 600 F.2d 918, 923 (D.C. Cir. 1979); N.L.R.B. v.

Madison Courier, Inc., 472 F.2d 1307, 1326 (D.C. Cir. 1972); Burin-

skas v. N.L.R.B., 357 F.2d 822, 827 (D.C. Cir. 1966).

Remanded.

43a

APPENDIX D

FJZ

253 NLRB No. 137 D—7248

Peru, IL

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

CONSCLIDATED FREIGHTWAYS

and Case 33—CA—4364

CHARLES HENNESSEY, an Individual

DECISION AND ORDER

On July 30, 1980, Administrative Law Judge Jerry B. Stone

issued the attached Decision in this proceeding. Thereafter,

Respondent filed exceptions and a supporting brief, and the Gen-

eral Counsel filed a brief in answer to Respondent’s exceptions.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Relations

Board has delegated its ew in this proceeding to a three-

member panel.

The Board has considered the record and the attached Deci-

sion in light of the exceptions and briefs and has decided to affirm

the rulings, findings,! and conclusions of the Administrative Law

Judge and to adopt his recommended Order.

1 In adopting the Administrative Law Judge’s finding that Charles

Hennessey was discharged in violation of Sec. 8(aX1) of the Act, we note

that no exceptions were filed to that finding, or to the further finding

that deference to the arbitration award concerning Hennessey’s dis-

charge was unwarranted.

253 NLRB No. 137

44a

D—7248

In his Decision, the Administrative Law Judge intimated that

Respondent’s refusal to include backpay in its offer of reinstate-

ment to Charles Hennessey, by itself, could render the offer of

reinstatement inadequate. While a valid offer of reinstatement

must be specific, unequivocal, and unconditional, the refusal to

include accrued backpay in an otherwise valid offer of reinstate-

ment does not render the offer inadequate. The imposition of such

a requirement would nullify the right to litigate the lawfulness

of the discharge. Moro Motors Ltd., 216 NLRB 192 (1975), and

National Screen Products Co., 147 NLRB 746 (1964). Therefore,

insofar as Respondent’s offer of reinstatement to Hennessey did

not include accrued backpay, it was not, for that reason, invalid.

However, we agree with the Administrative Law Judge that

Kespondent’s offer of reinstatement was invalid. In so doing, we

rely on the Administrative Law Judge’s finding that placement

of a warning letter in Hennessey’s personnel file as a prerequisite

to his reinstatement renders the reinstatement offer conditional

and, thus, inadequate.

45a

D—7248

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act,

as amended, the National Labor Relations Board adopts as its

Order the recommended Order of the Administrative Law Judge

and hereby orders that the Respondent, Consolidated Freight-

ways, Peru, Illinois, its officers, agents, successors, and assigns,

shall take the action set forth in the said recommended Order,

except that the attached notice is substituted for that of the

Administrative Law Judge.

Dated, Washington, D.C. January 5, 1981

John H. Fanning, Chairman

Howard Jenkins, Jr., Member

Don A. Zimmerman, Member

[SEAL] NATIONAL LABOR RELATIONS

BOARD

46a

D—7248

APPENDIX

[SEAL] NOTICE TO EMPLOYEES [SEAL]

Posted by Order of the

National Labor Relations Board

An Ageucy of the United States Government

WE WILL NOT discharge or otherwise discriminate against

employees in regard to hire or tenure of employment, or any term

or condition of employment because of their protected concerted

activities.

WE WILL NOT threaten employees with discharge or other

reprisals because of their protected concerted activities.

WE WILL NOT in any like or related manner interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed them in Section 7 of the Act except to the extent that

such rights may be affected by lawful agreements in accordance

with Section 8(a)(3) of the Act.

WE WILL offer to Charles Hennessey immediate and full

reinstatement to his former position or, if such position no longer

exists, to a substantially equivalent position, without prejudice to

his seniority or other rights previously enjoyed, and make him

47a

D—7248

whole, with interest, for any loss of pay or other benefits suffered

by reason of the discrimination against him.

CONSOLIDATED FREIGHTWAYS

(Employer)

Dated By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE.

This notice must remain posted for 60 consecutive days from

the date of posting and must not be altered, defaced, or covered by

any other material. Any questions concerning this notice or

compliance with its provisions may be directed to the Board’s

Office, Savings Center Tower, 16th Floor, 411 Hamilton Avenue,

Peoria, Illinois 61602, Telephone 309-671-7081.

48a

APPENDIX E

JD—447—80

Peru, IL

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

CONSOLIDATED FREIGHTWAYS

and Case No. 33—CA—4364

CHARLES HENNESSEY

Gary W. Wright, Esq., and

Lynn E. Gilfillan, Esgq.,

for the General Counsel.

Mr. Charles Hennessey, of

Warrenville, IL, Pro Se.

Sandra P. Zemm, Esq., and

John W. Powers, Esq.

(Seyfarth, Shaw, Fairweather

and Geraldson), of Chicago,

IL, for the Respondent.

DECISION

Statement of the Case

JERRY B. STONE, Administrative Law Judge: This pro-

ceeding, under Section 10(b) of the National Labor Relations Act,

as amended, was tried pursuant to due notice on February 14 and

15, 1980, at Peoria, Illinois.

The charge was filed on July 11, 1979. The complaint in this

matter was issued on August 30, 1979. The principal issues con-

cern whether the Respondent has violated Section 8(a)(1) of the

49a

JID—447—80

Act by threatening an employee concerning his exercise of pro-

tected concerted rights, and by discharging Charles Hennessey

on March 22, 1979, because he engaged in protected concerted

activity. There are also issues as to whether the Board should

defer its right to act and honor an arbitration award and whether

Respondent’s willingness to reinstate and “act of reinstatement”

of Hennessey constitutes a bar to reinstatement and a toll to

backpay.

All parties were afforded full opportunity to participate in the

proceeding. Briefs have been filed by the General Counsel and

Respondent and have been considered.

Upon the entire record in the case and from my observation of

witnesses, I hereby make the following:

Findings of Fact

I. The Business of the Employer

The facts herein are based upon the pleadings and admissions

therein.

Consolidated Freightways, the Respondent, is, and has been at

all times material herein, a Delaware corporation with corporate

headquarters located at Menlo Park, California, and terminal

facilities located at Peru, Illinois, and at other sites throughout

the United States. It is engaged in the business of intrastate and

intesstate transportation of goods and materials.

Respondent, during a representative 12-month period, derived

gross revenues in excess of $50,000 from transporting material

from points outside the State of Illinois directly to points within

the State of Illinois. Respondent, during the same representative

period, derived gross revenues in excess of $50,000 from trans-

porting material from the State cf Illinois directly to points

located outside the State of Illinois.

JD—447—80

As conceded by Respondent and based upon the foregoing, it is

concluded and found that the Respondent is, and has been at all

times material herein, an employer engaged in commerce within

the meaning of Section 2(2), (6) and (7) of the Act.

II. The Labor Organization Involved!

Local Union 710, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers of America, is, and has

been at all times material herein, a labor organization within the

meaning of Section 2(5) of the Act.

III. The Unfair Labor Practices

A. Preliminary Issues

Supervisory Status?

At all times material herein, the following-named persons

oceupied the positions set opposite their respective names, and

have been, and are now, agents of the Respondent at its Peru,

Illinois facility, acting on its behaif, and are supervisors within

the meaning of Section 2(11) of the Act:

Wiiliam Jones — Mechanics Shop Supervisor

Robert Tosch? — Dispatch Supervisor

Charles Schmalz — Dispatch Operations Manager

1 The facts are based upon the pleadings and admissions therein.

2 The facts are based upon the pleadings and admissions therein and

undisputed credited evidence.

3 According to the pleadings and the record otherwise, the correct

spelling of Dispatch Supervisor Robert Tosch’s name is “Tosh.”

Respondent’s brief refers to the dispatcher as “Tosch.” Reference to

“Tosh” herein is to Tosh or Tosch, whichever is the correct spelling of

the individual’s name. Since Respondent should be more aware of the

spelling of its supervisor’s name, I shall use “Tosch” in reference to

Tosh or Tosch.

dla

JD—447—80

B. Background

Consolidated Freightways, Inc., the Respondent, is and has

been for a number of years engaged in the business of intrastate

and interstate transportation of goods and materials. Respondent

opened a terminal at Peru, Illinois, in March of 1979.

At all times materia] herein Respondent had a collective-bar-

gaining relationship with Local Union No. 710 of the Interna-

tional Brotherhood of Teamsters, Chauffeurs, Warehousemen &

Helpers of America. Said bargaining relationship was governed

by contracts, one of which had the following provisions:

ARTICLE 16

EQUIPMENT, ACCIDENTS, REPORTS. The

Employer shall not require employees to take out on the

streets or highways any vehicle that is not in safe operating

condition or equipped with the safety appliances prescribed

by law. It shall not be a violation of this Agreement where

employees refuse to operate such equipment unless such

refusal is unjustified. All equipment which is refused

because not mechanically sound or properly equipped, shall

be appropriately tagged so that it cannot be used by other

drivers until the maintenance department has adjusted the

complaint. After equipment is repaired the Employer shall

place on such equipment an “OK” in a conspicuous place so

the driver can see the same.

Under no circumstances will an employee be required or

assigned to engage in any activity involving dangerous con-

ditions of work or danger to person or property or in viola-

tion of any applicable statute or court order, or in violation

of a government regulation relating to safety of person or

52a

JD—447—80

equipment. The term “dangerous conditions of work” does

not relate to the type of cargo which is hauled or handled.

Any employee involved in any accident shall immedi-

ately report said accident and any physical injury sus-

tained. When required by his Employer, the employee,

before starting his next shift, shall make out an accident

report in writing on forms furnished by the Employer and

shall turn in ali available names and addresses of witnesses

to the accident. The employee shall receive a copy of the

accident report that he submits to his Employer. Failure to

comply with this provision shall subject such employee to

disciplinary action by the Employer.

Employees shall immediately, or at the end of their shift,

report all defects of equipment. Such reports shall be made

on a Suitable form furnished by the Employer and shall be

made in multiple copies, one copy to be retained by the

employee. The Employer shall not ask or require any

employee to take out equipment that has been reported by

any other employee as being in an unsafe operating condi-

tion until same has been approved as being safe by the

mechanical departments.

When the occasion arises where an employee gives writ-

ten report on forms in use by the Employer of a vehicle

being in an unsafe working or operating condition, and

receives no consideration from the Employer, he shall take

the matter up with the officers of the Union who will take

the-matter up with the Employer.

If the Employer requests a regular employee to qualify

on equipment requiring a special license or in the event an

empioyee is required to qualify (recognizing seniority) on

such equipment in order to obtain a better job opportunity,

with his Employer, the Employer shall allow such regular

53a

JD—447—80

employee the use of the equipment in order to take the

examination.

All equipment used as City Peddle trucks and equipment

regularly assigned to peddle runs must have steps or other

similar device to enable drivers to get in and out of the body.

The Employer shall install heaters and defrosters on all

trucks and tractors.

There shall be first line tires on steering axle of road

units.

All new road equipment regularly assigned to the fleet

after July 1, 1973 shall be equipped with air-ride seats on

the driver’s side.

Newly manufactured over-the-road tractors which are

added to the road fleet, subsequent to April 1, 1977, and

assigned to road operations on a regular basis shall be air

conditioned. The National Negotiating Committees shall

designate an Employer-Union Committee which shall

undertake to determine the feasibility of converting road

tractors to provide air conditioning by April 1, 1980.

The Conference Joint Area Committee may, upon appli-

cation of either the Employer or the Local Union, waive the

installation of such air conditioning equipment as a result

of climatic conditions or other standards established by the

Committee.

The Employer and the Union together shall create a joint

committee of qualified representatives for the purpose of

consulting among themselves and with appropriate Govern-

ment agencies, state and federal, on matters involving high-

way and equipment safety, and such committee shall meet

JD—447—80

on a quarterly basis with a schedule to be agreed to by the

respective chairmen.

Any complaint arising under this article will be

processed through the Conference Area level in accordance

with rules and procedures to be agreed upon between the

parties. Within sixty (60) days from the signing of this

agreement, the Local Union will notify the Employer of the

representative who will be responsible for these matters.

The Respondent’s operations were also subject to Federal

Motor Carrier Safety Regulations as prescribed by U.S. Depart-

ment of Transportation Federal Highway Administration. At all

times material herein, such regulations included as part thereof

the following regulation:

Sec. 392.7 Equipment, inspection and use.

No motor vehicle shall be driven unless the driver thereof

shall have satisfied himself that the following parts and

accessories are in good working order, nor shall any driver

fail to use or make use of such parts and accessories when

and as needed:

Service brakes, including trailer brake connections.

Parking (hand) brake.

Steering mechanism.

Lighting devices and reflectors.

Tires.

Horn.

Windshield wiper or wipers.

Rear-vision mirror or mirrors.

Coupling devices.

55a

JD—447—80

Charles Hennessey was employed by the Respondent as a

transport operator from May 19, 1977, to March 22, 1979. Respon-

deni’s discharge of Hennessey on March 22, 1979, is in issue as an

alleged violation of Section 8(a)1) of the Act. The essential ques-

tion is whether Respondent discharged Hennessey because of his

protected concerted activity.

Hennessey refused to drive a tractor-trailer on March 22, 1979,

assertedly because the lights were not of such a nature as to be

safe. It is clear that if Hennessey’s refusal to operate or drive the

tractor-trailer constituted protected concerted activity, such

March 22, 1979, discharge would constitute conduct by Respon-

dent violative of the Act.

At first blush, the General Counsel’s pleadings merely asserted

that Respondent’s discharge of Hennessey was because of Hen-

nessey’s protected concerted activity. Such pleadings are loose

enough to allow litigation of whether Hennessey was discharged

because of protected concerted activity other than the activity on

wlarch 22, 1979. In this respect, I note that the General Counsel

adduced evidence toward establishing that Hennessey had

engaged in other protected concerted activity, that of refusing to

drive tractor-trailers which were overloaded as regards state

weight regulations, that Respondent’s agents had made remarks

to Hennessey revealing an attitude of discriminatory motivation

as regards employees who refused to drive overloaded trucks, and

in effect displeasure with Hennessey because of his refusal. The

Respondent objected to the receipt of such evidence and argued

that the issues were narrow and related to the question of safety

of the truck on March 22, 1979. The General Counsel cleared up

any ambiguity in the pleadings and stated in effect that the

evidence of the refusal to drive overweighted tractor-trailers was

“relevant” to show the conduct alleged in this case as regards the

issue of discharge for driving an unsafe tractor. I have carefully

reviewed the record and Genera! Counsel’s brief. It is clear that

JD—447—80

the issue as litigated is simply whether the Respondent dis-

charged Hennessey on March 22, 1979, for his refusal to drive a

tractor-trailer on March 22, 1979, and whether such refusal,

because of safety reasons, constituted protected concerted activ-

ity under the Act.

The tractor which was involved in Hennessey’s refusal to drive

a tractor on March 22, 1979, had a problem relating to its lights

or battery on March 21, 1979. As a result, a new battery was

installed in such vehicle on March 21, 1979.

C. The Events of March 22,1979*

The Discharge of Hennessey

The dispatcher called Charles Hennessey at approximately

10 p.m. on the evening of March 21 for a run to Springfield,

4The facts are based upon a composite of the exhibits and the

credited aspects of the testimony of Hennessey, Pole, Lentz, Klinker,

Tosch, Lincoln, and Jones. I credit Hennessey’s testimony over Jones’ as

regards Hennessey’s initially seeing Jones and completing a cry card,

and as regards Jones’ telling Hennessey that the battery in the truck

would fully charge itself by Hennessey’s driving the tractor for a

hun@red miles or so. I also credit Hennessey’s testimony over Tosch’s as

to whether Tosch refused to inspect the tractor. First Hennessey’s

testimony appeared sincere, frank, and consistent. There appears little

reason for either Hennessey or Jones or Tosch to present different

versions as to how the complaint was initially presented. Considering

Jones’ examination of the battery without a detailed check or test, the

possibility of erratic shorts, the contradictory testimony relating to

whether or not the alternator would engage without drainage of

electrical current when voltage was between 12 and 12.5 volts, and the

fact that Jones did not know that a new battery had been installed that

date, I am persuaded that Jones believed the battery was good and

would charge up. However, I am not persuaded that Jones knew that

the battery was in such a condition that it needed to be at a charging

state for only about 5 minutes. Rather. I am persuaded that he has

57a

JD—447—-80

Missouri, which Hennessey accepted. Hennessey arrived at the

terminal at about 12:30 a.m. on March 22, picked up his

paperwork and went to the coffee room to fill out his logs. In

checking his logs, he determined that he did not have a sufficient

number of driving hours available to take the Springfield run.

Hennessey thereupon switched runs with a driver scheduled to

go to Des Ploines, Iowa. Hennessey and the other driver

exchanged paperwork and Hennessey returned to the coffee room

to fill out the paperwork for the run to Des Moines. Tractor

No. 16-3281 had been assigned or reassigned to the Des Moines

run.

As Hennessey approached Tractor No. 16-3281, he noticed that

it was idling, but that no lights were visible. He then got into the

cab and saw that the headlight and taillight switches were both

in the “on” position. Hennessey then turned on the dome light

switch and the four way flasher switch, but still there were no

lights visible on the tractor or the tandem trailers. Hennessey

began to accelerate the engine. After he revved the engine for a

brief ; eriod of time he noticed the lights begin to appear, and

after a brief period of time the lights came up to normal bright-

ness. After doing this, he took his foot off the accelerator, and all

(footnote continued from preceding page)

rationalized such beliefs upon an after the event discovery that a new

battery had been installed. As to Tosch’s testimony concerning his

inspection of Hennessey’s tractor, I noted a hesitation and a “I believe”

reference in his testimony. I do not credit his testimony that he and

Hennessey inspected the tractor. I note that both the General Counsel

and Respondent in their briefs have presented statements of contended

facts which excellently describe many of the facts. I have considered

such statements of contended facts as proposed findings of facts and as

to many of the findings of facts herein have accepted some of the same

as is or with modification as my findings of facts, all however dependent

upon my own evaluation of evidence and consistent with what my

findings of facts would have been even without the literary aid of the

parties.

58a

JD—447—80

of the lights on both the tractor and trailers went out. Hennessey

then got out of the unit and noticed a vendor-mechanic working

nearby. He asked the vendor-mechanic if there were something

the mechanic could do to repair the unit. The mechanic stated

that all the unit needed, in his opinion, was a new battery, and

that Hennessey should go to the maintenance office and notify

them of the unit’s condition.®

Hennessey went to the maintenance office and spoke with Bill

Jones, the maintenance coordinator at the Peru terminal. Hen-

nessey explained the condition of the unit, and Jones instructed

him to complete a vehicle condition report describing the prob-

lem. After completing the vehicle condition report and giving it

to Jones, Hennessey was instructed to go to the coffee room where

he would be called when the unit was ready. Jones then pro-

ceeded to the tractor to personally inspect it. In order to deter-

mine whether the charging system was functioning properly, he

throttled the engine. Jones throttled the engine just enough to

raise it to over the 1200 rpm limit. As soon as he did that, he

heard the relay in the charging circuit click.

Upon Jones’ throttling of the engine over 1200 rpms, various

lights commenced to come on.® Jones noticed that there was mud

5 Respondent’s questioning of Hennessey and other witnesses

appeared to be designed to attack Hennessey’s credibility as to whether

the lights came on immediately or went off immediately, depending

upon whether the engine was being revved. I am persuaded that Hen-

nessey was a truthful witness, that all witnesses to the proceeding

appeared to have an enlarged view of time span because of the nature of

the events, that the overall facts reveal that some lights having a lesser

need for current went out first and came on last depending upon the

revving of the engine above 1200 rpms. The usage of terms immediately,

etc., in the context of facts herein must be viewed as a relative term.

6 I do not credit Jones’ testimony to the effect that all lights were on

when he approached the vehicle. Such credibility resolution is based

59a

JD—447—80

on the headlight lenses and that the lights appeared brighter

when such mud was removed.

Hennessey returned to the coffee room, where he had coffee

and talked with three drivers that he recognized—Ray Lentz,

Bud Pole, and George Klinker. After about 10 minutes, and as he

was talking with the three drivers, Hennessey saw Jones enter

the coffee room and go to the coffee machine. Hennessey asked

Jones if the truck had been fixed. Jones replied that it was ready

to go. Hennessey then asked Jones if the unit had been replaced.

Jones stated that it hadn’t—that it didn’t need repair. Jones said

that all Hennessey had to do was run the unit for a hundred

miles or so, and that would charge the battery.

Hennessey then reminded Jones that the trailers on the unit

contained a placard load (a placard load being one in which

dangerous material requires special markings to be displayed and

wherein special operating procedures must be followed). Hennes-

sey again asked Jones if he would fix it, and Jones replied that he

wouldn’t—that Hennessey should run it. Jones then said that if

Hennessey wanted anything done about it, he would have to go to

the dispatch office.

Jones proceeded to the maintenance area, where he called the

dispatch office and informed Bob Tosch, assistant dispatch opera-

tions manager, that a driver who wanted the battery in his truck

changed was on his way to the dispatch office. At that time, Jones

told Tosch that there was nothing wrong with the truck—it was

mechanically sound and the charging system was in good work-

ing order. He explained that a low charge in the battery was

causing some dimness, but that if Hennessey would drive the

truck, the battery would be recharged.

(footnote continued from preceding page)

upon consideration of Hennessey’s credited testimony and the logical

consistency of facts.

JD—447—80

After his discussion with Jones, Hennessey went to the dis-

patch office and spoke to Robert Tosch, a dispatch supervisor at

the Peru terminal. Hennessey explained the condition of the unit

to Tosch, at which time Tosch replied that Bill Jones had already

told him about the unit, and that Jones had final say in the

matter. Hennessey then told Tosch that the unit was unsafe in

that condition, and reminded him that it was a placard load, and

that it was foggy outside. Tosch stated that there was nothing he

could do. Hennessey replied that he could not drive the unit in

that condition. Tosch told Hennessey to take it the way it was or

to go home.

After this exchange, Hennessey then returned to Tractor

No. 16-3281 and inspected it a second time. As Hennessey

approached the unit, he again found it idling with no lights on

the tractor or trailers visible. Hennessey got into the cab and saw

that all of the light switches were in the “on” position, but that

no lights were visible. Hennessey then revved the unit at a high

speed for a brief time, when he noticed the lights come on.

Hennessey continued running the engine for a brief time, then he

took his foot off the accelerator. When he let off the accelerator,

all of the lights went out. With the tractor still idling and the

light switches turned on, Hennessey left the cab and inspected

the unit. He again found that no lights were visible on the

truck—no lights were visible on the tandem trailers.

After Hennessey’s second inspection of his unit, he returned to

the dispatch office and spoke with Robert Tosch and Rich Bryant,

another dispatcher on duty that night. Hennessey asked Tosch

and Bryant to check the vehicle with him. They both refused.

Hennessey told Tosch and Bryant that the unit was unsafe, and

that he couldn’t drive it in its present condition. He then asked

Tosch and Bryant if they would swap tractors for him. Hennes-

sey was refused, and then informed that the final decision

regarding the condition of the unit rested with Bill Jones, and

that Tosch and Bryant could do nothing about it. Hennessey

6la

JD—447—80

again reminded Bryant that his unit was a placard load, and that

it was foggy outside. Hennessey asked Bryant if he would call

the Respondent’s safety supervisor to look at the unit. Bryant

stated that he would not call the safety supervisor, in that he had

been instructed not to bother him with matters like that.’

At this point, Tosch told Hennessey to take the unit the way it

was or punch out and go home. To this Hennessey stated that he

didn’t want to go home—that he wanted the unit repaired. Tosch

again said that there was nothing he could do, that either Hen-

nessey take the unit as it was or the Company would «ccept his

voluntary resignation

After this discussion, Hennessey filled out his paysheet,

explaining what had happened and the time involved. After

completing the paysheet, Hennessey then punched out, turned in

his bills and paysheet and left the dispatch office.

After leaving the dispatch office, Hennessey proceeded to the

coffee room, where he again spoke with drivers Lentz, Pole and

Klinker. Hennessey asked the three drivers if they would come

out and look at the unit assigned to him. They agreed to do so,

and the group then proceeded into the yard with Hennessey. As

they approached the unit, Hennessey pointed out the unit, and

explained that he had left the light switches on. The unit was

idling, and no lights on either the tractor or trailers were visible.

Hennessey then got into the cab, and began revving the engine.

After a brief period of time the lights began to come on and to

reach normal brightness. When the lights came to their normal

brightness, Hennessey let off the accelerator and all of the lights

went out. Hennessey got out of the cab and discussed the problem

with Lentz, Pole and Klinker. He asked each of them what they

would do. Lentz, Pole and Klinker each said that they would not

take the unit out in the condition it was in.

7 As has been indicated, I do not credit Tosch’s testimony inconsis-

tent with the facts as found.

62a

JD—447—80

After this conversation, the three drivers returned to the coffee

room, and Hennessey completed a second vehicle condition report

which he placed in a slot in the driver’s door of the cab. Follow-

ing this, Hennessey left the terminal.

In addition to the above facts, evidence was presented relating

to the condition of the tractor earlier in time on March 21, 1980.

Thus, the facts reveal that there was a problem concerning

“lights” and that such problem resulted in the installation of a

new battery. The testimonial evidence of Lincoln revealed that

he considered the battery that was installed to be one in good

shape. It is noted, however, that the indicated amperage reading,

which although within acceptable limits, was not at the highest

preferred reading.

Further the facts reveal] that after the discharge of Hennessey,

around 4:30 a.m. to 5 a.m., an employee serviced Tractor

No. 16-3281 and left with said tractor around 5 a.m. for a trip to

Des Moines. Such driver found that the lights were not on at first

but came on when the engine was throttled. Said driver used a bar

to keep the accelerator pedal down and revving the engine during

time of servicing. Around 5 a.m., as indicated, the driver took the

tractor to Des Moines, Iowa, without mishap.

CONCLUSION®

The essential issue is whether Hennessey’s conduct in refusing

to drive Tractor No. 16-3281 constituted conduct of protected

concerted activity. If so, it is clear that Respondent’s discharge of

Hennessey on March 22, 1979, constituted conduct violative of

Section 8(a)(1) of the Act.

Considering the facts in this case, I am persuaded and con-

clude that Hennessey’s refusal to operate or drive Tractor

8 As later set forth, I find that the arbitration award, concerning a

grievance about Hennessey’s discharge, should not be honored.

63a

JD—447—80

No. 16-3281, on March 22, 1979, was based upon a reasonable

belief that to operate or drive such tractor under the existing

conditions was dangerous and could result in an accident and be

violative of safety statutes, and that under the collective-bargain-

ing agreement in existence that he could not be required to drive

such tractor.’ The determination upon the reasonableness of his

belief must be based upon the circumstances as they existed and

not upon whether in fact there actually existed such danger.

Thus, the facts reveal that the night was foggy and that Hennes-

sey, if he drove the tractor, would have to drive the same for 4 or 5

hours during darkness of night or early morning. The facts also

reveal that the load that Hennessey was taking was a placard

load requiring some stops and checking of the load and vehicle.

Hennessey’s experience with the lights on the morning of

March 22, 1979, revealed that when the engine was not being

revved, as would be the case at times when the vehicle was

stopped for any purpose including the times for checking the

load and vehicle, the lights dimmed and/or went out. If the

lights dimmed or went out during the time of darkness when

Hennessey went on his trip, an obvious condition of danger and

safety would exist. It may be that the condition of the battery

was of such a nature that upon a slight amount of driving time,

any problem as to lights would have been eliminated. This, how-

ever, is a factor beyond Hennessey’s knowledge. Further, as indi-

cated, Jones had told Hennessey that the condition would solve

itself by the driving of the tractor a hundred miles or so. As

noted, Jones testified to the effect that he knew the condition of

the lights would have been solved by the driving of the tractor for

about 5 minutes. I do not believe or credit Jones’ testimony to

such effect. Rather, if such were the case, I find it hard to believe

® The principles involved in this case are the same as considered in

United States Stove Co., 245 NLRB No. 183. Applying such principles and

the reasoning thereto as related to the specific facts in this case, it is

clear that Hennessey’s refusal to operate the tractor on March 22, 1979,

constituted protected concerted activity.

JD—447—80

that Jones would have wasted more time than 5 minutes to go to

talk to Hennessey when the problem could have been solved by 5

minutes of revving the engine.

As set forth above, Hennessey had a reasonable belief that the

operation of the tractor under the existing conditions was danger-

ous. The question then presented is whether Hennessey’s com-

plaint and refusal to operate the tractor because of asserted

dangerous conditions constituted concerted activities for the pur-

poses of mutual aid and protection.

It is clear that employees have a common concern to work in

safe conditions and not to be required to work in unsafe condi-

tions. The Federal government and many states have enacted

occupational safety legislation.

The Board in Alleluia Cushion Co., Inc., 221 NLRB 999 at page

1000, discussed the question of concerted activities for mutual

aid and protection as related to employee actions related to

OSHA rights as follows:

Section 7 provides that employees have the right to

engage in concerted activities for the purpose of mutual aid

and protection. Henley’s filing of the complaint with the

California OSHA office was an action taken in furtherance

of guaranteeing Respondent’s employees their rights under

the California Occupational Safety and Health Act. It

would be incongruous with the public policy enunciated in

such occupational safety legislation (i.e., to provide safe and

healthful working conditions and to preserve and nation’s

human resources) to presume that, absent an outward mani-

festation of support, Henley’s fellow employees did not

agree with his efforts to secure compliance with the statu-

tory obligations imposed on Respondent for their benefit.

Rather, since minimum safe and healthful employment

conditions for the protection and well-being of employees

65a

JD—447—80

have been legislatively declared to be in the overall public

interest, the consent and concert of action emanates from

the mere assertion of such statutory rights. Accordingly,

where an employee speaks up and seeks to enfurce statutory

provisions relating to occupational safety designed for the

benefit of all employees, in the absence of any evidence that

fellow employees disavow such representation, we will find

an implied consent thereto and deem such activity to be

concerted.

In Diagnostic Center Hospital Corp., 228 NLRB 1215 at page

1217, the Board discussed its decision in Alleluia and said, “A

correct reading of the case is that activity will be deemed con-

certed if it relates to a matter of common concern and this com-

mon concern will be found with respect to violations of a safety

statute which created a general hazard for employees.”

Considering the principles of Alleluia, the fact that Hennes-

sey’s complaint and refusal to operate the tractor on March 22,

1979, was based upon a reasonable belief that the operating of the

tractor was under unsafe and dangerous conditions, the fact that

the type of safety conditions involved is covered by legislation

and regulations pertaining thereto, it must be found, in the

absence of employee disavowal that Hennessey was acting on

their behalf,-that Hennessey’s activity in complaining and refus-

ing to operate or drive the tractor constituted concerted activity!”

10 As indicated in the Diagnostic Center Hospital Corp. case, Hennes-

sey’s activities are deemed concerted because the matter was a matter of

common concern to employees. Fonseca’s action in taking the tractor out

the next morning is not sufficient to overcome a presumption that Hen-

nessey was acting on behalf of other employees who would not have

wanted to drive for a number of hours at nighttime in possible unsafe

conditions.

a - a =? P ac = —

JD—447—80

in nature relating to a matter of common concern." Thus, I

conclude and find that Hennessey’s activities in complaining

about and refusing to operate the tractor on March 22, 1979,

because he believed it to be dangerous to do so and so expressed,

constituted concerted activities for the purposes of mutual aid

and protection 1nd is protected by the Act. The facts reveal that

Hennessey was discharged for such complaints and refusal to

drive and operate the tractor under conditions he reasonably

believed dangerous. Accordingly, it is concluded and found that

the discharge of Hennessey for his protected concerted activities

is violative of Section 8(a)(1) of the Act. Similarly, Tosch’s state-

ments relating to a “voluntary resignation,” as set forth before-

hand, constituted a threat of discharge for the exercise of a

protected concerted right and was violative of Section 8(a\1) of

the Act.

D. The Grievance, Arbitration,

and Related Events

Hennessey filed a grievance on April 14, 1979, under the collec-

tive-bargaining agreement signed by the Respondent and the

Union. The grievance, which alleged that Hennessey did not

resign his employment, requested reinstatement with full

backpay and health and welfare. A hearing was held on May 1,

1979, before the Joint State Committee!” at which both company

1 As indicated in the Diagnostic Center Hospital Corp. case, the matter

of safety violations covered in legislation are deemed to be a matter of

common concern to employees.

12 The Joint State Committee is the arbiter of disputes arising under

the collective-bargaining agreement signed by the Company and the

Union. The Committee is composed of six members, three representa-

tives from trucking companies and three representatives from the

Union. This Committee is defined and set out in the collective-bargain-

ing agreement signed by the Respondent and the International Brother-

hood of Teamsters, the Union representing Hennessey.

67a

JD—447—80

and union representatives!’ appeared and presented their respec-

tive cases. John Kelly, a union business agent, Gene Wade, Hen-

nessey’s union steward, and Hennessey each made a statement in

support of Hennessey’s grievance for reinstatement and backpay.

Charles Schmalz, the dispatch operations manager, made a state-

ment on behalf of the Company’s position.

In the instant unfair labor practice proceeding, counsel for

Respondent and the General Counsel stipulated that the griev-

ance filed by Hennessey was covered by the labor agreement

between Respondent and the Union; that the Respondent, the

Union and the Charging Party agreed to be bound by the deci-

sion of the Joint State Committee; that the Joint State Committee

did render a decision; and, that the entire grievance and arbitra-

tion procedure was fair and regular in all respects. The parties

also stipulated that the question of whether or not Tractor

No. 16-3281 was, in fact, safe on March 22 was discussed and

presented to the Committee.

The Joint State Committee rendered its decision, after hearing

the arguments of both parties, awarding the Charging Party his

former job back with full seniority and paid up health and

welfare benefits, but with no backpay. At that tite, the Joint

State Committee also ordered that a “final warning letter” be

placed in Hennessey’s personnel file.4 Immediately after the

announcement of this decision, Wade, the union steward,

explained to the Charging Party that, as of that morhent, he had

his job back and that he could probably go out off 4 run that very

night.

18 Present at this arbitration were: Hennessey, John Kelly, union

business agent, and Gene Wade, union steward; Charles Schinals

appeared for the Respondent.

14 Upon hearing the Committee’s decision, Schmalz called his office

to inform them of the outcome. He informed the dispatcher to put

Hennessey back on the “board.” As of 6 p.m. on May 1, 1979, Hennessey

was on the “board.”

68a

JD—447—80

Conclusion

Upon consideration of the issues presented and the determina-

tion and award, it would not effectuate the purposes of the Act for

the Board to honor the arbitration award concerning Hennessey’s

grievance as to his March 22, 1980, discharge. The grievance-

arbitration determination and award appears to be neither fish

nor fowl. Rather, it appears to be a Solomon type split decision.

Thus, the award in effect required Hennessey to be reinstated but

in effect to be under the gun of a “warning letter.” Further, the

award left Hennessey with a loss of backpay for his period of

unemployment. Under such circumstances it is clear that the

award fails to remedy the alleged unfair labor practices so as to

warrant the Board’s deference to such award.

Further, although Respondent took steps in compliance with

such award, Respondent at no time reinstated Hennessey in such

a manner as to constitute full reinstatement to his former job.

There is no evidence or contention that Respondent reinstated

Hennessey in such a way as to avoid the liability of discharge as a

result of the “warning letter,” a part of the award. Nor is there

any evidence or contention that Respondent ever notified the

Union or Hennessey that it was unconditionally reinstating Hen-

nessey without the placement of a “warning letter” in his person-

nel file. Having discharged Hennessey for unlawful reasons, it

was and is Respondent’s responsibility to remedy the unfair

labor practices. The facts indicate that Hennessey made state-

ments indicating that his reason for not going back to work for

Respondent was the lack of backpay in the award. Respondent’s

liability to reinstate Hennessey, however, continues until a

proper offer of reinstatement is made. And backpay is not tolled

until a valid reinstatement offer is made even though an

employee might be willing to be reinstated under unlawful condi-

tions or in ignorance of unlawful conditions. To hold otherwise

would as a matter of policy encourage continued resistance by

69a

JD—447—80

Respondent to observance of requirements concerning remedying

of or cessation of unfair labor practices.

In sum, the facts do not reveal that Respondent has taken

proper steps of reinstatement or action to toll backpay so as to

limit remedial requirements set forth later herein.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of the Respondent set forth in section III, above,

occurring in connection with the Respondent’s operations

described in section I, above, have a close, intimate, and substan-

tial relationship to trade, traffic, and commerce among the several

States and tend to lead to labor disputes burdening and

obstructing commerce and the free flow of commerce.

V. The Remedy

Having found that the Respondent has engaged in unfair

labor practices, it will be recommended that Respondent cease

and desist therefrom and take certain affirmative action to effec-

tuate the policies of the Act.

It having been found that the Respondent discharged Charles

Hennessey on March 22, 1979, in violation of Section 8(a\1) of

the Act, the recommended Order will provide that Respondent

offer him reinstatement to his job, and make him whole for loss of

earnings or other benefits within the meaning and in accord with

the Board’s decisions in F. W. Woolworth Company, 90 NLRB 289

(1950), and Florida Steel Corporation, 231 NLRB No. 117 (1977),}*

15 The circumstances of the discharge of Hennessey do not reveal in

my opinion a general proclivity to violate the National Labor Relations

Act. Such does not warrant a broad cease and desist order. Nor do the

facts otherwise reveal that a broad cease and desist order is warranted.

16 See generally, Isis Plumbing & Heating Co., 1388 NLRB 716 (1962).

70a

JD—447—80

except as specifically modified by the wording of such recom-

mended Order.

Upon the basis of the above findings of fact and upon the entire

record in the case, I make the following:

Conclusions of Law

1. Consolidated Freightways, the Respondent, is an

employer engaged in commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

2. Local Union 710, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers of America, is, and has

been at all times material herein, a labor organization within the

meaning of Section 2(5) of the Act.

3. By discharging Charles Hennessey and by other acts

Respondent has interfered with, restrained, and coerced its

employees in the exercise of rights guaranteed in Section 7 of the

Act, and Respondent has thereby engaged in unfair labor prac-

tices proscribed by Section 8(a)1) of the Act.

4. The aforesaid unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

Upon the foregoing findings of fact, conclusions of law, and

the entire record, and pursuant to Section 10(c) of the Act, I

hereby issue the following recommended:!”

17 Tn the event no exceptions are filed as provided by Section 102.46 of

the Rules and Regulations of the National Labor Relations Board, the

findings, conclusions, and recommended Order herein shall, as provided

in Section 102.48 of the Rules and Regulations, be adopted by the Board

and become its findings, conclusions, and Order, and all objections

thereto shall be deemed waived for all purposes.

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JD—447—80

ORDER

Respondent, Consolidated Freightways, its officers, agents,

successors, and assigns, shall:

E

2.

Cease and desist from:

(a) Discharging, or otherwise discriminating against

employees in regard to hire or tenure of employment, or any

term or condition of employment because of their protected

concerted activities.

(b) Threatening employees with discharge and other

reprisals because of their protected concerted activities.

(c) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of their

rights guaranteed in Section 7 of the Act except to the

extent that such rights may be affected by lawful agree-

ments in accord with Section 8(a)(3) of the Act.

Take the following affirmative action which it is found

will effectuate the policies of the Act:

(a) Offer to Charles Hennessey immediate and full rein-.

statement to his former position or, if such position no

longer exists, to a substantially equivalent position, without

prejudice to his seniority, or other rights previously

enjoyed, and make him whole for any loss of pay or other

benefits suffered by reason of the discrimination against

him in the manner described above in the section entitled

“The Remedy.”

(b) Preserve and, upon request, make available to the

Board or its agents, for examination and copying, all pay-

roll records, social security payment records, timecards, per-

sonnel records and reports, and all other records necessary

to analyze the amount of backpay due under the terms of

this recommended Order.

72a

JD—447—80

(ec) Post at Respondent’s facility at Peru, Illinois, copies

of the attached notice marked “Appendix.”® Copies of said

notice, on forms provided by the Regional Director for

Region 33, after being duly signed by Respondent’s repre-

sentatives, shall be posted by it immediately upon receipt

thereof, and be maintained by Respondent for 60 consecu-

tive days thereafter, in conspicuous places, including all

places where notices to employees are customarily posted.

Reasonable steps shall be taken by Respondent to insure

that said notices are not altered, defaced, or covered by any

other material.

(d) Notify the Regional Director for Region 33, in writ-

ing, within 20 days from the date of receipt of this Order,

what steps the Respondent has taken to comply herewith.

{t is further ordered that the allegations of unlawful conduct

not specifically found to be violative herein be dismissed.

Dated, Washington, D.C. July 30, 1980

Jerry B. Stone

Administrative Law Judge

18 In the event that the Board’s Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS

BOARD” shall be changed to read “POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD.”

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JD—447—80

APPENDIX

[SEAL] NOTICE TO EMPLOYEES [SEAL]

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL offer to Charles Hennessey immediate and full rein-

statement to his former position or, if such position no longer

exists, to a substantially equivalent position, without prejudice to

his seniority or other rights previously enjoyed, and make him

whole for any loss of pay or other benefits suffered by reason of

the discrimination against him.

WE WILL NOT discharge or otherwise discriminate against

employees in regard to hire or tenure of employment, or any term

or condition of employment because of their protected concerted

activities.

WE WILL NOT threaten employees with discharge or other repri-

sals because of their protected concerted activities.

WE WILL NOT in any like or related manner interfere with,

restrain, or coerce employees in the exercise of their rights guar-

anteed in Section 7 of the Act except to the extent that such

74a

JD—447—80

rights may be affected by lawful agreements in accordance with

Section 8(aX3) of the Act.

CONSOLIDATED FREIGHTWAYS

(Employer)

Dated By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE.

This notice must remain posted for 60 consecutive days from

the date of posting and must not be altered, defaced, or covered by

any other material. Any questions concerning this notice or com-

pliance with its provisions may be directed to the Board’s Office,

Savings Center Tower — 16th Floor, 411 Hamilton Avenue, Peo-

ria, Illinois 61602, Telephone (309) 671-7068.

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APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-1630 September Term, 1989

CONSOLIDATED FREIGHTWAYS, eecniceiliiain tein at nila

Petitioner For the District of Columbia Circ

v. FILED MAR 05 1990

NATIONAL LABOR CONSTANCE L. DUPRE

RELATIONS BOARD CLERK

Respondent

BEFORE: Wald, Chief Judge, Buckley and Sentelle, Circuit

Judges

ORDER

Upon consideration of Petitioner’s Petition for Rehearing,

filed February 12, 1990, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE,

CLERK

BY: _ROBERT A. BONNER

Robert A. Bonner

Deputy Clerk

76a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-1630 September Term, 1989

CONSOLIDATED FREIGHTWAYS, United States Cowt of Appesie

Petitioner For the District of “ olumbia Circuit

Vv. FILED MAR 05 1990

NATIONAL LABOR CONSTANCE L. DUPRE

RELATIONS BOARD CLERK

Respondent

BEFORE: Wald, Chief Judge: Mikva, Edwards, Ruth B.

Ginsburg, Silberman, Buckley, Williams, D. H.

Ginsburg and Sentelle, Circuit Judges

Petitioner’s Suggestion For Rehearing En Banc has been cir-

culated to the full Court. No member of the Court requested the

taking of a vote thereon. Upon consideration of the foregoing it is

ORDERED, by the Court en banc, that the suggestion is

denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE,

CLERK

BY: _ROBERT A. BONNER

Robert A. Bonner

Deputy Clerk ,

77a

APPENDIX G

NATIONAL LABOR RELATIONS ACT, Section 10(c), 29 U.S.C.

160(c): Reduction of Testimony to writing; findings and Orders

of Board

The testimony taken by such member, agent, or agency or the

Board shall be reduced to writing and filed with the Board.

Thereafter, in its discretion, the Board upon notice may take

further testimony or hear argument. If upon the preponderance

of the testimony taken the Board shall be of the opinion that any

person named in the complaint has engaged in or is engaging in

any such unfair iabor practice, then the Board shall state its

findings of fact and shall issue and cause to be served on such

person an order requiring such person to cease and desist from

such unfair labor practice, and to take such affirmative action

including reinstatement of employees with or without back pay,

as will effectuate the policies of this subchapter: Provided, That

where an order directs reinstatement of an employee, back pay

may be required of the employer or labor organization, as the case

may be, responsible for the discrimination suffered by him: And

provided further, That in determining whether a complaint shall

issue alleging a violation of subsection (a\1) or (a2) of sec-

tion 158 of this title, and in deciding such cases, the same regula-

tions and rules of decision shall apply irrespective of whether or

not the labor organization affected is affiliated with a labor organ-

ization national or international in scope. Such order may fur-

ther require such person to make reports from time to time

showing the extent to which it has complied with the order. If

upon the preponderance of the testimony taken the Board shall

not be of the opinion that the person named in the complaint has

engaged in or is engaging in any such unfair labor practice, then

the Board shal! state its findings of fact and shall issue an order

dismissing the said complaint. No order of the Board shall

require the reinstatement of any individual as an employee who

has been suspended or discharged, or the payment to him of any

78a

back pay, if such individual was suspended or discharged for

cause. In case the evidence is presented before a member of the

Board, or before an administrative law judge or judges thereof,

such member, or such judge or judges as the case may be, shall

issue and cause to be served on the parties to the proceeding a

proposed report, together with a recommended order, which shall

be filed with the Board, and if no exceptions are

This text is long and has been trimmed here. Open the source document for the complete record.