Controlled Alloy, Inc.

National Labor Relations Board - Board DecisionsFeb 1, 1974

208 N.L.R.B. 882 (N.L.R.B. 1974)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Controlled Alloy, Inc. and Harlin Precision Sheet Metal Fabrication Co., Inc. and Aaron A. DeSale and Richard Spellman . Cases 29-CA-2501 and 29-CA-2546 February 1, 1974 SUPPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 4, 1973, Administrative Law Judge Ivar H. Peterson issued the attached Supplemental Decision and Order in this proceeding. Thereafter, counsel for Respondents filed exceptions and a supporting brief, and counsel for General Counsel filed a brief in support of the Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge, as modified herein, and to adopt his recommended Supplemental Order. 1. The gross backpay set out in the specification included calculations of overtime allegedly due the discriminatees. These calculations were based on the overtime hours worked during the backpay periods by employees with comparable seniority to the discriminatees. Respondents argue that during the backpay periods the total amount of man-hours of production declined from the production levels before the layoffs and, thus, if the discriminatees had not been laid off but had continued to work, there would not have been sufficient man-hours of work available for the employees so that little or no overtime would have been worked by any employee. We find, however, in agreement with the Adminis- trative Law Judge, that the inclusion of overtime as part of the gross backpay in the specification was proper. We note that the Administrative Law Judge in the original unfair labor practice proceeding found that the backpay claimants were selected for layoff on a discriminatory basis. Absent such discrimina- tion, Respondents, if they had to lay off employees for economic reasons as they alleged, would have laid off other employees leaving essentially the same size work force Respondents obtained through the discriminatory layoffs. We note, moreover, that during the backpay period in the machine shop, where DeSale and Spellman worked, Respondents hired four new employees, certain of whom presuma- bly would not have been hired had DeSale and Spellman been working and, therefore, the same overtime would have been available absent the layoffs. Also during the backpay period for Sabol and Rauh, who worked in the sheet metal shop, Respondents hired employees there whom they presumably would not have hired had the discrimi- natees been working. Thus, the overtime there would have been divided the same way it actually was. Further, to allow Respondents to claim there was more overtime only because of their own unlawful conduct would give them the benefit of uncertainties caused by their own misconduct. This we refuse to do. 2. Discriminatee Edmund Rauh was not present at the backpay hearing and therefore General Counsel could not examine him as to his interim expenses. and Respondents did not have the oppor- tunity to examine him with respect to his interim earnings. Therefore, consistent with Board policy,2 we shall award Rauh the amount of gross backpay set out in the specification and shall order Respon- dents to pay it to the Regional Director for Region 29 to be held in escrow for a period not exceeding 1 year from the date of this Order. The Regional Director is instructed to make suitable arrangements to afford Respondents together with the General Counsel's representative, an opportunity to examine Rauh and any other witnesses with relevant testimo- ny and to introduce any relevant and material evidence bearing on the amount of backpay due to Rauh. The Regional Director shall make a final determination whether any interim earnings or other amounts, in excess of those shown here, or any other factors are revealed which may reduce the amount of backpay due under existing Board precedent. In the event the Regional Director determines that deduc- tions are warranted, the amount so deducted shall be returned to Respondents. The Regional Director, when this matter has been finally resolved, shall promptly, and no later than 1 year from the date of this Order, report to the Board the status of this matter. ORDER Pursuant to Section 10(c) of the National Labor i Although we are m agreement with the reasoning of the Administrative 2 Brown and Root, Inc, 132 NLRB 486, 497-498, Mastro Plastics Law Judge that the Respondents' letter of April 19, 1972, was not a valid Corporation and French -American Reeds Manufacturing Co, Inc., 136 NLRB offer of reinstatement , we do not adopt his conclusion that Rauh refused 1342, 13478, Steve Alm Ford, Inc, 190 NLRB 661, Coast Delivery Service, this letter, since the record is unclear as to why the letter did not reach Inc, 198 NLRB No 146 Rauh. 208 NLRB No. 140 CONTROLLED ALLOY, INC. Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Supplementz-l Order of the Administrative Law Judge and hereby orders that Respondents, Con- trolled Alloy, Inc., and Harlin Precision Sheet Metal Fabrication Co., Inc., Commack, New York, their officers, agents, successors, and assigns, shall pay to the discriminatees, or to the Regional Director for Region 29 to be held in escrow as provided in this Decision and Order, as appropriate, as net backpay the amounts determined to be due by the Adminis- trative Law Judge in the attached Supplemental Decision. SUPPLEMENTAL DECISION S rA FEMENT OF THE CASE IVAR H. PEIERSON, Administrative Law Judge: Adminis- trative Law Judge William W. Kapell, on June 16, 1972, issued his Decision and recommended Order finding that Controlled Alloy, Inc. and Harlin Precision Sheet Metal Fabrication Co., Inc., hereinafter referred to as the Respondents, had committed certain unfair labor prac- tices. On August 11, the Board issued an order adopting the findings and conclusions of Judge Kapell. in view of the fact that no exceptions had been filed, and ordered the Respondents to take certain affirmative action including reinstating and paying backpay to Jerome Brady, Edmund Rauh, Robert Sabol, Aaron DeSale, Richard Spellman and Roger Apel; and further ordered that backpay be paid to Andrew Daley and Richard Piquette. On June 8, 1973, a backpay specification and notice of hearing was issued against the Respondents which contained certain computa- tions concerning the backpay due Brady, Piquette, Spell- man, DeSale, Rauh, and Sabol. The Respondents filed an answer admitting the allegations of backpay due Brady and Piquette but disputing the amounts of backpay allegedly due the other individuals. On July 30, 1973, I held a hearing concerning the issues in dispute at Brooklyn, New York. The Respondents agreed to the correctness of the basic method of computation used by the Regional Director. The only issues in the case are (a) the effect of an alleged "reinstatement" letter sent to the discriminatees on or about April 19; (b) the effect of the contention made by the Respondents that Sabol would have been discharged absent the discrimination at any rate; (c) the amount due Rauh, whose whereabouts were unknown to the General Counsel at the time of the hearing; and (d) whether overtime should be rewarded to the four remaining discriminatees. Pursuant to a request made by counsel for the General Counsel time for filing briefs with me was extended to September 10. 1 have received a brief from counsel for the General Counsel. Upon the entire record in the case and my observation of the witnesses as they testified, I make the following: I See also Rea Trucking Company, Inc., 176 NLRB 520, where the Board held (p 526) invalid an inquiry as to whether a discnminatee was available for work The Board has also held, in Barr Packing Company, 82 NLRB I FINDINGS OF FACT A. The "Reinstatement Letter" 883 On April 19, the Respondent sent a letter to each of the discrimmatees stating, in pertinent part, "Please report to Harlin for an interview relating to employment." Upon receipt of the letter, DeSale and Spellman decided to contact the Respondents. At an interview on April 24, they received an offer of reinstatement and were given a few days to determine whether or not to return to work. On April 26, they advised the Respondents that they chose not to return. The letters that were addressed to Sabol and Rauh were returned to Respondents unopened and bearing the post office mark "Refused." Sabol, however, denied that he ever had seen the letter. Counsel for the General Counsel contends that these letters were invalid offers of reinstatement and that, thus, whether or not the discrimi- natees read them, the letters did not toll the Respondents' backpay obligations. In Lykes Bros. Inc. of Georgia, 128 NLRB 606 (1960), the Board held that in a situation where a letter was also unclaimed, that a formal tender of employment which merely offers new employment was not an adequate offer of reinstatement. See also Lewis Coal Company, 108 NLRB 887, at 889. In the instant case, there was even less than an offer of employment inasmuch as the Respondents offered an employment interview to the four discriminatees, although testimony was presented by the Respondent that by interview they meant that they intended to reinstate the discriminatees and that they meant that they wished to reassure the discriminatees that there would be no repercussions . It seems to me that the use of the word "interview" cannot be construed as an unequivocal offer of reinstatement , and I so find. In J. H. Rutter-Rex Manufac- turing Company, Inc., 158 NLRB 1414 (1966), enfd. as modified 399 F.2d 356, (C.A. 5, 1968), modification reversed 396 U.S. 258 (1969), the Board approved the Trial Examiner's finding (p. 1524) that it was the duty of the Company to "offer immediate and full reinstatement" to the strikers, upon application, and that this involves "giving the striking employees the opportunity to decide whether or not to return to work, and an uncommunicated offer of reinstatement does not satisfy an employer's obligation to employees seeking to return to work after having been forced on strike because of the employer's unfair labor practices."' The discriminatees were under no obligation to ascertain what the Respondents meant by the word "interview," a term which normally involves some give and take, possible hiring or possible refusal to hire. In Information Control Corporation, 196 NLRB 504, the Board adopted the following statement by the Trial Examiner: As I understand Board law, Respondent is under an obligation to unconditionally offer a discriminatee employment at the same, or substantially equivalent, position. Respondent did nothing of the sort. It rather invited Kimbriel to apply for reinstatement. And I (1949). p 4, that inquiry of an employee whether he would be "interested in going back to his job" was nothing more than a preliminary "sounding out" and not an offer of reinstatement. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deem it immaterial whether or not there was opportuni- ty for advancement. The simple answer is that Respondent did not make an unconditional offer to reinstate Kimbriel to her job. In a sense, Respondent toyed with Kimbriel. One may well theorize that the invitation to her to apply to return was accompanied by the silent thought that she might not apply for her job. In my view, the position of the Respondent in this case is considerably` weaker than that of the employer in the foregoing case inasmuch as there the employer invited the discriminatee_ to apply for reinstatement, whereas here the Respondents instructed the discriminatees to come in for an interview concerning employment. The Respondents point out that DeSale and Spellman did come in pursuant to the letters they received and were given their jobs. However, this fact by no means indicates that Sabol and Rauh were obligated to do the same. With respect to Sabol, the Respondents contend that he was slated for discharge pursuant to a probationary period and, accordingly, is entitled to backpay only up to the date when he would have been discharged. At the time of the discharges there was no probationary period established by contract as there was not yet a collective-bargaining representative for the employees. The Respondents claimed in their answer that it was. their intent to terminate Sabol following completion of-his 30- day probationary period. However, when counsel for the General Counsel proved that Sabol had worked for more than 8 weeks, the Respondents changed their testimony and alleged that there was a 60- or 90-day trial period. Jacobus Linders, who was in charge.of the sheet metal shop, admitted that a purpose of a probationary period was to allow the employee a chance to show improvement. If Sabol had shown such improvement it is entirely possible that he might have been retained. However, his right to demonstrate improvement was curtailed by the Respon- dents' unlawful discharge. As the Board noted in the Lima Lumber Company, 176 NLRB 696 (1969) the Board made the following observation: Since the Respondent unlawfully discharged Sharp at 8:30 and immediately engaged in flagrant coercive conduct we find no basis for an assumption that at 10:30 a.m., Sharp would necessarily have been dis- charged solely because of the complaint by the customer. The question of whether Sharp would have been discharged for lawful reasons at 10:30 is conjec- tural, and there is no way to establish that this would clearly have occurred. As the established unlawful reasons for the discharge at 8:30 a.m., cannot be disentangled from the conjectural grounds, we are of the opinion that the Respondent, rather than the employee, must assume the risk of any uncertainty. More recently, in Logan Equipment Corp., 199 NLRB B. Backpay with Respect to Rauh Rauh could not be located during the backpay investiga- tion and, accordingly, no calculations of interim earnings with respect , to him could be made . The Respondents contend in their answer that no backpay should' be allocated to Rauh for this reason . However, this contention has been dealt with by the Board and it has been determined that the gross backpay be paid into escrow until such time as the Regional Director has an opportuni- ty to make -a determination of interim earnings and activities. See Mastro Plastics Corporation, 136 NLRB 1342, 1347 (1962). C. The Question of Overtime for the Discriminatees The Respondents argue that the calculations of overtime in the specification is erroneous and that had the discriminatees not been discharged, there would have been more employees and, therefore, less overtime. In his brief, counsel for the General Counsel states that there are "several flaws in this argument." The Respondents contend that the layoffs were original- ly necessitated because business , was slow . However, as Administrative Law Judge Kapell originally noted, none of the discharged employees were low men in seniority. Thus, counsel for the General Counsel argues that "absent the discrimination , Respondents might well have laid off the lowest seniority employees," leaving the four in question "employed with the same size work force that they got through the discriminatory discharges." He further con- tends that "there is no evidence that Respondents would have kept the same size work force and merely divided the work up evenly." Finally, he argues that to permit the Respondents 'to now claim that there was more overtime only because of their own unlawful conduct is to allow the Respondents the benefit of uncertainties caused by their own misconduct:' For the reasons stated in the brief of counsel for the General Counsel (p. 8) I conclude that the method of computing the wages that would have been earned by the four discriminatees is to consider the overtime hours of the comparable,employees Shepard (for DeSale and Spellman), Ramos and Palazzo (for Sabol), and Johnson and Baggett (for Rauh). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby, issue the following: RECOMMENDED SUPPLEMENTAL ORDER Controlled Alloy, Inc. and Harlin Precision Sheet Metal Fabrication Co., Inc ., their officers, agents, successors, and assigns, shall, in the manner stated in the preceding portion of this Decision, pay to the employees named herein the total net backpay set forth following their names, plus interest at 6 percent accrued to the date of such payment, minus the tax withholdings required by Federal and State laws: 384, the Board again, consistent with.the rational in Lima Lumber, refused to speculate that employees would have Jerome Brady $1,142.40 been laid off but for the discrimination. Richard . Piquette 1,138.80 CONTROLLED ALLOY, INC. 885 Richard Spellman 1,995.77 Edmund Rauh2 13,791.57 Aaron DeSale 4,278 .34 Robert Sabol 5 ,231.37 2 Subject to the prov lions of sec. A of the Decision.