Dodson IGA Foodliner

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1263 (N.L.R.B. 1975)

DODSON IGA FOODLINER
Dodson's Market, Inc. d/b/a Dodson IGA Foodliner
and Retail Clerks International Association, Local
Union No. 240. Case 19-CA-4920
June 30, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On November 16, 1971, the National Labor
Relations Board issued its Decision and Order,' in
the above-entitled proceeding in which it ordered,
inter alia, that the Respondent make whole those
employees whose hours were discriminatorily re-
duced for any loss of earnings they may have
sustained as a result of the discrimination practiced
against them. Thereafter, on July 2, 1973, the United
States Court of Appeals for the Ninth Circuit entered
itsper curiam judgment enforcing the Board's Orden 2
A controversy having arisen as to the amounts of
backpay due under the terms of the Board's Order, as
enforced by the court, the Regional Director for
Region 19, on October 3, 1974, issued and duly
served on the Respondent a backpay specification
and notice of hearing, as amended, alleging the
amounts of backpay due employees Iris Gerber,
Mary Wortley, and Shirley Assink. Thereafter, on
October 18, 1974, Respondent filed its answer to the
specification in which it admitted certain of the
allegations and denied other allegations in the
specification.
On November 26 and 27, 1974, a hearing was held
on the matters raised by the backpay specification, as
amended, before Administrative Law Judge Henry S.
Salim.
On April 7, 1975, the Administrative Law Judge
issued the attached Supplemental Decision in which
he found that the claimants were entitled to specific
amounts of backpay. Thereafter, Respondent filed
exceptions to his Supplemental Decision and a
supporting brief.
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 reviewed the rulings of the
Administrative Law Judge made at the hearing and
fords that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has consid-
ered the Administrative Law Judge's Supplemental
Decision, the exceptions and brief, and the entire'
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Adminis-
trative Law Judge.
218 NLRB No. 191
ORDER
1263
Pursuant to Section 10(c), of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Dodson's Market, Inc. d/b/a Dodson IGA Foodlin-
er, Everson, Washington, its officers, agents, succes-
sors, and assigns, shall pay to employees Iris Gerber,
Mary Wortley, and Shirley Assink as net backpay
herein determined to be due, the respective amounts
set forth in the Supplemental Decision and recom-
mendation of the Administrative Law Judge, plus
interest accrued to the date of payment in accord-
ance with the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
1 Dodson's Market, Inc. d/b/a Dodson IGA Foodliner, 194 NLRB 192,
amended December 10, 1971 , to insert in the notice an indented paragraph
to correspond to par. 2(a) of the Trial Exanuner's recommended Order.
2 83 LRRM 2987,71 LC ¶ 13,842.
SUPPLEMENTAL DECISION
HENRY S. SAIIM, Administrative Law Judge: This is a
proceeding on a backpay specification issued by the
Regional Director on October 3, 1974, as amended on
November 26, and heard on November 26 and 27, for the
purpose of determining the amount of backpay which will
make whole the discriminatees, Iris Gerber, Mary Wortley,
and Shirley Assink. The backpay specification was directed
by the Board on November 16, 1971, in its decision
reported at 194 NLRB 192, and enforced by a decree of the
United States Court' of Appeals for the Ninth Circuit on
July 2, 1973 (83 LRRM 2987)? In sum, the specification,
as amended, computed the net backpay due to Wortley,
$1885.36; Gerber, $659.86; and Shirley Assink, $1175.25.
Respondent denies the allegations in the backpay specifi-
cation and asserts among its defenses' that employee
Gerber who was unlawfully discharged and offered
reinstatement agreed to return only if her weekly hours
were reduced to 15 hours from the 32 hours she had
worked prior to her discharge. Moreover, contends
Respondent, the alleged amounts of backpay owing the
three discriminatees are based upon General Counsel's
misconception of the applicable law. Furthermore, argues
Respondent, requiring it to pay the amounts of backpay
specified above, would do more than restore the status quo
ante in that it will require Respondent to pay more wages
to the three discriminatees than Respondent would have
paid if there had been no unfair labor practices committed.
Respondent insists that because it has already complied
with the Board's order in the complaint case to reimburse
two other employees who were found to have been
discriminatively discharged these payments must be taken
into account to determine if these three employees in the
instant proceeding suffered any loss. This logically follows,
Respondent reasons, because if the discharged employees
whom the Board ordered reimbursed and who have
1 The Board in its decision, 194 NLRB at 194, states; "Respondent shall
similarly make whole those employees who suffered losses as a result of
Respondent's discriminatory reduction of their hours ." The Board is here
refemng to the female checkers . See G.C. Exh. 5.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already been paid had been working for the time during
which `they were awarded backpay, then there would have
been a reduction in the amount of work available for
employees Gerber, Wortley, and Assink.
Upon the entire record, including observation of the
witnesses and consideration of briefs filed by the parties on
Ja41u4,ry 10, 1975, there are made the following:
FINDINGS OF FACT
Iris Gerber
Respondent denies the allegation in the backpay specifi-
cation that for the period beginning October 14, 1970, and
ending September 4, 1971, employee Gerber would have
worked 32 hours but for Respondent's discrimination.
Respondent admits Gerber worked 32 hours before her
discharge, and also that she worked only 15 hours a week
after -her reinstatement, but asserts this reduction in her
hours of work was Ilpt the result of any discrimination on
Respondent 's part, but rather was due to Gerber, herself,
placing limitations upon her availability for work. W.
Leland Dodson; owner of Respondent, testified that
Gerber not only told him she would not work on Sundays
(which she had snot worked before her discriminatory
discharge) but also that she would not work on the same
shift yvith Vander Yacht, who was also a checker. Dodson
stated that under these self-imposed limitations of Gerber,
he had no alternative other than to offer her three shifts of
5 hours each or 11 hours a week.
Gerber did not testify at this hearing but she did in the
unfair labor practice proceeding on January 20, 1971. The
transcript there reveals the following: That prior to the day
she was terminated , Gerber had worked 4-day, 8-hour
shifts of 32 hours'a week on Wednesday, Thursday, Friday
and Saturday, and that she informed Dodson when he
offered her reinstatement that she would return if she had
"better working hours and wouldn't have to work "on
Sunday . . .' . So he called me to let me know that I could
have better working hours ," whereupon she returned to her
former job as a checker. Also in said transcript is the
following testimony by Dodson which is probative of the
circumstances under which Gerber was reinstated:
Q. (By Mr. Nielson) Now, then, after you had let
Iris Gerber go, you later called her to work, is that
right?
A. (By Leland Dodson) That's right.
Q. What was your reason for calling her and
offering her work once again?
A. Irene Kreman had quit and moved to Canada;
and in conference with Mr. Thorston, an attorney, that
I was talking with, he suggested that I offer her
employment back on the same basis of reduced hours as
the other girls were working at if she was interested in
coming back. That I did. [Emphasis supplied.]
2 See G.C. Exh. 4. Wortley requested m August or September that she
work "less time ... four days a week ... 32 hours."
3 Phelps Dodge Corp. v. £L B-B., supra, at 197.
Mary Wortley
Wortley was hired as a checker in May 1970. She worked
a 40-hour week until August 14, 1970, when the checkers'
hours of employment were discriminatorily reduced by
Respondent. Backpay is claimed by the General Counsel
until September 30, 1972.2 The amended specification
alleges an approximate measure of the hours Wortley
would have worked during the above-specified backpay
period to be 40 hours, based upon the General Counsel's
premise that "immediately prior to her unlawful reduction
of hours" that was ' the amount of time she worked each
week. I
Shirley Assink
At the time of Assink's initial employment in May of
1971, Respondent owner Leland Dodson , informed Assink
she would work part time through the summer and that she
would then begin to work a full-time schedule beginning
approximately in September. Assink worked at a near full-
time schedule from September 1971 until she . voluntarily
ended her employment in November 1973 . The General
Counsel's representative does not claim backpay beyond
July 1, 1972.
Discussion
The burden of proof with respect to its affirmative
defenses rests upon Respondent as it was the original
wrongdoer. Phelps Dodge Corp. v. N.LRB., 313 U.S. 177,
199-200; W. C. Nabors, d/b/a W. C. Nabors Co. v.
NLRB., 323 F.2d 686 (CA 5, 1963); N.LRB. v. J. G.
Boswell Co., 136 F.2d 585, 596 (C.A. 9); Mastro Plastics
Corporation and French American Reels Manufacturing Co.,
Inc.., 136 NLRB 1342, 1346. The Board in New England
Tank Industries, Inc., 147 NLRB 598, 601 (1964), stated:
"[W ]hile the general burden of proof is on the General
Counsel to establish for each discriminatee the loss of pay
which has resulted from Respondent's established discrimi-
natory conduct, i.e., the gross backpay over the backpay
period, the burden of proof is on Respondent to show
diminution of that amount. . . ." "Making the workers
whole for losses suffered on account of an unfair labor
practice is part of the vindication of the public policy
which the Board enforces," 3 and a Board backpay order,
the Supreme Court has stated, "should stand unless it can
be shown that it is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the
policies of the Act.".4 The Supreme Court has also
recognized that "The computation of the amount due may
not be a simple matter.... Congress made the relation of
remedy to policy an administrative matter, subject to
limited judicial review, and chose the Board as its agent for
the purpose." 5
4 N.L.RB. v. Seven-Up Bottling Company of Miami, Inc , 344 U.S. 344,
346-347 (1953).
S Nathanson, Trustee in Bankruptcy of MacKenzie Coach Lines v.
N.L.RB, 344 U.S. 25,29-30 (1952).
DODSON IGA FOODLINER 1265
Iris Gerber
Gerber claims it was the Respondent who limited the
number of hours she would be allowed to work upon her
reinstatement in October 1970. This is true because in the
earlier unfair labor practice, proceeding, it was found that
upon Gerber's return to work after her discriminatory
discharge that it was the Respondent who reduced the
hours of work of the women employees in violation of
Section 8(a)(1) and (3) of the Act. Moreover, Respondent is
now raising a defense for the first time as to Gerber's
working hours that it did not raise at the original
proceeding. Furthermore, the testimony of owner Dodson
quoted above, establishes conclusively the circumstances
under which Gerber returned to work after her discrimina-
tory termination by Respondent. Corroborative of this
conclusion is the fact that Dodson admitted he informed
Gerber she was being offered reinstatement to her former
job on the same basis of reduced hours as the other female
checkers. It was Respondent's limitation upon the number
of hours to be worked, not Gerber's, that was the condition
for Gerber's reinstatement. Therefore, Respondent has not
met its requisite burden of proof with respect to its
affirmative contention that Gerber herself restricted the
number of hours she was willing to work.
Wortley and Assink
Respondent asserts as to Wortley and Assink'that had it
not discriminated against employee Vander Yacht who was
discharged, and employee Van Etten whose hours were
discriminatorily reduced that employees Wortley and
Assink would not have worked as many hours during their
backpay period as they actually did. Respondent reasons
that if Vander Yacht and Van Etten had continued to
work, there would not have been available 40 hours of
work for Wortley or Assink.
This argument of Respondent ignores the cogent fact
that its reduction of the working hours of the female
employees was found by the Board in the unfair labor
practice proceeding to have been both unilateral and
discriminatory. Nevertheless, Respondent now argues that
it should profit from its wrongful conduct vis a vis Van
Etten and Vander Yacht by having the amounts of
backpay paid by Respondent to them, used to reduce its
liability toward Assink and Wortley. Such fallacious
reasoning fails to consider the obvious fact that by
unlawfully discriminating against Van Etten and Vander
Yacht, Respondent nonetheless continued to require the
services of employees other than them and that by its
subsequent discriminatory reduction of hours as to these
aforementioned employees, it thereby incurred additional
backpay liability.
No efficacy is given to these frivolous contentions of
Respondent as delineated above. Purportedly substantive
concepts in the field of labor relations do not depend on
verbal ritual reminiscent of medieval real property law.
Shadow boxing with unrealistic notions, hypothesis and
theories in the context of such a practical matter as
employees' backpay does not lend itself to the theoretically
imaginative arguments advanced here. It is axiomatic that
a tort-feasor cannot benefit from his own misconduct. The
Respondent, who is the wrongdoer, is neither entitled to
complain nor defend its own established misconduct for
which it alone is responsible . Its actions -rendered both
Vander Yacht and Van Etten unemployable and for it to
now plead that it should be granted immunity from the
consequences of its unlawful conduct which resulted in
Wortley's and Assink's hours of work being discriminatori-
ly reduced is untenable and self-annulling. To hold
otherwise would be tantamount to rewarding a wrongdoer
for the direct consequences of his own misfeasance.
CONCLUSIONS
Respondent has not met the requisite burden of proof for
the reasons explicated above. Moreover, the trier of these
facts subscribes to the characterization of Leland Dodson,
the protagonist in this proceeding, made by the then Trial
Examiner in his decision in the complaint case where he
stated that there was "an apparent conflict" in some of
Dodson's testimony which was described as being in part
"vague:' Dodson's version of the circumstances under
which he reinstated Gerber is not credited. On the
contrary, it is found that she agreed to return to work
under the same working conditions that existed before her
unlawful termination and that the reduced scheduling of
the number of hours she was to work was due to
Respondent's insistence that she do so.
Accordingly, it is concluded, found and recommended
that Respondent, Dodson's Market, Inc., doing business as
Dodson IGA Foodliner, its officers, agents, successors, and
assigns, obligation to make whole Gerber, Wortley, and
Assink in the manner ordered in the Board's decision will
be satisfied by payments of $659.86 to Gerber, $1885.36 to
Wortley, and $1175.25 to Assink, less any tax withholding
required by Federal and state laws, plus interest accrued to
the date of payment in accordance with the formula
enunciated in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).