Emsing's Supermarket

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 421 (N.L.R.B. 1992)

421
307 NLRB No. 62
EMSING’S SUPERMARKET
1 In the underlying unfair labor practice case, the Board found that
the Respondent Emsing’s Supermarket, Inc. violated Sec. 8(a)(5) and
(1) of the Act by unilaterally discontinuing payments to contractual
benefit funds, by unilaterally discontinuing payments to employees
for vacations, and by failing to give United Food and Commercial
Workers Union, Local 1460, AFL–CIO, CLC adequate notice of its
decision to close its operation, thereby precluding meaningful bar-
gaining over the effects of closing. The Board also found that Re-
spondent Emsing’s Supermarket, Inc. and Respondent Rocky’s Su-
permarket, Inc. constitute a single employer and are therefore jointly
and severally liable for remedying the violations found. 284 NLRB
302 (1987), affd. 872 F.2d 1279 (7th Cir. 1989). Following receipt
of the Respondent’s answer to the backpay specification, the General
Counsel filed a Motion to Strike Portions of the Answer and a Mo-
tion for Partial Summary Judgment. The Board granted the motions
in part and, as recited by the judge, remanded the proceeding for a
hearing limited to taking evidence concerning ‘‘the length of the
backpay period, interim earnings, gross and net backpay, and liq-
uidated damages if any owed to the trust funds and health and wel-
fare funds.’’ 299 NLRB 569 (1990). 2 All dates are 1987 unless otherwise stated.
Emsing’s Supermarket, Inc., Rocky’s Supermarket,
Inc., a Single Employer and United Food and
Commercial Workers Union, Local 1460, AFL–
CIO, CLC. Case 13–CA–24609
April 30, 1992
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 29, 1991, Administrative Law Judge
Claude R. Wolfe issued the attached supplemental de-
cision in this proceeding.1 The Respondents filed ex-
ceptions and a supporting brief, and the General Coun-
sel filed a brief in response to the Respondents’ excep-
tions and in support of the judge’s supplemental deci-
sion. The General Counsel also filed cross-exceptions
and a supporting brief and the Respondents filed a
reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Second
Supplemental Decision and Order.
The issue presented by the Respondents’ exceptions
is whether the Respondents’ backpay obligation was
limited to or exceeded the 2-week minimum backpay
called for in the Board’s Decision and Order modeled
on the remedy provided in Transmarine Navigation
Corp., 170 NLRB 389 (1968).
As detailed in the judge’s remedy, 284 NLRB at
316, the Respondents were ordered to pay the unit em-
ployees on the payroll on August 1, 1984, amounts at
the rate of their normal wages when last in Emsing’s
Supermarket, Inc.’s employ from 5 days after the date
of the Board’s Order until the occurrence of the ear-
liest of the following conditions:
1. The date ESI bargains for agreement with
the Union on those subjects pertaining to the ef-
fects of the closing on the unit employees.
2. A bona fide impasse in bargaining.
3. The failure of the Union to request bar-
gaining within 5 days of the Board’s order,38 or
to commence bargaining within 5 days of ESI’s
notice of its willingness to bargain with the
Union. [Emphasis added.]
4. The subsequent failure of the Union to bar-
gain in good faith.
1. The first area of inquiry presented by the Re-
spondents’ exceptions is whether the Union complied
with its obligations under the Board’s Order and time-
ly requested bargaining within 5 days of the Board’s
Order, thus triggering the beginning of the backpay pe-
riod.
The Board’s Order issued June 18, 1987.2 The Gen-
eral Counsel has not affirmatively proved the date of
receipt of the Board’s Order. The Union sent a tele-
gram requesting bargaining to ‘‘Allen [sic] Emsing’’ at
Rocky’s Supermarket on June 23, but it was not re-
ceived by Alan Emsing until June 25.
As framed by the judge, the question is whether the
‘‘5 days’’ requirement for requesting bargaining set
forth in the remedy should be 5 successive calendar
days, 5 working days or business days, or be based on
some other measure. A related question is whether the
date of issuance or the date of receipt of the Board’s
Order is the triggering event that begins the count-
down. The judge found that the 5-day period started to
run from the date of issuance of the Board’s Decision
and Order, but he excluded the intervening Saturday
and Sunday from the computation and found that the
5-day period expired on June 25. Accordingly, he
found the Union’s bargaining request to be timely.
We agree that the Union’s request to bargain was
timely communicated. We do not, however, agree with
the judge’s understanding of the ‘‘five day’’ require-
ment, and shall take this opportunity to clarify its ap-
plication.
After carefully considering both the policy consider-
ation underlying the 5-day rules, i.e., the desire to en-
courage due diligence, and the practical exigencies im-
posed by mail and delivery services, we have decided
that, in applying the Transmarine remedy, the count-
down for the 5-day period for requesting bargaining
begins on the first business day after the date of re-
ceipt of the Board’s Decision and Order by the legal
representative of the party obligated to request bargain-
ing. The date of issuance of the Decision and Order is,
therefore, irrelevant in computing the 5-day period. In
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Even assuming, for argument’s sake, that the Union had an obli-
gation to request bargaining within 5 calendar days of the issuance
of the Board’s Decision and Order, we would find, as did the judge,
that the Union met its obligation. The Union’s June 23 bargaining
request was within 5 calendar days of the Board’s June 18 Decision
and Order.
4 This conclusion is not inconsistent with our holding in Van Dorn
Plastic Machinery Co., 300 NLRB 278 (1990), enfd. 939 F.2d 402
(6th Cir. 1991), where the Board held that the parties’ first bar-
gaining meeting is the triggering event which marks the beginning
of the certification year. The circumstances in Van Dorn—and thus
the attendant policy goal—are different from those in Transmarine.
In Van Dorn, for years after the union had been certified the em-
ployer did not acknowledge its bargaining obligation by meeting
with the union to bargain. As the certification year rule is intended
to provide the union with a period of 1 year of good-faith bargaining
during which the bargaining representative need not fend off claims
that it has lost its majority support, the event triggering the com-
mencement of this year is narrowly construed to afford the union 1
full year of bargaining at the table.
In contrast, the Transmarine 5-day rule is intended to encourage
the parties to begin a dialogue leading to negotiations—not over an
initial collective-bargaining agreement—but over an employer’s pre-
vious refusal to bargain about the effects of its decision to close its
operation. In this situation, our focus is not on protecting the integ-
rity of a certification year, but on inducing a prompt response to a
party’s expression of a willingness to bargain. Thus, our interpreta-
tion of when bargaining begins in the context of a Transmarine rem-
edy is necessarily broad.
5 In their posthearing brief to the judge, the Respondents assert
that the Transmarine minimum 2-week period is the appropriate
backpay period and do not otherwise specifically contest October 22
as the impasse date.
addition, intervening Saturdays, Sundays, or legal state
or Federal holidays shall be excluded in computing the
5-day period. Further, if the party requesting bar-
gaining chooses to communicate its request by mail,
by telegram, or by some other written form of commu-
nication, that communication will be timely if it is
postmarked on or before the 5th day. Thus, there is no
requirement that the written communication be re-
ceived by the other party within the 5-day period.
Here, there is no evidence in the record as to what
date the Charging Party Union’s legal representative
actually received the Board’s Decision and Order. We
conclude, nevertheless, that the Union’s telegram re-
questing bargaining with Alan Emsing was timely sent
because the earliest date of receipt of the Board’s De-
cision and Order would have been Friday, June 19, and
the 5-day period would have begun on Monday, June
22, and would have expired—at the earliest—on June
26, 3 days after the Union actually sent the request to
bargain. Accordingly, we agree with the judge that the
Union’s request to bargain was timely communicated.3
2. The second issue is whether, under the
Transmarine requirement, the Union commenced bar-
gaining within 5 days of Emsing’s Supermarket, Inc.’s
notice of its willingness to bargain. The judge found,
and we agree, that Respondent Emsing’s did not ex-
press its willingness to bargain with the Union (thus
triggering the Union’s obligation to ‘‘commence bar-
gaining’’) until September 21. On that date, the Re-
spondent’s attorney wrote to the Union’s attorney stat-
ing, in relevant part, ‘‘Emsing’s has already offered to
and will meet with Local 1550 at its earliest conven-
ience. Please check with your client and advise by re-
turn mail of at least four (4) alternate dates when
Local 1550 is available to meet.’’ Responding to
Emsing’s by letter dated September 22, the Union pro-
posed four alternate bargaining dates, the earliest being
September 30.
The Union’s and the Respondent’s negotiators met
face to face for the first time on September 30. The
judge found that this first meeting constituted the be-
ginning of bargaining. He observed that this September
30 meeting occurred more than 5 days after Respond-
ent Emsing’s expressed a willingness to bargain on
September 21. Finding that the Union thus had not
complied with the Transmarine 5-day requirement re-
garding the commencement of bargaining, the judge
concluded that the backpay period ended on September
29. This was 5 business days after the Union’s Sep-
tember 22 receipt of the Respondent’s letter.
We disagree that the backpay period ended on Sep-
tember 29. In our view, the date the parties first met
to negotiate face to face was not when ‘‘bargaining’’
actually ‘‘commenced’’ within the meaning of
Transmarine. In the context of collective bargaining
under the constraints imposed by Transmarine, negoti-
ating over when to meet is one aspect of ‘‘bar-
gaining.’’ In light of the overall purpose of the 5-day
rule, i.e., to ensure the union’s prompt response to the
respondent’s expression of its willingness to bargain,
the Union fulfilled its obligation by responding on
September 22 to the Respondent’s September 21 letter
and by attempting to comply with the Respondent’s re-
quest by suggesting possible meeting dates. We find
that collective-bargaining negotiations began on Sep-
tember 22.4
Although the judge found it unnecessary to deter-
mine whether there was a later impasse in bargaining
or whether there was bad-faith bargaining by the
Union that would have curtailed the backpay period,
we find, in agreement with the General Counsel, that
impasse was reached and backpay tolled on October
22, 1987, the date when the Union received the infor-
mation that it had requested and made no further at-
tempts to bargain. The backpay period thus totaled
17.6 weeks.5
ORDER
The National Labor Relations Board orders that the
Respondents, Emsing’s Supermarket, Inc., Griffith, In-
diana, and Rocky’s Supermarket, Inc., Hammond, Indi-
ana, their officers, agents, successors, and assigns,
shall jointly and severally make whole the employees
423EMSING’S SUPERMARKET
6 283 NLRB 1173 (1987).
1 299 NLRB 569.
2 284 NLRB 302.
3 872 F.2d 1279.
4 See, e.g., Iron Workers Local 373 (Building Contractors), 295
NLRB 648 (1989).
named below by paying them the amounts of backpay
set forth opposite their names, plus interest accrued to
the date of payment, in the manner prescribed in New
Horizons for the Retarded,6 less tax withholdings re-
quired by Federal and state laws, and by paying to the
Pension Trust Fund and the Health and Welfare Trust
Fund of United Food and Commercial Workers Union,
Local 1460, AFL–CIO, CLC, the respective delinquent
contributions on their behalf set forth opposite their
names, plus additional liquidated damages in the
amount of $3.21 per month to the Pension Trust Fund,
starting from January 10, 1991, to the date of payment
of the delinquent contribution to the Pension Trust
Fund, plus additional liquidated damages in the amount
of $7.20 per month to the Health and Welfare Trust
Fund, from January 10, 1991, to the date of payment
of the delinquent contribution to the Health and Wel-
fare Trust Fund.
Joel Bratcher $195.94
Bertha Eriks 2,673.62
Cathy Eriks 1,432.64
John Hadjuch 1,589.46
Blanche Harshbarger 3,580.57
Lisa Hinton 191.98
Jackie Jansen 2,520.70
Mary Smith 1,536.50
Pension Trust Fund 474.79
plus liquidated damages 589.07
Health and Welfare Trust Fund $960.00
plus liquidated damages 1,197.60
Jessica T. Willis, Esq., for the General Counsel.
J. Charles Sheerin, Esq., for the Respondent.
Jairus M. Gilden, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This back-
pay proceeding was litigated before me at Chicago, Illinois,
on January 9, 1991, pursuant to a Supplemental Decision and
Order Remanding1 issued by the National Labor Relations
Board on August 27, 1990, as the latest in a sequence of
events involving the Respondents. On June 18, 1987, the
Board issued a Decision and Order2 against the Respondents,
Emsing’s Supermarket, Inc. and Rocky’s Supermarket, Inc.,
in which the Respondents were ordered to make whole unit
employees of Emsing’s Supermarket, Inc. for any loss of pay
they might have suffered as a result of Respondent Emsing’s
violations of Section 8(a)(5) and (1) of the Act. The Re-
spondents were also ordered to pay all unit employees enti-
tled to vacations in 1984 the payments due them, and to pay
all delinquent contributions to the pension trust fund and
health and welfare trust fund. On April 17, 1989, the Court
of Appeals for the Seventh Circuit enforced the Board’s
Order.3 On July 20, 1989, the Regional Director for Region
13 issued a backpay specification and notice of hearing alleg-
ing the amount of backpay due the employees and the trust
funds. Respondents filed an answer. On October 20, 1989,
the General Counsel filed a motion to strike portions of Re-
spondents’ answer to backpay specification and for partial
summary judgment. Respondents filed a response to this mo-
tion on November 29, 1989. The Board, in its August 27,
1990 Supplemental Decision and Order Remanding granted
General Counsel’s motion ‘‘with respect to all allegations in
the backpay specification, except as to the length of the
backpay period, the amount of gross and net backpay (i.e.,
only to the extent that they are affected by the length of the
backpay period), interim earnings, and the amount of liq-
uidated damages, if any,’’ and ordered the scheduling of a
hearing before an administrative law judge, ‘‘limited to tak-
ing evidence concerning the length of the backpay period, in-
terim earnings, gross and net backpay, and liquidated dam-
ages if any owed to the trust funds and health and welfare
funds.’’ I have conducted that hearing and, after considering
all the record evidence and the posttrial briefs of the parties,
make the following findings and conclusions.
Interim Earnings
With respect to interim earnings, it is the Respondents’
burden, not General Counsel’s, to prove interim earnings.4
Respondents proffered no evidence and none was adduced
concerning interim earnings. Respondents have therefore not
carried their burden of showing interim earnings not reflected
in the backpay specification.
The Board held in its Supplemental Decision and Order
Remanding that the following allegation in the backpay spec-
ification be deemed admitted by reason of Respondents’ fail-
ure to file a proper denial:
As set forth in ‘‘the Remedy’’ of the Board’s Deci-
sion and Order, Respondents are directed to pay the
unit employees on the payroll as of August 1, 1984
amounts at the rate of their normal wages when last in
Emsing’s Supermarket, Inc.’s employ from 5 days after
the date of the Board’s Order until the occurrence of
the earliest of the following conditions:
1. the date Emsing’s Supermarket, Inc. bargains
for agreement with the Union on those subjects per-
taining to the effects of the closing on the unit em-
ployees;
2. a bona fide impasse in bargaining;
3. the failure of the Union to request bargaining
within 5 days of the Board’s Order, or to commence
bargaining within 5 days of Emsing’s Supermarket,
Inc.’s notice of its willingness to bargain with the
Union; or
4. the subsequent failure of the Union to bargain
in good faith.
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent’s brief misquotes the transcript of record at p. 33, L.
18 by substituting ‘‘day letter’’ for ‘‘telegram,’’ and by stating that
union representatives decided to ask their attorney to dictate a ‘‘day
letter’’ when in fact the record, at pp. 35–36, cited by Respondent,
plainly recites the plan was to ask the Union’s attorney to dictate
a ‘‘telegram.’’ Moreover, Respondent’s posttrial brief consistently
refers to a ‘‘day letter’’ when describing Alan Emsing’s testimony
and making other references to the Union’s message. The use of this
descriptive term is solely a construct of counsel utilized, I believe,
for purposes of persuasion and having no evidentiary value.
The sum paid to any of these employees shall not
exceed the amount each would have earned as wages
from August 11, 1984, the date Emsing’s Supermarket
closed, to the time he secured equivalent employment
elsewhere, or the date on which Emsing’s Supermarket,
Inc. offers to bargain, whichever occurs sooner; pro-
vided, however, that in no event shall this sum be less
than the employees would have earned for 2-week pe-
riod at the rate of their normal wages when last in
Emsing’s Supermarket, Inc.’s employ.
The 5-day Requirements
The Request for Bargaining
Respondent argues that the Union failed to meet either of
the 5-day requirements set forth in item 3 above. General
Counsel and the Union disagree. Turning first to the question
of whether the Union requested bargaining within 5 days of
the Board’s Order issued June 18, 1987, Ronald Luesmann,
then president of Local 1550 with which Local 1460 merged
in January 1985, credibly testified and the evidence shows
the Union sent a telegram to the attention of Allen (sic)
Emsing at Rocky’s Supermarket on June 23, 1987. On June
24, the Union received a Western Union mailgram reading,
in relevant part, as follows:
4–0159578174002 06/23/87 ICS IPMBNGZ CSP
CGAB
1 3126661313 MGM TDBN CHICAGO IL 06–23
1235P EST
UFCW LOCAL 1550 PA
320 SOUTH ASHLAND AVE
CHICAGO IL 60607
THIS IS A CONFIRMATION COPY OF THE FOL-
LOWING MESSAGE:
3126661313 FRB TDBN CHICAGO IL 24 06–23
1235P EST PMS ROCKY’S SUPERMARKET ATTN
ALLEN EMSINGS, DLR ASAP RPT DLY MGM,
DLR
5600 SHOL
HAMMOND IN 46230
IN CONFORMITY WITH THE NATIONAL LA-
BORS RELATIONS BOARD ORDER, UFCW
LOCAL 1550 DEMANDS COLLECTIVE BAR-
GAINING OVER THE EFFECTS OF THE CLOSING
OF EMSINGS SUPERMARKET.
RONALD S LUESMANN PRES UFCW LOCAL
1550
320 SOUTH ASHLAND AVE
CHICAGO IL 60607
12:30 EST
MGMCOMP
Alan Emsing, co-owner of Rocky’s Supermarket, testified
that he received the following telegram in his morning mail
on June 25, 1987:
IPM23IN
4–015957S174 06/23/87
ZCZC 3126661313 FRB TDBN CHICAGO IL 24 06–
23 1235P EST
PMS ROCKY’S SUPERMARKET ATTN ALEN
EMSINGS, DLR ASAP RPT DLY MGM, DLR
5600 SHOL
HAMMOND IN 46230
BT
IN CONFORMITY WITH THE NATIONAL LA-
BORS RELATIONS BOARD ORDER, UFCW
LOCAL 1550 DEMANDS COLLECTIVE BAR-
GAINING OVER THE EFFECTS OF THE CLOSING
OF EMSINGS SUPERMARKET.
RONALD S LUESMANN PRES UFCW LOCAL
1550
320 SOUTH ASHLAND AVE
CHICAGO IL 60607
NNNN
1231 EST
IPM23IN
According to Emsing, he immediately called his counsel,
advised him of the telegram, and discussed with his counsel
whether there was any need to bargain in view of the failure
to receive the message within 5 days of the Board’s Order.
Emsing denies receiving any communications other than the
telegram from Western Union on June 23, 24, or 25, and as-
serts he established June 25 as the date of receipt of the tele-
gram by reviewing his telephone bill, which purportedly
shows he called his lawyer on June 25, and because he calls
his lawyer as soon as he receives anything pertaining to this
proceeding. His telephone record was not offered into evi-
dence.
J. Charles Sheerin, Respondent’s counsel, testified that
Emsing consulted with his over the phone in June 1987 con-
cerning the telegram he received from Luesmann, and that he
advised Emsing it might be an untimely request. Sheerin
does not say what date in June 1987 this call took place.
The Union clearly sent a request for bargaining via West-
ern Union telegram5 on June 23, the 5th day after the
issuance of the Board’s decision, and it clearly was received.
No Western Union representative or other expert was called
to explain Western Union procedure or the meaning of the
various coded notations on the Western Union messages set
forth above. I have examined and reexamined these docu-
ments several times and conclude that they confirm
Luesmann’s testimony the telegram was given to Western
Union to transmit on June 23, but they do not show on their
face, absent an explanation of the various coded entries, that
they were delivered the same day or any other date.
425EMSING’S SUPERMARKET
6 Transmarine Navigation Corp., 170 NLRB 389 (1968).
7 See, e.g., Marlyn Mfg. Co., 299 NLRB No. 129 (Sept. 26, 1990)
(not reported in Board volumes); Cole’s Bakery, 299 NLRB No. 96
(Aug. 31, 1990) (not reported in Board volumes); Challenge-Cook
Bros., 299 NLRB 434 (1990); John R. Cowley & Bro., Inc., 297
NLRB 770 (1990); Continental Hagen Corp., 296 NLRB No. 55
(Aug. 31, 1989) (not reported in Board volumes); Paramount Poul-
try, 294 NLRB 867 (1989); Apple Jack Mining Corp., 294 NLRB
293 (1989).
8 A & T Mfg. Co., 280 NLRB 916, 919 (1986); Brenal Electric,
271 NLRB 1556, 1568 (1984).
9 Marlene Industries Corp., 255 NLRB 1446, 1464 (1981).
10 Betty Baking Co., 173 NLRB 1018 (1968), citing Thermoid Co.,
90 NLRB 614 (1950), and Harrah’s Club, 158 NLRB 758 (1966).
11 Sec. 102.111(a), Rules and Regulations, National Labor Rela-
tions Board.
Emsing’s denial of any phone call or other communication
concerning the telegram until he received it on June 25 is
uncontroverted. Even though the failure of Respondent to
place the supporting telephone bill in evidence and the fail-
ure of Attorney Sheerin to testify to the date on which
Emsing contacted him concerning the telegram weakens the
persuasiveness of Emsing’s testimony concerning his receipt
of the Union’s request, General Counsel has not affirmatively
proved the date of delivery, or rebutted Emsing’s testimony
that he did not receive the message until 7 calendar days
after the date of the Board’s Order. I conclude, however, that
the fact Respondent received the request to bargain on June
25 is not a determining factor because neither the Board’s
Decision and Order nor the backpay specification require re-
ceipt of the Union’s request within 5 days of the issue date
of the Decision and Order. All that is required is that the
Union ‘‘request bargaining within 5 days of the Board’s
Order.’’ The Union has done so. That the Respondent is
under no obligation to respond until it receives such a re-
quest does not alter the fact it has been sent. To hold other-
wise would require an interpretation of the Board’s ‘‘5 day’’
language to mean that the Union must in fact dispatch its re-
quest with 4 days of the Board’s decision, at the latest, to
assure receipt within the 5 days, or hand deliver the request.
Further, if this were so the Union would in fact have only
3 days, allowing 1 day for the delivery of the Board’s deci-
sion to the Union, within which to consider it and dispatch
an appropriate request. I do not believe the Board intended
to make it that difficult for the Charging Party to comply
with the Board’s requirements concerning the determination
of the length of the backpay period by requiring the request
be received within 5 days of its decision. I therefore find the
Union met the condition by sending the request by telegram
on June 23.
The foregoing conclusion is, I believe, dispositive of the
issue. There are, however, other considerations which the
Board may wish to consider, but the parties have not ade-
quately addressed. Footnote 6 of the Supplemental Decision
and Order Remanding states, ‘‘By making reference to the
5-day notice prerequisite, we do not pass on whether the 5
days begin to run from the date of issuance of the Board’s
Order or from the date of receipt by the Union or its coun-
sel.’’ The underlying decision refers to 5 days, but does not
delineate how those days should be computed, whether cal-
endar days, working days, or some other measure. That the
parties have apparently construed the Board’s language to
refer to 5 successive calendar days is not dispositive, but it
is difficult to ascertain from Board decisions just how the
Board counts its days in backpay situations involving a
Transmarine6 remedy because those decisions7 simply do not
definitively explain how the ‘‘5 days’’ shall be calculated. In
assessing the validity of offers of reinstatement to
discriminatorily discharged employees requiring them to re-
spond within a very few days the Board has found such of-
fers invalid where there was an intervening holiday and/or
weekend at which time the employee would have been un-
able to discuss the matter with the employer,8 thus providing
an unreasonable amount of time (4 days) for the recipient to
consider and reply to the offer. The Board has also con-
cluded such an offer to be invalid where it only gave the em-
ployees 5 days after the offer to accept it,9 and the Board
has long required that employees be afforded a reasonable
time to consider such offers.10 Moreover, with certain limited
exceptions, the computation of time with respect to periods
of 7 days or less prescribed or allowed by the Board’s Rules
and Regulations for service and filing of papers excludes in-
termediate Saturdays, Sundays, and holidays.11 When the
Board issues a decision on any day from Tuesday through
Friday the succeeding 5 calendar days include a Saturday and
a Sunday. Only a Monday issuance escapes a Sunday, but
the succeeding 5 calendar days include a Saturday. It seems
unlikely that the Board requires a Union to request bar-
gaining on a Saturday or Sunday, or that the employer would
be readily available to accept such a demand on either day
even if delivered by hand. Given the Board’s long history of
requiring offers of reinstatement to afford employees a rea-
sonable time within which to consider and reply to them, and
its reasonable exclusion of Saturdays, Sundays, and holidays
from that time, together with its exclusion of those days from
the computation of periods of 7 days or less which are pre-
scribed or allowed for the service and filing of papers, I am
persuaded that the Board intended its ‘‘within 5 days’’ rule
utilized in cases involving Transmarine remedies to be rea-
sonably construed, which I believe requires the exclusion of
Saturdays, Sundays, and holidays from the 5-day computa-
tion. In the instant case the inclusion of Saturday and Sunday
in the computation would effectively give the Union only 3
workdays within which to make its request. I therefore find
it is reasonable to conclude that the 5 days referred to by the
Board in its Thursday, June 18, 1987 Order and the backpay
specification excludes Saturday and Sunday, June 20 and 21,
and gave the Union at least until May 25 to make its request,
the date Respondents received it.
Should the Board conclude the 5 days are calendar days,
whether the period runs from the date of issue or date of re-
ceipt of the Board’s Order becomes important. The Board
controls both the issue date and the transmission date of its
decisions, and the date of receipt should control. The Deci-
sion and Order in 284 NLRB 302 has an issue date of June
18, a Thursday. Even if mailed on that date, the Union
would not have received it until June 19 at the earliest, and
would have only 4 days, including a Saturday and Sunday,
rather than the 5 allotted by the Board, within which to con-
sider the Decision and Order and take the appropriate action.
I do not believe the Board would knowingly direct a party
to accomplish something in 5 days, but only provide the
party with 4. ‘‘Within 5 days of the Board’s Order’’ is broad
enough to encompass the date the Order is received as a
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The backpay specification sets forth each employee’s hourly
wage and the number of hours per week each worked, on average,
prior to plant closure. I have utilized those figures in the recomputa-
tion.
starting point for the 5-day period, and I conclude the receipt
date is the most reasonable. Accordingly, if the Board does
not agree that the union request was timely for any of the
reasons earlier discussed, I recommend the case be remanded
for the limited purpose of determining the date the Union
and/or its lawyer received the Board’s Order, and that the 5
calendar days be computed from that date.
The Commencement of Bargaining
Respondents’ attorney Sheerin testified he called the
Union’s office and asked for Luesmann on September 4. He
advised Luesmann’s secretary that he was responding to the
telegram and was calling in regard to that matter. Sheerin
then asked her to have Luesmann call him, left his name and
telephone number, and the call ended. This telephone call
does not constitute notice to the Union of Respondents’ will-
ingness to bargain.
On September 18, Jarius Gilden, the Union’s attorney, di-
rected a letter to Sheerin reading, in relevant part, as follows:
Mr. Ronald Luesmann, President of UFCW Local
1550, has informed me that you contacted him recently.
I assume that your contact was in response to Local
1550’s telegram of June 24, 1987 demanding bar-
gaining over the effects of the closing of Emsing’s Su-
permarket. Local 1550 is available to bargain at your
earliest convenience.
Sheerin replied to Gilden by letter dated September 21
reading, in relevant part, as follows:
As you are aware, neither the June 24, 1987 telegram
or your September 18, 1987 letter were timely within
the express provisions of the Decision and Order of the
National Labor Relations Board. Nevertheless, and
without abandoning or waiving any argument or legal
position based upon these defects, Emsing’s has already
offered to and will meet with Local 1550 at its earliest
convenience. Please check with your client and advise
by return mail of at least four (4) alternate dates when
Local 1550 is available to meet.
Gilden replied to Sheerin by letter of September 22 read-
ing as follows, again in pertinent part:
I am responding to your letter of September 21,
1987. As you are aware, the National Labor Relations
Board issued an Order on June 18, 1987 directing
Emsing’s to bargain with Local 1550 over the effects
of the closing of its supermarket. Local 1550’s June
telegram expressly refers to that Decision. Local 1550’s
offer to bargain contained in that telegram and
Emsing’s willingness to comply are inherently related
to the litigation in NLRB Case No. 13–CA–24609.
With regard to the date of the telegram demanding
bargaining, I have reexamined that document and notice
that my letter of September 18, 1987 incorrectly identi-
fied the date as June 24, 1987. That telegram is dated
June 23, 1987. The demand contained in the telegram
is timely within the meaning of the National Labor Re-
lations Board’s Decision and Order in this matter.
Local 1550 will be available for bargaining on Sep-
tember 30, October 1, October 7 or October 8, 1987.
Please advise if any of these dates is acceptable.
The Union and Respondent had their first bargaining session
on September 30, 1987.
Sheerin’s September 21 letter clearly advised the Union’s
counsel that Respondents were willing to bargain. It is equal-
ly clear that, pursuant to the Union’s request, bargaining did
not commence until September 30, more than 5 days after
Respondents expressed a willingness to bargain, whether the
time be calculated on calendar days or excluding Saturday
and Sunday. I therefore find the backpay period ended on
September 29, 5 working days after Gilden received
Sheerin’s letter on September 22. The backpay period runs
from June 23, the day the Union made its request to bargain,
to September 29. It is therefore unnecessary to determine
whether there was a later impasse in bargaining or bad-faith
bargaining by the Union which would have curtailed the
backpay period.
Computation of Backpay
Inasmuch as the backpay period June 23 to September 29,
1987, found here, differs from that in the backpay specifica-
tion, except for that of Joel Bratcher and Lisa Hinton who
are entitled to 2 weeks pay which is accurately set forth in
the specification, the backpay for the other six employees
named in the specification has been recompute on a calendar
quarter basis by multiplying the amount of hours they would
have worked by their individual rates of pay.12 On the basis
of a 5-day workweek, there was 1-1/5 weeks backpay due in
the second quarter of 1987 and 13-1/5 weeks in the third
quarter of 1987. None of the employees had deductible in-
terim earnings. Gross backpay is therefore net backpay. The
vacation pay due Blanche Harshbarger, Jackie Jansen, and
Mary Smith computed in the backpay specification has been
deemed admitted by the Board and is included in the
amounts due. As computed by General Counsel, Joel
Bratcher is due $195.94 plus interest thereon and Lisa Hinton
is due $191.98 plus interest. The other employees involved
in this proceeding are entitled to backpay, with interest, as
computed below:
427EMSING’S SUPERMARKET
Bertha Eriks
Qtr. 2 1.2 wks. x 22.81 hrs. x $6.66 rate = $ 182.28 gross backpay (net backpay)
Qtr. 3 13.2 wks. x 22.81 hrs. x $6.66 rate = $2005.26 gross backpay (net backpay)
Vacation pay 0
Total backpay $2187.54
Cathy Eriks
Qtr. 2 1.2 wks. x 20.35 hrs. x $4.00 rate = $ 97.68 gross backpay (net backpay)
Qtr. 3 13.2 wks. x 20.35 hrs. x $4.00 rate = $1074.48 gross backpay (net backpay)
Vacation pay 0
Total backpay $1172.16
John Hadjuch
Qtr. 2 1.2 wks. x 21.15 hrs. x $4.27 rate = $ 108.37 gross backpay (net backpay)
Qtr. 3 13.2 wks. x 21.15 hrs. x $4.27 rate = $1192.10 gross backpay (net backpay)
Vacation pay 0
Total backpay $1300.47
Blanche Harshbarger
Qtr. 2 1.2 wks. x 23.13 hrs. x $7.47 rate = $ 207.37 gross backpay (net backpay)
Qtr. 3 13.2 wks. x 23.13 hrs. x $7.47 rate = $2280.67 gross backpay (net backpay)
Vacation pay $ 539.64
Total backpay $3027.68
Jackie Jansen
Qtr. 2 1.2 wks. x 24.71 hrs. x 5.26 rate = $ 155.96 gross backpay (net backpay)
Qtr. 3 13.2 wks. x 24.71 hrs. x $5.26 rate = $1715.65 gross backpay (net backpay)
Vacation pay $ 233.23
Total backpay $2104.84
Mary Smith
Qtr. 2 1.2 wks. x 21.79 hrs. x $3.75 rate = $ 98.06 gross backpay (net backpay)
Qtr. 3 13.2 wks. x 21.79 hrs. x $3.75 rate = $1078.61 gross backpay (net backpay)
Vacation pay $ 98.40
Total backpay $1275.07
Liquidated Damages
The backpay specification, consistent with the Board’s De-
cision and Order in 284 NLRB 302, alleges contributions to
the Union’s pension trust fund in the amount of $474.79 and
the Union’s health and welfare trust fund in the amount of
$960 are owed by Respondents. The Board granted General
Counsel’s motion to strike Respondent’s denial. It is there-
fore settled that these contributions are due and owing.
In addition to the $960 contribution described above, the
backpay specification also alleges liquidated damages for de-
linquent contributions to the above-described trust fund. Re-
spondent denies the applicability of liquidated damages. The
Board considered this denial sufficient to require General
Counsel to prove the appropriateness of the liquidated dam-
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Should the Board determine Amendment 5 and/or Midwest Pen-
sion Fund are not controlling, I recommend the liquidated damages
be computed in accord with article XXI of the collective-bargaining
agreement.
ages. The last collective-bargaining agreement between
Emsing’s Supermarket and the Union contained the fol-
lowing provisions:
ARTICLE XXI - COLLECTION OF DELINQUENT
CONTRIBUTIONS
21.1 Any Employer who is sixty (60) days delin-
quent in the payment of any or all of the contributions
required of it by the above Articles; Health and Welfare
and Pension, shall pay, as liquidated damages, a sum of
Twenty Dollars ($20.00), or ten percent (10%) of the
amount delinquent, whichever is greater. Such damages
shall be computed monthly and on a separate basis for
the Health and Welfare Fund and the Pension Fund.
The amount of liquidated damages shall be added to the
cumulative total of delinquent contributions and shall
be included in the computation of damages.
21.2 In addition to the foregoing, an Employer delin-
quent sixty (60) days or more shall be liable for the
payment of any benefits paid or otherwise payable to
an employee or his dependents from the Health and
Welfare Trust Fund as a result of any claim incurred
during the period of delinquency. Said liability shall not
be waived by payment of the amount delinquent, in-
cluding the liquidated damages, or by payment of the
claim by the Health and Welfare Trust Fund.
Contrary to Respondents’ argument that ‘‘Neither a pension
trust agreement or provisions for liquidated damages in re-
gard to delinquent pension contributions were mentioned in
the expired collective bargaining agreement,’’ it is clear this
representation is incorrect from article XXI recited above and
Article XX-PENSION of the safe agreement which states, in
relevant part:
20.6 Contributions shall be made to a jointly adminis-
tered Pension Trust Fund to be trusteed and adminis-
tered in accordance with existing law and in accordance
with the Pension Plan and Trust Agreement existing be-
tween the parties. Said contributions shall be for the
sole purpose of providing pensions for eligible employ-
ees as defined in such Pension Plan.
Moreover, the Board’s Order requiring Respondents to reim-
burse the pension and health and welfare trust funds makes
it clear those funds exist.
The applicability of liquidated damages is readily apparent
from a reading of article XXI of the collective-bargaining
agreement which contains a formula for the computation of
the damages. General Counsel did not compute damages in
accord with this formula, but employed a formula set forth
in (1) Amendment No. 5 to Revised Trust Agreement of
United Food and Commercial Workers Union Local No.
1460 and Employers Insurance Fund (Amendment 5), and (2)
the United Food and Commercial Workers Unions and Em-
ployers Midwest Pension Fund Agreement and Declaration
of Trust. (Midwest Pension Fund) the latter document, was
rejected from evidence for want of an appropriate foundation
for its proffer. A careful reading of the record persuades me
the Midwest Pension Fund, General Counsel’s Exhibit 4, was
erroneously rejected and should be, and hereby is, received
in evidence on the basis of the testimony of Arthur Primm,
a business agent for the Union, that to the best of his knowl-
edge it was the pension trust agreement in effect during the
existence of the Emsing’s Supermarket collective-bargaining
agreement referred to above, which I conclude was in fact
the case. It provides, at article V(d) for damages as follows:
The parties recognize and acknowledge that the reg-
ular and prompt payment of Employer Contributions to
the Trust is essential to the continued efficient adminis-
tration of the Trust, and that it would be extremely dif-
ficult, if not impracticable, to fix the actual expense and
damage to the Trust which would result from the failure
of an individual Employer to pay such monthly Con-
tributions in full within the period established by the
Trustees.
Therefore, the amount of damage to the Trust from
such failure shall be presumed to be, for each month
of delinquency, 10% of the amount of the Contribution
or Contributions due for the first month of the delin-
quency and, in addition thereto, 1-1/2% per month for
each additional month said delinquency remains
uncured. Liquidated damages for subsequent delinquent
monthly Contributions, if any, shall be separately cal-
culated for each separate month on the same basis as
the first month and the total liquidated damages for all
delinquent Contributions shall be cumulative and ar-
rived at by adding the total of the liquidated damages
calculated separately for each month of delinquent Con-
tributions.
General Counsel computed liquidated damages due the pen-
sion fund in accord with this formula, which I find appro-
priate, and correctly determined liquidated damages due this
fund totalled $589.07 as of January 9, 1991, with continuing
accrual at the rate of $3.21 per month until the contributions
are paid.
Amendment 5 contains the same formula at article IV, sec-
tion 3(d). Noting that it bears the signatures of union trustees
and employer trustees, and one of the latter is acknowledged
in Respondents’ posttrial brief to be counsel for and trustee
of both the health and welfare and pension funds, and further
noting that health and welfare funds are in the nature of in-
surance funds, and no funds other than pension and health
and welfare are referred to in the collective-bargaining agree-
ment, I find and conclude Amendment 5 relates to the health
and welfare trust fund, was an amendment thereto, dated
after the effective date of the collective-bargaining agreement
but during its term, and contains the method of computing
damages in effect at the time of the unfair labor practices
found in the Board’s decision and now. Accordingly, I adopt
General Counsel’s computation of liquidated damages owed
the health and welfare fund in the amount of $1197.60 to
January 9, 1991, with continuing accrual of $7.20 per month
until contributions are paid.13
[Recommended Order omitted from publication.]