Finishline Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1970

181 N.L.R.B. 756 (N.L.R.B. 1970)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finishline Industries , Inc., formerly known as B-Y
Manufacturing, Inc. and Sheet Metal Workers'
International Association, Local Union No. 108,
AFL-CIO and Carpenters District Council of Los
Angelis County; Carpenters Local 1437. Case
21-CA-7041
March 23, 1970
SUPPLEMENTAL DECISION AND
ORDER
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Supplemental
Order the Recommended Supplemental Order of the
Trial Examiner, and orders that the Respondent,
Finishline Industries, Inc., formerly known as B-Y
Manufacturing, Inc., Los Angeles, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Supplemental Order.
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 24, 1967, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding, finding that the
Respondent, by refusing to honor a
collective - bargaining agreement entered into on
January 11, 1966, between the Respondent and the
Charging Party (Sheet Metal Workers' International
Association , Local Union No. 108 , AFL-CIO),
violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended , and directed the
Respondent , inter alia , to make whole its employees
for any losses suffered as a result of the
Respondent 's failure to honor said agreement.
On April 23, 1969 , because of a controversy
concerning the Respondent's compliance with the
Board ' s Order , the Regional Director for Region 21
issued a Backpay Specification and Notice of
Hearing. A hearing was held before Trial Examiner
Henry S. Sahm on June 17 and 18 , 1969. On
November 4, 1969 , Trial Examiner Sahm issued his
Backpay Decision , a copy of which is attached
hereto , recommending that the Respondent make
payments of certain amounts of backpay to
employees David Shelley, Roy R . Risley, Wayne D.
Whittamore, and Eugene Robinson , as well as
pension contributions in their behalf to the Sheet
Metal Workers ' Pension Plan Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Backpay Decision and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to Section 3(b) of the Act, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the
entire record in this case , including the Trial
Examiner ' s Backpay Decision , the exceptions, and
the briefs , and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
TRIAL EXAMINER'S BACKPAY DECISION
STATEMENT OF THE CASE
Background
HENRY SAHM, Trial Examiner This supplemental
proceeding for the determination of backpay was based on
a specification issued April 23, 1969, by the National
Labor Relations Board's Regional Director for Region 21,
pursuant to Section 102.52, el seq , of the Board's Rules
and Regulations. In the underlying unfair labor practice
proceeding, Respondent herein was found by the Board to
have violated Section 8(a)(5) of the Act by refusing to
honor a collective-bargaining agreement entered into by
Respondent with Sheet Metal Workers' International
Association, Local Union No 108, on January 11, 1966.'
As part of the remedy, Respondent was ordered to
"Recognize Local 108 as the exclusive bargaining
representative of all outside construction employees of
Respondent, including overhead door installers and
porcelain panel installers, excluding office clerical
employees, watchmen, guards, professional employees,
and supervisors as defined in the Act; honor the
collective-bargaining agreement signed by Respondent on
January 11, 1966, and make whole employees for any
losses suffered by reason of Respondent's failure to honor
said agreement." This is a proceeding for the purpose of
determining the amount of backpay which will make
whole four employees for their losses occasioned by the
Respondent's failure to honor said agreement with Local
108 of the Sheet Metal Workers Union.
Pursuant to notice, a hearing was held in Los Angeles,
California, on June 17 and 18, 1969, before Henry S.
Sahm, the undersigned Trial Examiner. Upon the entire
record, including observation of the briefs filed by the
General Counsel and Respondent, and from observation
of the witnesses, there are hereby made the following-
FINDINGS OF FACT
Contentions of the Parties
The backpay specifications in this proceeding alleged
that the Respondent is responsible to four of its
employees, under the terms of the Board's Order for
losses caused by Respondent's failure to honor the
agreement which it had signed with Local 108 on January
11, 1966, and thereby did not pay either the hourly wage
rates or pension contributions provided foi in its January
11th agreement with Local 108 The specifications set out
1166 NLRB No 95
181 NLRB No. 118
FINISHLINE INDUSTRIES , INC. 757
by calendar quarters, the gross backpay allegedly due each
employee, the formulae used in determining the amounts
and the net backpay allegedly due them as well as the
total pension contribution required to be paid to the
pension fund on behalf of each employee The
specifications alleged these amounts to be as follows for
the period January 11, 1966, to December 13, 1967:
Pension
Employee Backpay Contributions
David Shelley $2,414.95 $796.95
Roy R . Risley 1,593.62 597 52
Wayne D. Whittamore 1,655.77 518.94
Eugene Robinson 71 17 21.51
Totals $5,735.51 $1,93492
The Respondent argues that no backpay is due the four
employees for the period from January 11, 1966, to
December 13, 1967, because in January 1968, Respondent
and the Union negotiated a new agreement to replace the
January 11, 1966, agreement. The new agreement was
made retroactive to January 1, 1966. By its terms, wages
for the period from January 11, 1966, to December 13,
1967, were exactly equal to the wages actually paid tb the
four employees by the Respondent during that period,
thus eliminating, argues Respondent, its backpay
obligations to these employees.
Additionally, the Respondent argues that to compel the
pension contributions called for in the specification would
be an empty gesture not effectuating the policies of the
Act, inasmuch as the four employees identified in the
backpay specification are no longer engaged in work
covered by the pension plan and because the "vesting"
provisions of the pension plan are such that one of the
employees has lost any possible future benefits which may
have accured, and, under the present "vesting" rules, the
others by virtue of not having worked in covered
employment will, in all likelihood, never have a vested
interest in the pension plan
Testimony and Evidence
The facts, as set forth in the testimony and stipulations,
are virtually not in dispute. The Board, in its decision of
July 24, 1967, found that Respondent failed to honor a
collective-bargaining agreement it signed with Local 108
on January 11, 1966, and which had a termination date of
June 30, 1970 This contract specified wage rates of $5.51
to $6 per hour for Respondent's journeymen outside
construction employees, including overhead door
installers However, the actual hourly wages paid to the
four employees, members of Local 108, during the period
covered by the backpay specification were approximately
$1 per hour less than the contract specified. In addition,
the agreement of January 11, 1966, required Respondent
to make pension fund contributions of $.18 to $ 22 per
hour but no pension contributions were made by
Respondent to Local 108's Sheet Metal Workers' Pension
Fund during this period of time The amounts in question
were stipulated by the parties to be the amounts set out at
page 2 above z
The Board, in its decision of July 24, 1967, found that
the Respondent Employer committed unfair labor
practices when it attempted to substitute Local 1437 of
the Carpenters, a rival union to Local 108 of the Sheet
Metal Workers, the incumbent union, as representative of
the four employees in question, overhead door installers,
because the Carpenters Union claimed jurisdiction over
them The Board stated: "in order to effectuate the
policies of the Act and in order to fully remedy the
violations committed herein, we should order the
Respondent to honor its [January 11, 1966] agreement
and make the overhead door installers whole for any
losses they may have suffered by reason of its failure to
honor the contract "'
Subsequent to the Board's Order, the testimony and
stipulations reveal the following sequence of events. On
August 8, 1967, approximately 2 weeks after the Board's
decision, Respondent's attorney, Henry H. Ely, telephoned
Clyde Ringwood, business manager and president of Local
108 They arranged a luncheon meeting for the next day,
August 9, 1967, at which Ringwood and Ely discussed the
possibility of negotiating a new agreement to replace the
January 11, 1966, agreement Respondent was ordered by
the Board to honor and which by its terms was to run
until 1970. At the luncheon, Ely pointed out that
Respondent could not stay in business and pay the "sheet
metal rate" called for under the January I t agreement, as
Respondent's competition paid the lower "Carpenter's
rate" of one dollar per hour less for the same work,
installing overhead doors. Ringwood agreed to consider
the matter
On August 15, 1967, Attorney Ely wrote the Regional
compliance officer that Respondent and Local 108 had
entered negotiations toward a settlement. During
September 1967, Ely and Ringwood had additional
conversations relating to a new agreement. On
approximately October 27, 1967, Ely drafted a proposed
agreement between Respondent and Local 108 and sent
this proposed agreement to Ringwood. A copy of the
agreement was sent to the Regional compliance officer on
October 30, 1967.
On or about November 28, 1967, a new agreement
dated January 1, 1967, was executed to cover the
collective-bargaining relations between Respondent Local
108, which by its terms "cancelled and annulled" all
agreements which may have existed between the parties.
The contract was made effective as of January 1, 1967,
according to Ely, because "I recall that my best
recollection was that the claim of the Board for making
whole the employees was started in January, 1967." On
December 20, 1967, Ely found he was in error as to the
beginning date of the backpay order, when he received a
letter from the Region 21's compliance officer informing
him of the preliminary computations of the backpay due
under the terms of the Board's Order The computations
included backpay for 1966 as well as 1967. Thereupon, on
approximately January 4, 1968, Ely asked Ringwood to
have the inception date of the agreement changed from
January 1, 1967 to January 1, 1966, which change was
affected by the Union. At the instant hearing, Ely was
asked by counsel for the General Counsel, "Mr. Ely, why
did you propose an effective date of January 1, 1966?"
the probability of some typographical errors in the stipulations presented
at the hearing It is found that the amount of backpay stipulated as due
The parties stipulated that the amount of backpay due David Shelley David Shelley to be $2,414 95 and not $2,114 95 which is an unmistakable
was $2,114 95 Respondent ' s Exhibit Number 4. There is no explanation as typographical error in the stipulation
to why this amount was reduced from $2,41495 and the record indicates '166 NLRB No 95
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ely's testimony reads as follows:
A. Well it was my opinion it would have an effect on
the backpay.
Q In other words, it was your intent to enter into an
agreement which would retroactively provide for wage
rates which were identical to the wage rates which the
employees in fact had received'?
A. Yes that is right.
Q. Therefore there would be no difference, therefore,
and therefore there would be no loss of wages9
A That is right
Ely testified that after August 1, 1967, Respondent
insisted on a retroactive effective date for a new contract,
and that the Respondent would "absolutely not" have
resumed recognition of Local 108 absent such an
agreement Ely also testified that he made it clear to
Ringwood, the representative of Local 108, that the dates
were requested to eliminate backpay for the overhead
door installers, an assertion which is credited regardless of
Ringwood's testimony to the contrary
Ringwood testified that with regard to the negotiation
of the new agreement, he told Ely: "My personal position
was I didn't care if they [overhead door installers] ever
got a nickel" but "the Union's position was that they
should get the [back] pay, period " Ringwood's testimony
continues as follows: "I want to make it fully understood
that it was never the intent of any agreement I negotiated
with the Company to have any affect whatsoever on what
was previously decided by the Board. I don't believe I
would have filed the charges to start with if it was my
intent to say, `Forget it all.' " The Union, testified
Ringwood, had no intention when it signed the new
agreement to affect in any way the Board's Decision and
Order.
As to the pension contributions called for in the
January ll, agreement, the parties stipulated that the
computations set out in the backpay specification are
correct The specification alleges pension contributions
were to be made for David Shelley for the entire period
from January 11, 1966, to December 13, 1967; for Roy
Risley from January 11, 1966, until he left Respondent's
employ on August 9, 1967; for Eugene Robinson until he
left Respondent's employ on March 31, 1966, and for
Wayne Whittamore until he ceased working for
Respondent on March 22, 1967. It was also stipulated
that Wayne Whittamore has worked since March 29,
1968, in "covered" employment for employers other than
Respondent and that pension contributions to the Sheet
Metal Workers Pension Plan have been made on his
behalf by these employers.
The pension plan provides that an employee's interest
in the pension fund is "vested" and he becomes eligible,
upon retirement, for a pension after he accumulates 15
years of pension credits; that is, he must have worked in
"covered" employment and pension contributions must
have been made on his behalf by his employer for the
requisite number of hours per year for at least 15 years
However, under the current provisions of the pension plan,
should contributions for the employee fall short of the
minimum per year required for 2 consecutive years, the
employee must start all over again accumulating pension
years toward the 15-year minimum required to give him a
vested right in the pension fund All monies contributed to
the plan on the employee's behalf prior to such a 2-year
hiatus are forfeited to the fund
The stipulation and the evidence show that at the time
of the hearing Eugene Robinson had not been employed in
"covered" employment nor had pension contributions
been made on his behalf for over 2 years. The stipulations
also show that such a 2-year period would elapse for
Risley on August 9, 1969 and for Shelley on December
13, 1969 With respect to Whittamore no such period has
elapsed
The Issues
The relevant issues presented for decision are clear S
1. Which contract, the January 11, 1966, agreement or
the new agreement negotiated in January 1968, and made
retroactive to January 1, 1966, governs the wage rate for
the purposes of computing backpay for the period January
11, 1966, to December 13, 19679
2. Are contributions to a pension fund required to be
paid when the employees have left the industry and, under
present vesting provisions of the'pension plan, might not
receive any benefit therefrom9
Discussion and Conclusions
Backpay Wages
Respondent argues in its brief that where there is a
Board order to bargain and to make employees whole for
losses suffered as a result of the refusal to recognize and
bargain with the Union, the order is complied with if the
employer and the Union bargain in good faith.
Presumably, the Respondent means by this that the new
agreement executed by Respondent and the Union in
January 1968, which allegedly eliminated any backpay
was all that was necessary for Respondent to be in
compliance with the Board's Order. In justification of this
belief, Respondent characterizes its transgression of the
Act a "technical violation," found by the Board in order
to accelerate negotiations between the parties which would
insure protection of the employees' rights in the future.
Respondent is, indeed, astride both horns of a
distasteful dilemma but unfortunately, its legal position is
patently untenable and the cases it cites inapposite. The
nature of the Board's order is unequivocal It found that
Respondent had a duty to honor its January 11, 1966,
agreement and that it had not performed that duty to the
consequent detriment of the rights of its employees to be
paid the wages required by the collective-bargaining
agreement. The remedy ordered is equally clear "honor
the collective-bargaining agreement signed by Respondent
on January 11, 1966, and make whole its employees for
any losses suffered by reason of Respondent's failure to
honor said agreement."
Respondent's contention that its backpay obligation
ceased upon execution of the January 1968, agreement
ignores the cogent fact that a backpay order is a
reparation order designed to vindicate the public policy of
the Act and its purpose is to make whole the employees
for losses which they suffered as a result of an unfair
labor practice. Consequently, the "new" contract cannot
be regarded as either a settlement or a waiver by the
Union of the Respondent Employer's liability for backpay
under the Board's Order of July 24, 1967. It was beyond
the parties' competency to attempt to circumvent the
Board's mandate because its backpay order is not a
'Resp Exh 4
'Respondent urged that it be found in compliance with the Board's
Order to post notices, a matter not properly before the Trial Examiner in a
supplemental backpay proceeding
FINISHLINE INDUSTRIES, INC. 759
private right but a command to pay the amount owed the
Board as agent for the injured employees in vindication of
the public policy of the statute 6
However, because the right to backpay is affected with
the public interest, does not preclude the Board from
approving adjustments which effectuate the purposes and
policies of the Act The Board has made it known on
numerous occasions that it favors settlements of backpay
disputes,' and where the intentions of the parties are clear,
the Board will give due consideration to an agreement to
waive an employer's backpay liability 8 In the case at bar,
however, it is plain that the agreement of January 1968,
between Respondent and Local 108 fails as a settlement,
because at no time did the agreement receive the approval
of the Regional Director 9 Backpay is a remedy which the
Board provides in the public interest to enforce a public
right. No private right to such relief attaches to a party
which can be bargained away or compromised without the
approval of the Regional Director 10
The exchange of letters between Respondent's counsel
and the Regional compliance officer reveal that no
settlement was ever arrived at by the parties The
compliance officer's letter of January 12, 1968, returning
the "new agreement" for execution by Local 108 stated,
"Upon [return of the executed agreement], I shall inquire
whether or not the Agreement relieves Respondent of its
backpay obligations under the terms of the Board's
order " The letter from the compliance officer to Attorney
Ely dated February 5, 1968, reads as follows-
This will remind you that I am holding off referring
the matter of the effect of the recently executed
contract to my superiors until I know whether or not
Respondent is willing to make an offer of settlement of
the backpay
It is clear from the foregoing that no settlement was
reached
In Master Appliance Corporation, supra, the Board
declared
[The purpose of backpay] is not to punish the
Respondent or to enrich the employees discriminated
against, but simply to make the employees whole
through the restoration of earnings lost as a result of
the employee's discriminatory conduct. Agreements
between an employer and a Union in which the Union
waives its right to further backpay are given due
consideration in determining when the period of
backpay obligation has terminated Any waiver of an
employer's backpay liability by a Union cannot be
lightly inferred, however, but must be in "clear and
'Nathanson v N L R B, 344 U S 25 at 27, W C Nabors Co, 134
NLRB 1078, 1096 , Clayton-Willard Sales , 126 NLRB 1325 See also
N L R B v Armstrong Tire and Rubber Co, 263 F 2d 680 (C A 5)
'See, e g , Farmers Co-Operative Gin Assoc, 168 NLRB No 64, where
the Board stated " there are certain principles and policies that guide
the Board in resolving its position in this difficult area [of settlement
agreements ] The Board has long had the policy of encouraging settlements
which effectuate the purposes of the Act In considering settlements, the
Board must weigh such factors as the risks involved in protracted litigation
which may be lost in whole or in part, the early restoration of industrial
harmony by making concessions , and the conservation of the Board's
resources Moreover, the Board must evaluate the legal and factual merits
disclosed by the administrative investigation to determine whether the
allegations of violations in the complaint can be so clearly proved that no
remedy, less than the maximum , can be expected In arriving at this
decision, the discretion of the Board is recognized as broad
'Master Appliance Corp , 164 NLRB No 160
'Cf Preston Products Co , Inc, 169 NLRB No 34, fn I of TXD
"Ideal Donut Shop, 148 NLRB 236, 237-238
unmistakable" language [Citation omitted]. The Board
will not find that contract terms in themselves amount
to a waiver unless the contract so provides expressly or
by necessary implication
In the January 1968, agreement, there is no express
reference to a waiver of the employer's backpay
obligation, nor is there a "necessary implication" that the
claim to backpay has been waived Within the four
corners of the agreement, the inference of a waiver can
only be drawn from the effective date of the agreement,
buttressed by Section 5 of the "new" agreement which
reads
5. All agreements which may have existed between
the parties hereto other than this agreement and the
references herein, are hereby cancelled and annulled
upon the execution of this agreement
This clause is found to be a "zipper clause" within the
holding of Master Appliances Corporation, supra, and
therefore, it is concluded that the contract does not
contain the "necessary implication" that the employer's
liability for backpay is waived."
Moreover, the circumstances under which the contract
was executed would appear to negate an inference of
waiver There was no quid pro quo for the Union's signing
the new agreement, as it does not appear that the Union
won any additional concessions for its members in the new
agreement so as to justify a waiver of backpay It appears,
rather that the Union signed the agreement merely to
relieve the Respondent in the future of the burden of an
uncompetitive wage scale. When asked the nature of the
quid pro quo for the contract, Ely, although initially
hesitant, eventually acknowledged that "the basic problem
was that our competition paid Carpenter's rates for
the work involved, and the Union recognized that problem
when v e negotiated "
Assuming, arguendo, that the Union had, through
dereliction of its duty to fairly represent its members,
clearly waived the Respondent's backpay obligation, the
Board is not bound by that waiver. The Board has stated
only that it will give "due consideration" to a waiver 12
Such consideration is given in light of the Act's purposes
which in the case of backpay is designed to vindicate the
public policy of the statute Viewed in this context, even
where a clear waiver is shown there remains the question
under the facts in any given case would such a waiver
effectuate the policies of the Act' Under the
circumstances of this case, it is found it would not. It is
clear that Respondent's purpose in negotiating a new
contract was to circumvent the Board's Order According
to its own admission, Respondent refused to recognize the
Union unless it abandoned the contract the Board ordered
Respondent to honor and unless the Union renounced the
Board's remedy of backpay It is difficult to visualize
how, under such circumstances, condonation of this
intention would promote the objectives of the Act.
Finally, the burden of proof that no backpay is due the
employees because a new contract was executed to replace
the original one, rests on the Respondent, because it was
the wrongdoer and because the issue is one of affirmative
defense." The burden of establishing the affirmative
The Master Appliance case held that since the contract contained no
expressed waiver, one will not be implied from a "zipper clause," which
does no more than indicate that the parties have embodied their full
agreement in the written contract
"Master Appliance Corporation, supra (164 NLRB No 160)
""The employer has the burden of proving facts that show no liability or
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defense is on the Respondent This it has failed to do."
Pension Contributions
The discussion above disposes of Respondent's
contention that the new contract eliminated any obligation
which it may have had under the January 11, 1966,
agreement to contribute to the Sheet Metal Workers
Pension Plan. However, Respondent contends further, that
regarding the contract, circumstances had so changed at
the time of the hearing that it should not be forced to do
that which would be, a futile gesture and vain act. At the
hearing, Respondent took the position that the employees
in question would not in any way be benefited by its
contributions to the fund since the employees were not
presently engaged in "covered" employment and, in all
likelihood, under the present terms of the pension plan,
contributions would be forfeited to the fund by reason of
the failure of minimum contributions on behalf of the
employees for two consecutive years. See supra.
Respondent's contention is unsound This defense fails
with regard to Whittamore who has been "continuously"
employed in covered employment Therefore, the
contributions required of the Respondent for the period
indicated in the backpay specification will not be forfeited
to the fund, but will apply toward vesting a right in the
fund in employee Whittamore. With regard to the other
three employees, two may shortly incur a 2-year break in
covered employment and the third has incurred such a
break in covered employment so that contributions for
periods prior to the break are or may shortly be forfeited
to the fund. As the General Counsel aptly points out in
his brief, it is sheer speculation to contend that
contributions on behalf of Risley and Shelley will be
useless They had not, at the time of the hearing, been
employed in noncovered employment for 2 consecutive
years, nor was the possibility precluded that the rules of
the pension plan would be liberalized, as they had been in
the past, to breathe new significance into the contributions
required. Even should the Respondent's predictions
eventuate the equities still preponderate on the side of the
Union It is not inappropriate to note that actuaries take
into account the fact that some contributions will be
forfeited, in determining what per hour contribution will
be necessitated in the future to keep a pension fund sound
However, more important than the balancing of the
speculations between wrongdoer and wronged, is whether
or not forgiving the pension contributions would effectuate
the policies of the Act. It is believed that it would not
The contract in question, which the Board declared should
be honored, did not condition contributions on the
eventuality that the employees on whose behalf those
contributions were to be made, must attain a vested
interest in the fund Now armed with hindsight, the
that mitigate the extent of the damage " The Rogers Mfg Co , 178 NLRB
No 69
"US Air Conditioning Corp, 141 NLRB 1278, 1280, Phelps-Dodge
Corp Y N L R B 313 U S 177, 199-200, Fisher Construction Corp v
Lerche, 232 F 2d 508, 509 (C A 9), N L R B v Boswell Co. 136 F 2d
585, 597 (C A 9)
Respondent declares that contributions would be fruitless.
Uncertainty, if any there be, must be resolved against the
wrongdoing employer whose conduct made certainty
Simpossible."
The plain answer is that were the Respondent to be
absolved of the obligation to make these contributions, it
might well encourage the very conduct the Board found to
be an unfair labor practice The time often consumed, in
unfair labor practice proceedings, is well known and to be
avoided where possible. "The certainty of delay" is a
pernicious subverter of the rights guaranteed under the
Act 16 A decision that the contributions need not be made
where an employee has left the industry and has been
working in noncovered employment for 2 years, would
place a premium on delay
For the reasons stated, it is found that it will effectuate
the policies of the Act for Respondent to make all of the
pension contributions called for in the backpay
specification.
RECOMMENDED SUPPLEMENTAL ORDER
Upon the foregoing findings and conclusions and the
entire record and pursuant to Section 10(c) of the Act, it
is recommended that B-Y Manufacturing, Inc., their
officers, agents, successors, and assigns," shall pay to each
employee and to the Pension Fund, the amounts set forth
below opposite their names, with interest at the rate of 6
percent per annum on each of the quarterly sums set forth
in the backpay specifications, less lawfully required tax
withholdings:
Pension
Employee Backpay Contributions
David Shelley $2,414 95 $796.95
Roy R. Risley 1,593 .62 597.52
Wayne D. Whittamore 1,655.77 518 94
Eugene Robinson 71.17 21.51
IT IS ALSO RECOMMENDED that the Board reserve the
right to modify the backpay and reinstatement provisions
herein if such modifications become necessary by a change
of circumstance.
"The Rogers Mfg Co , 178 NLRB No 69, Story Parchment Paper Co
v Paterson Parchment Paper Co, 282 U S 555, 562-563, N L R B v
District Council of Painters , No 52, 363 F 2d 204 , 205 (C A 9), N L R B
v Kartarik , Inc. 227 F 2d 190, 192-193 (C A 8)
"Farmers Co-Operative Gin Association , 168 NLRB No 64, at 3
"Wiley v Livingston , 376 U S 543, Wackenhut v United Plant Guards,
332 F 2d 954 (C A 9)