Meatxcorp

National Labor Relations Board - Board Decisions

Aug 20, 1980

251 N.L.R.B. 350 (N.L.R.B. 1980)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meatxcorp (Formerly Seymour Packing Division of
Seymour America, Inc.) and Local 248, Meat
and Allied Food Workers, United Food and
Commercial Workers International Union,
AFL-CIO.' Cases 30-CA-4378 and 30-CA-
4547
August 20, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On June 6, 1980, Administrative Law Judge
Thomas R. Wilks issued the attached Supplemental
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed limited exceptions to certain arith-
metic errors contained in the Supplemental Deci-
sion of the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified and restated herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
that the Respondent, Meatxcorp (Formerly Sey-
mour Packing Division of Seymour America, Inc.),
Milwaukee, Wisconsin, it officers, agents, succes-
sors, and assigns, shall pay to the employees named
below as net backpay the amounts set forth oppo-
site their names.
Each of the moneys stated below shall accrue in-
terest computed in the manner set forth in the un-
derlying Decision minus the tax withholding re-
quired by state and Federal laws:
Ben Coneglio
Herbert Evers
Vicent Goggans
Emmett Maxwell
Donald Nathan
George Nelson
Tom Pavasil
Reginald Perine
Stu. Riedl
Naftali Santiago
Angel Sevilla
Michael Trabert
Ken Zirkelbach
238.60
1,468.74
225.47
1,780.86
1,029.45
9,176.41
802.93
10,622.26
1,069.16
11,817.67
1,982.16
1,831.82
1,003.97
IT IS FURTHER ORDERED that the attached Ap-
pendixes A and B [omitted from publication] be
substituted for those of the Administrative Law
Judge.
SUPPLEMENTAL DECISION
ST'ATEMENT OF HI CASE
THOMAS R. W KS, Administrative Law Judge: This
backpay proceeding was heard pursuant to notice on
January 28, 1980, at Milwaukee, Wisconsin, to determine
the amount of backpay due employees Perine, Nelson,
Evers, and Santiago who were discharged in violation of
Section 8(a)(3) of the Act, and backpay due the boning
employees of Respondent as a result of unilateral
changes in the boning piece rate which were effectuated
in violation of Section 8(a)(5) and (1) of the Act, in com-
pliance with the October 18, 1978, Board Order adopting
a recommended Order of Administrative Law Judge
Hutton S. Brandon, as enforced on January 18, 1979, by
the Court of Appeals for the Seventh Circuit in N.L.R.B.
v. Meatxcorp (Formerly Seymour Packing Division o Sey-
mour America, Inc.), No. 79-1059.
All parties were afforded a full opportunity to partici-
pate in the proceedings. Briefs have been filed by the
General Counsel and Respondent and have been consid-
ered.
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
FINI)NGS ANt) CONCI.USIONS
The Dispute
The parties are in dispute as to the appropriate formula
to be utilized in determining the amount of backpay due
to the 4 dischargees and 11 additional employees who
had been engaged in the boning operation.
In the underlying unfair labor practice proceeding, it
had been found that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging employees Perine,
Nelson, Evers, and Santiago. The backpay formula pro-
posed by the General Counsel set forth a backpay
amount for those discriminatees based on the earnings of
representative employees which were attained at Respon-
dent's plant after the discharge. However, those earnings
are directly related to the issue of what the boning em-
John Carter
Jesus Castillo
$ 1,977.91
1,989.91
i The name of the Charging Party has been changed to reflect its
merger with the Retail Clerks International Union
2 The General Counsel excepts to what he alleges are certain arithme-
tic errors in the Administrative Law Judge's computation of the hackpay
owed several employees We have determined that the errors were
indeed made as alleged and have in our Order incorporated the correc-
lions in the amounts due the affected employees. We also order that the
attached corrected Appendixes A and B [omitted from publication] hbe
substituted or those of the Administrative Law Judge
251 NLRB No. 47
MEATXCORP 351
ployees at Respondent's slaughterhouse operation would
have earned had the Respondent not unilaterally
changed the piece rates which had been the method of
employee compensation. Administrative Law Judge
Brandon stated in his Decision that, from mid-November
1976 until the third week of July 1977, Respondent paid
its boners 92 cents and 85 cents for front and hind-
quarters boned respectively, and $1.50 for hind and front
quarters each for the large horses. The Administrative
Law Judge found thereafter that the Respondent unlaw-
fully and unilaterally changed the piece rate. He stated
that the rate was reduced to 82 cents per piece. He fur-
ther stated that in September the rates were unilaterally
lowered to 72 cents for 1 week, raised again to 82 cents,
and finally lowered again on September 27 to 72 cents.
After September 27, Evers, Santiago, Nelson, and Perine
were constructively discharged and replacements were
hired at a rate of $5 per hour which was quickly re-
placed with a piecework rate at 62 cents per hour. The
Administrative Law Judge found that Respondent in
January 1977 unilaterally instituted a $4-per-barrel bonus
for boned hindquarters.
Regional Office Compliance Officer Cecil Sutphen tes-
tified at this proceeding as to the construction of the
backpay formula utilized for the General Counsel's back-
pay specification. The backpay period determined by the
General Counsel based on the compliance officer's com-
putations was July 17, 1977, to August 1, 1978. On the
latter date, the Union and Respondent reached a contrac-
tual agreement thus terminating the backpay period aris-
ing from the unilateral action. The backpay period of the
dischargees runs from September 28, 1977, until April 24,
1978. The backpay periods are not disputed.
Respondent in the answer, and at the hearing, chal-
lenged the appropriateness of the backpay formula, argu-
ing that the formula did not take into consideration the
number of horses slaughtered, the proportion of quarters
boned, i.e., large, small, front, and rear, and the payment
of $1.50 per large fronts and did not consider the $4-per-
barrel bonus for hind pieces. Respondent adduced testi-
monial evidence in support of its position which in es-
sence was that a more definitive backpay formula should
have been calculated based on the aforementioned fac-
tors.
Compliance Officer Sutphen testified that it was his
original intention to construct a backpay formula which
was based on the specific production of each employee
during the backpay period and which took into consider-
ation the proportion of the types of sections or quarters
boned as well as the number of barrels of hinds, and the
barrel bonus. He testified that he abandoned that plan in-
asmuch as Respondent failed to supply the needed pro-
duction information. The Compliance Officer testified
that only computer printouts and timecards of employees
were supplied to him. These documents only disclosed
the gross weekly pay of each employee. Each timecard
had three separate figures which he assumed were com-
ponents of the gross pay, but which were not identified
as to hind, front, etc. He decided to add the piece rates
that existed immediately prior to the unilateral change
and divide by three, i.e., 92 cents for fronts, 82 cents for
hinds, and $1.50 for large horses. He testified that he did
not consider the proportion of large horses because he
did not know what proportion of total horses they had
comprised. He thus concluded that the pre-July piece
rate was $1.09. If the Compliance Officer were correct in
assuming that each piece rate was equally proportionate,
clearly he should have calculated 95 cents for small
fronts, 82 cents for small hinds, $1.50 for large fronts.
and $1.50 for large hinds, and divided by 4 with the re-
suiting average piece rate of $1.19. Respondent, of
course, does not advance this argument.
The earnings of employees are proportional to the
piece rates as is obvious in a piece rate system. The com-
pliance officer determined the percentage difference for
piecework rate after July 17, 1977, as compared to the
basic average of $1.09 per piece prior to that date. He
then multiplied the percentage of difference between the
basic rate and the average piece rate paid by Respondent
after July for the appropriate periods of time. For those
employees who worked throughout the backpay period,
a gross backpay figure was then computed by adding the
sum of differences for each week.
Having arrived at each employee's average weekly
earnings on a quarterly basis, the Compliance Officer by
comparing employees' weekly wages, chose for each of
the four employees who had been discharged a represen-
tative employee who worked throughout the backpav
period. As a result of the comparison, each of the four
discriminatees during the period of unemployment was
credited with wages, as adjusted by the computation
made to remedy the unilateral changes earned by "his"
representative. Respondent in its answer challenged the
use of a representative employee and asserted that a
more proper criteria would have been to determine pre-
cisely what kind of boning work each discriminatee
would have performed. It submitted no evidence at the
hearing to support such determination. It also averred in
its brief that, had the discriminatees not been discharged,
the amount of boning work would have been less for
each employee. However, had there been no discharge
there would have been no replacements. In any event
Respondent adduced no evidence in support of an alter-
native formula for the discriminatees. Respondent also
submitted no evidence to mitigate its liability to the dis-
criminatees, and the General Counsel's specification as to
interim earnings was unchallenged.
With respect to the Compliance Officer's arithmetic,
he calculated an average post-July rate by subtracting
the 72-cent and 82-cent rate from $1.09 with a resulting
37-cent difference and 27-cent difference. He then ascer-
tained the percentage of the old rate by dividing the dif-
ference in rates; i.e., 37 cents and 27 cents by the old rate
of $1.09. He concluded that the rate of difference from
the old rate was therefore 33.9 percent and 29.8 percent,
respectively. Similarly he calculated a 43-percent rate of
difference from the 62 cents paid for replacements. The
Compliance Officer thereafter took the figures represent-
ing the percentage of difference of the old rate and mul-
tiplied those percentages, i.e., 33.9 percent, 29.8 percent,
or 63 percent, by each weekly gross pay figure of em-
ployees during the pay period and concluded that the re-
sulting figure established the amount of gross pay which
MFATXCORP 351
352 I)'tCISIONS ()F NATI()NAL LABOR RELATIONS BOARD
was the difference from what the employee would have
earned at a $1.09-piece rate. Assuming the reasonableness
of the basic formula the arithmetic application of it is er-
roneous. However, this error, as was the first one, inures
to Respondent's benefit. The Compliance Officer deter-
mined the percentage difference between the old rate
and new rate. To correctly obtain the difference in gross
pay received from that which should have been received
you must first ascertain what percentage that difference
constitutes of the new rate. Therefore it is necessary to
divide the difference in rates by the new rate, not by the
old rate. The resulting figure is therefore the percentage
of difference of gross pay actually received. The next
step is to multiply the percentage difference of rates by
the gross amount of wages which were received. The re-
sulting figure will determine the amount of gross back-
pay d ue. Thus 37 cents difference in rate does not consti-
tute 33.9 percent of 75 cents but rather 51.39 percent;
and 27 cents does not constitute 29.8 percent of 82 cents
but rather 32.9 percent.
Thus, before we explore further the reasonableness of
the General Counsel's formula, it is apparent that the
General Counsel had constructed a backpay formula pre-
mised upon arithmetic errors.
The compliance officer testified that he initially re-
quested payroll records from Respondent and that was
furnished computer printouts which reflected only gross
earnings. tie testified that "it was suggested that perhaps
the only source would be timecards." The Compliance
Officer then upon receipt of timecards decided that they
were inadequate. In March 1979, Respondent's counsel
conveyed, to the Compliance Officer, the contents of a
letter he had received from Respondent's president,
Melton A. Neale.' That letter suggested a formula which
set forth (I) that in addition to the 82-cent-72-cent rates
boners also received, after July 17, 1977, a $1.50 rate for
large fronts, (2) that 25 percent of all fronts are large, (3)
that of 84,000 hinds, 15,400 are shipped unboned, and (4)
that 6,431 barrels of hinds were boned during the back-
pay period from July 1977 to August 1978. The letter
stated: "we assume that [Respondent] slaughters 750
head per week for a 56 week period [the backpay period]
which is a total of 42,000 head or 168,000 quarters."
The Compliance Ofiicer disregarded the information
contained in the March communication on the presumed
ground that the number of cattle slaughtered as set forth
therein was merely a hypothetical assumption. He testi-
fied that he required information as to the actual number
of cattle slaughtered in order to construct a more defini-
tive formula. He conceded that a more definitive formula
could be worked out given the number of cattle slaugh-
tered. However, the Compliance Officer conceded that
he did not request any further information from Respon-
dent as to the slaughter count, at that time or at any time
thereafter. No explanation was offered as to why he ig-
nored the information as to the proportion of hinds bar-
reled. That information was not set forth as a mere as-
sumption.
Ihe subhtanlce of thai letter boas apparrentls redulced ttl a ,ritten
colmmuicallon ad forwarded to he Compliance Of)ficer 'Tihe Compli-
ance ()Officer admitted Io receiving a1ll irformation set forth ill Neale's
letier Io R'plrdellt,, C o U,,cs1L
Neale testified that, in March 1979, he made an "as-
sumption" that Respondent slaughtered 750 head a week
or a total of 42,000 head, for the backpay period. There-
after he checked Respondent's records as to its hide
count, and he checked records from the United States
Department of Agriculture and determined that, for the
56-week period from July 1977 through July 1978,
39,037 head were slaughtered, and further set forth the
monthly slaughter figure. The accuracy of those figures
is stipulated to by the parties. The answer alleges further
that a more accurate backpay formula can be calculated
from the slaughter figure, the proportions of quarters,
the amount of barrels of hinds produced, etc.
It is Neale's uncontroverted and unchallenged testimo-
ny that, in addition to the piece rate reduction in July
1977, Respondent also instituted payment of $1.50 for
large fronts and that 25 percent of the fronts were from
large horses. Nothing in the transcript of the underlying
case contradicts Neale's testimony, and, as to the $1.50
rate, portions thereof are in accord that the $1.50 rate
was paid for large fronts during the backpay period.
Indeed the Compliance Officer testified that employees
timecards for the backpay period disclosed three compo-
nent figures for the gross earnings. He testified that he
assumed that these figures constituted separate earnings
for fronts, hinds, and "smalls," and that they incorporat-
ed the barrel bonus. There is no explanation of his under-
standing of the term "smalls" of which there was no
other reference in this proceeding. It is also Neale's un-
controverted testimony in this proceeding that, during
the 56-week period from July through July, 6,931 barrels
of hinds were boned, and that about 25 percent of all
hinds are not boned but are shipped fresh.
It is conceded that Respondent has no records of indi-
vidual employment productivity. Neale testified that a
portion of the boner's work is not related to productiv-
ity; i.e., some time is spent sharpening knives or loading
trucks. However, Respondent adduced no evidence as to
the amount of time spent on nonboning work, nor even
submitted an estimate of such time. Accordingly, I con-
sider nonproductive work to have constituted only a
negligible factor, and I place no weight upon it.
Neale testified that approximately four boners engage
in front boning, four in hind boning, and two or more
will either bone fronts or hinds depending on production
requirements. He testified that front and hind boners earn
about the same gross pay. He further testified that assign-
ment to front or hind boning often is determined by who
shows up first at work. Respondent adduced no evidence
as to the identity of employees who were regularly as-
signed to hind or front boning. Neale was not certain
whether any records contain that information. Each em-
ployee maintains his own record of what he actually
boned. His personal daily record is presented to a fore-
man or some superior who verifies it by a bone count
and then records only the gross amount due the boner
for the day and returns the record to the employee. The
Compliance Officer testified that his investigation deter-
mined that employees records may be incomplete. It is
therefore uncertain as to what extent employees have re-
tained these daily work records beyond the point in time
MEAIXCORP
when they verify the accuracy of their weekly pay-
checks.
Conclusions
In a backpay proceeding the General Counsel has the
burden of establishing as nearly as possible what the em-
ployees would have earned had it not been for the un-
lawful conduct of the respondent. Virginia Electric &
Power Co. v. iV.L.R.B, 319 U.S. 533, 544 (1943); Phelps
Dodge Corp. v. N'.L.R.B., 313 U.S. 177, 194 (1941). The
General Counsel has the burden of establishing a formula
for the calculation of gross backpay due to employees,
but in many cases it is difficult to ascertain the precise
amount due, and therefore a wide range of discretion is
accorded the fashioning of such a formula provided that
it is reasonably designed to produce approximations and
it is not arbitrary and unreasonable. '.L.R.B. v. Brown &
Root, Inc., 311 F.2d 447 (8th Cir. 1963). Once the Gener-
al Counsel has established a reasonable formula, the
burden then falls on the respondent to establish facts
which would negate or diminish the existence of liability
for a given employee. .. L.R.B. v. Brown & Root, ibid.;
N.L.R.B. v. Mastro Plastics Corporation, 354 F.2d 170 (2d
Cir. 1965), cert. denied 384 U.S. 972 (1965).
On the facts of this case, I conclude that, because of
the absence of records or other information as to the spe-
cific production of employees, that the General Coun-
sel's reliance on a formula based on the average piece
rates before and after the unlawful unilateral changes of
Respondent to determine the average amounts of gross
pay that the employees would have earned is reasonable
and proper. I also conclude that the General Counsel's
selections of representative employees as criteria for
what the dischargees would have earned is also reason-
able and proper given the limited amount of information
available.
However, I do not conclude that the General Coun-
sel's construction of that formula was effectuated in a
reasonable and appropriate manner with respect to the
determination of the average piece rates prior to the un-
lawful change of rates, nor with respect to the average
piece rates which were effectuated thereafter.
With regard to the computation of the average piece
rate as it existed before July 17, 1977, the $1.09 figure
was clearly arrived at arbitrarily without consideration
to the proportion of large horses slaughtered. Although
the Compliance Officer initially received at best an esti-
mate of horses slaughtered, he was informed at that time
that only 25 percent were large horses and that a per-
centage of hinds were not boned. The Compliance Offi-
cer made no effort to verify those percentages by re-
questing further information or documentation. There is
no evidence that Respondent refused to cooperate in sub-
mitting additional information as to the proportion of
hinds boned, portion of large horses, or actual total head
slaughtered. I credit Neale as to his testimony with re-
spect to the proportions of quarters processed and head
of cattle slaughtered. Accordingly, I conclude that a rea-
sonable formula to construct the average pre-July 17
piece rate must be based on a proper apportionment of
hinds boned, and the proportion of large quarters. There-
fore. the average pre-July 17 rate should he calctIltaicd ;,,
follows:
Of every 32 quarters (pieces) there %xcre 1 hinds. of
which 75 percent, 12, were boned. Of those 12 honed
hinds. 75 percent, or 9, were small and boned at a rte of
85 cents for a total of 7.65. The remaining three hinds
were boned at $1.50 a piece for a total of $4.50(. ()f 32
quarters, 16 were fronts. of which 75 percent, or 12.
were small fronts and boned at a rate of 92 cents cach
for a total of $11.04; and 25 percent, or 4. ere large
fronts and honed at a rate of $1.50 each for a total of .
Thus every 28 hinds (16 front and 12 hinds) were boned
for a total of $29.19, or an average of $1.0425 per qu;ar-
ter. The average pre-July 17 piece rate to be utilized is
of necessity $1.0425 and not the erroneous $1.09 utili.ed
by the General Counsel.
With respect to the piece rates effectuated after Jull
17, 1977, it is the uncontroverted testimony of Neale,
whom I credit, that, concurrent with the unilateral
changing of the 92-cent-85-cent rates to a reduced rate,
he also paid the boners $1.50 a piece for large fronts.
This information was conveyed to the Compliance Offi-
cer in March but was disregarded. The underlying case
transcript which the Compliance Officer utilized in esti-
mating average piece rates also referred to two sets of
rates, i.e., small horses and large horses, and that during
the backpay period the $1.50 rate for large quarters was
paid. No argument is advanced by the General Counsel
as to why the $1.50 for large fronts ought not to be cal-
culated into the average rates actually received by the
employees after July 17. The Administrative Law
Judge's finding of law was limited to finding that piece
rates were unilaterally changed. llis discussion of facts
refers to the 72-cent-82-cent change and a subsequent 4-
barrel bonus. I do not construe his silence to the (1.50
large front rate as a finding determinative that no other
rates were unilaterally instituted Accordingly, I do not
conclude that the Administrative l.aw Judge's observa-
tions as to the amount of piece rates paid in his Decision
foreclose me from consideration of w'hat other changes
or rates of pay were actually paid to employees during
the backpay period.
Respondent initiated a bonus of 59 for every barrel of
hinds honed. It was determined in the underlying Deci-
sion in this matter that such bonus was effectuated some
time in the month of January 1978. At most it can be
concluded that the barrel bonus was paid from FcbruarN
1977 through July 1977. No information was adduced hb
Respondent as to what portion of the month of January
the barrel bonus was paid. Accordingly. with respect to
January 1978, no calculation can be premised upon the
assumption that barrel bonuses were paid during that
month. Respondent conveyed to the Compliance Officer
in March 1979 the number of barrels of hinds produced
from an assumed amount of cattle processed. Respondent
apparently understood that he had conve\ ed an estimate
of horses slaughtered. The ('ompliance ( )ftier ullnder-
stood that Respotident lnerclv submiltted a; hpolhctical
formula based on a hypolhetical estimatel . IHe did nothing
about it. lie asked for no further illflrllalion lie askedl
for no clarificatlion [tl did ilot calcuil itt the ilnblhr of'
51 A
354 I)tCISI()N S (): NAII()NAI. IAB()R REIATI()NS BOARI)
hindquarters per barrel based upon the March 1979 com-
munication which, if it did not set forth absolute figures.
did indeed set forth unqualified proportions.
The Compliance Officer admitted in cross-examination
that after he made his backpay "computation" Respon-
dent informecd him "how many animals they believed
they had slaughtered for the [backpay period]" but that
he asked for no documents thereafter regarding the
number of cattle slaughtered
The General Counsel argues that its backpay specifica-
tion must be accepted because it is based on a reasonable
and appropriate formula which was challenged by the
mere assertions unsupported by evidence. Respondent,
however, submitted unchallenged, uncontroverted testi-
monial evidence as to the number of horses slaughtered,
the proportion of large horses, the proportion of non-
boned hinds, the payment of $1.50 for large fronts, and
the number of barrels produced during the backpay
period, to support its alternative formula. I credit this
testimony. Although Respondent did not demonstrate to
whom the barrel bonus was paid, the General Counsel's
own formula is not premised on specific piece rates paid
to specific employees or to specific categories of employ-
ees. On the contrary, the General Counsel's formula is
one composed of averages. Thus the General Counsel is
seeking the average backpay due to all boners. Accord-
ingly I conclude that the General Counsel's calculation
of the post-July 17 piece rates arbitrarily and unreason-
ably disregarded the $1.50 piece rate for large fronts, the
proportion of large fronts, the proportion of hinds not
boned, and the barrel bonus which can be calculated
given the total head slaughtered, the resulting number of
hinds boned, and the number of barrels of hinds pro-
duced.
It is my conclusion that the correct application of the
General Counsel's formula should be calculated accord-
ing to the following method.
With respect to the pre-February 1, 1978, segment of
the backpay period during which the barrel bonus was
not extant the method to determine the backpay due is as
follows.2 At a rate of 72 cents for hinds and small fronts,
and $1.50 for large fronts, of every eight quarters, four
were hinds of which three were boned at a rate of 72
cents each, and four were fronts of which three were
small fronts boned at the rate of 72 cents each, and I was
a large front boned at the rate of $1.50 a piece for a total
of seven pieces at $5.82, at an average of .8314 cents
apiece. The difference between the new rate of .8314
cents and old rate of $1.0425 is .2111 cents. That .2111-
cent difference is 25.39 percent of the new rate. There-
fore the gross earnings of employees during the period of
time when and where the 72-cent rate was effective for
hinds and small fronts prior to Februay 1, 1978, must be
multiplied by 25.39 percent to determine the amount of
lost gross earnings.
At a rate of 82 cents for hinds and small fronts and
$1.50 for large fronts, of every eight quarters, four were
hinds of which 3 were boned at a rate of 82 cents, and
:' Iml Ch , Itt , R IcIClIIl adduccd C o. .II iC , I x1 l:1 plrI l ti 1 ol
h I 1ll11 tt JaIrlllllr I .I ol1 II\ h s \I, I.1 'fft1i,. 1 I C . II Inol i ll lgl tI II i
ahili[ he' -.OI11C Idt' *-II 1 Iht .har l hnll. s If I or 111, I (nllh etl J;ll ll llj
I 1'78
four were fronts of which three were small fronts boned
at the rate of 82 cents and one was a large front boned at
a rate of $1.50 a piece for a total of seven pieces at $6.42,
at all average of .9171 cents a piece. The difference be-
tween that new rate of $0.9171 and the old rate of
$1.0425 is .1254 cents. That .1254-cent difference is 13.67
percent of the new rate. Therefore, the gross earnings of
employees during the period of time when and where
the 82-cent rate was effective for hinds and small fronts
prior to February 1, 1978, must be multiplied by 13.67
percent to determine the amount of lost gross earnings.
With respect to the post-February 1, 1978, segment of
the backpay period during which the barrel bonus aug-
mented the 72-cent rates for hinds and small fronts the
method to determine the average backpay due is as fol-
lows.
Of a total of 39,037 horses slaughtered during the
backpay period, there were 156,148 quarters of which
there were 78,074 hinds. Seventy-five percent, or
58,555.5 hinds, were boned. For the same period of time
6,431 barrels of hinds were produced, for an average of
9.11 hinds per barrel. For every barrel of hinds boned
from February 1, 1978, there was a $4 bonus. Thus for
every boned hind there was an additional bonus of .44
cents. Thus the piece rate for nonreplacement employees
was $1.16 (.72 + .44) for hinds, 72 cents for small fronts,
and $1.50 for large fronts. Accordingly, of every seven
quarters boned, one large front was boned at $1.50, three
small fronts were boned at 72 cents or a total of $2.16,
and 3 hinds were boned at $1.16 for a total of $3.48.
Therefore a total of $7.14 w'as paid for every seven quar-
ters at an average of 51.02 per quarter. This was .0225
cents less than the old average rate of $1.0425. That dif-
ference is 2.2 percent of the new rate. Therefore the
post-February I gross earnings of nonreplacement em-
ployees must be multiplied by 2.2 percent in order to as-
certain any amount of backpay due each nonreplacement
employee after February , 1978.
With respect to the replacement employees they were
paid at a new rate of 62 cents. The Compliance Officer
testified that he utilized the Administrative Law Judge's
Decision and the transcript in the underlying case to
construct his formula of average rates. Neale's uncontro-
verted testimony in this proceeding is that boners were
paid $1.50 for large fronts in addition to the new rate, as
well as the barrel bonus. There was no rebuttal evidence
adduced that replacement employees did not receive the
$1.50 rate for large fronts or that they did not receive
the barrel bonus. In the underlying case it was Plant
Foreman Kroenig's uncontradicted testimony that new
employees hired received the reduced rate of 62 cents,
and the $1.50 piece rate for large quarters. Administra-
tive Law Judge Brandon made no finding that the re-
placement employees were precluded from the barrel
bonus or the $1.50 rate. Accordingly, I conclude that the
replacement employees were paid at a rate of 62 cents
for small fronts and hinds, arid $1.50 for large fronts, and
that they received the 4-barrel bonus. Therefore the for-
mula to ascertain the average backpay due to the re-
placement employees should be calculated by the follow-
ing formula.
MEA-ITXCORI' 355
With respect to the period of time prior to February 1.
1979, the replacement employees were paid at a rate of
62 cents for hinds and small fronts and $1.50 for large
fronts. Therefore, of every eight quarters, four were
hinds of which three were boned at a rate of 62 cents
each, and four were fronts of which three small fronts
were boned at a rate of 62 cents and one large front was
boned at a rate of .7457 cents which was .2968 cents less
than the pre-July rate. That difference is 39.96 percent of
the post-July rate. Therefore, the gross earnings preced-
ing February 1, 1978, must be multiplied by 39.96 per-
cent to obtain the amount of average gross earnings due
the replacement employees.
With respect to the post-February 1, 1978, segment of
the backpay period during which the barrel bonus aug-
mented the 62-cent piece rate for hinds and small fronts
the method to determine the average backpay due re-
placement employees is as follows: Of every seven quar-
ters boned, one large front was boned at $1.50, three
small fronts were boned at 62 cents each at a total of
$1.86, and three hinds were boned at $1.16 (.62 + .44) a
piece for a total of $3.48. Therefore, a total of $6.84 was
paid for every seven quarters at an average of .9771
cents per quarter barrel. This was .0654 cents less than
the pre-July 17 rate of $1.0425. That difference is 6.69
percent of the new rate. Therefore the post-February I
gross earnings of replacement employees must be multi-
plied by 6.69 percent in order to ascertain the average
amount of backpay due each replacement employee after
February I. 1978.
In conclusion, the backpay computations of the em-
ployees calculated by the General Counsel in calendar
quarters as set forth in Appendix A(I)-(15) of the specifi-
cation is amended by the substitution of the following
percentage multiplier figures:
(1) For the period of time preceding February 1. 1978,
the percentage multipliers are corrected as follows: 33.9
percent is corrected to 25.39 percent; 24.8 percent is cor-
rected to 13.67; and 43 percent is corrected to 39.96 per-
cent.
(2) For the period of time subsequent to February 1.
1978, the percentage multipliers are corrected as follows:
33.9 percent is corrected to 2.2 percent; and 43 percent is
corrected to 6.69 percent.
The foregoing corrected segment of the backpay
specification is attached hereto as Appendix A(l)-(6)
[omitted from publication].
Appendix B of the specification as amended setting
forth the amounts of new backpay due employees is cor-
rected herein as appears in Appendix 13 attached hereto
[omitted from publication].
[Recommended Order omitted from publication.]
M FAIXCOR I' 5