Ohio Scientific Products Corp.

National Labor Relations Board - Board DecisionsMar 5, 1965

151 N.L.R.B. 460 (N.L.R.B. 1965)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Scientific Products Corporation and District 52 of the In- ternational Association of Machinists , AFL-CIO Ohio Scientific Products Corporation and Clifton L. Hubbard. Cases Nos. 9-CA-2917 and 9-CA-2938. March 5. 1965 DECISION AND SUPPLEMENTAL ORDER On April 2, 1964, the National Labor Relations Board issued its Order adopting the findings and conclusions of Trial Examiner Sydney S. Asher, Jr., as contained in his Decision, and the recom- mendations contained therein became the Order of the Board.' The Trial Examiner found, inter alia, that Respondent discrimina- torily discharged Clifton L. Hubbard and William E. Pollard in violation of Section 8(a) (3) and 8(a) (1) of the National Labor Relations Act, as amended. Respondent was directed to make an offer of reinstatement to the discriminatees and to make them whole for any loss of pay suffered by reason of the discrimination against them. On July 22, 1964, the Regional Director for Region 9 issued a backpay specification, and Respondent filed an answer on Septem- ber 8, 1964. Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner George L. Powell for the purpose of determining the amount of backpay due the two discriminatees. On December 11, 1964, the Trial Examiner issued his Supplemental Decision, which is attached hereto, in which he found that the discriminatees were entitled to the following payments: Clifton L. Hubbard, $280 and William E. Pollard, $2,313. Thereafter, the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 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 these cases, including the Trial Examiner's Supple- mental Decision, the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. No exceptions had been filed with the Board 151 NLRB No. 50. OHIO SCIENTIFIC PRODUCTS CORPORATION 461 ORDER On the basis of the Supplemental Decision and the entire record in these cases, the National Labor Relations Board hereby orders that Respondent, its officers, agents, successors, and assigns, shall make Clifton L. Hubbard and William E. Pollard whole by pay- ment to each of them of the amount set forth in the attached Trial Examiner's Supplemental Decision. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE This supplemental proceeding was heard by Trial Examiner George L. Powell, in Columbus, Ohio, on September 15, 1964, on a backpay specification of the General Counsel dated July 22, 1964, and answer of Ohio Scientific Products Corporation, herein referred to as Respondent, filed on September 8, 1964. The purpose of the proceeding was to determine the amount of backpay due and owing to two named discriminatees under an order of the Board in the above-captioned matter entered on April 2, 1964. At the hearing, the parties who appeared as noted above, were afforded a full opportunity to examine and cross-examine witnesses, to introduce evidence, to present oral argument and to file briefs presenting their respective contentions. Upon a consideration of the entire record in this supplemental proceeding, and the Board's Order in the same case, issued April 2, 1964, adopting the findings and con- clusions of Trial Examiner Sydney S. Asher, Jr., issued on February 18, 1964, on which I take judicial notice, I make the following: FINDINGS AND CONCLUSIONS A. The prior unfair labor practice proceeding On February 18, 1964, after a hearing, in which all parties were represented by counsel, which took place on October 21 and 22, 1963, Trial Examiner Sydney S. Asher, Jr., issued his Trial Examiner's Decision finding that the Respondent had engaged in certain unfair labor practices and had not engaged in other unfair labor practices and making certain recommendations, as set forth in the Trial Examiner's Decision. On April 2, 1964, the Board issued its Order adopting the findings and conclusions of the Trial Examiner as contained in his Decision, and the recommendations con- tained therein became the Order of the Board.' B. The instant proceeding The Liability As noted above, the instant proceeding is for the purpose of determining the amount of backpay owing and due to two named individuals. These two individuals are Clifton L. Hubbard and William E. Pollard. The backpay specification and notice of hearing issued by the General Counsel sets out as follows: 1. An appropriate measure of the hours Clifton L. Hubbard would have worked is a 40-hour week during each week of his backpay period. As the answer filed by Respondent does not take issue with this proposition it is adopted as admitted. The answer however, does contend that although Hubbard was released on May 31, 1963, he would have worked, in the normal course of his position, only another 4 weeks in June of 1963 and then been released at the end of June. As the backpay specification only claims that Hubbard's backpay period begins on June 1, 1963, and ends on June 30, 1963, the answer raises no issue to be tried and the backpay specification as it relates to Hubbard is deemed admitted. In computing the backpay for Hubbard, the specification set out that Hubbard would have worked 160 hours in the backpay period at a rate of $1.75 per hour, i No exceptions had been filed with the Board. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was his rate of pay immediately prior to Respondent's unfair labor practices, producing gross backpay of $280. This amount became the net backpay due Hubbard inasmuch as his expenses in seeking employment during the period exceeded the amount of money he earned. The backpay specification shows that to the sum of $280 was added interest from July 1, 1963, to June 1, 1964, of 330 days of $15.19 making a total backpay due Hubbard of $295.19. However, at the hearing, the General Counsel made a motion to correct the $295.19 to $280 plus interest to date of pay- ment. There being no objection to the motion it was granted. Under the circum- stances as noted above I find Respondent obligated to pay Clifton L. Hubbard the sum of $280 plus interest at 6 percent per annum until the date of payment in order to make him whole under the Board order. The attached Appendix sets out the above calculations in detail. 2. The backpay specification with respect to William E. Pollard set out that an appropriate measure of the hours of his employment would have been the weekly average hours worked by David Baker and William Baker employed by Respondent during each week of the backpay period of William E. Pollard. The answer filed by Respondent took no issue with this method of computing the weekly average hours that Pollard would have worked had he not been discriminated against and accord- ingly this allegation is deemed admitted to be true.2 Respondent attempted to intro- duce evidence, at the hearing, as to the type of jobs performed by employees David Baker and William Baker, apparently on the ground that these two employees should not have been used as models in order to measure the appropriate number of hours of work Pollard would have worked had he not been fired. The General Counsel 2 National Labor Relations Board's Rules and Regulations, Series 8, as amended, Sec- tion 102 54 reads as follows: SEC. 102.54 Answer to specification; no requirement for answer to notice of hearing issued without backpay specification. (a) Filing and service of answer to specification.-The respondent, shall, within 15 days from the service of the specification, If any, file an answer thereto ; an original and four copies shall be filed with the regional director issuing the specification, and a copy thereof shall immediately be served on any other respondent jointly liable (b) Contents of the answer to specification.-The answer to the specification shall be In writing, the original being signed and sworn to by the respondent or by a duly authorized agent with appropriate power of attorney affixed, and shall contain the post office address of the respondent. The respondent shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Denials shall fairly meet the substance of the allegations of the specification denied. When a respondent intends to deny, only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remainder. As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the com- putation of gross backpay, a general denial shall not suffice. As to such matters, If the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting figures. (c) Effect of failure to answer or to plead specifically and in detail to the spec- ification.-If the respondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and without notice to the respondent , find the specification to be true and enter such order as may be ap- propriate. If the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by paragraph (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true, and may be so found by the Board with- out the taking of evidence supporting such allegation, and the respondent shall be' precluded from introducing any evidence controverting said allegation (d) Answer to the notice of hearing issued without backpay specification -No answer need be filed by respondent to notice of hearing issued without a specification OHIO SCIENTIFIC PRODUCTS CORPORATION 463 objected to any evidence on this point inasmuch as the issue had not been raised in the answer in accordance with the Board's Rules and Regulations , Series 8, as amended, particularly Section 102.54. I sustained his objections . ( See Local 138, International Union of Operating Engineers , AFL-CIO et at. (Nassau and Suffolk Contractors ' Association, Inc.), 2-CB-1651 , et al. TXD-335-64, issued June 29, 1964 [151 NLRB 102 ] ). As noted in subsection (c) of Section 102.54 of the Board's Rules and Regulations , if the Respondent filed an answer to the specifi- cation that fails to deny any allegation of the specification and the failure so to deny is not adequately explained , such allegation shall be deemed to be admitted to be true and the Respondent shall be precluded from introducing any evidence contro- verting said allegation. Respondent in its answer alleged that Respondent was shutdown during the week of July 4, 1963 , and subsequent thereto certain changes in manufacturing setup were made in the plant which obviated the need for a "brake operator " which job Pollard had been filling . It further alleged that no "brake operator " had been hired since Pollard and there was no need in the plant at the time for such an operator and that therefore Pollard would have been released from employment no later than the week of July 4, 1963 , and that therefore , the backpay specification was in error The backpay specification alleged that Pollard's backpay period began on July 1, 1963, and ended on March 24 , 1964. As the Respondent challenged this and pleaded a different date for the termination of the backpay period the duty of the Respondent under the Board's Rules and Regulations is to carry the burden of proof with respect to the allegation it made in its answer. Respondent 's former president and general manager, William R. West, testified in general terms that it was standard policy for Respondent during the slow period each summer to reduce its working force . He said that in each year four to five employees would be laid off in May or June and would not be rehired until October or the first part of November . Evidence was also adduced that seniority was not used in making these layoffs but rather the particular jobs not being used would be curtailed. West testified , with the aid of payroll records , as to the layoffs of certain employees. Hatfield was laid off on June 28, 1963, Howard was laid off on May 10, 1963, Lambert was laid off on May 31, 1963, Maxwell was laid off on May 31, 1963, and Sapp was laid off on May 15, 1963. Casella , who quit on August 9, 1963 , was not counted nor was Marcum who was laid off too early to apply to the summer layoffs. In fact, Pollard took Marcum 's job. Respondent adduced no specific evidence to sustain its allegation that Pollard would have been released from employment no later than the week of July 4, 1963 . But, as noted above , Pollard's layoff on June 28, 1963, was the last layoff made during this so-called slack season . This is substantiated by the evidence adduced by the Respondent as noted above . As the Board previously has found that Pollard 's layoff on June 28, 1963 , was made in violation of the Act because of Pollard's union activities , I am precluded from deciding , in effect, that the layoff was made for economic reasons and hence that no backpay would be due him. On cross-examination , West testified from the Respondent 's records that some 10 new hires were made in July 1963 . Only 1 of these 10 , W. E. Love who had been hired in the third week of July as a welder, comes close to Pollard's employee cate- gory. Pollard testified that although he had been hired as a spot welder , he had been kept on as a brake operator . In addition he had operated a punch press, a drill press, and had hauled tanks. He admitted that he was not a qualified welder. I find there is no direct evidence adduced by the Respondent that Pollard would have been laid off no later than the week of July 4, 1963. Accordingly as the Respondent has not sustained the burden of proving its allegation in its answer it is necessary to return to the backpay specification to determine the amount of backpay Respondent should pay Pollard, as the remedy for its commission of the unfair labor practices previously found by the Board.3 3 See N.L.R.B. V. Biscayne Television Corporation , 337 F 2d 267 ( C.A. 5). Similarly to the instant case . Biscayne , in that case , defended the unfair labor praotice case arguing that the discharges and demotion were economically justified . However, the Board found the changes were made because of union activity of the employees and held that Biscayne had thereby violated Section 8(a) (1) and ( 3) of the Act As in the instant case, the remedy was to cease and desist from the unfair labor practices , grant reinstatement and pay backpay to the employees involved The court sustained the Board ' s unfair labor [Footnote continued on following page] 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As an appropriate measure of the hours Pollard would have worked was pegged to the weekly average hours worked by employees David Baker and William Baker during each week of the backpay period of Pollard, it is clear that had there been a shutdown of the plant during the week of July 4, 1963, as alleged by Respondent in its answer, this shutdown would be reflected in the weekly average of hours worked by employees Baker. The average hours worked by employees Baker from July 1, 1963, until March 24, 1964, the end of the backpay period for Pollard, was set forth in Appendix A of the backpay specification and is reproduced in the attached Appendix under the heading "Gross Backpay." Pollard's rate of pay immediately prior to the Respondent's unfair labor practices was $2.25 per hour and accordingly he would have been paid during the backpay period at this rate. Overtime hours were computed at 1i/2 times $2.25. His gross backpay interim earnings and net backpay is set forth in the attached Appendix. According to the backpay specification, summarizing the above facts and conclusions, the General Counsel concluded that the amount of backpay due William E. Pollard was $2,383.24 which included interest, as required by the Board Order, calculated to June 1, 1964. At the beginning of the hearing the backpay specification was corrected, on the uncontested motion made by the General Counsel and granted by me, to show the total amount of money due Pollard was $2,312.76, plus interest to the date of payment. (Dropping the odd cents, the total is $2,313.) Accordingly as I have found that Respondent has not sustained its burden of proving the allegations in its answer, the backpay specification is adopted. The amount of money Respondent should pay Pollard to satisfy the provisions in the remedy of the Board Order in the unfair labor practice case is $2,313, plus interest at 6 percent per annum to date of payment. Such interest to be computed on the same basis as that used in the backpay specification. Settlement One last matter remains On October 23, 1964, counsel for Respondent, joined by the business representative of the Charging Party in the case involving Pollard, practice findings, but remanded for reconsideration as to what extent reinstatement and backpay should have been awarded as a remedy. (N.L.R.B. v. Biscayne, 289 F. 2d 338 (CA 5).) The court explained, This action was premised on the fact that the Board had recognized that at some time subsequent to the discriminatory discharges, Biscayne might have altered its work force for purely economic motives ; le., that even if there had never been any antiunion discrimination , the employees would eventually have been discharged and demoted anyway. Our holding was that if upon remand the employer could prove that this was the case, backpay should be awarded only from the date of discharge and demotion, August 12, 1958, up to the date when the changes would have been made for purely economic motives. In the supplemental proceedings before the Board, Biscayne had the burden of proving that the discharges and demotion would have occurred sometime subsequent to August 12, 1958, for purely economic motives. Cf. National Labor Relations Board v. Reed & Prince Mfg. Co., 1 cir., 1942, 130 F. 2d 765, 758. The Board held that Biscayne failed to carry this burden and issued a supplemental order granting backpay from August 12 until the employees became ineligible for backpay by reason of death, resignation , and refusal to accept reinstatemnt . The Board now petitions for enforcement of this supplemental order. We agree that Biscayne failed to sustain its burden of proof on remand and consequently grant enforcement of the Board's supplemental order. The proof adduced by Biscayne on remand consisted primarily of a relitigation of its conten- tion that the discharges and demotions of August 12, 1958, occurred for economic rather than discriminatory motives. This contention, of course, had already been decided adversely to Biscayne in the prior Board proceedings and in the prior en- forcement proceedings before this court. It was therefore the law of the case on remand that Biscayne 's actions on August 12 stemmed from discriminatory motives. It was incumbent on Biscayne to accept as a datum that the August 12 discharges were discriminatory, and to show that nevertheless economically motivated discharges would have occurred at some subsequent date. This burden could not be met by showing that the August 12 discharges themselves were economically motivated. Like the court in that case , I find in this case that the burden of proving economic justification for discharges by Respondent cannot be met by showing the original termina- tions of employment themselves were economically motivated OHIO SCIENTIFIC PRODUCTS CORPORATION 465 wrote the Trial Examiner (with copies to the other parties) that Hubbard, together with the Charging Party in Pollard's case and Respondent had reached a "harmonious, amicable understanding and settlement." Copies of a general release from each of Pollard and Hubbard were enclosed. Pollard gave his release in consideration of $1,199.73, and Hubbard gave his for $174.30. Respondent stated, "As far as all parties hereto are concerned, the responsibilities of the Respondent . . . have been met, and all parties, including Respondent, are satisfied." Further Respondent stated, "It is our further feeling that this settlement would indicate that parties can agree, cooperate, and settle their differences if given the opportunity and not hindered by matters and persons not directly involved in the basic problems." 4 The Regional Director of the Board has not approved the above "settlement" and he is the person referred to above as the one "not directly involved in the basic problems." Respondent's position on this point shows a basic misunderstanding of the role of the Board in these matters and lacks merit. The court cases are too numerous to mention that once an unfair labor practice case begins, the public interest in the controversy, represented by the Board through the General Counsel and his Regional Director, becomes paramount over any private interests. It has been held that the Board's remedy is not merely to collect backpay but rather to effectuate the purposes of the Act.5 The Regional Director has considerable discretion in exercising his power and authority in issuing complaints and approving settlements. In the absence of evi- dence of abuse of this discretion I will not approve the above "settlement" without first securing the approval of the Regional Director, assuming if necessary that I would have such authority. There are so many sound reasons why a Regional Director will not approve a given proposed settlement-even though everyone else involved would approve it-that I will not conjecture why the present "settlement" was not approved. But I will toll the running of interest of 6 percent for the money actually paid from the time of its payment, and, of course, any money actually paid will be deducted from the total found due in this Decision. I call one final matter to the attention of Respondent. There is a period following the issuance of this Decision during which Respondent may "comply" with this Deci- sion. I suggest that Respondent explore this area with the Regional Director. FINAL CONCLUSIONS Therefore, upon all the evidence, I find that summarizing the facts and computa- tions set forth above and in the Appendix, the obligation of the Respondent to make whole the discriminatees pursuant to the Board Order will be discharged by payment to the discriminatees named below of the amount set forth below opposite their respective names. Said sums are each subject to applicable tax deduction required by Federal and State law and will bear interest of 6 percent per annum until date of payment: Clifton L. Hubbard______________________________________ $ 280.00 William E. Pollard______________________________________ 2, 313.00 It is recommended that the Board adopt the foregoing findings and conclusions and take such action in the premises as it deems appropriate. 41 hereby reopen the record and admit into evidence this letter and its attachments as Exhibit TX-1. s See "Short Title and Declaration of Policy of the Act" : It Is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general wel- fare, and to protect the rights of the public in connection with labor disputes affecting commerce. 783-133-66-vol. 151-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX Computation of Gross Backpay , Interim Earnings , and Net Backpay For- (a) William E. Pollard Calendar quarters Gross backpay Interim earnings Net backpay 1963-3------------------------------------------------------- 1$1,188.00 0 $1,188.00 -4------------------------------------------------------- 21,278.92 $322.25 957.00 1964-1------------------------------------------------------ 3 1,229.06 1, 061.17 168.00 Total------------------------------------------------------- 2,313.00. (b) Clifton L . Hubbard 1963-2------------------------------------------------------- Total ------------------------------------------------------- 4 280. 00 1528 hoursX$2 .25=$1,188. 2 568.5 hours (528 at straight time plus 27 at 1% time ) X$2.25=$1,278.92. 8 546% hours (472 at straight time plus 49Y2 at 1 Y2 tirne)X$2.25=$1,229.06. 4 160 hours X $1.75=$280. 0 $280.00 280.00 Frank Becker Towing Company Detroit Marine Towing L.O.L. Company and Local 299, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , Inc.,. Petitioner . Case No. 7-RC-6210. March 5, 1965 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officers Thomas R. Wilks and Brian S. Ahearn. The Hearing Officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Petitioner and Intervenor filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has, delegated its powers in connection with this case to a three-member- panel [Members Fanning, Brown and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer.' 'The Great Lakes Tug and Dredge Region Inland Boatmen's Union, Seafarers Inter- national Union of North America, Gulf, Lakes and Inland Waters District, AFL-CIO,. was permitted to intervene at the hearing. 151 NLRB No. 52.