R&H Coal Co.

National Labor Relations Board - Board Decisions

Mar 12, 1992

306 N.L.R.B. 701 (N.L.R.B. 1992)

701
306 NLRB No. 131
R&H COAL CO.
1 The General Counsel has excepted to the judge’s failure to order
interest on the amount of backpay owed to employees from the date
of the supplemental decision until the date the Respondent fully
complies with the Board’s Order. We find merit in the General
Counsel’s exception. It is Board policy to include interest on back-
pay awards until compliance with the Board’s order is achieved. See
generally Isis Plumbing Co., 138 NLRB 716 (1962). Further, we
note that the judge in the underlying unfair labor practice proceeding
recommended that the employees be made whole, with interest. That
recommendation was adopted by the Board and was enforced by the
United States Court of Appeals for the Fourth Circuit.
R&H Coal Co., Inc. and United Mine Workers of
America, District 28. Case 11–CA–12750
March 12, 1992
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 8, 1991, Administrative Law Judge
William N. Cates issued the attached supplemental de-
cision. The Respondent and General Counsel filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief in response to the General
Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, R&H Coal
Co., Inc., Tazewell, Virginia, its officers, agents, suc-
cessors, and assigns, shall make whole the employees
listed below by payment to them of the amounts set
forth below, opposite their names, with interest to be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Wages &
Employee Benefits
James Ball $8,227
Ken Davis 1,164
Arthur Lee Dye 10,386
Charlie Dye 10,168
Gary H. Dye 9,903
Randall Dye 10,543
Chester Elkins 9,525
Eugene Elkins 9,224
Charles Harris 3,571
William Harrison 1,081
Robert Lambert 5,153
Lonnie Lester 17,730
Larry Lowe 6,452
Brad Miller 10,290
David Perkins 2,225
Daniel Richardson 10,041
Larry Plaster 10,776
Jack Richardson 10,747
Gary L. Sparks 5,077
Larry Sparks 7,914
Barry Walls 1,616
Michael Whited 587
Roger Whited 8,944
Larry Whitt 4,170
Total $175,514
Rosetta B. Lane, Esq., for the General Counsel.
Charles L. Woody, Esq. (Spilman, Thomas, Battle, &
Klostermeyer), of Charleston, West Virginia, for the Com-
pany.
James J. Vergara Jr., Esq. (Vergara & Associates), of Hope-
well, Virginia, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. The Na-
tional Labor Relations Board (Board) issued an order (un-
published) on July 11, 1989, directing R&H Coal Co., Inc.
(Company) to, on request, rescind the unilateral changes in
the unit employees’ wages and other terms and conditions of
employment and make all employees whole, with interest,
for losses they incurred by virtue of such changes until the
Company negotiated in good faith with the United Mine
Workers of America, District 28 (Union) to agreement or to
a valid impasse. The United States Court of Appeals for the
Fourth Circuit issued an order (Case 89–1599) on January
30, 1990, enforcing the Order of the Board. Thereafter, a
controversy arose over the amount of backpay and benefits
due under the terms of the Order. The Board’s Acting Re-
gional Director for Region 11, as an agent of the Board’s
General Counsel, issued a compliance specification and no-
tice of hearing on August 31, 1990. The Company filed an
original and amended answers to the compliance specifica-
tion on September 17, 1990, and August 5, 1991, respec-
tively. A supplemental trial was held in Tazewell, Virginia,
on September 24, 1991. Thereafter, counsel for the General
Counsel and Company filed briefs which have been carefully
considered.
At trial, the parties stipulated figures representing net
backpay for each of the affected employees as wages and
benefits and stipulated the amount paid as bonuses to each
of the affected employees.
In light of the parties’ stipulations, the only issue before
me centers around the bonuses paid to the employees. Spe-
cifically, the issue is whether the amounts paid by the Com-
pany as production bonuses should be allowed as credits or
setoffs against the stipulated backpay figures for the
discriminatees.
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I conclude, for the reasons hereinafter set forth, that the
Company is not entitled to set off the bonus payments
against its backpay liability.
The applicable collective-bargaining agreement (National
Bituminous Coal Wage Agreement of 1984) contains a
‘‘Miscellaneous’’ article (XXII) which at section(s) thereof
addresses ‘‘Bonus Plans.’’ Section(s) reads in pertinent part:
(2) Conditions. Bonus plans shall not be commenced or
continued unless a plan satisfies all of the following
conditions:
(B) The plan shall provide an earnings opportunity
above the standard daily wage rate for all active
classified Employees at the mines.
Company President Glen Hubbard testified the Company
could not, and did not, pay its employees at the standard
contract rate so in October 1988 it implemented an incentive
production bonus plan. He said the only way the Company
could ‘‘bring the [employees] pay scale up’’ was to ‘‘bring
the tonnage up.’’ Hubbard said he made an announcement to
the employees and,
I told them, in order to bring the pay scale up, if we
could run the production up that I could increase their
pay through a production bonus.
Hubbard said that under the plan the Company paid all em-
ployees 15 cents per ton for each ton of clean coal produced
in excess of the normal clean coal production of 600 tons per
day for each work day in half a month. He said the first
bonus period for any given month ran from the 1st through
the 15th day of the month. The second bonus period for any
given month ran from the 16th until the last day of the
month—which resulted in some second halves having more
(or less days) than first halves. The employees were paid
bonus payments every 2 weeks by checks separate from their
payroll checks. The amount paid as bonuses for any half
month varied in relation to the amount of extra coal pro-
duced during that half month. If production in any given half
month did not exceed an average of 600 tons of clean coal
per day, the employees were not paid any bonus payments.
When paid, all employees received bonus payments, how-
ever, the payments were prorated based on the number of
workdays each employee worked during the half month for
which bonus payments were being made. In order to be eligi-
ble to receive bonus payments, when made, the employees
did not have to work extra hours or shifts nor did they have
to perform any different duties—they just simply had to
produce more than the normal tonnage of coal per day over
a half month. Employees were always paid their normal
wages regardless of whether bonus payments were made or
not. Hubbard testified the production incentive bonus was
never used to discipline employees nor did the Company
ever consider it as a gift to the employees. Hubbard ac-
knowledged the bonuses were simply paid ‘‘for day-to-day
work which produce[d] exceptional results.’’
Counsel for the General Counsel argues the clear language
in the parties’ collective-bargaining agreement prevents the
bonuses from being set off against the backpay owed the
discriminatees. Counsel for the General Counsel further as-
serts the bonuses were directly related to extra efforts on the
employees’ part and were not based on the performance of
their normal regularly assigned duties. In that regard, counsel
for the General Counsel contends the bonuses were paid to
reward the employees for their extraordinary efforts to in-
crease production and as such may not be used as a setoff
against the backpay liability of the Company.
Counsel for the Company argues the Company’s sole pur-
pose in paying bonuses was to bring its employees’ pay
scales up and that it always considered the bonuses as part
of its employees’ wages. The Company contends it regularly
paid the bonuses pursuant to a defined schedule based on
specific levels of productivity or efficiency and that the bo-
nuses were part of its regular wage structure and therefore
should be set off against the wage claims of the
discriminatees as wage payments already received.
Both counsel for the General Counsel and Company cite
K. & H. Specialties Co., 163 NLRB 644 (1967), enfd. 407
F.2d 820 (6th Cir. 1969), in support of their positions.
The judge, then trial examiner, in K. & H. Specialties ad-
dressed the question of setoffs of additional compensation
against backpay claims. In so doing, the judge, with Board
approval, examined what he considered to be ‘‘regular
monthly bonuses’’ and ‘‘intermittent bonuses.’’ The judge
reached different results for the two types of bonuses regard-
ing whether such should be allowed as setoffs against back-
pay liabilities. With ‘‘regular monthly bonuses’’ the judge al-
lowed setoffs whereas with ‘‘intermittent bonuses’’ he did
not. The judge defined a ‘‘regular monthly bonus’’ ‘‘as com-
pensation directly related to and based on normal perform-
ance of regularly assigned duties.’’ The judge concluded
such bonuses ‘‘were an integral part of [the] employees’
monetary package’’ which employees had a right to expect
would continue to be paid unless or until their wages were
somehow otherwise adjusted. The judge concluded that em-
ployees paid a ‘‘regular monthly bonus’’ were not required
or expected to ‘‘exert any extra effort’’ or to perform any
work ‘‘outside the normal requirements’’ of their jobs in
order to receive bonus payments. The judge defined an
‘‘intermittent bonus’’ as an ‘‘unexpected,’’ ‘‘gratuitous,’’ re-
ward for either ‘‘extraordinary efforts,’’ or ‘‘for the perform-
ance of services beyond the range of [the employees’] pri-
mary duties.’’ Additionally, the judge concluded a bonus was
of the ‘‘intermittent’’ type if the employer was not obligated
to pay the bonus unless certain conditions or requirements
were met by the employees.
I am persuaded the positions advanced by counsel for the
General Counsel must prevail. First, the language related to
bonuses in the applicable collective-bargaining agreement is
clear. Bonus plans implemented pursuant to the parties’ col-
lective-bargaining agreement must provide employees with
‘‘an earnings opportunity above the standard daily wage rate
for all active classified Employees at the mines.’’ Thus,
when the Company chose to implement its bonus plan, it did
so knowing full well that the bonus payments would be pay-
ments over and above the employees’ regular wages. That
the Company was fully aware of the contract language re-
lated to bonus payments and how such payments would be
treated is borne out by the testimony of President Hubbard
that in the early 1980s the Company implemented a bonus
program and that it was understood at the time that the pay-
ments were over and above the daily wage rates pursuant to
‘‘what the contract language calls for.’’ Second, the bonuses
were of the ‘‘intermittent’’ type as defined in K. & H. Spe-
703R&H COAL CO.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
cialties. The employees were only paid bonus payments if
they produced clean coal in excess of what was considered
normal production. Whether the employees received bonus
payments, and in what amounts, depended on the amount of
extra coal they produced in any given half month. The em-
ployees had no right to expect bonus payments unless they
produced extra coal. The bonus payments herein were not
given for the performance of regularly assigned day-to-day
duties but were for ‘‘extraordinary efforts’’ ‘‘beyond the
range of [the employees’] primary duties.’’ Thus, the bonus
payments cannot be used to set off or reduce the amount of
backpay the Company owes. See Virginia Sportswear, Inc.,
234 NLRB 315 (1978).
Concluding Findings
I conclude the Company is not entitled to set off the bonus
payments it has made against its backpay liability. Accord-
ingly, I conclude the Company is obligated under the
Board’s and court’s Orders to pay its employees the amounts
set forth opposite their names:
Employee Wages & Benefits
James Ball $8,227
Ken Davis 1,164
Arthur Lee Dye 10,386
Charlie Dye 10,168
Gary H. Dye 9,903
Randall Dye 10,543
Chester Elkins 9,525
Eugene Elkins 9,224
Charles Harris 3,571
William Harrison 1,081
Robert Lambert 5,153
Lonnie Lester 17,730
Larry Lowe 6,452
Brad Miller 10,290
David Perkins 2,225
Larry Plaster 10,776
Daniel Richardson 10,041
Jack Richardson 10,747
Gary L. Sparks 5,077
Larry Sparks 7,914
Barry Walls 1,616
Michael Whited 587
Roger Whited 8,944
Larry Whitt 4,170
Total $175,514
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
It is recommended that the Board adopt the foregoing find-
ings and conclusions.