Shane Steel Processing, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 2008

353 N.L.R.B. 522 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 58
522
Shane Steel Processing, Inc. and J&J Land, LLC, a
single employer and Local 771, International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America
(UAW), AFL–CIO. Cases 7–CA–47710 and 7–
CA–48016
November 28, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 1, 2008, Administrative Law Judge Keltner
W. Locke issued the attached supplemental decision.
Respondent J&J Land, LLC (J&J) filed exceptions and a
supporting brief, and the General Counsel and the Charg-
ing Party each filed an answering brief. The General
Counsel and the Charging Party each filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has considered
the supplemental decision and the record in light of the
exceptions, cross-exceptions, and briefs and has decided
to affirm the judge’s rulings, findings,1 and conclusions
and to adopt the recommended Order as modified2 and
set forth in full below.3
The judge found that Respondents Shane Steel Proc-
essing, Inc. (Shane) and J&J constitute a single em-
ployer, making J&J jointly and severally liable for
Shane’s unfair labor practices. We agree, but modify the
judge’s analysis in two respects.
First, the judge initially found single employer status
under the Board’s established analytical framework,
which considers four factors: (1) interrelation of opera-
tions; (2) common management; (3) centralized control
of labor relations; and (4) common ownership. See, e.g.,
RBE Electronics of S.D., 320 NLRB 80 (1995). The
General Counsel and the Charging Party agree with that
finding, but argue that the judge erroneously failed to

1 Respondent J&J has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the recommended Order to conform to our stan-
dard remedial language.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
find that the fourth factor, common ownership, is present
and supports a single-employer finding. We find merit in
that argument, inasmuch as John Hartley held an 80-
percent ownership interest in Shane and a 50-percent
ownership interest in J&J. See Cimato Bros., Inc., 352
NLRB 797, 798 (2008).
Second, although the judge found single-employer
status under the Board’s traditional four-factor test, he
then analyzed that issue under what he described as “the
alternate one-factor test, concerning the presence or ab-
sence of an arm’s length relationship.” The judge de-
rived this alternate test from a footnote in Lebanite
Corp., 346 NLRB 748 (2006). In that footnote, the
Board observed that “[v]iewing the single employer
analysis more globally,” certain Board decisions describe
single-employer status as being characterized by, or syn-
onymous with, the absence of an arm’s-length relation-
ship among unintegrated companies. Id. at 748 fn. 5.
Unlike the judge, we do not read this observation as es-
tablishing an alternate test for single-employer status.
Rather, we think the Board in Lebanite was merely ac-
knowledging its occasional use of a generalized descrip-
tion for the traditional four-factor test. Significantly, the
Board pointed out that evidence indicating the absence of
an arm’s-length relationship is often treated as bearing on
the traditional factor of interrelation of operations, and
expressly endorsed that approach. Id. Accordingly, we
do not rely on the judge’s alternate analysis in affirming
his finding that Shane and J&J constitute a single em-
ployer. We do agree, however, with the judge’s factual
finding that there was no arm’s-length relationship be-
tween Shane and J&J, and that this absence further sup-
ports his finding that the interrelation of operations factor
strongly favors a single-employer finding in this case.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified and
set forth in full below and orders that the Respondents, Shane
Steel Processing, Inc. and J&J Land, LLC, a single employer,
Fraser, Michigan, its officers, agents, successors, and assigns,
shall make whole the individuals named below, by paying them
the amounts following their names,4 plus interest accrued to the

4 As discussed in the judge’s supplemental decision, after the close
of the hearing, the General Counsel filed a motion asking the judge to
order the Respondents to pay to the employees 401(k) plan contribu-
tions owed for the period January 1 through March 22, 2007. The
General Counsel so moved because the Respondents did not provide
records needed to calculate the amount of 401(k) liability during that
period until after the close of the hearing. The judge denied the Gen-
eral Counsel’s motion without prejudice to the General Counsel seek-
ing the additional 401(k) plan reimbursements in a separate proceeding.
No party excepted to that denial. The General Counsel thereafter is-
sued a supplemental compliance specification addressing those addi-
tional 401(k) reimbursements. That proceeding is the subject of our
SHANE STEEL PROCESSING, INC. 523
date of payment, as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), minus tax withholdings re-
quired by Federal and State laws:
Discriminatee Total
Jackie Davis $832.68
Gary Engle 2,724.79
Robert Hayes 10,062.66
William Koch 11,636.96
Kenneth LaFleur 8,697.29
Nick Maltese 13,191.35
William Martin 10,318.33
Mark Moore 802.42
Terry Poore $2,358.95
Patrick Randazzo 9,430.99
Richard Regelin 10,304.90
Robert Rochner 12,486.98
William Silew 8,899.17
Joseph Sliwinski 4,457.65
Julio Vargas 12,132.31
Mirko Vitanoski 7,486.31
Frederick Wendt 12,799.74
Howard Wucetich 7,425.77
TOTAL BACKPAY $146,049.25
Michael P. Silverstein, Esq., for the General Counsel.
Robert A. Clearly, Esq. (Clark Hill, PLC), for the Respondent
Shane Steel Processing, Inc.
David A. Lawrence, Esq. (Couzens, Lansky, Fealk, Ellis,
Roeder & Lazar, P.C.), for the Respondent, J&J Land,
LLC.
Lisa M. Smith, Esq. (Klimist, McKnight, Sale, McClow & Can-
zano), for the Charging Party.
SUPPLEMENTAL DECISION AND ORDER
KELTNER W. LOCKE, Administrative Law Judge. A principal
issue in this case concerns the status of J&J Land, LLC, a com-
pany not yet in existence when Shane Steel Processing, Inc.
committed the unfair labor practices to be remedied here. The
Government contends that Shane’s owner and his fiancée
formed J&J Land as a sanctuary for Shane’s assets, to place the
assets beyond reach and unavailable to remedy Shane’s unlaw-
ful conduct. Applying the Board’s four-factor test, I conclude
that Shane Steel Processing, Inc. and J&J Land, LLC, constitute
a single employer. Accordingly, even though J&J Land holds
the title to Shane’s factory and grounds, those assets may be
used to satisfy Shane’s make-whole obligation.
Procedural Matters
After the compliance hearing closed, the General Counsel
sought to introduce into evidence certain documents which had
been subpoenaed but not previously produced. The General
Counsel sought and obtained a written stipulation regarding

Second Supplemental Decision and Order, also issued today. See
Shane Steel Processing, Inc., 353 NLRB No. 59 (2008) (not reported in
bound volume).
these records and then moved for the admission of both the
stipulation (marked as GC Exh. 39) and the documents (marked
as GC Exh. 40, 41, 42). In view of the parties’ stipulation, I
grant the General Counsel’s motion and receive these docu-
ments into the record. Because the exhibit numbers proposed
by the General Counsel already have been used, and because all
parties have agreed that these documents should be admitted
into the record, the documents will be received as Joint Exhibits
39, 40, 41, and 42, rather than as General Counsel’s exhibits.
Also, after close of the hearing, the General Counsel sought
an order requiring Respondents “to pay 401(k) money owed
through March 22, 2007 to the employees listed in the amended
compliance specification, dated June 7, 2007.” This motion
will be addressed later in the decision, after the discussion of
background facts needed to place it in context.
Background
Respondent Shane manufactured and processed steel bars at
its plant in Fraser, Michigan. Since about March 9, 1976, the
United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO (the International Union) has
been the exclusive collective-bargaining representative of
Shane’s production and maintenance employees. (In the dis-
cussion below, the word “employee” means an employee in this
bargaining unit.) The International Union assigned to its Local
771 (the Union or the Charging Party) responsibility to repre-
sent these employees.
The last collective-bargaining agreement expired in March
2002. The terms and conditions of employment continued in
effect without change for about 2 years. Then, beginning in
May 2004, Respondent began changing certain terms and con-
ditions of employment without first notifying and bargaining
with the employees’ exclusive representative. More specifi-
cally, Respondent Shane violated Section 8(a)(5) and (1) of the
Act by making the following changes:
1. On about May 21, 2004, Shane discontinued its practice of
making a contribution to each employee’s 401(k) plan account
to match the contribution which the employee had made.
2. On about May 31, 2004, Shane reduced employees’ wages
by 10 percent and eliminated dental and optical benefits.
3. On about June 1, 2004, Shane changed medical benefits
and eliminated the following benefits: Perfect attendance bo-
nus; providing employees visiting the medical clinic either with
rides to the clinic or mileage reimbursement; providing em-
ployees with prescription co-pay reimbursement.
4. On August 3, 2004, Shane changed its attendance policy.
5. On October 8, 2004, Shane eliminated the 401(k) pro-
gram.
The Union filed unfair labor practice charges against Shane
on July 26, 2004 (in Case 7–CA–47710) and October 20, 2004
(in Case 7–CA–48016). An investigation of these charges re-
sulted in the issuance of a consolidated amended complaint on
November 18, 2004.
After the parties appeared to have reached a (non–Board)
settlement, the Regional Director for Region 7 issued an order
conditionally approving the withdrawal of charges and dismiss-
ing the consolidated amended complaint. When Shane failed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524
comply with the terms of that agreement, the Regional Director
reinstated that complaint by a May 24, 2005 Order.
In June 2005, Shane’s president and majority shareholder,
John Hartley, formed a limited liability company with his fian-
cée, Jane McNamara. (The initials in this company’s name—
J&J Land, LLC—presumably derive from the first names of the
two partners.) Shane’s accountant, Robert Silverberg, filed J&J
Land’s articles of organization with the State of Michigan.
Silverberg identified himself in this filing as J&J Land’s “or-
ganizer.” Documents which J&J Land filed with government
agencies show its business address to be the same as Shane’s.
Hartley and McNamara each owned a 50–percent interest in
the limited liability company. Each held the title of “member,”
which is roughly analogous to “partner” in a partnership.
On July 27, 2005, Shane sold its plant and grounds to J&J
Land for one dollar. Hartley participated in this transaction
both as Shane’s president and as a member of J&J Land. On
the same day, Hartley and McNamara, acting on behalf of J&J
Land, took out new mortgages, pledging the Shane plant and
grounds as security.
The mortgage lender required Hartley and McNamara to
execute an “Affidavit of Property Use (Commercial),” stating
what J&J Land intended to do with the property it had pur-
chased. The affidavit consisted of a preprinted form which
allowed the affiants to specify the property use by checking one
of two boxes. The following description appeared to the right
of the first box: “Investment Property: Not owner operated.
Purchased as an investment to be held or rented to a third
party.” Hartley and McNamara left this box blank. Instead,
they checked the second box: “Owner Operated: Operated by
owner for purposes of owner’s business.”
Hartley later testified, during the compliance hearing, that
checking the “Owner Operated” box had been, in effect, a mis-
take, “an omission on our part that we signed it without correct-
ing it to investment property.” However, Hartley admitted that
he had never advised the mortgage lender of this “mistake.”
As mentioned above, in May 2005, the Regional Director
had reinstated the consolidated amended complaint because
Shane had not satisfied the terms of the settlement agreement.
Shane had filed an answer to this complaint after it issued the
first time. However, 9 days after Shane sold its property to J&J
Land, it withdrew its answer.
Under the Board’s Rules, a withdrawn answer has the same
effect as no answer at all. The General Counsel filed a Motion
for Default Judgment which the Board granted in a Decision
and Order dated May 31, 2006. In it, the Board ordered Shane
to restore the terms and conditions of employment which were
in effect before the unlawful unilateral changes, and to make
the employees whole for losses they suffered because of those
unfair labor practices.
On November 21, 2006, the United States Court of Appeals
for the Sixth Circuit enforced the Board’s Decision and Order.
On May 7, 2007, the Regional Director issued a compliance
specification and notice of hearing which named both Shane
and J&J Land as Respondents and alleged them to constitute a
single employer. This pleading marked J&J Land’s debut as a
party.
Respondent Shane filed an answer to the compliance specifi-
cation on May 24, 2007, and an amended answer on June 4,
2007. Respondent J&J filed an Answer on May 25, 2007.
The Regional Director issued an amended compliance speci-
fication and notice of hearing on June 7, 2007. A hearing
opened before me on June 11, 2007 in Detroit, Michigan. The
parties presented evidence on June 11 through June 13, 2007,
when the hearing closed. Counsel thereafter had the opportunity
to submit briefs, which have been considered carefully.
The Single-Employer Issue
In their answers to the compliance specification, both Re-
spondent Shane and Respondent J&J Land denied that they
constituted a single employer. The General Counsel bears the
burden of proving such status by a preponderance of the evi-
dence.
At the outset, it may be noted that a single-employer analysis
is appropriate only where two ongoing businesses are coordi-
nated by a common master. Cadillac Asphalt Paving Co., 349
NLRB 6, 8 (2007), citing APF Carting, Inc., 336 NLRB 73 fn.
4 (2001), enfd. mem. 60 Fed. Apps. 832 (D.C. Cir. 2003); NYP
Acquisition Corp., 332 NLRB 1041 fn. 1 (2000), affd. sub nom.
Newspaper Guild of New York Local 3 v. NLRB, 261 F.3d 291
(2d Cir. 2001). After J&J Land came into existence in June
2005, and after it purchased Shane’s factory and grounds in
July 2005, Shane continued to operate. Therefore, I conclude
that it is appropriate to examine the relationship between Shane
and J&J Land.
Credibility
The discussion below, concerning the status of J and J Land,
relies on the testimony of the company’s two owners, John
Hartley and Jane McNamara. On occasion during her cross–
examination, McNamara didn’t provide totally responsive an-
swers to the questions posed. To the extent that Hartley’s tes-
timony conflicts with McNamara’s, I credit Hartley.
Legal Principles
In determining whether two ostensibly separate entities
really constitute a single employer, the Board applies a four–
factor test. However, a recent decision suggests that an alterna-
tive test may be used in appropriate cases. First, I will describe
the standard test and then the alternative.
The Board’s basic test entails consideration of these four fac-
tors: (1) interrelation of operations; (2) common management;
(3) centralized control of labor relations; and (4) common own-
ership or financial control. Central Mack Sales, 273 NLRB
1268, 1271–1272 (1984). No single aspect is controlling, and
all four factors need not be present to find single-employer
status. Instead, the ultimate determination turns on the totality
of the evidence in a given case. Dow Chemical Co., 326 NLRB
288, 288 (1998).
The Board doesn’t give all four factors equal weight. In a
number of cases, the Board has attached particular importance
to the third factor, centralized control of labor relations. For
example, in Mercy Hospital of Buffalo, 336 NLRB 1282
(2001), the Board stated that “the most critical factor is central-
ized control over labor relations.” Accord: Gerace Construc-
tion, 193 NLRB 645 (1971). See also Beverly Enterprises, 341
NLRB 296, 306 (2004),
SHANE STEEL PROCESSING, INC. 525
However, in Viking Industrial Security, Inc., 327 NLRB 146
(1998), when the Board discussed its four-factor test, it ex-
plained that “The fundamental inquiry is whether there exists
overall control of critical matters at the policy level.” Pre-
sumably, such critical matters may concern more than labor
relations.
Moreover, the Board also has stated that the absence of an
arm’s-length relationship is “essentially synonymous” with
single-employer status. See, e.g., Lebanite Corp., 346 NLRB 7
fn. 5 (2006). Similarly, in Bolivar-Tees, Inc., 349 NLRB 720
(2007), the Board stated that the “hallmark of a single employer
is the absence of an arm’s-length relationship among seemingly
independent companies.” See also Screen Creations LTD., 349
NLRB 720 (2007); Hydrolines, Inc., 305 NLRB 416, 417
(1991).
Likewise, in AG Communication Systems Corp., 350 NLRB
168 (2007), the Board, citing RBE Electronics of South Dakota,
320 NLRB 80 (1995), stated: “In summing up the essence of a
single-employer relationship, the Board has observed that
“[s]ingle employer status is characterized by the absence of an
arm’s-length relationship found among unintegrated compa-
nies.” On the other hand, in Lebanite Corp., 346 NLRB 748 fn.
5 (2006), discussed further below, the Board criticized a judge
for according too much importance to the absence of an arm’s-
length relationship.
It certainly implies no criticism of the Board to observe that
the various precedents cited above point to different factors as
being especially significant. In some cases, the Board has iden-
tified centralized control of labor relations as the alpha factor
heading the pack, but in at least one case, the Board has at-
tached particular importance to control of critical matters at the
policy level or to the absence of an arm’s-length relationship.
As noted above, in some cases, the Board has called the ab-
sence of an arm’s-length relationship the “hallmark” or “es-
sence” of single-employer status but in another case, the Board
held that a judge erred by giving this consideration weight
equal to that accorded a factor in the Board’s four-factor test.
Perhaps the Board’s invocation of different determinative
criteria in different cases merely reflects that individual circum-
stances make one factor more important in some cases but ren-
der some other consideration more significant in other cases.
By analogy, a golfer regards one club as more appropriate for
one shot and a different club better for another shot. Far from
being irrational, such choices result from skill, experience, and
insight. The real problem is that those of us with high handi-
caps need explicit guidance regarding why the pro preferred
one particular club on one occasion but selected another club
for a seemingly similar shot later.
The present case illustrates how specific circumstances can
affect which factor becomes most important in the Board’s
analysis. As noted above, if the employment practices of two
ostensibly separate companies really are under common con-
trol, the Board accords significant weight to that fact. Like-
wise, if each company has a separate and autonomous labor
relations policy, unaffected by the other company, the Board
regards that fact as particularly probative. However, if one of
the two companies has no employees, then the Board gives less
weight to the “centralized control of labor relations” factor.
Bolivar-Tees, Inc., above.
The Bolivar-Tees decision provides clear guidance applica-
ble to the present case. Because J&J Land does not have any
employees, I will not accord “centralized control of labor rela-
tions” the same weight which this factor would otherwise re-
ceive.
Another matter to be considered—the presence or absence of
an “arm’s-length” relationship—presents a greater challenge. It
is important to avoid the error discussed by the Board in Leban-
ite Corp., above. Doing so requires a clear understanding of
exactly what the Board meant.
In Lebanite Corp., the Board stated that the absence of an
arm’s-length relationship between two entities can be “essen-
tially synonymous” with single-employer status. Those words,
“essentially synonymous,” would seem to mean the same thing
as “tantamount to” or “for all practical purposes identical with
. . . .” That would make the presence or absence of an arm’s-
length relationship pathognonomic: If an arm’s-length relation
is absent then, ipso facto, single-employer status must be pre-
sent.
The Board’s Lebanite Corp. decision seems to endorse this
equivalence principle. It strongly suggests that a judge could,
in an appropriate case, ignore the four-factor test and decide the
single-employer issue based solely on whether or not an arm’s-
length relationship existed.
So far, this equation of single-employer status with the ab-
sence of an arm’s-length relationship causes no conceptual
problem. However, in Lebanite Corp., the Board further stated
that the judge had erred by treating the absence of an arm’s-
length relationship “as neither synonymous with his single-
employer finding nor as an aspect of interrelation of operations
within the four-factor analysis, but [instead] as an independent
fifth factor. . . .” 346 NLRB 748 at fn. 5. In other words, the
judge had chosen to use the four-factor test rather than opting to
decide the single-employer issue solely on the absence of an
arm’s-length relationship. Having made this choice, the judge
should only have treated the absence of an arm’s-length rela-
tionship as one consideration to be taken into account while
evaluating the “interrelation of operations” factor.
Here is the conceptual difficulty: If the presence or absence
of an arm’s-length relationship is practically the same thing as
(“essentially synonymous” with) single-employer status, then
how can it also be less important than one of the factors in the
four-factor test?
Stated another way, in algebra, if A=B and B=C, then A=C.
Two quantities each equal to a third are equal to each other. By
similar logic, two separate tests for the same condition should
be equivalent, or at least consistent. If the “hallmark” of single-
employer status—the absence of an arm’s-length relationship—
weighs as heavily as an elephant in one test, how can it weigh
as lightly as a mouse in another test for the same thing?
The difference between these two tests seems even more
pronounced when it is noted that Lebanite Corp. views the
absence of an arm’s-length relationship as a consideration rele-
vant to the “interrelation of operations” factor, but this factor
isn’t even the most important in the Board’s four-factor analy-
sis. That distinction usually goes to “centralized control over
labor relations.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 526
It appears clear that, in Lebanite Corp., the Board indeed is
offering the judge a choice of which test to use. Thus, it stated
that “the Board sometimes treats single employer status and
absence of an arm’s-length relationship as essentially synony-
mous. In some cases, however, the Board has treated absence
of arm’s-length relationship within the traditional four-factor
test as bearing on the factor of interrelation of operations. . . .”
346 NLRB 748 at fn. 5.
It isn’t quite so clear, however, which test the Board would
deem more appropriate in the present case. Accordingly, I will
evaluate the evidence using each of the tests so that the Board
may choose the one it deems preferable. The four-factor test
will be applied first.
Factor 1: Interrelation of Operations
The record leaves no doubt that John Hartley and his fiancée,
Jane McNamara, created J&J Land to rescue Shane from its
financial problems. Before doing so, Hartley, in his capacity as
Shane’s president and majority shareholder, unsuccessfully had
sought other means of infusing money into the steel processing
company. He credibly testified that after “first tier” lenders
declined, he sought financing from institutions offering loans at
subprime rates. Hartley found a lender with experience helping
distressed companies. This source would lend money, but only
if Hartley and Shane complied with a number of requirements.
Fundamentally, Hartley testified, “we were at a place that it
was either comply [with the requirements] or close the doors.”
Hartley and his fiancée, Jane McNamara, established J&J
Land specifically to satisfy some of the conditions imposed by
the lender. As required by the lender, Shane conveyed its prop-
erty to J&J Land by quitclaim deed. (Technically, the transac-
tion entailed two conveyances because the lender also required
Shane to divide the land into two separate parcels.) Immedi-
ately, J&J Land took out new mortgages, secured by the prop-
erty it now owned, and used the resulting money to pay some of
Shane’s debts.
J&J Land then leased the property to Shane, which was sup-
posed to pay $25,000 per month rent. Shane didn’t always pay
the full amount, but when J&J Land received a lesser sum, its
principals did not protest.
Hartley’s credible, poignant testimony made clear that he
and McNamara had created J&J Land not to be a stellar busi-
ness success on its own, but rather for one specific purpose,
saving Shane: “[O]ur effort wasn’t about creating a land com-
pany that’s going to soar like an eagle. It was about salvaging
Shane, salvaging jobs at Shane, the future of Shane, and the
assets of Shane.”
Other facts support the conclusion that Hartley and McNa-
mara had established J&J Land as part of Hartley’s efforts to
save Shane, and that J&J Land existed solely for this purpose.
An accountant employed by Shane had prepared J&J Land’s
articles of organization. J&J Land never had its own offices or
telephone number, but instead used Shane’s. J&J Land did not
have any employees of its own, but instead, a Shane employee
took care of J&J Land’s records and documents, which resided
in a Shane filing cabinet.
J&J Land’s counsel argues that J&J Land was engaged in a
business, real estate investment, totally different from the
manufacturing business of Shane Steel. The credited evidence
does not support this argument. Hartley’s testimony makes
clear that he and McNamara did not create J&J Land to invest
in real estate but to save Shane Steel. Indeed, in their “Affida-
vit of Property Use,” described above, Hartley and McNamara
characterized J&J Land’s purchase not as “investment prop-
erty” but as “Operated by owner for purposes of owner’s busi-
ness.” I do not credit Hartley’s explanation that he and
McNamara checked the wrong box by mistake. In view of
Hartley’s testimony that he and McNamara did not create J&J
Land to “soar like an eagle” but rather to save Shane, checking
the “investment property” box would not have seemed the ap-
propriate choice at the time. Only later did it become apparent
that this choice reflected on the single-employer issue.
It appears reasonable that if Hartley and McNamara had cre-
ated J&J Land to make profitable real estate investments—to
“soar like an eagle”—the company would have operated quite
differently. For example, when Shane failed to pay the full
amount of its monthly rent, J&J Land would have followed the
procedure set forth in the lease to obtain full payment. J&J
Land’s failure to do so makes little sense if its principals in-
tended it to be a viable real estate investment company. How-
ever, such inaction does appear logical if Hartley and McNa-
mara created J&J Land as a device to save Shane.
In the testimony quoted above, Hartley admitted that he and
McNamara created J&J Land to salvage Shane. If J&J Land
had held even one other piece of property, apart from Shane’s,
it might raise at least a scintilla of doubt about this admission.
However, the record affords no reason to believe that J&J Land
ever held, or even tried to purchase, property from a seller
other than Shane.
In sum, Hartley set out to obtain a loan Shane needed to sur-
vive. After “first tier” lending institutions rebuffed him, Hart-
ley turned to the subprime market. Even there, the only financ-
ing Hartley could find came with serious strings attached. To
meet those conditions, Hartley and his fiancée, with help from
Shane’s accountant, established J&J Land. Once created, this
company “lived” in a filing cabinet in Shane’s offices, with no
address other than Shane’s and no telephone other than
Shane’s.
J&J Land’s operations were more than “interrelated” with
Shane’s. Its total function was to serve Shane as a source of
financial life support, and it was just as much a part of Shane’s
operations as a mitochondrion is a part of the cell which sur-
rounds it. Accordingly, I conclude that the “interrelation of
operations” factor strongly indicates single–employer status.
Factor 2: Common Management
As already mentioned, at the time Shane conveyed its prop-
erty to J&J Land, Hartley not only was Shane’s president but
also owned an 80-percent interest in that corporation. Within
months, Hartley acquired the remaining 20-percent interest and
became Shane’s sole shareholder. Even without this final 20
percent interest, Hartley had full control of Shane at all material
times.
Hartley only held a 50-percent interest in J&J Land. McNa-
SHANE STEEL PROCESSING, INC. 527
mara, who held the other 50-percent interest, testified that she
participated jointly with Hartley in making decisions, even
when Hartley alone signed a document resulting from that deci-
sion. She certainly provided considerable capital, in the form
of loans and contributions, which allowed J&J Land to acquire
the Shane property and relieve some of Shane’s debt in the
process. Moreover, there is no reason to doubt that McNamara
participated as a full and equal partner in this company. How-
ever, J&J Land really didn’t have any daily operations.
McNamara played no part in the daily operations of Shane.
In sum, the record establishes that Hartley managed the daily
operations of Shane as its chief executive and owner, and that
he performed about 50 percent of the quite negligible manage-
ment duties associated with J&J Land. Although Hartley did
not have total control of J&J Land, because of his role in the
management of both entities, I conclude that the “common
management” factor weighs towards a finding of single-
employer status.
Factor 3: Centralized Control of Labor Relations
Hartley, as Shane’s president and majority stockholder, fully
controlled that corporation’s labor relations policies and ac-
tions. However, neither Hartley nor McNamara controlled J&J
Land’s labor relations because that company had no employees
and, therefore, no labor relations.
The record does not establish that J&J Land, as an entity, ex-
ercised any control over Shane’s labor relations. Likewise, no
evidence indicates that McNamara held any position in Shane’s
hierarchy or otherwise controlled or influenced Shane’s labor
relations, I find that she did not.
As already noted, when one of the two entities has no em-
ployees, the Board gives less weight to the “centralized control
of labor relations” factor. Bolivar-Tees, Inc., above. To the
extent this factor is entitled to weight, I conclude that it weighs
in favor of finding single-employer status.
Factor 4: Common Ownership or Financial Control
As discussed above, at all material times, Hartley held at
least an 80-percent interest in Shane and had plenary control of
Shane’s operations. Hartley also owned a 50 percent interest in
J&J Land, but the exact amount of control he exercised over
this company is somewhat uncertain. Some J&J Land docu-
ments bear only Hartley’s signature, and not that of McNamara.
However, she testified that before Hartley signed any such
document, he and she would discuss the matter and reach
agreement.
In crediting this testimony, I note that Hartley and McNa-
mara have been engaged to each other at all material times and
that they live together. Additionally, I note that McNamara is
president and chief executive officer of a not-for-profit corpora-
tion not involved in this proceeding, serves on the boards of
other organizations, holds a master’s degree, and has experi-
ence in commercial leasing. Particularly considering McNa-
mara’s experience in commercial leasing, it seems likely that
she contributed not only capital but also business acumen to
J&J Land and participated fully in the decision making.
Accordingly, I find that Hartley and McNamara did discuss
and reach agreement before Hartley signed the documents on
behalf of J&J Land. Further, I conclude that Hartley and
McNamara equally shared control of the limited liability com-
pany.
The record does not establish that J&J Land exercised any
control over Shane’s operations. Rather, J&J Land simply
served as a source of funding and debt relief.
As to Shane’s control of J&J Land, it is true that Shane’s ac-
countant helped Hartley and McNamara organize J&J Land by
preparing necessary documents. It is also true that a Shane
employee took care of the filing of these documents. Likewise,
because J&J Land had no office space or telephone line, Shane
provided those services as needed. However, J&J Land did not
have any day-to-day operations for Shane to control. It had no
employees and existed, essentially, on paper in a file drawer.
To the extent J&J Land had any operations at all, Shane only
could influence those operations, through Hartley, rather than
control such decision making.
Discussion
The first of the four factors—interrelation of operations—
clearly weighs in favor of single-employer status. To the extent
that J&J Land had any operations at all, they related to Shane.
J&J Land held no property except that which it had acquired
from Shane and then leased back to Shane. The sole reason
that Hartley and McNamara organized J&J Land was to help
Shane out of its financial distress and J&J Land existed solely
for that purpose.
The second factor—common management—also militates
towards a finding of single–employer status. Although the two
entities did not have identical management, Hartley managed
Shane and participated in the management of J&J Land. The
Board does not require absolutely identical management. Hy-
drolines, Inc., 305 NLRB 416 (1991).
The third factor—centralized control of labor relations—
weighs only minimally, if at all, in favor of single-employer
status because one of the two entities had no employees and,
therefore, no labor relations. As discussed above, the Board
typically views centralized control of labor relations to be a
critical factor in assessing single-employer status, AG Commu-
nication Systems Corp., 350 NLRB 168 (2007), but accords
that factor less importance when one of the entities has no em-
ployees. Bolivar-Tees, Inc., above, citing Three Sisters Sports-
wear Co., 312 NLRB 853, 863 (1993) (where some companies
have no employees, factor of centralized control of labor rela-
tions becomes less important).
In accordance with Bolivar-Tees, I will not accord the third
factor the weight it usually receives. Although I find that this
factor does not weigh substantially in favor of single-employer
status, it does not preclude reaching that conclusion based on
other evidence.
The fourth factor—common ownership or financial con-
trol—does not add much weight on either side of the scale. In
Mercy Hospital of Buffalo, above, the Board stated that com-
mon ownership, “while significant, is not determinative in the
absence of centralized control over labor relations” and that
common ownership alone does not establish a single-employer
relationship.
Also in Mercy Hospital of Buffalo, the Board, citing Dow
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 528
Chemical Co., 326 NLRB 288 (1998), stated that a single-
employer relationship will be found only if one of the entities
exercises actual or active control over the day-to-day operations
or labor relations of the other. However, as discussed above,
the Board has stated that it will not give so much weight to
“centralized control of labor relations” where one of the entities
has no employees. Bolivar-Tees, Inc., above; Three Sisters
Sportswear Co., above.
Reducing the weight given to “centralized control of labor
relations” increases the importance of “interrelation of opera-
tions.” That factor strongly points towards single-employer
status. Based on the increased weight given to this factor, and
noting that the “common management” factor also favors such
a finding, I conclude that Shane and J&J Land constitute a sin-
gle employer.
The evidence now will be evaluated using the alternate one-
factor test, concerning the presence or absence of an arm’s-
length relationship. For the following reasons, this test strongly
militates in favor of finding single-employer status.
As discussed above, the evidence establishes that Hartley
and McNamara created J&J Land solely as a means of helping
Shane survive its financial difficulties and that it continued to
exist solely for this purpose. Thus, it did not invest in any other
properties except for Shane’s.
Although Shane had agreed to pay J&J Land a specified
amount of rent each month, it failed to do so, yet J&J Land took
no steps to hold Shane to the terms of the lease. The principals
of J&J Land weren’t interested in that company soaring “like
an eagle” but only in it serving to relieve Shane’s financial
distress.
The evidence clearly indicates the absence of an arm’s-
length relationship and, in this case, that absence certainly con-
stitutes the hallmark of a single-employer relationship. J&J
Land’s relationship with Shane was closer than symbiotic. It
existed for no purpose other than sustaining Shane through its
financial difficulties.
In sum, I conclude that the General Counsel has proven that
Shane Steel and J&J Land constitute a single employer.
Undisputed Allegations
Because Shane and J&J Land constitute a single employer,
admissions by one of these entities binds the other.
Specification paragraph 1(a) alleges that at all material times,
Respondent Shane has been a Michigan corporation with an
office and place of business located at 17495 Malyn Boulevard,
Fraser, Michigan, and has been engaged in the manufacture and
processing of commercial steel bars. In its answer, Shane ad-
mitted this allegation. J&J Land’s answer neither admitted nor
denied it. In view of Shane’s admission, I conclude that the
General Counsel has proven the facts alleged in Specification
Paragraph 1(a).
Specification Paragraph 1(b) alleges that at all material
times, J&J Land has been a Michigan limited liability company
with an office and place of business located at 17495 Malyn
Boulevard, Fraser, Michigan, and has been a real estate holding
company which owns the land at 17495 Malyn Boulevard,
Fraser, Michigan. Shane’s answer denies this allegation. J&J
Land’s answer states that it “admits only that it is a Michigan
limited liability company with a registered office address of
17495 Malyn Boulevard, Fraser, Michigan, and that it owns
that property. J&J denies it owned land, conducted business, or
was even in existence when the underlying events took place.”
Based on the admission in J&J Land’s answer, I find that it is
a Michigan limited liability company with a registered office
address of 17495 Malyn Boulevard, Fraser, Michigan, and that
it owns that property.
Specification paragraph 4 alleges that the gross backpay due
the discriminatees is the amount of earnings they would have
received but for the unilateral changes implemented by Re-
spondent Shane. In its answer, Shane admits this allegation.
J&J Land does not.
Because Shane and J&J Land constitute a single employer,
Shane’s admission is binding on J&J Land. Additionally, to the
extent that J&J Land disagrees with the backpay formula and
method of calculation described in the Specification, it must set
forth in its answer an alternative formula which it considers
more accurate or equitable. Thus, Section 102.56(b) of the
Board’s Rules and Regulations states, in part:
As to all matters within the knowledge of the respondent, in-
cluding but not limited to the various factors entering into the
computation of gross backpay, a general denial shall not suf-
fice. 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, the answer shall specifically state the
basis for such disagreement, setting forth in detail the respon-
dent’s position as to the applicable premises and furnishing
the appropriate supporting figures.
Section 102.56(c) provides that if a respondent’s answer fails
to comply with this requirement, “the Board may, either with or
without taking evidence in support of the allegations of the
specification and without further notice to the respondent, find
the specification to be true and enter such order as may be ap-
propriate.”
In its answer to paragraph 4 of the specification, J&J Land
stated that it “neither admits nor denies the allegations in para-
graph 4 as they pertain to another party. To the extent the alle-
gation was intended for J&J as well, J&J denies it owes the
discriminatees any amounts whatsoever. J&J did not exist on
June 1, 2004.” Although this answer does raise the single-
employer issue and, more generally, the question of whether
J&J Land bears any responsibility to make the discriminatees
whole, it does not dispute the definition of “gross backpay” set
forth in specification paragraph 4. J&J Land’s Answer also
does not offer an alternate definition of “gross backpay.” Thus,
it neither states a disagreement with the core allegation raised
by specification paragraph 4 nor sets forth a basis for such a
disagreement. In these circumstances, and in accordance with
Section 102.56, I deem J&J Land to have admitted the defini-
tion of “gross backpay” alleged in the specification. Further, I
conclude that the General Counsel has proven the allegations
set forth in specification paragraph 4.
Specification paragraph 5 alleges that “Respondents’ liability
for backpay for the discriminatees commenced on June 1, 2004,
the date that Respondent Shane unilaterally reduced their
wages. Respondents’ liability for backpay is continuing to
SHANE STEEL PROCESSING, INC. 529
accrue.” Shane’s answer admits this allegation but J&J Land’s
answer does not. J&J Land stated in this answer that it “denies
the factual allegations and legal conclusions in Paragraph 5
because they are false and erroneous as to J&J. J&J has no
liability. J&J neither admits nor denies the appropriateness of
the measure of damages alleged or the calculations . . . because
it lacks the information necessary to do so, and leaves the Re-
gional Director to his proofs.”
J&J Land’s answer suffices to raise the issue of its relation-
ship with Shane and to place into controversy the single-
employer status alleged in the Specification. The Government
clearly bore the burden of proving such status, a burden which
it carried. However, J&J Land’s answer fails to challenge the
two main allegations raised by Specification Paragraph 5, or at
least, fails to challenge these allegations in a manner compliant
with Rule 102.56(b).
Specification paragraph 5 alleges, in effect, that the backpay
period began June 1, 2004. J&J Land does not, in its answer,
propose an alternate starting date or otherwise explain why the
alleged June 1, 2004 date was incorrect. Similarly, J&J Land’s
answer does not expressly challenge the allegation that backpay
liability continued to accrue. Accordingly, I will deem J&J
Land to have admitted these allegations. Further, I conclude
that the General Counsel has proven all allegations raised in
specification paragraph 5.
Computation of Make-Whole Remedy
Discriminatees’ Backpay
Specification paragraph 6(a) alleges that an appropriate
measure of the gross backpay for each discriminatee is the
product of the number of hours each discriminatee worked
multiplied by the rate differential from their hourly rate imme-
diately prior to June 1, 2004, and their hourly rate after June 1,
2004, for each calendar quarter until December 31, 2006.
Shane’s answer admits this allegation but J&J Land’s answer’s
does not. Rather, it states that “J&J denies the factual allega-
tions and legal conclusions in paragraph 6(a) because they are
inapplicable to J&J and, therefore, false and erroneous as to
J&J. J&J neither admits nor denies the appropriateness of the
measure of damages alleged or the calculations and amounts
alleged, because it lacks the information necessary to do so, and
leaves the Regional Director to his proofs.”
Thus, rather than disputing the central allegation in Specifi-
cation paragraph 6(a)—the appropriate measure for determin-
ing gross backpay for each discriminate—and rather than offer-
ing an alternate method, J&J Land did not take a position on
this issue but instead left “the Regional Director to his proofs.”
That response, neither admitting nor denying the central allega-
tion, fails to satisfy Section 102.56(b). Therefore, I deem J&J
Land to have admitted this allegation, as Shane did expressly.
Therefore, I conclude that the agovernment has proven all alle-
gations raised by specification paragraph 6(a).
Specification paragraph 6(b) alleges that “Based on Respon-
dent Shane’s records, the discriminatees worked regular and
overtime hours and were paid for vacation and holiday hours
each calendar quarter, as set forth in Attachment 1. The appro-
priate regular rate and overtime rate differentials were applied
and appear opposite the discriminatees’ names in Attachment 1
and in Schedule A.” Shane’s answer admits this allegation but
J&J Land’s answer does not.
J&J Land answered the allegations in specification paragraph
6(b) much the same as its response to specification paragraph
6(a), neither admitting nor denying “the appropriateness of the
measure of damages alleged or the calculations and amounts
alleged, because it lacks the information necessary to do so, and
leaves the Regional Director to his proofs.”
For reasons discussed above, J&J Land’s answer does not
satisfy its obligations under Board Rule 102.56(b). Accord-
ingly, I deem J&J Land to have admitted the allegations raised
by specification paragraph 6(b) and conclude that the General
Counsel has proven these allegations.
Paragraph 6(c) in the amended specification alleges that
“The amount of wages due each discriminatee from June 1,
2004 until February 25, 2007 is summarized in schedule A
below.” Shane’s amended answer admits this allegation.
Again, J&J Land’s answer does not satisfy Section 102.56 and,
therefore, I will deem J&J Land to have admitted these allega-
tions. Further, I conclude that the Government has proven the
allegations raised by specification paragraph 6(c) and in sched-
ule A.
Specifically, I find that for the period alleged in the amended
specification, Respondents must make the discriminatees whole
for lost wages by paying the following amounts, plus interest:
Discriminatee Amount Discrimnatee Amount
Jackie Davis $ 77.68 Patrick Randazzo $7,213.50
Gary Engle 2,493.58 Richard Regelin 5,729.10
Robert Hayes 8,224.20 Robert Rochner 8,758.85
William Koch 8,592.45 William Silew 6,399.90
Kenneth LaFleur 8,028.80 Joseph Sliwiniski 120.96
Nick Maltese 6,947.91 Julio Vargas 8,217.11
William Martin 7,281.36 Mirko Vitanoski 7,136.15
Mark Moore 523.90 Frederick Wendt 8,226.00
Terry Poore $2,153.45 Howard Wucetich 7,342.00
TOTAL $103,466.90
Reimbursement for Out–of–Pocket Expenses
Specification paragraph 7(a) alleges that “An appropriate
measure of medical, dental, optical, and prescription drug ex-
penses incurred by the discriminatees can be found by applying
relevant provisions in the collective bargaining agreement and
insurance coverages, co-pays, deductibles, and co-insurance
payments in effect immediately prior to June 1, 2004.” Shane’s
answer admits this allegation but J&J Land’s Answer does not.
Taking into account Shane’s admission and J&J Land’s failure
to deny the allegations in accordance with Section 102.56, I
find that the General Counsel has proven the allegation raised
by specification paragraph 7(a).
The Government alleged in specification paragraph 7(a) the
method for calculating how much money each discriminatee
should receive as reimbursement for that individual’s out-of-
pocket medical, dental, optical, and prescription drug expenses.
Using this method, the General Counsel calculated these
amounts and set them out at the following places in the Specifi-
cation: Paragraph 7(b), attachments 2 through 19, and schedule
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530
B.
The allegations in specification paragraph 7(b) differ in a
fundamental way from those in paragraph 7(a), and this differ-
ence should be discussed. In describing how the reimburse-
ment amounts should be calculated, paragraph 7(a) referred to
provisions in the collective-bargaining agreement and in the
insurance documents which established coverage. Because
Shane was a party to these contracts, Shane obviously had
knowledge of their provisions. So did J&J Land because one of
its two owners, Hartley, also was president of Shane.
Under Rule 102.56(b), the extent of a respondent’s knowl-
edge affects how specifically he must answer a particular alle-
gation. The Rule “requires a respondent to admit, deny, or
explain each and every allegation of the specification, unless
the respondent is without knowledge. . .” (emphasis added.)
The Rule further states that “As to all matters within the knowl-
edge of the respondent, including but not limited to the various
factors entering into the computation of gross backpay, a gen-
eral denial shall not suffice.”
In this instance, because of Respondents’ presumed knowl-
edge of their agreements with the Union and health insurance
carrier, they bore a rather heavy pleading burden in answering
the allegations in specification paragraph 7(a). If they dis-
agreed with the General Counsel’s decision concerning which
contractual provisions were relevant, if they disagreed with
how the General Counsel interpreted these terms, or if they
disagreed with how the General Counsel used them in calcula-
tions, then they had to state specifically, in their answers, “the
basis for such disagreement, setting forth in detail the respon-
dent’s position as to the applicable premises and furnishing the
appropriate supporting figures.” Section 102.56(b).
However, answering specification paragraph 7(b) does not
require the same specificity. Unlike the allegations raised in
specification paragraph 7(a), those in paragraph 7(b) do not rest
on facts which the Respondents necessarily would know.
These latter allegations reflect the medical, dental, optical, and
prescription drug expenses which employees or their depend-
ents incurred at various times. Respondents might not be aware
of when an employee, or a family member, actually went to the
doctor, dentist, optician, or pharmacist. Similarly, Respondents
may have even less knowledge of how much the employee or
dependent had to pay out of pocket on a particular occasion for
a particular health-related service.
Thus, should the specification allege that, on a particular
date, employee X spent $5 out-of-pocket for a prescription, the
Respondents need not explain in their answers why they doubt
it. Likewise, if Respondents wish to deny the obligation to
reimburse employee Y $500 for back surgery, they do not have
to plead that Employee Y actually was running in a marathon
on the day in question. A simple denial places the matter in
issue and places it before the judge. The General Counsel then
bears the burden of proof.
Answering specification paragraph 7(b), J&J Land stated, in
part, that it neither admitted nor denied the allegations because
it lacked the necessary information. That answer satisfied the
requirements of Section 102.56(b) of the Board’s Rules.
Shane also did not admit these allegations either in its origi-
nal answer or in its amended answer. However, during the
hearing, Shane entered into a stipulation which admitted all the
allegations raised in specification paragraph 7(b) except for
some of those pertaining to two of the discriminatees, Jackie
Davis and Joseph Sliwinski.
J&J Land did not enter into this stipulation. However, my
conclusion that Shane and J&J Land constitute a single em-
ployer results in the further conclusion that Shane’s admissions,
in the stipulation, are binding on J&J Land. Additionally,
based on Shane’s stipulation, I conclude that the General Coun-
sel has proven all allegations raised in specification paragraph
7(b), Schedule B, and Attachments 2 through 19, except for
certain of the allegations pertaining to employees Jackie Davis
and Joseph Sliwinski.
Based on the stipulation, I conclude that the General Counsel
has proven that the discriminatees listed in the table below are
entitled to receive reimbursement in the stated amounts for out-
of-pocket medical, dental, optical, and prescription drug ex-
penses:
SHANE STEEL PROCESSING, INC. 531
Discriminatee Medical
Expenses
Dental
Expenses
Optical
Expenses
Prescription
Drug Expenses
Total
Reimbursement
Gary Engle $ 95.00 $ 0.00 $ 0.00 $ 136.21 $ 231.21
Robert Hayes 393.31 1,000.00 15.00 305.15 1,713.46
William Koch 0.00 106.00 0.00 0.29 106.29
Kenneth LaFleur 448.44 0.00 0.00 95.05 543.49
Nick Maltese 4,308.58 0.00 115.00 967.84 5,391.42
William Martin 2,023.82 0.00 65.00 948.15 3,036.97
Mark Moore 150.00 0.00 0.00 128.52 278.52
Terry Poore 0.00 205.50 0.00 0.00 205.50
Patrick Randazzo 1,866.72 0.00 0.00 350.77 2,217.49
Richard Regelin 3,603.18 0.00 0.00 972.62 4,575.80
Robert Rochner 70.97 0.00 0.00 405.29 476.26
William Silew 155.90 15.00 0.00 75.55 246.45
Julio Vargas 1,341.84 0.00 0.00 1,218.40 2,560.24
Mirko Vitanoski 130.00 75.00 0.00 70.16 275.16
Frederick Wendt 1,226.40 122.50 50.00 1,015.79 2,414.69
Howard Wucetich 5.00 0.00 0.00 3.77 8.77
TOTAL: $15,819.16 $ 1,524.00 $ 245.00 $5,720.94 $24,281.72
The table above does not show out-of-pocket expenses for
discriminatees Jackie Davis and Joseph Sliwinski. The reim-
bursement due them will be discussed next.
Although Shane, in its stipulation, did not admit that dis-
criminatees Davis and Sliwinski were entitled to reimbursement
for all the out-of-pocket expenses itemized in the Specification,
Shane did admit their entitlement to reimbursement for some of
those expenses. Apart from the stipulation, the evidence does
not establish that Davis and Sliwinski incurred any out-of-
pocket medical, dental, optical, or prescription drug expenses.
Therefore, the dollar figures in the stipulation determine the
total reimbursement for such expenses due these two discrimi-
natees. Davis’ expenses will be considered first.
In its stipulation, Shane admitted the accuracy of the Specifi-
cation’s calculations regarding medical, dental, optical, and
prescription drug reimbursement owed to Jackie Davis from the
beginning of the backpay period through April 20, 2005. Based
on the stipulation I conclude that Respondents must reimburse
Davis for the following out-of-pocket expenditures:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532
DATE REIMBURSEMENT
Out-Of-Pocket Out-of-Pocket Out-Of-Pocket Prescription Drug Expenses
Medical Expenses Optical Expenses
Year Amount Year Amount Year
2004
Amount Year 2005 Amount
07/21/04 $ 5.00 07/14/04 $ 15.00 05/10/04 $ 5.00 01/06/05 $ 5.00
08/06/04 5.00 02/21/05 5.00 05/10/04 5.00 01/06/05 5.00
10/18/04 5.00 05/21/04 5.00 01/06/05 35.00
01/17/05 5.00 05/21/04 5.00 01/28/05 15.00
04/02/05 5.00 06/01/04 5.00 02/23/05 5.00
06/01/04 5.00 02/23/05 15.00
07/06/04 35.00 02/23/05 15.00
07/06/04 15.00 02/23/05 35.00
07/06/04 35.00 03/08/05 5.00
07/06/04 35.00 03/28/05 15.00
08/09/04 35.00 03/28/05 15.00
08/09/04 15.00 03/28/05 5.00
08/09/04 15.00 03/28/05 35.00
08/09/04 15.00 04/18/05 15.00
09/09/04 15.00
09/09/04 15.00
10/14/04 15.00
10/14/04 15.00
10/15/04 35.00
11/01/04 35.00
11/01/04 15.00
11/15/04 15.00
11/15/04 15.00
11/15/04 15.00
12/02/04 35.00
12/02/04 5.00
12/17/04 15.00
12/24/04 15.00
TOTAL $ 25.00 $ 20.00 $ 710.00
TOTAL EXPENSE REIMBURSEMENT: $755.00
SHANE STEEL PROCESSING, INC. 533
Shane’s stipulation also admits the accuracy of certain fig-
ures, pertaining to Sliwinski’s out-of-pocket expenses, which
are set forth in specification attachment 15. Thus, Shane admits
that this attachment correctly reflects the medical, dental, opti-
cal, and prescription drug expenses Sliwinski incurred from the
start of the backpay period through the end of calendar year
2004, and also from the third quarter of 2006 through the end of
the period covered in the Amended Compliance Specification.
Accordingly, I find that the Government has proven that Sli-
winski is entitled to medical, dental, optical, and prescription
drug reimbursement for the expenses listed in Specification
attachment 15 which Sliwinski incurred on the following dates:
DATE REIMBURSEMENT
Out–Of–Pocket Medical Expenses
Year 2004 Amount Year 2006 Amount Year 2007 Amount
06/17/04 $ 5.00 07/06/06 $ 39.83 01/25/07 $ 15.00
06/13/04 5.00 07/06/06 28.90
07/22/04 5.00 07/06/06 15.00
08/12/04 5.00 07/11/06 7.14
08/12/04 5.00 07/11/06 18.46
08/24/04 5.00 07/11/06 29.41
09/07/04 5.00 07/11/06 2.77
09/16/04 5.00 07/11/06 6.95
09/24/04 5.00 07/11/06 696.50
10/4/04 5.00 07/11/06 171.50
20/5/04 5.00 07/11/06 161.98
12/3/04 5.00 07/11/06 76.80
12/14/04 5.00 07/11/06 654.52
12/31/04 5.00 07/13/06 15.00
07/19/06 4.16
08/04/06 96.78
08/08/06 188.64
08/10/06 15.00
09/25/06 1.34
09/25/06 1.44
09/25/06 1.05
09/25/06 2.17
09/25/06 1.46
09/25/06 52.94
09/25/06 18.46
09/25/06 17.89
09/25/06 6.56
09/25/06 4.12
09/30/06 86.09
10/04/06 35.48
10/31/06 15.00
11/09/06 15.00
11/22/06 15.00
TOTAL $2,588.34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
DATE REIMBURSEMENT
Out–Of–Pocket Prescription Drug Expenses
Year 2004 Amount Year 2006 Amount Year 2007 Amount
06/17/04 $ 5.00 07/05/06 $ 25.00 01/11/07 $ 25.00
06/17/04 5.00 07/11/06 1.85 01/11/07 45.00
07/02/04 15.00 07/12/06 45.00 01/31/07 25.00
07/02/04 15.00 07/17/06 25.00 02/02/07 5.00
07/20/04 5.00 07/17/06 45.00 02/02/07 25.00
08/04/04 35.00 08/01/06 25.00 02/13/07 45.00
08/04/04 5.00 08/01/06 5.00 02/13/07 25.00
08/04/04 5.00 08/03/06 25.00 03/09/07 25.00
08/04/04 35.00 08/03/06 1.85 03/09/07 45.00
08/04/04 15.00 08/03/06 45.00 03/16/07 5.00
08/04/04 36.75 08/30/06 25.00 03/16/07 3.74
08/04/04 15.00 08/30/06 45.00 04/12/07 25.00
08/04/04 5.00 09/03/06 25.00 04/13/07 25.00
08/05/04 3.17 09/11/06 25.00 04/15/07 5.00
08/27/04 5.00 09/11/06 45.00 04/15/07 25.00
09/02/04 5.00 11/05/06 25.00
09/02/04 5.00 11/05/06 45.00
09/02/04 35.00 11/06/06 2.15
09/02/04 15.00 11/07/06 1.85
09/02/04 36.75 11/07/06 25.00
09/02/04 15.00 11/09/06 45.00
09/02/04 5.00 11/09/06 25.00
09/04/04 5.00 11/27/06 2.15
09/04/04 5.00 12/06/06 45.00
09/10/04 23.75 12/14/06 25.00
09/13/04 15.00
09/20/04 35.00
10/03/04 5.00
10/03/04 5.00
10/03/04 15.00
10/03/04 36.75
11/02/04 5.00
11/02/04 5.00
11/02/04 5.00
11/02/04 15.00
11/02/04 36.75
11/22/04 5.00
11/22/04 35.00
11/22/04 2.18
12/01/04 5.00
12/01/04 1.84
12/07/04 15.00
SHANE STEEL PROCESSING, INC. 535
DATE REIMBURSEMENT (Continued)
Out–Of–Pocket Prescription Drug Expenses
Year 2004 Amount Year 2006 Amount Year 2007 Amount
12/07/04 $15.00
12/07/04 5.00
12/07/04 5.00
12/07/04 36.75
12/08/04 0.07
12/08/04 35.00
12/13/04 5.00
12/13/04 15.00
12/13/04 5.00
12/15/04 5.00
12/16/04 15.00
12/18/04 5.00
TOTAL $1,748.35
TOTAL EXPENSE REIMBURSEMENT: $4,336.69
The following table summarizes Respondents’ obligations to reimburse Davis and Sliwinski for out-of-pocket medical, dental, op-
tical, and prescription drug expenses which they incurred:
Discriminatee Medical Dental Optical Prescription Total
Expenses Expenses Expenses Drug Expenses Reimbursement
Jackie Davis $ 25.00 $ 0.00 $ 20.00 $ 710.00 $ 755.00
Joseph Sliwinski $2,588.34 $ 0.00 $ 0.00 $1,748.35 $4,336.69
401(k) Plan
Specification paragraph 8(a) alleges that “An appropriate
measure of the reimbursement for the unilateral elimination of
Respondent Shane’s 401(k) matching contribution and subse-
quent elimination of the 401(k) plan can be found by examining
the contribution percentage history of the discriminatees in the
months prior to June 1, 2004 and, by projecting the same con-
tribution percentage continuing through December 31, 2006,
calculating the earnings or losses that would have resulted from
the discriminatee’s and matching contributions, less the dis-
criminatee’s projected contribution.” The paragraph further
alleges that the specification’s schedule C reflects the monthly
contribution history for the discriminatees from November
2003, through May 2004, and the chosen projected contribu-
tion.
Shane’s Answer admits these allegations. J&J Land has not
admitted the allegations. In view of my conclusion that Shane
and J&J Land constitute a single employer, Shane’s admission
may be attributed to J&J Land.
Moreover, specification paragraph 8(a) does not depend on
facts outside Respondents’ knowledge, but instead alleges the
appropriateness of the method the General Counsel used to
compute liability for failure to make 401(k) matching contribu-
tions and for eliminating the 401(k) plan. Section 102.56(b) of
the Board’s Rules requires that a respondent disputing such a
procedure “specifically state the basis for such disagreement,
setting forth in detail the respondent’s position as to the appli-
cable premises. . . [.]” J&J Land’s answer, however, fails to
state a specific basis for disagreement and also fails to set forth
in detail its position on the applicable premises.
Thus, J&J Land’s answer states that it “neither admits nor
denies the appropriateness of the measure of damages alleged
or the calculations and amounts alleged, because it lacks the
information necessary to do so, and leaves the Regional Direc-
tor to his proofs.” Because I have concluded that Shane and
J&J Land constitute a single employer, I further conclude that
all the 401(k) information also is available to J&J Land. Such a
conclusion rests not only on legal principles but also on the
practical recognition that Shane’s president owned a one-half
interest in J&J Land and was deeply involved in organizing and
running it. Therefore, I reject J&J Land’s claim that it lacked
the information necessary to dispute the General Counsel’s
calculations.
Additionally, to the extent that specification paragraph 8(a)
alleges the method of calculation, rather than the dollar
amounts resulting from such calculations, J&J Land didn’t need
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
detailed knowledge about the contributions made (or not made)
to each discriminatee’s 401(k) account. However, J&J Land’s
answer did not call into question any specific premises or pro-
cedures.
In sum, I conclude that J&J Land’s answer to specification
paragraph 8(a) fails to satisfy the requirements of Section
102.56 of the Board’s Rules. Therefore, I will deem J&J Land
to have admitted the allegations raised in that subparagraph.
Specification paragraph 8(b) alleges that the amount of re-
imbursement was detailed in specification attachments 20
through 26 and summarized in attachment Schedule D. In its
amended answer, Shane admits these allegations.
J&J Land, however, did not admit these allegations. As dis-
cussed above, J&J Land constitutes a single employer with
Shane, and thus is privy to all of Shane’s information concern-
ing contributions to the 401(k) plan. Moreover, J&J Land pos-
sesses the information because one of its two owners, Hartley,
also is president of Shane. Thus having knowledge, J&J Land
had to do more than plead a general denial. However, J&J
Land’s answer does not meet the specificity requirements of
Section 102.56 of the Board’s Rules. Therefore, I will deem
J&J Land to have admitted the allegations in specification
paragraph 8(b). Accordingly, I conclude that the General
Counsel has proven the allegations raised by specification
Paragraph 8(b). Further, I conclude that the Respondents must
make whole the discriminatees listed below by reimbursing
each as indicated.
Name Amount Name Amount
William Koch $ 2,938.22 William Silew $ 2,127.82
Nick Maltese 852.02 Julio Vargas 1,354.96
Robert Rochner 3,126.87 Frederick Wendt 2,034.05
TOTAL $12,433.99
Perfect Attendance Bonus
When the Board’s Regional Director amended the Specifica-
tion on June 7, 2007, he added a new paragraph 9. It concerned
Shane’s unlawful discontinuation of the “perfect attendance
bonus” program. (The original paragraph 9, with modifica-
tions, became paragraph 10 in the Amended Specification.)
The newly-added paragraph 9 alleged that the Respondents
must make whole certain of the discriminatees by paying them
the perfect attendance bonuses they would have received if
Shane had not unlawfully discontinued the bonuses. In a
newly-added schedule E, the amended specification identified
the affected discriminatees and the amounts necessary to make
them whole for their losses. Neither Respondent has denied
these allegations. I find that the Respondents must make the
discriminatees listed below whole, in the indicated amounts, for
the losses they incurred because of the unlawful discontinuation
of the perfect attendance bonus:
Name Amount Name Amount
Robert Hayes $ 125.00 Mirko Vitanoski $ 75.00
Kenneth LaFleur 125.00 Frederick Wendt 125.00
Robert Rochner 125.00 Howard Wucetich 75.00
William Silew 125.00
TOTAL $ 775.00
Specification paragraphs 10 and 11
The original specification alleged a backpay period from
June 1, 2004, until December 31, 2006. The Amended Specifi-
cation extended the backpay period to February 25, 2007.
As mentioned above, paragraph 9 of the original specifica-
tion, modified to reflect the longer backpay period, became
paragraph 10 in the amended specification. The new paragraph
10, like the original paragraph 9, provided a total backpay fig-
ure for each discriminatee. Respondents could satisfy their
obligations to make the discriminatees whole by paying the
specified amounts plus interest accrued on those amounts to the
date of payment, calculated according to Board policy.
The amounts alleged in the new paragraph 10 differ some-
what from the amounts found by me, as discussed above in this
decision, because I have concluded that two of the discrimina-
tees, Davis and Sliwinski, should receive lower amounts than
the Specification alleged as reimbursement for out-of-pocket
medical, dental, optical and prescription drug expenses. Addi-
tionally, the Specification may include some arithmetical er-
rors. These matters will be addressed later in this decision.
Before discussing the totals, however, one other matter must
be considered because it could affect the amount of backpay.
This matter concerns a motion which the General Counsel filed
after the hearing closed.
General Counsel’s Posthearing Motion
After the close of the hearing, the General Counsel filed a
“Motion for the Administrative Law Judge’s Order to Require
Respondents to Pay 401(k) Moneys Owed Through March 22,
2007.” Thereafter, the Union submitted a letter, dated August
27, 2007, stating that it concurred in the General Counsel’s
motion. Respondent J&J Land has filed an opposition to the
motion. The General Counsel’s Motion stated, in part, as fol-
lows:
1. The Amended Compliance Specification, dated June
7, 2007, Schedule D, contains 401(k) figures calculated
through December 31, 2006.
2. These calculations were generated based on records
obtained during the compliance investigation from two
sources. One set of records was provided by Respondent
Shane. These were payroll records, and were complete
through February 25, 2007, only. The other set of records
was provided by Paychex, Inc., the 401(k) administrator,
and these records were complete through December 31,
2006, only.
3. Respondent Shane laid off its bargaining unit em-
ployees on March 22, 2007.1
4. As of the date of the hearing, June 11, 2007, Re-
spondent Shane had not provided the Region the appropri-
ate records necessary to calculate Respondents’ additional
liabilities through March 22, 2007, although said records
were the subject of a duly issued subpoena duces tecum
sent March 9, 2007. Similarly, Paychex, Inc., the fund
administrator, had not provided the records necessary to
calculate the 401(k) liability through March 22, 2007 al-
SHANE STEEL PROCESSING, INC. 537
though said records were the subject of a subpoena duces
tecum sent on March 12, 2007.
5. Following the close of hearing on June 13, 2007, the
subpoenaed records were provided and a final 401(k) cal-
culation for the period through March 22, 2007 has been
completed. This calculation alters the 401(k) amounts
listed in the Amended Compliance Specification, and is at-
tached hereto as Exhibit 1, Revised Schedule D, Revised
Schedule F, Revised Attachment 20 through 26. (Note,
the schedules and attachments are intended to replace the
corresponding schedules and attachments to the Amended
Compliance Specification. The shaded rows are those that
have changed as a result of this calculation.)
6. To fully remedy the violations found, the Adminis-
trative Law Judge’s Order in the instant proceedings
should require Respondents to pay the employees listed in
the Amended Compliance Specification the 401(k) contri-
butions owed, and return on investment due through
March 22, 2007, and as set forth herein in Exhibit 1. See
Hubert Distributors, 344 NLRB 339 (2005). Additionally,
the Order should require Respondent [to] pay the employ-
ees interest on the total liability accrued to the date of
payments, as calculated by the Region, pursuant to New
Horizons for the Retarded, 283 NLRB 1173 (1978).
___________________
1 The layoff of bargaining unit employees and concur-
rent cessation of business operations is the subject of the
Complaint and Compliance Specification issued in Case
7–CA–50288, on July 31, 2007. Additional backpay cal-
culations through March 22, 2007 have been included
therein, as well as other, appropriate make whole reme-
dies, except for the 401(k) moneys owed employees
through March 22, 2007, which are addressed herein.
In considering the General Counsel’s motion, I begin by rec-
ognizing a fundamental goal in this proceeding, namely, arriv-
ing at accurate backpay figures to assure that the discriminatees
receive a full make-whole remedy for the losses they suffered.
Further, I note that in accordance with well–established Board
policy, any uncertainties should be resolved in favor of the
discriminatees, who are the innocent victims of unlawful con-
duct.
Moreover, these discriminatees rely upon the General Coun-
sel to represent their interests in this proceeding. Just as the
discriminatees should not receive less than a full remedy be-
cause of some uncertainty in the evidence, they also should not
suffer because of the procedural choices made by the General
Counsel. So far as consistent with due process, the goal of
accuracy should prevail over punctilio.
However, the General Counsel’s motion does raise some
procedural concerns which affect Respondents’ due process
rights. First, the General Counsel has not sought to amend the
Compliance Specification. That would have allowed Respon-
dents the opportunity to admit or deny the allegations in the
manner provided by the Board’s Rules.
This problem might be overcome by treating the General
Counsel’s motion as a motion to amend the Specification.
However, the motion alone does not constitute such an amend-
ment. Only if the judge granted such a motion, thereby amend-
ing the Specification, would the Respondents be obliged to
answer the new allegations. Most certainly, a lack of response
to the motion cannot be equated with failing to answer an alle-
gation in the Specification.
Additionally, the motion relies on documents which the
General Counsel received after the hearing closed and which
are not part of the record. As discussed above, after the hearing
closed, the General Counsel moved for the admission of other
documents (unrelated to the 401(k) issues) and, based upon the
stipulation of the parties, I granted that motion and received the
documents into evidence. However, the General Counsel has
not offered into evidence or moved for the receipt of the 401(k)
documents on which the motion is based. The parties also have
not stipulated either to the admission of these documents or to
their contents.
If the General Counsel had offered these documents into evi-
dence, Respondents would have had the opportunity to object.
Such an objection might well have challenged whether the
documents constituted “newly-discovered evidence” which
properly might be received into the record after the hearing
closed. Although this issue isn’t free from doubt, I am con-
cerned that the documents might not, in fact, meet the Board’s
standard for “newly-discovered evidence.” To satisfy that test,
the evidence must have been in existence at the time of the
hearing and the movant must have been “excusably ignorant”
of it. Moreover, the facts must establish that the movant acted
with reasonable diligence to uncover and introduce the evi-
dence. See Fitel/Lucent Technologies, Inc., 326 NLRB 46 fn. 1
(1998).
The records in question certainly appear to have been in ex-
istence at the time of the hearing. However, it is not clear that
the General Counsel acted with the requisite “reasonable dili-
gence” in obtaining the documents. In Point Park University,
344 NLRB 275 (2005), the Board noted that a party seeking to
introduce “newly-discovered evidence” had failed to seek en-
forcement of the subpoena when the subpoenaed party failed to
produce the records at the hearing. The Board concluded that
the party had not acted with “reasonable diligence.” Here,
there is no indication that the General Counsel sought enforce-
ment of the subpoenas seeking the documents.
Point Park University involved a rather different factual
situation so I hesitate to apply the precedent here. In any event,
whether or not the General Counsel acted with “reasonable
diligence” in the present case, the fact remains that the pertinent
documents are not part of the record and the General Counsel
hasn’t sought to make them part of the record.
At the hearing, the Board attorney who drafted the Specifica-
tion testified in some detail about his computation of the 401(k)
amounts. Someone acting on behalf of the General Counsel
must have engaged in similar calculations to prepare the figures
set forth in attachments to the General Counsel’s motion. Cer-
tainly, Respondents have the right to hear testimony concerning
these calculations, and to cross-examine the witness. In view
of J&J Land’s opposition to the motion, I cannot assume that
either Respondent would waive the right to such cross-
examination.
Indeed, it cannot simply be assumed that the Respondents
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
would assent to the introduction of the records without objec-
tion. Thus, although the Respondents stipulated to the posthear-
ing introduction of other records Jt. Exhs. 39 through 42), they
have not stipulated to the records which form the basis for the
General Counsel’s motion.
Additionally, if the General Counsel had offered the records
into evidence during the hearing, Respondents would have been
entitled to conduct a voir dire examination before deciding
whether or not to object. The right to engage in such an exami-
nation takes on added significance because the Respondents did
not create all of the records at issue here. A company which is
not a party, Paychex, Inc., provided some of them. Respon-
dents have the right to challenge not only how the Board attor-
ney used the records to compute backpay but also the accuracy
and reliability of the documents themselves.
Accordingly, granting the General Counsel’s motion would
require more than a relaxation of some minor formalities, it
would seriously implicate Respondents’ due process rights.
Therefore, I deny the General Counsel’s motion.
This denial does not prevent the General Counsel from seek-
ing to fix Respondents’ additional 401(k) liability in a separate
proceeding. Specification paragraph 5 alleges that Respon-
dents’ backpay liability is continuing. Moreover, the General
Counsel’s motion indicates that the Government is seeking to
compute some of Respondent’s backpay liability for the period
after February 25, 2007 in Case 7–CA–50288. (The calcula-
tions in Case 7–CA–50288 do not, however, include the 401(k)
losses.) Nothing would seem to preclude the General Counsel
from separately litigating the discriminatees’ 401(k) losses for
the period after December 31, 2006.
Technical Matters
For clarity, this section will address certain technical matters
in the amended specification. These matters concern (1) the
backpay periods and (2) arithmetic.
Backpay Periods
The compliance specification defines four categories of
losses resulting from the unfair labor practices. Each discrimi-
natee listed in the specification incurred losses in at least one of
these categories, and three of the discriminatees (Rochner,
Silew and Wendt) sustained losses in all four categories.
These categories are (1) lost earnings (due to Shane’s unlaw-
ful unilateral reduction in wages); (2) lost reimbursement for
out-of-pocket medical, dental, optical, and prescription drug
expenses (due to Shane’s unlawful change in reimbursement
for those expenses); (3) lost contributions to the 401(k) plan
(because Shane unlawfully stopped making matching contribu-
tions and, later, unlawfully terminated the plan); and (4) lost
perfect attendance bonuses (because Shane unlawfully elimi-
nated the perfect attendance bonus).
The amended specification does not compute all these losses
for the same periods of time. (Because the backpay period
continues, I will use the term “computation period” to signify
that part of the backpay period covered by the Amended Speci-
fication.)
For losses in the third category, relating to 401(k) plan con-
tributions, the amended specification calculates the amounts of
losses the discriminatees incurred during a “computation pe-
riod” which began June 1, 2004, and ended December 31,
2006. (For reasons discussed above, I have denied the General
Counsel’s motion which effectively would have extended that
period to March 22, 2007.)
For losses in the other three categories, the amended specifi-
cation calculates the losses sustained by the discriminatees
during a “computation period” which began June 1, 2004, and
ended February 25, 2007. However, one caption in the
amended specification could cause confusion by suggesting a
different ending date.
Subparagraphs 6(a), (b), and (c) of the Amended Specifica-
tion concern the wage losses the discriminatees incurred. Im-
mediately below subparagraph 6(c) appears a table, captioned
“Schedule A,” which summarizes those losses.
Subparagraph 6(c) alleges that Schedule A sets forth the
wage amounts for the period from June 1, 2004, until February
25, 2007. However, the caption above the third column of
Schedule A itself states “Backpay June 1, 2004 through March
22, 2007” (emphasis added). For the following reasons, I con-
clude that the March 22, 2007 date is a typographical error.
Schedule A summarizes the calculations set forth in the
amended specification’s Attachment 1. Those calculations do
not extend beyond February 25, 2007. Moreover, Attachment 1
includes a footnote stating “Although the employees worked
through about March 22, 2007, this period ends on February 25,
2007—the last day for which they received a paycheck.”
Because the underlying calculations extend only through
February 25, 2007, a summary of those calculations obviously
would be limited to the same period.
Additionally, as quoted above, the General Counsel’s “Mo-
tion for the Administrative Law Judge’s Order to Require Re-
spondents to Pay 401(k) Moneys Owed through March 22,
2007” states, in a footnote that “The layoff of bargaining unit
employees and concurrent cessation of business operations is
the subject of the complaint and Compliance Specification
issued in Case 7–CA–50288, on July 31, 2007. Additional
backpay calculations through March 22, 2007, have been in-
cluded therein. . . .” (Emphasis added.) Presumably, the Gen-
eral Counsel would not have sought a remedy for losses after
February 25, 2007, in Case 7–CA–50288 if the present Specifi-
cation already alleged such losses.
For these reasons, I conclude that, notwithstanding the cap-
tion, Schedule A summarizes the wage losses incurred by the
discriminatees during the time period June 1, 2004, through
February 25, 2007.
Arithmetic
As discussed above, the unfair labor practices caused the
discriminatees four different kinds of losses. The amended
specification includes a separate schedule for each type of loss.
Schedule A, for example, alleges the total wage loss incurred
by each discriminatee and Schedule B alleges how much each
discriminatee must be reimbursed for out-of-pocket medical,
dental, optical, and prescription drug expenses. Schedule D
alleges the 401(k) plan loss sustained by each discriminatee and
Schedule E alleges the loss each discriminatee suffered because
of the unlawful discontinuance of the perfect attendance bonus.
SHANE STEEL PROCESSING, INC. 539
By adding the losses alleged for each discriminatee in these
four schedules, the amended specification computes the total
loss sustained by that discriminatee and lists that figure beside
the discriminatee’s name in a concluding table, Schedule F.
For each discriminatee, the figure shown in Schedule F should
be the sum of the figures shown for that discriminatee in
Schedules A, B, D, and E. However, not all the sums shown in
Schedule F agree with my own addition of the numbers.
The amended specification alleges the following figures for
Discriminatee William Silew:
William Silew
Schedule A $6,399.90
Schedule B 246.45
Schedule D 2,127.82
Schedule E 125.00
Schedule F (Total of above) $8,999.17
My own addition results in a sum $100 less: $8,899.17.
The amended specification alleges the following figures for
discriminatee Frederick Wendt:
Frederick Wendt
Schedule A $ 8,226.00
Schedule B 2,414.69
Schedule D 2,034.05
Schedule E 125.00
Schedule F (Total of above) $13,959.74
However, my own addition results in the sum $12,799.74.
For each of the other discriminatees, the figure listed in
Schedule F accurately totals the amounts listed in Schedules A,
B, D, and E. Silew and Wendt are the only exceptions.
Because the General Counsel presumably used spreadsheet
software or other computer programs designed for such tasks, I
hesistate to substitute my own pencil and paper calculations.
However, in this instance, repeated checking convinces me to
go with the graphite.
Finally, it may be noted that in two instances, Schedule F
does not reflect the backpay figure actually established by the
evidence. As discussed above, the record did not establish that
discriminatees Jackie Davis and Joseph Sliwinski incurred the
total unreimbursed out-of-pocket expenses alleged for them in
Schedule B. Accordingly, their total backpay amounts are less
than alleged in Schedule F.
Summary
Respondents will satisfy their obligation to make the dis-
criminatees whole for losses incurred during the backpay peri-
ods alleged in the Amended Specification, by payment of the
amounts set forth below, together with interest calculated in
accordance with New Horizons for the Retarded, 283 NLRB
1173 (1968), minus any tax withholdings required by State or
federal law.
Discriminatee Total (Not
including
interest)
Discriminatee Total (Not in-
cluding interest)
Jackie Davis $ 832.68 Patrick
Randazzo
$ 9,430.99
Gary Engle 2,724.79 Richard
Regelin
10,304.90
Robert Hayes 10,062.66 Robert
Rochner
12,486.98
William Koch 11,636.96 William Silew 8,899.17
Kenneth LaF-
leur
8,697.29 Joseph
Sliwinski
4,457.65
Nick Maltese 13,191.35 Julio Vargas 12,132.31
William
Martin
10,318.33 Mirko
Vitanoski
7,486.31
Mark Moore 802.42 Frederick
Wendt
12,799.74
Terry Poore 2,358.95 Howard
Wucetich
7,425.77
TOTAL $146,049.25