The Carter-Jones Lumber Co.

National Labor Relations Board - Board Decisions

Sep 23, 1972

198 N.L.R.B. 1036 (N.L.R.B. 1972)

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Carter-Jones Lumber Company and Office & Pro-
fessional Employees , International Union, Local
Union No. 339, AFL-CIO. Case 8-CA-4883
August 23, 1972
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 1, 1972, Trial Examiner Josephine H.
Klein issued the attached Supplemental Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and an accompanying brief to the Trial
Examiner's Supplemental Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
Trial Examiner's rulings, findings, and conclusions
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, The Carter-Jones Lumber
Company, Kent, Ohio, its officers, agents, successors,
and assigns, shall pay employee Robert W. Chalmon,
Jr., involved in this proceeding, the amounts set forth
by the Trial Examiner in her attached Supplemental
Decision, plus interest, less deductions required by
state and Federal laws.
1 On the basis of the record before us we find no merit in the
Respondent's charge of bias and prejudice on the part of the Trial Examiner
towards the Respondent during the hearing.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: On September 23,
1968, the Board issued its Decision and Order against The
i The transcript of hearing contains numerous errors However, in main,
the errors are self-evident and none of them critically affects decision of the
issues presented Accordingly, no corrective order is being issued
2 The backpay specification referred to Chalmon's compensation by
Respondent in 1966 and 1967, whereas it appears that he was not hired until
the early part of 1967. The error is immaterial
3 The General Counsel sought to have Respondent's evidence excluded
for Respondent's alleged refusal to provide information in accordance with
the Board's and courts prior order or to produce material in response to a
subpoena issued in connection with the present hearing In the exercise of
Carter-Jones Lumber Company, Respondent. On Decem-
ber 21, 1971, the United States Court of Appeals for the
Sixth Circuit issued its judgment enforcing the Board's
Order (Case 71-1985). The court's order directed Respon-
dent, inter alia, to make Robert W. Chalmon, Jr., whole for
loss of earnings resulting from his discharge by Respon-
dent on September 23, 1967.
A controversy having arisen over the amount of
backpay, if any, due the discriminatee, on March 28, 1972,
the Regional Director for Region 8 issued a backpay
specification and notice of hearing. Respondent filed its
answer on April 12, 1972. By order issued May 2, 1972, the
hearing on the backpay specification was rescheduled from
May 20 to May 11, 1972.
A hearing was held in Kent, Ohio, on May 11, 1972. All
parties were afforded full opportunity to participate, to
call, examine , and cross-examine witnesses , and to present
written evidence. At the close of the hearing, the parties
waived oral argument and the right to submit briefs.
Upon the entire record,' the Trial Examiner makes the
following:
FINDINGS AND CONCLUSIONS
The backpay specification claims backpay of $106.15 for
the week September 23 through 30, 1967, and net backpay
of $557.91 (gross backpay of $1,379.95, less interim
earnings of $822.04) for the calendar quarter October 1
through December 31, 1967. Although the specification
defined the backpay period as September 23, 1967, to
March 10, 1972 (when Respondent offered Chalmon
reinstatement), no claim is made for any period after the
fourth quarter of 1967.
The backpay specification alleges that Chalmon's com-
pensation with Respondent had been "an average of
$106.15 per week, or $2.20 per hour, and $3.30 per hour"
for time beyond 40 hours in any week. In its answer,
Respondent averred "that when Chalmon did work for
Respondent his pay was less than the amount stated by the
'Regional Director."2
Chalmon testified that he was paid $2.20 per hour, with
time beyond 40 hours at the rate of $3.30. He also testified
that generally his hours varied "from 42 to 47 hours" per
week. A pay stub for 1 week was introduced, showing 47-
1/2 hours, for total compensation of $112.75. He stated his
average earnings as "approximately $106 per week."
Respondent then introduced payroll records covering
Chalmon's employment. Although objecting to the receipt
of the payroll records,3 the General Counsel withdrew his
initial objection to their authenticity.
The payroll records show that Chalmon's hours vaned
from 32 to 63-1/24 hours per week. With minor corrections
(see fn . 4), the figures show Chalmon's average gross
discretion , the Trial Examiner received the payroll records, in the belief that
the present matter, dating back to a discriminatory discharge in September
1967, should finally be brought to an end through compliance with the
court's backpay order
4 The record shows two checks for the week ending May 27. the first
records 24 hours and the second shows 39-1/2, for a total of 63-1/2
(Another check for 32 hours had been issued , but then voided.) The record
shows that Chalmon was paid for all the hours in that week at his straight-
time rate of $2.20 per hour, for a total of $139 70 At time and a half for
hours over 40, his compensation for that week would have been $165 55 In
198 NLRB No. 151
THE CARTER-JONES LUMBER COMPANY 1037
earnings while in Respondent's employ as approximately
$100.75 per week.
At the hearing, the General Counsel sought to elicit
information concerning such matters as bonuses and
vacations and, apparently, increased compensation which
Chalmon might have received if he had remained in
Respondent's employ. However, the backpay specification
explicitly states that: "An appropriate measure of Chal-
mon's backpay is his average weekly wage as set forth,"
i.e., $106.15, based on a straight-time hourly rate of $2.20,
with overtime at $3.30. Since no amendment to the
specification was ever offered, the Examiner believes that
no consideration can properly be given to possible items of
potential additional compensation.5 Adopting the General
Counsel's method of measuring backpay, and applying it
to Respondent's payroll records, the Trial Examiner finds
that the measure of Respondent's gross backpay liability is
$100.40 per week.
In its answer to the backpay specification and at the
hearing, Respondent contended, in effect, that backpay
should not be computed strictly on a quarterly basis, but
that Respondent should be given credit for all earnings
which Chalmon had received at any time after September
23, 1967, in excess of his average weekly earnings while
employed by Respondent.
This contention, however, is not open at this time. In the
original proceeding, the court of appeals, enforcing the
Board's order, specifically ordered that backpay "be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289,
together with interest thereon at the rate of 6 percent per
annum. Isis Plumbing & Heating Co., 138 NLRB 716."
That order is law of the case and clearly binding in the
present proceeding.6
The backpay specification lists interim earnings of
$822.04 during the fourth quarter of 1967. Although
Respondent's Answer did not attack this figure, the
General Counsel at the hearing supported it by a written
statement from Chalmon's employer during that period
and Chalmon's testimony that the figure so shown covered
his entire earnings.
At the hearing Respondent apparently also sought to
elicit evidence of a wilful loss of earnings by Chalmon or a
failure diligently to seek employment. Since Respondent's
answer to the backpay specification contained no such
allegation, it cannot be considered at this time. See
Southland Manufacturing Corp., 193 NLRB 157, footnote
3.7
On the foregoing findings, the Trial Examiner concludes
that the amount of backpay due Robert W. Chalmon, Jr.,
by Respondent, is $583.56 computed as follows:
3rd Quarter 1967 1 week (Sept. 23-30) $100.40
4th Quarter 1967 13 weeks @ $100.40) $1305.20
Less Interim Earnings 822.04
Balance $ 483 .16 483.16
TOTAL $583.56
Interest at the rate of 6 percent per annum will continue to
accrue until the date of payment of all backpay due.
tut week ending June 3 , he was paid $ 104 50 for 47-1/2 hours, whereas the
amount should have been $112 75 if hours over 40 were paid at $3 30
Similarly , in the week ending September 9, he was paid $ 103 40 for 47 hours
work , whereas the amount would be $111 10 if time and a half were paid for
at the rate of $3 30
s This holding is not intended to condone the contumacious refusal of
Respondent 's president to answer questions directed to him at the hearing
See also the comments of Trial Examiner George A Downing , affirmed by
the Board , in the original hearing in this case 172 NLRB No 253 However,
the General Counsel had made no attempt to seek judicial enforcement of a
subpena or enforcement of the original court order for production of books
and records through contempt proceedings
Respondent did not petition to revoke the subpena previously issued
(Board Regulations , Sec 10231 (b)) The Trial Examiner refrains from
commenting of the conduct of Respondent, its president or its counsel, with
respect to a subpena
6 In any event , Respondent 's contention is patently without merit. See,
e.g, Golay & Co v N LR B, 477 F 2d 290, 294 (C A. 7)
Payment shall be less any taxes required to be withheld by
Respondent.
There is no merit in the Company's contention that the Board
erroneously used the quarterly computation methods in determining
net backpay . The quarterly computation method was established
in F W Woolworth . for that case and future cases and was
approved by the Supreme Court in N LR B v Seven -Up Bottling Co,
334 U S 344 it is the "usual formula" for the computation of net
backpay
s The net loss of pay is determined for each quarter or portion
thereof and the earnings for one quarter are to have no effect on the
liability for any other quarter N LR B v Seven-Up Bottling Co, 344
U S 344,345
7 In any event, despite the absence of any allegation , Respondent was
permitted to cross-examine Chalmon concerning this matter Neither by
such cross-examination nor by the proffer of any other evidence did
Respondent adduce a scintilla of evidence of a lack or of diligence or a
wilful loss of earnings on the part of Chalmon On the contrary, Chalmon
appears to have been unusually dilligent (as well as successful ) in seeking
other employment