J/B Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD J/B Industries, Inc. and Kathryn Jenkins. Case 13 CA- 14300 September 27, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 19, 1979, Administrative Law Judge Hen- ry L. Jalette issued the attached Supplemental Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and supporting briefs, and counsel for the General Counsel filed an answering brief to Respon- dent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, J/B Industries, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in said recom- mended Order. Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find totally without merit Respondent's allegation of bias and prejudice on the part of the Administrative Law Judge. Upon our full con- sideration of the record, we perceive no evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings. or demonstrated any bias against Respondent in his analysis or discussion of the evidence. Finally, the Administrative Law Judge made an inadvertent error in the last paragraph of sec. II, A; the record shows that on January 2. 1978. Young had a conversation with Ron Hill, not Al Olieh, on performing the job of costing out the individual parts on invoices. SUPPLEMENTAL DECISION STATEMENT OF HE CASE HENRY L. JALETTE, Administrative Law Judge: This sup- plemental proceeding was instituted to determine the amount of backpay due Judith Watson Young and Kath- ryn Jenkins Overhulser pursuant to a decree of the U.S. Court of Appeals for the Seventh Circuit, dated August 29. 1977, enforcing a Decision and Order of the National La- bor Relations Board, dated June 24. 1976 (225 NLRB 162), wherein the Board found that the named individuals had been unlawfully discharged. On January 25. 1978, a back- pay specification and notice of hearing issued, and on June 26 and 27, 1978, a hearing was held in Chicago, Illinois.' Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs. I hereby make the following: FlNDINGS OF FAI r 1. PREI.IMINARY SIAIEMENI The specification, as amended at the hearing, alleges that the backpay period for Judith Watson Young began May 13, 1975, the day following her unlawful discharge, and ended on June 27, 1978. when she removed herself from the labor market. The record indicates that Young returned to work for Respondent on November I, 1977, and continued working until January 3, 1978, when she quit. The General Counsel contends that Young was never properly reinstat- ed, and for that reason Respondent's backpay liability was never tolled until Young removed herself from the labor market. Respondent contends that Young was properly re- instated and backpay liability ended on November 1, 1977. or earlier when she quit interim employment. II. HE REINSI AItMEN ISSUE A. The Facts Young was employed by Respondent in March 1974, as an accounts receivable clerk at an hourly wage rate of $3. On May 12, 1975, she was unlawfully discharged. At that time she was receiving $4 an hour, the highest rate among the hourly paid office employees. Her duties at the time were as follows: I did the payroll, as far as breaking down the time on the time cards, and it went to Ron and were okayed, and then I put it on a computer print-out sheet. I handled the company's hospitalization insur- ance, paying the bills for each month and fill out the forms when any employee had a claim and submitting them to the insurance company. I handled accounts payable, from attaching receiving tickets to verifying prices, checking prices, extensions and filing them for payment, and when they became due, I typed the check for payment. Accounts receivable, I posted in- voices, posted cash receipts, typed financial statements, did the daily deposits to the bank. I did typing for International Business Services which is a sister com- pany to J/B Industries, did billing for International Business Services. I did answer the phone a little bit for J/B Industries. I checked the billing after the girls did At the hearing the parties agreed upon the amount of backpay due Over- hulser and the allegations of the specification relative to her were withdrawn. 245 NLRB No. 78 538 J/B INDUSTRIES, INC. the billing. It would come to me and I would quickly go through it, checking for the right salesmen, correct coding, right billing point and shipping point, referring back to original orders and then it would go down to the rest of the billing process. Did collection calls for accounts receivable for J/B Industries. Then there was another phone line in the company for Beacon Soap Products. I answered the phone. I took orders, did the billing, filled out tax forms each month for the com- pany, and mostly that was it. There may have been something small, but mostly that was it.' At the time of her discharge Young worked in an en- closed office equipped with two desks, two chairs, two tele- phones, a typewriter and calculator, and four or five file cabinets housing accounts receivable and employee records. According to Young she was part of the accounting depart- ment, which included herself, Overhulser,' and Ron Hill, vice president and secretary-treasurer. There were other clerical employees (Linda Pound, Pam Hagerman Ken- neavy) who Young considered to be in the billing depart- ment, apparently because of the nature of their duties. Hill denied there were separate departments. On November 1, 1977, when Young reported for work, she reported to Hill. Young testified he told her that things had changed a lot during her absence, that work was now distributed differently, and that she was going to be an ex- tra girl in the office. She asked him what exactly she would be doing and he said she would be working with Al Olieh. (Olieh is an accountant hired by Respondent on June 30, 1975.) At that point Olieh entered Hill's office, introduc- tions were made, and Hill told Olieh he was to assign Young some work. Olieh, who was now the occupant of Young's office, es- corted Young to the main office area and installed her at a desk on the west wall of the office facing the wall. There were six other desks in the main office, one of which was in the center and not assigned to any other clerical. and Young asked Olieh why she was being assigned to a desk in a corner with her back to the rest of the office. She asked him if the desk had been brought in just because she was returning. He told her no, that the desk had been there about 2 years. The desk was completely bare, lacking a telephone, typewriter, and office supplies. At this time, according to Young, the accounting depart- ment consisted of Hill, Olieh, Louis Affeld, and Cecile Ben- son. According to Young, she was not a billing department employee along with Linda Pounds and Michelle D'Orio. According to Olieh, it also included one Nancy Friedman. Young described her duties upon reinstatement as proof- reading invoices. This proofreading was her main job the first few days, and it did not keep her fully occupied. She had not performed this job before her discharge except for spot checks. Linda Pounds formerly did that job. One Roy Choate had handled what was referred to as Jarrow in- voices. About a week after her return, acting on her own, Young moved to one of the two desks in the center of the office 'The foregoing is taken from Young's credited testimony at the prior hearing. 225 NLRB at 167. 1Also referred to as Kathy Jenkins. because it had a typewriter and she needed to correct an invoice. Cecile Benson came up to her and asked her what she was doing at the desk, that it was her desk. Young told her she needed the supplies at that desk to do her work and that she had not seen anyone at the desk for a week. About then, Olieh came from his office and asked her wh} she was sitting at this desk, and she told him she needed the type- writer to correct an invoice. Olieh told her she would have to move back to the desk assigned to her and to move the typewriter if she needed it, returning it when she was done. When she said the typewriter was too heavy, he moved it for her. (Before, this, Young had questioned Olieh about being placed at a desk in a corner, explaining her feelings of humiliation and of being punished for being a naughty child. Olieh told her Hill had assigned her to the desk and she had to remain there.) Later that day Young complained again about her desk assignment as well as the nature of her duties. Olieh told her she was an extra girl and he was going to have to hunt up things for her to do. Young told him she was going to have to call someone to complain about not being properly reinstated and she asked Olieh if he was aware of the work she had done before. He said no, that he had not heard much about her until right beftore her reinstatement. After 2 or 3 weeks of proofreading invoices. Young started running the computer, a machine located in the bill- ing room. which was down the hall from the main office. She worked at that location until sometime in December. On or about December Olieh asked her why she was not happy with her reinstatement, and she told him she did not like to do billing and wanted to work in the accounting department. Olieh asked her what she wanted, pointing out they had already fired one girl (Michelle) to make room for her. Young told him they fired the wrong girl: they' should have fired one of the girls in accounting. She pointed out he had two girls doing accounting work (Louise Affeld and Cecile Benson) and he could give her some of it. Olieh told her Afield did accounts payable only part of the day, that she had been doing both accounts receivable and accounts payable until it was learned Young was returning and Affeld decided to work part time and keep accounts receis- able. Young told him she understood she had the right to do the accounting work. Once Olieh assigned her some typing that was on Ben- son's desk to keep her occupied. Young did the work at Benson's desk, and the following morning Benson berated her for working at her desk. Olieh overheard the exchange and came out and remarked that it seemed there was a problem. Young told him the problem was with Benson. At that point Benson began calling her names and accusing her of coming back and taking their jobs from them. She said if Young touched anything on her desk again, she would kill her, and she started towards her to hit her. Young told Olieh to stop her. He did not, and Benson's hand grazed her face. Crying, Young told Olieh if he did not stop Benson she was going to call a lawyer. Olieh told Benson to sit down. According to Benson, on the occasion of this incident., she had asked Young to type a priority order and an hour and a half later Young had not done so. An argument en- 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sued over what Benson viewed as Young's refusal to share the work. Benson admitted using vulgar language and shak- ing her finger at Young but she denied attempting to strike her. I credit Young, who appeared to me to be very frank and honest. Benson, for one thing, was clearly very hostile to Young. After this, Young followed Olieh to his office to complain about his failure to stop Benson and to reiterate her com- plaint about doing billing work. After further conversation he agreed to give her Benson's work. Although that was not enough to keep her busy full time, he refused to give her Affeld's work because he said accounts receivable was all she could do. Olieh also agreed to let Young move to a desk Benson had been using, and Young did so. She worked there that day. This desk was close to and faced Hill's office. The next morning Olieh told Young that Hill did not want her at that desk and that she was to move back to the desk in the corner. Young went to see Hill about the matter, and he told her that was Affeld's desk. Young told him she had never seen Affeld sit at it (Affield used a desk adjacent to the one in question) and asked why Affeld, a part-time em- ployee, needed two desks. After this, Young worked in the corner but she resumed doing some of her former duties. Since this was not enough to keep her busy, she did other work she had not previously done. Young was on vacation Christmas week, returning Janu- ary 2, 1978. That day Olieh assigned her the job of costing out individual parts on invoices. Young objected to the te- dium of the job and asked if it was necessary, pointing out that the practice had always been to take a daily total of a product and figure cost from a mark-up percentage. Olieh said from then on they were going to get an individual cost. Young told him she thought this was a job made up for her. Olieh said, "Well, you said you wanted accounting work and this will be accounting work." Young said that would be an awful lot of work. The following day she quit, telling Hill things had been very difficult and she felt she had no choice. B. Analysis and Conclusions The Board's Decision and Order in this case, enforced by the court of appeals, directed Respondent to offer Young reinstatement to her former job or, if it no longer existed, to a substantially equivalent position. The record indicates quite clearly that she was not reinstated to her former job. That job involved a degree of responsibility and individual judgment, short of supervisory responsibility and judgment as found by the Board, with Young in direct liason with Hill. That job was filled by Olieh, who possessed certain skills not possessed by Young and who was assertedly given supervisory authority and responsibility. In my judgment a good case could be made to support a finding that the changes in the job were not so substantial as to relieve Re- spondent of the responsibility to reinstate Young to her for- mer job. Olieh is an accountant, but it does not appear that he spends any significant amount of time doing accounting work. The assertion that he is a supervisor was not tested and may well have no more substance than did the asser- lion in the original hearing that Young was a supervisor. In any event, the Decision in this case does not have to ad- dress such an issue inasmuch as the General Counsel does not contend Young should have been given the job Olieh had. Accordingly, analysis will be based on the premise that Young's former job no longer existed and will be addressed to consideration of whether or not she was given a substan- tially equivalent position. The criteria fbr such a determination are not entirely clear, and neither party has articulated what they should be; rather, both advert to the treatment accorded Young and similarities or dissimilarities of the tasks assigned to her, and, on that basis, both argue for a favorable finding. In my judgment the evidence is compelling that not only was Young not given a substantially equivalent position but, even more, she was treated in a manner to force her to quit. The responsibility for this rests clearly on Hill, whose conduct was indefensible and whose testimony deserves no credence whatsoever. This is in no way better demonstrated than by the fact that the last task assigned Young, a task which Hill testified under oath was for the purpose of devel- oping a cost department, was not reassigned to anyone after Young quit. Thus, although she quit on January 3, as of June 27 the work had not been reassigned. When one con- siders this fact and the tedium of the task as described by Young, the conclusion is inescapable that the assignment was given to her in a conscious effort to compel her to quit. Hill's attempt to justify his conduct indicates his total disre- gard for the truth. Olieh's lack of candor is also demon- strated by his attempt to justify the assignment of this task to Young. Hill's and Olieh's veracity is further impugned by the variances in their testimony on two other matters. Thus, according to Hill, before Young returned to work he showed Olieh that portion of Administrative Law Judge Wagman's decision in the underlying unfair labor practice proceeding describing Young's duties and told him to work within those guidelines. According to Olieh, Hill "really didn't tell me anything . . . he told me that when she re- ported, she had to work for me, to make sure I gave her something to do." Olieh could not remember anything else. and, if Hill had shown him Administrative Law Judge Wagman's decision, it is inconceivable to me that Olieh would not have remembered. Hill's and Olieh's credibility was yet again impugned on the matter of Young's desk assignment. Thus, according to Young, when Olieh assigned her to that desk, she asked him if it had been brought in specifically for her, and he told her it had been there as long as he had been with Respondent. Olieh did not deny saying this and implicitly corroborated it when he testified that he assigned her to that desk be- cause it was the only desk available in the room. Yet, Hill testified that the desk was in fact moved in especially for Young. In short, I conclude that Hill and Olieh testified falsely and I do not credit their testimony. Where there is a conflict between them and Young, I credit Young, who impressed me by her demeanor and whose testimony was in no way seriously impugned by Respondent. The examples of con- tradictory testimony adverted to b Respondent in its brief are neither substantial nor persuasive. 540 J/B INDUSTRIES, INC. In addressing myself to the credibility of Hill and Olieh, I have digressed from the issue of the adequacy of Young's reinstatement. The assignment given her which caused her to quit was the last item in the total picture of a conscious effort to deny her the reinstatement rights provided for by the Act and the Board's Decision and Order. That effort began on the first day Young reported to work. Thus, ac- cording to her credited testimony, she was told she was just going to be an "extra girl" in the office both by Hill on the day of her return and by Olieh a week later. This statement was verified thereafter by the very nature of her assign- ments which were sporadic and dependent on whatever Olieh felt like giving her to do. She was not assigned any specific day to day tasks such as Benson and Affeld, who had clearly defined assignments. In other words, she was treated like an "extra girl." Part of this treatment was her assignment to a desk with- out equipment or supplies, physically situated to suggest that she was unwelcome. There was a desk in the center of the office with a telephone, supplies, and a typewriter that was not assigned to anyone, and Respondent offered no explanation for not placing Young at that desk. It can not seriously be disputed that the availability of a telephone and a typewriter would be minimal requirements for sub- stantially equivalent employment to one with Young's prior job functions. Finally, there is the matter of similarity of the work as- signed to her. Respondent argues that where Young previ- ously checked accounts payable for extensions, prices, etc., she did the same in connection with the Jarrow invoices. But the task assigned Young relative to the Jarrow invoices was not the task she had before her discharge, which in- volved a check of individual bills for corrections before payment. It was only part of a variety of tasks performed during the workday. The task assigned to her by Olieh on her return to work consisted of checking a large number of invoices against entries in large books one by one to deter- mine if errors had been made. Such a task, on a full-time basis, is significantly different from what Young did before her discharge. As a matter of fact, there is no showing that the task was ever performed before her return to work. Respondent asserts that by the first week of December Young had taken over the entire accounts payable function. The assertion is correct, but it ignores the fact that she did so I month after her return to work and after her com- plaints about her reinstatement. Even then that work was not sufficient to keep her busy. Benson, who had been doing the work, had only worked half a day on accounts payable. Respondent asserts that Young prepared financial state- ments. According to Young, she "typed" financial state- ments, whereas before her discharge she had assembled the data for Hill to work with and then typed the financial statement. Similarly, relative to employee insurance claims, on her return Young typed the claims; before her discharge she handled the entire process. These are only some examples of the dissimilarities in Young's working conditions and, in my judgment, more need not be given. The foregoing clearly supports the find- ing that Young was not given substantially equivalent em- ployment and her backpay was not tolled by her return to work. It was not tolled until June 27, 1978, when Young decided at the hearing to remove herself from the labor market.' lit1. THE GROSS BACKPAY FORMULA According to the General Counsel, there are two ele- ments to an appropriate formula for Young's gross back- pay. One element relates to the number of hours she would have worked. According to the General Counsel, in the II weeks prior to her discharge Young worked 434.3 straight time hours and 48.8 overtime hours, a total straight time equivalent of 507.3 hours, or an average of 46.14 hours per week. The General Counsel contends that this I -week pe- riod is a representative period and that during the backpay period Young would have continued to work the same overtime on average. The second element of the gross backpay formula relates to Young's rate of pay for the backpay period. The General Counsel contends that Young's rate of pay should be mea- sured against the wage experience of Al Olieh during the backpay on the ground that there is no pattern of wage increases to the clerical employees and that Olieh is the only individual whose duties were comparable to Young's prior to her unlawful discharge. As to the first element of the formula, Respondent ap- pears to dispute the use of overtime hours, although this is not clear from his brief. He does not argue that there was no overtime to be worked, but, rather, that if Young did not work any overtime on her return, it was her own decision not to do so. I reject this assertion. I credit Young's testi- mony that she did not have enough work to do to keep busy. If she received assignments of long duration, it did not necessarily mean she could work overtime when she was not told she could do so or that she had the discretion to do so as she had before her discharge. Despite my rejection of Respondent's assertion, there is the fact that there is no evidence that any overtime was worked by anyone during the backpay period. Normally, in such a circumstances, a backpay award of overtime would be inappropriate. In this case I conclude that the inclusion of overtime in determining Young's gross backpay is appro- priate because Respondent has precluded the making of a definitive finding by its failure to properly reinstate Young. Had Young been reinstated to a substantially equivalent position, one could determine whether or not it is appropri- ate to include overtime in the measure of gross backpay. Since Respondent failed in its objection to reinstate Young, it cannot be heard to complain if the backpay formula is based on Young's past work history. There may be uncer- tainty in this approach, but as the General Counsel points out, "If uncertainty exists, as it frequently does, it results from the employer's illegal conduct and should be resolved against the Company rather than against the victims of dis- ' Respondent contends that Young's backpay should be tolled as of No- vember 11, 1976, when she quit interim employment at Gibson's Discount Store. The contention has no merit. The interim employment was in no way comparable to her employment with Respondent and, according to her testi- mony which I credit, it required her to work on Sundays and holidays, including Thanksgiving when she could not get a babysitter for her small children. 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination." International Trailer Company, Inc. and Gi- braltar Industries, Inc., 150 NLRB 1205, 1207 (1965). As the U.S. Court of Appeals for the Eighth Circuit stated in N.L.R.B. v. Brown & Root, Inc., etc., 311 F.2d 447, 452 (1963), "In solving the problems which arise in backpay cases the Board is vested with a wide discretion in devising procedures and methods which will effectuate the purposes of the Act." As to the second element of the gross backpay formula; namely, the award of a rate of pay according to the same percentage of wage increases given Olieh, Respondent con- tends that Young would not have received any wage in- crease between May 1975 and June 1978 and should be reimbursed at a rate of $4 per hour. The basis for the con- tention is that no general wage increase had been granted during the backpay period and the $4 had been established by Respondent as the maximum rate of pay for an office clerical employee. It is difficult to believe that this conten- tion was made seriously. The fact that it is and the fact that Young was returned to work at the same rate of pay she had received 2-1/2 years earlier is further proof of Respon- dent's lack of good faith and noncompliance with the Board's reinstatement and make whole order. Moreover, it is refuted by the record which shows that in the period from the first quarter of 1974 through the first quarter of 1978 all of Respondent's clerical employees, except two who were employed only briefly, M. Martin and T. Barnes, received wage increases in varying percentages. In addition, there is the evidence that Nancy Friedman, who received only $2.90 per hour at the time of Young's discharge, was paid $3.95 per hour at the time of Yoyng's return. One would have to be naive to believe that Young, who had a wider range of duties and more responsibility, would have re- mained at $4 per hour, while Friedman, was raised to $3.95 per hour. Finally, there is the fact that Al Olieh, albeit a supervisor, performed substantially the same job Young performed before her discharge, and Respondent placed no ceiling on his rate of pay; rather, he received a 13.63 per- cent wage increase on April 18, 1976, another of 12 percent on December 5, 1976, and yet another of 6 percent on Oc- tober 22, 1977. For the foregoing reasons I reject the assertion that Young would have received no wage increases during the backpay period. The question remains how much would Young have re- ceived in raises. The record indicates that there was no par- ticular pattern to the raises given during the backpay period with the percentages varying from 4 percent in one instance (Benson, October 22, 1977) to 14 percent for Al Olieh on April 18, 1976. As noted earlier, because of the lack of pattern, the General Counsel asserts that an appropriate formula for determining Young's gross backpay is to use the same percentages of increase as were given Al Olieh on the ground that he is the most, if not only, comparable employee. I agree. Olieh was employed shortly after Young's discharge. He occupied her office, and most of his duties were the same as those previously performed by Young. That he may have been a supervisor and was an accountant is no bar to use of his record of raises in determining Young's backpay. Young is not being awarded the same rate of pay Olieh received; his record is used only to arrive at percentages. Moreover, Respondent has not offered any other comparable em- ployee or formula. In this connection, although there is no pattern of wage increases, it seems reasonable to infer that Respondent has some policy on wage increases; yet, it has chosen not to disclose that policy in the apparent belief that if it did not do so the General Counsel would be precluded from estab- lishing a backpay formula. But, as stated in International Trailer Company, Inc., supra, at 1207: The determination of gross backpay for example, in not always a matter of arithmetic for ... questions can arise concerning how much the claimant would have earned had he not been discharged. In cases in which such questions exist the Board 'may use as close ap- proximations as possible, and may adopt formulas rea- sonably designed to produce such approximations.' In other words, 'in solving the problems which arise in backpay cases the Board is vested with a wide discre- tion in devising procedures and methods which will effectuate the purposes of the Act.' (Citations and foot- note omitted.) It follows, therefore, that the Board is not required to use one formula only but may use a combination of methods in arriving at the amount or amounts due if it appears that such is necessary to effectuate, as nearly as possible, the policies of the Act. In my judgment, on the facts of this case, the use of Olieh as a comparable employee is not only reasonable but al- most compelling in view of the substantial similarity in the work he and Young did and the absence of any other em- ployee with comparable duties and responsibilities. IV. SUMMARY Summarizing, I conclude that Respondent's obligation to make Judith Watson Young whole shall be fulfilled by pay- ment to her of the total net backpay set forth and computed in Appendix A. [Appendix A omitted from publication]. It will be noted that beginning October 22, 1977, the gross backpay due Young has been computed to reflect the same 6 percent increase given Al Olieh on October 22, 1977. The General Counsel did not amend the specification to reflect this increase, but it is consistent with the gross backpay formula alleged and litigated at the hearing and herein found to be appropriate. On the basis of foregoing findings and conclusions, I rec- ommend that the Board issue the following: ORDER The Respondent, J/B Industries, Inc., its officers, agents, successors, and assigns, shall pay to Judith Watson Young, as net backpay, $32,981.33, less any tax withholding re- quired by law, plus interest in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).5 The Board's Decision and Order in the original hearing issued before Florida Steel Corporation, 231 NLRB 651 (1977). 542