The Baltimore News American Division

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Baltimore News American Division, The Hearst Corporation and Baltimore Typographical Union No. 12. Case 5-CA 8061 June 28, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JLNKINS ANI PNELLO On June 14, 1977, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding.' The Board found, in agreement with Administrative Law Judge Thomas A. Ricci, that Re- spondent violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act, as amended, when in 1976 it bypassed the Charging Party, the collective- bargaining representative of Respondent's composing room employees, and dealt directly with its employ- ees by offering and paying them, in return for their early retirement, pension and retirement benefits ex- ceeding those provided for in the applicable collec- tive-bargaining agreement. In addition, the Board adopted the Administrative Law Judge's recommend- ed Order which required Respondent, inter alia, to offer reinstatement to those employees unlawfully in- duced to retire early and to provide backpay. Thereafter, on January 9, 1979, the United States Court of Appeals for the Fourth Circuit issued a De- cision in which it granted enforcement to the Board's Order relating to the violations of Section 8(a)(5) and (I) of the Act.2 In agreeing with the Administrative Law Judge and the Board that Respondent's conduct violated the Act, the court noted that in fashioning a proposed remedy the Administrative Law Judge concluded that the measure of interim earnings would include the payments made to any employee by Respondent in the form of preferred benefits under the pension plan, including any single or lump sum payments. How- ever, inasmuch as the Administrative Law Judge's proposed Order, adopted by the Board, did not "ad- dress the issue of interim earnings and benefits in any definitive fashion," the court remanded the case to the Board and directed that the Board's Order be amended to provide specifically: (1) that payments received by employees who retired under the unlaw- fully altered early retirement scheme be included in i230 NLRB 216 (1977). 1 590 F.2d 554 (4th Cir. 1979). Although the cases were argued separately. the court's decision enforced in like manner the Board's Order in this case and its Order in The A. S. Abell Comnpanv, 230 NLRB 17 (1977). which involved the same issues. the measure of interim earnings for any of those em- ployees returning to work pursuant to the offer of reinstatement required in the Board's Order, and (2) that if an employee, who retired pursuant to the un- lawfully altered early retirement plan, received bene- fits under the plan in excess of his gross backpay, he is to be required to repay that excess amount to Re- spondent as a condition of his reinstatement. On March 9, 1979, the associate executive secretary of the Board advised the parties that they might file statements of position with respect to issues raised by the remand. Thereafter, the General Counsel, the Charging Party, and Respondent filed statements ot position, and Respondent filed a response to the Gen- eral Counsel's statement of position. 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. In view of the court's remand in this proceeding. we shall modify our previous Order in accordance with the court's opinion and directions.3 ORDER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended, the National Labor Rela- tions Board adopts, as modified below, the Order pre- viously issued and hereby orders that the Respon- dent. The Baltimore News American Division, The Hearst Corporation, Baltimore, Maryland, its officers, agents. successors, and assigns, shall take the action set forth in the Administrative Law Judge's original recommended Order, as so modified: I. Add the following at the end of paragraph 2(a): "If a retired employee received payments pursuant to the above-mentioned early retirement plan which exceed the amount of his gross backpay. said em- ployee shall be required to repay that excess amount to the Respondent as a condition of' his reinstatement pursuant to this Order." 2. Add the following at the end of paragraph 2(b): "Interim earnings for an employee who was unlaw- fully induced to retire early but who desires to return to work pursuant to this Order shall include any pay- ments received pursuant to the early retirement plan." ' In their respective statements of position, the parties raise numerous questions concerning the manner in which compliance with the Board's Or- der, as enforced by the court, is to be effectuated. hese matters should be resolved in the backpay proceeding which eidently has not yet been initi- ated by the Regional Director. Sec. 102.52 of the Board's Rules and Regula- tions, Series 8, as amended. Accordingly, we shall defer passing on these matters until such time as the applicable backpay procedures have been exhausted. See Sees. 102.52 102.59 of the Board's Rules and Regulations, Series 8, as amended. 243 NLRB No. 40 170