The A.S. Abell Co.

The A. S. Abell Company and Baltimore Typographi- cal Union No. 12. Case 5 ('A 7980 June 28, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBIRS JENKINS AND PENELI.( On June 8, 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 Act when in 1976 it bypassed the Charging Party. the col- lective-bargaining representative of Respondent's composing room employees, and dealt directly with its employees by offering and paving them, in return for their early retirement, pension and retirement benefits exceeding those provided for in the appli- cable collective-bargaining agreement.' In addition. the Board adopted the Administrative Law Judge's recommended Order which required Respondent, in- ter alia, to offer reinstatement to those employees un- lawfully induced to retire early and to provide back- pay. Thereafter, on January 9, 1979, the United States Court of Appeals for the Fourth Circuit issued a deci- sion 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 judgments 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 issues 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: (1) specifically that payments received by employees who retired under the unlaw- fully altered early retirement scheme be included in the measure of interim earnings for any of those em- 230 NLRB 17 (1977). 2 590 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 Baltimore News .4American Division. The Iearr (Corpora- tion, 230 NLRB 216 (1977). which involved the same issues. lHE A. S ABI-.l. COMPANY ployees returning to work pursuant to the ofler of reinstatement required in the Board's Order and (2) that if an employee who retired pursuant to the un- lawfully altered early retirement plant received bene- fits under the plan in excess of his gross hackpay he be required to repay that excess amount to Respon- dent as a condition of his reinstatement. On March 9. 1979. the Associate Executive Secre- tary of the Board advised the parties that the! might file statements of position with respect to issues raised by the remand. Thereafter, the General Counsel. the Charging Party, and Respondent filed statements of position. and Respondent filed a response to the Gen- eral C'ounsel'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-memnber 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.' ORD)ER 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- dents, The A. S. Abell Complany. Baltimore, Maryland. its officers. agents. successors, and assigns. shall take the action set forth in the Adminiistrative 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 employ- ees shall be required to repay that excess amount to Respondent as a condition of his reinstatement pursu- ant to this Order." 2. Add the following at the end of paragraph 2(h): "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 an pay- ments received pursuant to the early retirement plan." 3 In their respective statements of position. Ihe parties raised numnerlous questions concerning the manner in which compliance with the Board's Or- der. as enforced by the court. is to he effectualed These matters should he resolved in the backpay proceeding which evidently has not el been init- ated b the Regional Director Sec. 102.52 of the Board's Rules anId Regula- tions, Series 8. as amended. Accordingly, we shall defer passing on these matters until such time as the applicable h;lckpas procedure he been exhausted See Sec 102 52 102,59 of the Board's Rules and Regulamions Series 8. as amended. 243 NLRB No. 41 171