Barberton Plastics Products, Inc.

BARBERTON PLASTICS PRODUCTS, INC. 393 Employees of the New York Telephone Company, currently repre- sented by Communication Workers of America, Local 1104, AFL- CIO, are entitled to perform the following work : Inside wire cable and circuit installation work required for the installation of tele- phone and other communications equipment in major alterations of 'county-owned buildings. Barberton Plastics Products, Inc. and International Chemical Workers, AFL-CIO. Case No. 8-CA-4854. March 19, 1964 SUPPLEMENTAL DECISION AND ORDER On March 7, 1963, the Board issued a Decision and Order in the above-entitled proceeding 1 finding, inter alia, that the Respondent had discriminated against employee Hetrick in violation of Section 8 (a) (3) and (1) of the Act, and directing that the Respondent offer said employee immediate and full reinstatement to his former or substan- tially equivalent position and make him whole for any loss of pay suf- fered by reason of the Respondent's discrimination against him. On July 1, 1963, the Board's Acting Regional .Director for the Eighth Region issued and served on the parties a backpay specification and notice of hearing, alleging that the Respondent's obligation to make whole employee Hetrick would be discharged by payment of certain liquidated amounts due him in the period between the unlaw- ful discrimination against him and June 30, 1963, and additional un- determined amounts accumulating from July 1, 1963, t6 the date of an offer of reinstatement. On July 10, the Respondent filed an answer thereto. Pursuant to notice, a hearing was held before Trial Ex- aminer John F. Funke for the purpose of determining the amount of backpay due the aforesaid employee in the period from the date of the discrimination against him to June 30,. 1963. On December 2, 1963, the Trial Examiner issued his Supplemental Decision, attached hereto, in which he found that Hetrick was entitled to payment of $2,844.96. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 1141 NLRB 174. The Trial Examiner's Supplemental Decision inadvertently cites this case as 141 NLRB 458. 146NI:RB' No. 54. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board' has considered the entire- record in this case, including the Trial Examiner's Supplemental De- cision and the exceptions and briefs, and hereby adopts the findings,. conclusions, and recommendations of the Trial Examiner with the exceptions, additions, and modifications set forth below. 1. The Trial Examiner found that the Respondent abolished Hetrick's former job as maintenance employee on June 4, 1963. We- find merit in the General Counsel's exception to this finding.2 After- Hetrick was discharged in April 1962, the Respondent hired three suc- cessive employees to fill Hetrick's job. After the third one left on June 4, the Respondent divided the duties formerly performed by Hetrick and his successors by assigning some of the maintenance work. to one of the foremen, some of the packing and shipping duties to a forelady, the work of cleaning pumps and changing meters to an em- ployee, and some packing and shipping work to a temporary part- -time employee. We are not convinced by this evidence that there is no job to which Hetrick can be reinstated, as the work which Hetrick: performed is still being performed in the plant. Moreover, the Re- spondent has introduced no evidence to show that there was no sub-- stantially equivalent job available for Hetrick. 2. In computing Hetrick's gross backpay, the Trial Examiner applied an absence factor, proposed by the General Counsel, in arriv- ing at the amounts of backpay due Hetrick. He also disallowed vaca- tion pay benefits entirely on the ground that, if Hetrick had been- employed by the Respondent during this period, he would have- charged absences 'against vacation pay, as had been his practice when- employed by the Respondent. The General Counsel contends that the Trial Examiner erred in finding that Hetrick was not entitled to any vacation pay accruals, and that, by applying the absence factor to the backpay and disallowing vacation pay entirely because of ab- senteeism, the Trial Examiner has penalized Hetrick twice for his absences. We agree with the General Counsel and, therefore, grant Hetrick, in addition to the amount,the Trial Examiner awarded him; accrued vacation pay of $225, or 'a total of $3,069.96 for the period ending June 30, 1963, with interest at the rate of 6 percent per annum, 9 Although the Trial Examiner found that Hetrick's job was abolished on June 4, he nevertheless held that the Respondent's liability for backpay continued thereafter, assert- ing that he was required by Board precedent to do so, and citing as authority Tinley Park Dairy Co., d/b/a Country Lane Food Store, 142 NLRB 683, which he misconstrues. The Board did not in that case , as the Trial Examiner indicates , require reinstatement and backpay for a discriminatee for whom there was no existing job; rather , it found no sup- port in the record for the Trial Examiner's assumption that there was in the employer's store no job as a sales clerk available for the discriminatee Had the Trial Examiner read that decision correctly, he might have refrained from characterizing the Board's holding as "inequitable." -BARBERTON PLASTICS PRODUCTS, INC., 395 -and any additional undetermined amounts accumulating from July 1, 1963, to the date of an offer of reinstatement.' ORDER On the basis of the foregoing Supplemental Decision and Order 'and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Barberton Plastics Products, Inc., Barberton, Ohio, its officers, agents, successors, and assigns, shall pay to Paul T. Hetrick the sum of $3,069.96 as backpay for the period from April 30, 1962, to June 30, 1963, with interest thereon at the rate of 6 percent per annum, plus additional undetermined amounts that may accumulate on and after July 1, 1963, until said employee is offered employment in his former or a substantially equivalent posi- tion; and that the Regional Director for the Eighth Region is author- ized to take appropriate steps consistent with the findings hereinabove -set forth, without prejudice to the conduct of additional backpay proceedings. 3 The computation attached to the Trial Examiner 's Decision contains a figure of $647.16 as the interim earnings for the first quarter of 1962. This figure incorrectly in- -eludes $90 of vacation pay which was paid to Hetrick by the Respondent when he was -discharged. Although this $90 payment is not a part of Hetrick's interim earnings, it is -deductible from his gross backpay. The net backpay figure reached by the Trial Examiner therefore in this respect remains unchanged. TRIAL EXAMINER'S SUPPLEMENTAL DECISION This is a proceeding on a backpay specification and notice of hearing issued by the Acting Regional Director for the Eighth Region July 1 , 1963, pursuant to Section 102.52 et seq. of the Board's Rules and Regulations, Series 8, as amended, for the purpose of determining the amount of backpay which will make whole Paul T.' Hetrick in the manner directed by the Board in its Decision and Order -herein, 141 NLRB 458. The specification computed the backpay due Hetrick as of June 30, 1963, as $3,150.91 plus interest at 6 percent together with such further backpay as might be due • from June 30, 1963 , until Respondent shall have made an offer of reinstatement. - The answer of Respondent put at issue the computation of backpay , alleged that -the cutoff day would be June 4, 1963, denied that Hetrick was entitled to vacation pay and denied the other specific allegations of the complaint.' A hearing was held before Trial Examiner John F. Funke at Akron, Ohio, on August 13, 1963, and briefs were received from the General Counsel and Respond- ent on September 10. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. The issues Four issues were raised at the hearing: (1) Whether the job from which Hetrick was discriminatively discharged was abolished on June 4, 1963. 'Paragraph 1 of the answer was stricken upon motion of the General Counsel as in- sufficient in law. Paragraph 1 alleged that the General , Counsel was without authority to :proceed until a court decree had been entered enforcing the Order of the Board. 396 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD (2) Whether Hetrick is entitled to backpay from the date of his discharge by his interim employer, March 8, 1963. (3) Whether Hetrick is entitled to $180 vacation pay. (4) Whether Hetrick's backpay computation should be reduced for the periods of his absenteeism in interim employment. 2. The termination of the computation period Respondent contends that the computation period should terminate no later than June 4, 1963, when the third of the successors to Hetrick, John Warman, left the employ of the Respondent and no replacement was hired. I find, in accord with the contention of Respondent,' that the job was abolished on that date. Hetrick's. job was that of maintenance and general handyman and he was not a member of any specific work unit or group. Nevertheless, I do not find that this failure to replace Warman exculpates the Respondent from its reinstatement and backpay obligation. In Tinley Park Dairy Co., 142 NLRB 683, the Board reversed the Trial Examiner and ordered reinstatement and backpay for a discriminatee despite the fact that no replacement had been hired for her and it appeared unnecessary to continue her job. Inequitable as this holding may appear a Trial Examiner is bound by Board precedent,2 and I therefore find Respondent's liability for backpay continues until an offer of reinstatement has been made .3 3. Hetrick's discharge from interim employment The record in this proceeding and the Trial Examiner's Intermediate Report in the prior unfair labor practice proceeding indicate that Hetrick was not a model employee. Hetrick had, nevertheless, been employed by Respondent for a period of approximately 5 years prior to his discharge, for reasons found by the Trial Examiner and the Board to have been discruninatory, and had advanced in wages from $1.60 per hour to $2.25. I do not, however, find, assuming all the evidence introduced by Respondent as to Hetrick's unsatisfactory performance with Barnett in his interim to be true and his discharge justified, that this disqualified him from the job to which he was entitled with the Respondent. The conduct of Hetrick during his interim employment involved no moral turpitude nor any such mis- feasance or malfeasance as to render him unemployable by Respondent. This Trial Examiner, like the General Counsel, has been unable to find any case in which an employee, discriminatively discharged, was disqualified from reinstatement and backpay because of a discharge for cause by an interim employer. Recognizing the obligation of an employee who has been discharged in violation of the Act to seek and keep other employment to mitigate the damages, I do not find that a subsequent discharge by another employer necessarily deprives the employee of his Tight to backpay. It may be that the subsequent employment was not suitable to the dis- criminatee's skills and experience,4 that a mutually agreeable relationship was not established with the new employer through no fault of either party, or that factors other than misconduct sufficient to establish unemployability disturbed the relation- ship. An employer who discharges an employee in violation of the Act must assume the risks of his action and, short of punitive action, I believe the Board's remedial powers should be given full reasonable scope. 4. Vacation pay I find the record far from clear on the issue of vacation pay which might-be due Hetrick. The General Counsel asserts that Hetrick was due vacation pay in the sum of $180 as of May 1, 1963, and an accrual of vacation pay in the sum of $15 per month thereafter. It appears from the record, however, that Hetrick charged sick leave and other absences against his vacation pay while employed and there is no affirmative showing that he was entitled to any vacation pay at the time of his discharge.5 Since I would recommend that Hetrick receive full pay until the time of the hearing and since there is no reason to assume, in view of his record 2 Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772, 773. 8 See also, Westinghouse Electric Supply Company, 95 NLRB 407 ; Adkins Transfer Company, Ina, 109 NLRB 956. Cf. Benton and Company, Inc., 181 NLRB 965; Jack G. Buncher d/b/a The Buncher Company, 131 NLRB 1444. t Hetrick was employed by Barnett as a driver, not a maintenance man. 5 Hetrick received $180 vacation pay when discharged in May 1962. LOCAL 271, INT'L BROTHERHOOD ELECTRICAL WORKERS 397 for absenteeism at both Barnett and Barberton, that he would not have continued to have charged absences from work to his vacation pay I do not believe he is equitably entitled to this further credit .6 5. Absenteeism James L. Phillips, plant superintendent at I. A. Barnett Co., was called as a witness by Respondent and testified that Hetrick was employed by Barnett from May 14, 1962, until March 8, 1963. His gross interim earnings for that period were $2,930.96, a figure not disputed. Phillips also testified that during this employment Hetrick was absent a total of 21 days, days which the Respondent claims should be disallowed in computing Hetrick's estimated earnings had he been employed at Barberton. However, although Respondent's Exhibit No. 5 supports this estimate of absenteeism, Respondent's Exhibit No. 7, a summary of Hetrick's work record and the reasons for his discharge by Barnett, indicates only 10 days of absence for work. In view of this discrepancy I shall accept the General Counsel's allowance for absenteeism in his computation (2.84 hours per week) as a reasonable estimate in a conjectural situation. Of necessity only a rule of thumb can provide the guide to computation in a situation such as this and the computation suggested by the General Counsel, except for vacation pay, I find essentially equitable. 6. Computation of backpay On the basis of the foregoing I find Hetrick should be made whole for the loss of earnings as follows: Weekly rate (based on 38.25 hours) Number of weeks Gross backpay Interim earnings Net backpay $86.06------------ -- 9 (1st quarter) --------------------------------- $774.54 $647.16 $127.38 13 (2d quarter) --------------------------------- 1,118.78 981.88 136.90 13i-i (3d quarter) ------------------------------ 1,135.99 717.57 418.42 124't (4tb quarter) ----------------------------- 1,101.57 674.45 527.12 13 (bth quarter) ------------------------------- 1,118.78 0 1,118.78 8 (6th quarter) -------------------------------- . 516.36 0 516.36 Total- ------- - ----------- ------------ 2,844.96 RECOMMENDED SUPPLEMENTAL ORDER Upon the foregoing findings and conclusions it is recommended that the Board order the Respondent, Barberton Plastics Products, Inc., of Barberton, Ohio, its officers, agents, successors, and assigns to pay Paul T. Hetrick the sum of $2,844.96 with interest at the rate of 6 percent per annum on each of the quarterly sums found due above from the end of each calendar quarter. Isis Plumbing & Heating Co., 138 NLRB 716. 6 Of. Hill Transportation Company and MacKenzie Coach Linea, Inc., 102 NLRB 1015, 1023. Local 271, International Brotherhood of Electrical Workers, AFL-CIO [The Philco Corporation and/or J & G Electric Co., Inc.] and Burt W. Stemmons. Case No. 17-CB-363. March 20, 1964 DECISION AND ORDER On October 22, 1963, Trial Examiner Sydney S. Asher Jr., issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor 146 NLRB No. 53.