Peerless Distributing Co.

1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT get anyone else to do what we have promised not to do in the preceding paragraph. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist United Industrial Workers of America of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. All our employees are free to become or to remain members of United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, or any other labor organization, or to refrain from such membership except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. TELESERVICE CO. OF WYOMING VALLEY, JOHN WALSONAVICH T/A SERVICE ELECTRIC COMPANY, SERVICE ELECTRIC TV CABLE COM- PANY, INC., TAMAQUA TV CABLE COMPANY, INC., AND SERVICE ELECTRIC CABLE T.V. INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Security Building, Philadelphia , Pennsylvania, Telephone No. Pennypaker 5-2612, if they have any questions concerning this notice or compliance with its provisions. Peerless Distributing Company and Frank Murphy and Local 7-389, Oil, Chemical and Atomic Workers International Union, AFL-CIO. Cases Nos. 7-CA-3975 and 7-CA-3975(2). November 24, 1964 SUPPLEMENTAL DECISION, AND ORDER On November 13, 1963, the Board issued a Decision and Order in the above-entitled proceeding,' finding, among other things, that Respondent discriminated against Charles Chapman, Frank Murphy, Howard Duffey, and Admiral D. Pinnell in violation of Section 8(a) (3) and (1) of the Act and directing that Respondent make whole the above-mentioned employees for loss of pay resulting from the discrimination. On April 13, 1964, the Acting Regional Director for Region 7 of the Board issued a backpay specification, and on May 6, 1964, Respondent filed an answer. Upon appropriate notice issued by the Acting Regional Director, a hearing was held before Trial Examiner George A. Downing for the purpose of determining the amount of backpay due the four claimants. On June 22, 1964, the Trial Exam- iner issued his Supplemental Decision, which is attached hereto, in which he found that the discriminatees are entitled to the following 1 144 NLRB 1510. 149 NLRB No. 96. PEERLESS DISTRIBUTING COMPANY 1063 payments : Charles Chapman, $1,736.75; Frank Murphy, $1,305.39; Howard Duffey, $776.82; and Admiral D. Pinnell, $970.84. There- after, the General Counsel filed exceptions to the Trial Examiner's Supplemental Decision and a brief in support thereof, and the Respondent filed a brief in answer to the General Counsel's excep- tions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member'panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Trial Examiner's Supplemental Decision, the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER On the basis of the Supplemental Decision and the entire record in these cases, the National Labor Relations Board hereby orders that Respondent, Peerless Distributing Company, its officers, agents, successors, and assigns, shall make Charles Chapman, Frank Murphy, Howard Duffy, and Admiral P. Pinnell whole by payment to each of them of the amount set forth in the attached Trial Examiner's Sup- plemental Decision. SUPPLEMENTAL DECISION This is a proceeding on a backpay specification issued by the Regional Director on April 13, 1964, pursuant to Section 102.52 et seq. of the Board's Rules and Regula- tions, Series 8, as amended, for the purpose of determining the amounts of backpay which will make whole Charles Chapman, Frank Murphy, Howard Duffey, and Admiral D. Pinnell, in the manner directed by the Board in its Decision and Order herein, 144 NLRB 1510. A hearing was held before Trial Examiner George A. Downing at Detroit, Michigan, on May 20, 1964, pursuant to due notice. In contrast to the usual situation in cases of this type , the Board established in its Decision the specific basis upon which the backpay due to the discriminatees should be computed by adopting the Trial Examiner's following recommendation: In view of the conceded company practice of equalizing hours of work for its drivers, it is recommended that the four above -named drivers be made whole by paying each of them a sum of money equal to that which he would have earned since June 1, 1962, absent the discrimination against him, using as a standard base for such determination the average monthly pay of the three nonunion drivers [Ernest Baker, Kenneth Davidson, and Loren Ferguson] dur- ing said period. Respondent contests here the propriety of that formula, but it stipulated that should judicial proceedings become necessary, following review by the Board of the computations herein, the only issue before the court will be the validity of the backpay computations , the validity and propriety of the Board's Decision being otherwise conceded . Respondent also admits here the correctness of the specifica- tion insofar as it sets forth the interim earnings of the four discriminatees, but it advances under its pleadings as ultimately amended two further attacks on the specification . The first is that Chapman and Murphy lost 8 hours' work each on six specified dates through their attendance at bargaining sessions . The second is that Chapman informed the dispatcher on or about May 1, 1963 , that he did not 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desire to work in excess of 50 hours a week. Respondent specified some 14 weeks thereafter during which Chapman's workweek ranged from 411/4 hours to 493/4 hours, with the total shortages aggregating 39 hours, and it pleaded that Chapman should receive in those weeks only the difference between his interim earnings and his pay for 50 hours. Respondent withdrew its first contention at the close of the hearing. In support of the second , it offered the testimony of its dispatcher , James McCall, that sometime in April or May 1963 he spoke to Chapman about an extra load to be "pulled" and asked whether Chapman wanted it or whether it should be given to Murphy (another discriminatee ) whose hours were about even. ' Chapman replied that McCall should give it to Murphy and that as long as he worked around 50 hours and got enough to eat on and live, that was all he wanted . McCall testified that was the only conversa- tion he had with Chapman along that line, and that thereafter whenever he requested Chapman to work in excess of 50 hours, Chapman accepted the assignments . McCall testified further that he made no effort to keep Chapman 's hours averaging around 50 and that Chapman never refused an assignment to work more than 50 hours. Respondent stipulated that in the period following May 1, 1963, Chapman's hours exceeded 50 in all except the 14 specified weeks, and that they ranged as high as 67 in the highest week. Since there were a total of 35 weeks involved in the period following Chapman's alleged statement, there were thus 21 weeks in which he worked more than 50 hours, or three-fifths of the total. - It is thus apparent from the entire evidence that Chapman's request was given no effect whatever , with McCall making no attempt to comply with it, and with Chapman regularly working, without comment or protest , all hours which he was called upon to work . I therefore reject Respondent 's contentions concerning Chapman's short workweeks. We turn now to certain features of the specification which do not comply with the formula which the Board prescribed . The specification as drawn eliminated from consideration any week in which any of the three nonunion drivers worked less than 24 hours, thereby reducing also the number of drivers whose earnings were being averaged . Similarly, where any of the nonunion drivers was absent during vacation weeks, the number used to compute the average was also reduced. That action was explained by representations of the General Counsel and by testi- mony of William Leo Schmidt , the field examiner who made the computations, on the following basis : workweeks of less than 24 hours were considered not to ' be repre- sentative and were accordingly eliminated to accord with what Schmidt understood to be Board policy. Indeed, Schmidt testified that he undertook to interpret the Trial Examiner's formula so as to comply with such policy and that in preparing the compu- tations, he did exactly what he would have done if no formula had been fixed in the Decision . Conceding that the Decision did not indicate that there were employees other than the seven identified in it who would have done any of the work which might normally have been done by one of the seven during vacations or short weeks , Schmidt testified that he did not know, and did not attempt to establish during his investigation, that any of such work was done by other employees than those seven.1 Whatever Board policy may be for computing backpay in other cases of this type, the General Counsel's position ignores the fact that the Board here directed that the computation be made under the formula quoted above, and that the General Counsel is not at liberty to modify it to conform with the gloss of his own interpretation or understanding of Board policy generally. Furthermore , whatever the merits of Respondent's attack, on the one hand, or of the General Counsel 's administrative expertise , on the other , the Decision, as written, is binding upon the Examiner. Although I approve and adopt the computations contained in the specification and in the appendix thereto in all other respects, I have recomputed the average weekly earnings for the weeks ending July 30, August 6, 20, and 27, and September 3, 1962; March 11 , May 27, July 8, 15, and 29, August 5, 19, and 26 , and October 28, 1963, and have made corresponding adjustments in the average monthly and quarterly -earnings. See attached Appendix A . In Appendix B, in turn , I have summarized the results of the corrected computations to reflect the correct amounts which I find to be due to the individual discriminatees on a quarterly basis. I conclude and find that Respondent 's obligation to make whole the discriminatees in the manner prescribed in the Decision will be satisfied by payment to them of the 1 The General Counsel represented that he did not propose to litigate the point whether some of such work may have been done by employees other than the seven , because he did not consider that to be in issue. PEERLESS DISTRIBUTING COMPANY 1065 respective sums set forth below, together with interest thereon at the rate of 6 percent per annum, commencing with the last day of each calendar quarter: Charles Chapman ------------------------------------------ $1,736.75 Frank Murphy -------------------------------------------- 1,305 39 Howard Duffey -------------------------------------------- 776 82 Admiral D. Pinnell ---------------------------------------- 970.84 I recommend that the Board adopt the foregoing findings and conclusions. APPENDIX A Corrections in average earnings Total Number of Average Pay period ending Baker Davidson Ferguson earnings employees weekly earnings 7-30-62------------------------ 0 $246.44 $234 35 $480 79 3 $160 26 Total July earnings as adjusted-------------- ------------ ------------ ------------ ------------ ------------ 810 64 8-6-62- ------------------------ 0 190 81 175 49 366 30 3 122 10 8-20-62------------------------ $236 77 154 53 0 391 30 3 130 43 8-27-62------------------------ 217 42 0 0 217 42 3 72 47 Total August earnings as adjusted---------- ------------ ------------ ------------ ------------ ------------ 494 85 9-3-62-------------- ----------- 194 04 37 63 201 29 432 96 3 144 32 Total September earn- ings as adjusted------- ------------ ----------- ------------ ------------ ------------ 679 94 Average quarterly earn- ings as adjusted------- ------------ ------------ ------------ ------------ ------------ 1,985 43 3-11-63- ---------------------- 184 36 23 65 177 91 385 92 3 128 64 Total March earnings as adjusted ----------- ------------ ------------ ------------ ------------ ------------ 836 00 Average quarterly earn- ings as adjusted------ ----------- ------------ ------------ ------------ ------------ 2,242 02 5-27-63-------------- ---------- 177 11 172 27 43 53 392 91 3 130 97 Total May earnings as adjusted-------------- ------------ ------------ ------------ ------------ ------------ 591 78 Average quarterly earn- ings as adjusted ------ ------------ ------------ ------------ ------------ ------------ 2,041 15 7-8-63------------------------- 126 31 0 131 15 257 46 3 85 82 7-15-63------------------------ 146 66 0 156 14 302 80 3 100 93 7-29-63------------------------ 0 127 93 133 57 261.50 3 87 17 Total July earnings as adjusted-------------- ------------ ------------ ------------ ------------ ------------ 417 97 8-5-63------------------------ 0 135 99 143 24 279 23 3 93 08 8-19-63------------------------ 112 61 125 51 0 238 12 3 79 37 8-26-63------------------------ 155 34 156 95 0 312 29 3 104 10 Total August earnings as adjusted----------- ------------ ------------ ---------- ----------- ------------ 107 16 Average quarterly earn- ings as adjusted------- ------------ ------------ ----------- ----------- ------------ 1,494 95 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A-Continued Total Number of Average Pay period ending Baker Davidson Ferguson earnings employees weekly earnings 10-28-63----------------------- $19 89 $138 41 $125 51 $283 81 3 $94 60 Total October earnings as adjusted ----------- ------------ ------------ ------------ ------------ ------------ 510 63 Average quarterly earn- ings as adjusted------- ----------- ------------ ------------ ------------ ------------ 1,880.46 APPENDIX B Summary of backpay computations as corrected Year and quarter Gross backpay Net interim earnings Net backpay Charles Chapman 1962-2d-------------------------------------------------------- $561 06 $513 32 $47 74 1962-3d------------------------------------------------------- 1,685 15 1,163 95 521 20 1962-4th ----------------------------------------------------- 2,034 44 1,316 25 718 19 1963-1st ------------------------------------------------------- 677 80 589 08 88 72 1963-2d------------------------------------------------------- 1,529 99 1,309 09 220.90 1963-3d------------------------------------------------------- 1,494 95 1,602 59 1963-4th------------------------------------------------------ 1,880 46 1,740 46 140 00 Total--------------------------------------------------- 1, 736 75 Frank Murphy 1962-2d------------------------------------------------------ $561 06 $468 17 $92 89 1962-3d------------------------------------------------------- 1,768 64 1,329 78 438 68 1962-4th------------------------------------------------------ 2,034 44 1.582 67 451 77 1963-1st------- ------------------------------------------------ 2, 242 02 2,096.79 145 23 1963-2d 1------------------------------------------------------ 1,688 01 1, 511.19 176 82 Total--------------------------------------------------- 1,305 39 Howard Duffey 1962-2d-- ----------------------------------------------------- $561 06 $545 57 $15.49 1962-3d------------------------------------------------------- 1,037 35 733 97 303 38 1962-4th------------------------------------------------------ 1,191 37 848 44 342 93 1963-1st------------------------------------------------------- 1,745 36 1,630 34 115 02 Total--------------------------------------------------- 776.82 Admiral D. Purnell 1962-2d ------------------------------------------------------- $561 06 $502 83 $58 23 1962-3d------------------------------------------------------- 1,633 82 941 38 692.44 1962-4th------------------------------------------------------ 2220,17 0 220.17 Total--------------------------------------------------- 970 84 i Murphy's backpay period ended June 17, 1963. 2 Figured on basis of three-sevenths of pay for week ending October 8