K-D Manufacturing Co.

K-I) MFG. CO. K-D Manufacturing Company and Allied Industrial Workers of America, AFL-CIO, Local No. 487. Case 16-CA-2873 January 30, 1971 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 9, 1968, the National Labor Relations Board issued its Decision and Order in the above- entitled case,' directing the Respondent, inter alia, to make whole all employees in a bargaining unit repre- sented by the Charging Union for loss of earnings resulting from Respondent's discriminatory failure to give them a Christmas gift on December 24, 1966. Thereafter, on December 3, 1969, the Board's Order was enforced by the United States Court of Appeals for the Fifth Circuit .2 On July 20, 1970, the Regional Director for Region 16 issued and served on the parties a Backpay Specifi- cation and Notice of Hearing, and Respondent filed an answer to the Backpay Specification. A hearing was held before Trial Examiner Melvin Pollack on August 21, 1970, for the purpose of determining Respondent's backpay obligation to these employees arising from the discriminatory denial of the Christ- mas gifts. On September 28, 1970, the Trial Examiner issued the attached Backpay Decision in which he found the employees to be entitled to backpay in the amount specified. Thereafter, the Respondent filed exceptions to the Trial Examiner's Backpay Decision. 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the backpay hearing and finds no prejudicial error was committed. The Board has con- sidered the Backpay Decision, Respondent's excep- tions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. SUPPLEMENTAL ORDER On the basis of the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, K-D Manufacturing Company, Waco, Texas, its officers, agents, successors, and as- 1 169 NLRB No. 10 i 419 1F 2d 467. 303 signs, shall pay to the appropriate employees as net backpay the amount set forth in the attached Trial Examiner's Backpay Decision. TRIAL EXAMINER'S BACKPAY DECISION STATEMENT OF THE CASE MELVIN POLLACI. Trial Examiner: The National Labor Relations Board on January 9, 1968, issued a Decision and Order directing the Respondent, K-D Manufacturing Com- pany, inter a/ia, to make whole all employees in a bargaining unit represented by the Charging Union, who were on the payroll on December 24, 1966, for loss of earnings resulting from Respondent's discriminatory failure to give them a Christmas gift. (169 NLRB No. 10.) On December 3, 1969, the United States Court of Appeals for the Fifth Circuit enforced the Board's Order (419 F.2d 467.) On July 20, 1970, the Board's Regional Director for Region 16 issued a Backpay Specification and Notice of Hearing. The Respon- dent filed an answer on August 10, 1970. At the hearing on August 21, 1970, at Waco, Texas, the parties agreed that the sole issue in the proceeding was whether the employees in the bargaining unit, absent the discrimination against them, would have received a Christmas gift in 1966 valued at $7, as contended by the General Counsel, or one valued at $4, as contended by Respondent. The General Counsel filed a brief. Upon the basis of the entire record, I make the following: FINDINGS AND CONCLUSIONS Respondent's President, Key, testified that, acting for Respondent in December 1966, he gave fruit baskets valued at $7 to supervisors and office employees, and fruit baskets valued at $4 to customers. Citing the heavy losses suffered by Respondent in 1966, he said, had he decided to give a Christmas gift to the employees in the bargaining unit, he would have given them the $4 baskets because all but one of those employees were recent hires. Key further testified that approximately half the supervisors and half the office employees given $7 fruit baskets were also recent hires. In past years Respondent had given identical gifts to supervi- sors, office employees, production employees, and custom- ers. It is, of course, impossible to know whether the employees in the bargaining unit in 1966 would have received $7 or $4 fruit baskets as December gifts. Key rationalized that he would have treated the production employees like the cus- tomers rather than like the office employees and supervisors because of Respondent's poor business year and because they were new employees. However, as Key gave $7 Christ- mas fruit baskets to new as well as old-time supervisors and office employees, it may also be reasonably supposed that he wouldhave treated all employees alike as he had in previous years. In any event, under Board practice, backpay is ordinarily based on earnings of employees in comparable circumstances, and uncertainties in determining backpay are resolved against the employer whose unlawful conduct has made it impossible to determine the pay the discrimina- tees would have earned but for the discrimination against them. Roger Mfg. Co., 164 NLRB 284. I consider this proce- dure in determining backpayy applicable to this case and find that the employees in the bargaining unit, absent the discrimination against them, would have received the same 1966 Christmas gift as the employees outside the bargaining unit. I therefore conclude that each discriminates is entitled 188 NLRB No. 55. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to backpay in the sum of $7 plus interest accrued to the date to pay each of the bargaining unit employees on the payroll of payment minus any tax withholding required by Federal on December 24, 1966, the sum of $7, as backpay due under and state law. the Board's order of January 9, 1968, plus interest at the rate of 6 percent per annum minus the tax withholding required RECOMMENDED ORDER by Federal and state laws.' Respondent alleges in its answer to the backpay specification that it sent Upon the basis of the foregoing findings and conclusions, a check in the sum of $4.57 to each discnminatee . Respondent may, of and upon the entire record m the case, -l recommend that course, deduct any backpay already received by the discnmmatees from the the National Labor Relations Board order the Respondent backpay due under this recommendation.