The Carter-Jones Lumber Co.

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Carter-Jones Lumber Company and Office & Pro- fessional Employees, International Union, Local Union No. 339, AFL-CIO. Case 8-CA-4883 August 23, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 1, 1972, Trial Examiner Josephine H. Klein issued the attached Supplemental Decision in this proceeding. Thereafter, the Respondent filed exceptions and an accompanying brief to the Trial Examiner's Supplemental Decision.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Supplemental Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, The Carter-Jones Lumber Company, Kent, Ohio, its officers, agents, successors, and assigns, shall pay employee Robert W. Chalmon, Jr., involved in this proceeding, the amounts set forth by the Trial Examiner in her attached Supplemental Decision, plus interest, less deductions required by state and Federal laws. 1 On the basis of the record before us we find no merit in the Respondent's charge of bias and prejudice on the part of the Trial Examiner towards the Respondent during the hearing. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: On September 23, 1968, the Board issued its Decision and Order against The i The transcript of hearing contains numerous errors However, in main, the errors are self-evident and none of them critically affects decision of the issues presented Accordingly, no corrective order is being issued 2 The backpay specification referred to Chalmon's compensation by Respondent in 1966 and 1967, whereas it appears that he was not hired until the early part of 1967. The error is immaterial 3 The General Counsel sought to have Respondent's evidence excluded for Respondent's alleged refusal to provide information in accordance with the Board's and courts prior order or to produce material in response to a subpoena issued in connection with the present hearing In the exercise of Carter-Jones Lumber Company, Respondent. On Decem- ber 21, 1971, the United States Court of Appeals for the Sixth Circuit issued its judgment enforcing the Board's Order (Case 71-1985). The court's order directed Respon- dent, inter alia, to make Robert W. Chalmon, Jr., whole for loss of earnings resulting from his discharge by Respon- dent on September 23, 1967. A controversy having arisen over the amount of backpay, if any, due the discriminatee, on March 28, 1972, the Regional Director for Region 8 issued a backpay specification and notice of hearing. Respondent filed its answer on April 12, 1972. By order issued May 2, 1972, the hearing on the backpay specification was rescheduled from May 20 to May 11, 1972. A hearing was held in Kent, Ohio, on May 11, 1972. All parties were afforded full opportunity to participate, to call, examine, and cross-examine witnesses, and to present written evidence. At the close of the hearing, the parties waived oral argument and the right to submit briefs. Upon the entire record,' the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS The backpay specification claims backpay of $106.15 for the week September 23 through 30, 1967, and net backpay of $557.91 (gross backpay of $1,379.95, less interim earnings of $822.04) for the calendar quarter October 1 through December 31, 1967. Although the specification defined the backpay period as September 23, 1967, to March 10, 1972 (when Respondent offered Chalmon reinstatement), no claim is made for any period after the fourth quarter of 1967. The backpay specification alleges that Chalmon's com- pensation with Respondent had been "an average of $106.15 per week, or $2.20 per hour, and $3.30 per hour" for time beyond 40 hours in any week. In its answer, Respondent averred "that when Chalmon did work for Respondent his pay was less than the amount stated by the 'Regional Director."2 Chalmon testified that he was paid $2.20 per hour, with time beyond 40 hours at the rate of $3.30. He also testified that generally his hours varied "from 42 to 47 hours" per week. A pay stub for 1 week was introduced, showing 47- 1/2 hours, for total compensation of $112.75. He stated his average earnings as "approximately $106 per week." Respondent then introduced payroll records covering Chalmon's employment. Although objecting to the receipt of the payroll records,3 the General Counsel withdrew his initial objection to their authenticity. The payroll records show that Chalmon's hours vaned from 32 to 63-1/24 hours per week. With minor corrections (see fn. 4), the figures show Chalmon's average gross discretion, the Trial Examiner received the payroll records, in the belief that the present matter, dating back to a discriminatory discharge in September 1967, should finally be brought to an end through compliance with the court's backpay order 4 The record shows two checks for the week ending May 27. the first records 24 hours and the second shows 39-1/2, for a total of 63-1/2 (Another check for 32 hours had been issued, but then voided.) The record shows that Chalmon was paid for all the hours in that week at his straight- time rate of $2.20 per hour, for a total of $139 70 At time and a half for hours over 40, his compensation for that week would have been $165 55 In 198 NLRB No. 151 THE CARTER-JONES LUMBER COMPANY 1037 earnings while in Respondent's employ as approximately $100.75 per week. At the hearing, the General Counsel sought to elicit information concerning such matters as bonuses and vacations and, apparently, increased compensation which Chalmon might have received if he had remained in Respondent's employ. However, the backpay specification explicitly states that: "An appropriate measure of Chal- mon's backpay is his average weekly wage as set forth," i.e., $106.15, based on a straight-time hourly rate of $2.20, with overtime at $3.30. Since no amendment to the specification was ever offered, the Examiner believes that no consideration can properly be given to possible items of potential additional compensation.5 Adopting the General Counsel's method of measuring backpay, and applying it to Respondent's payroll records, the Trial Examiner finds that the measure of Respondent's gross backpay liability is $100.40 per week. In its answer to the backpay specification and at the hearing, Respondent contended, in effect, that backpay should not be computed strictly on a quarterly basis, but that Respondent should be given credit for all earnings which Chalmon had received at any time after September 23, 1967, in excess of his average weekly earnings while employed by Respondent. This contention, however, is not open at this time. In the original proceeding, the court of appeals, enforcing the Board's order, specifically ordered that backpay "be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716." That order is law of the case and clearly binding in the present proceeding.6 The backpay specification lists interim earnings of $822.04 during the fourth quarter of 1967. Although Respondent's Answer did not attack this figure, the General Counsel at the hearing supported it by a written statement from Chalmon's employer during that period and Chalmon's testimony that the figure so shown covered his entire earnings. At the hearing Respondent apparently also sought to elicit evidence of a wilful loss of earnings by Chalmon or a failure diligently to seek employment. Since Respondent's answer to the backpay specification contained no such allegation, it cannot be considered at this time. See Southland Manufacturing Corp., 193 NLRB 157, footnote 3.7 On the foregoing findings, the Trial Examiner concludes that the amount of backpay due Robert W. Chalmon, Jr., by Respondent, is $583.56 computed as follows: 3rd Quarter 1967 1 week ( Sept. 23-30) $100.40 4th Quarter 1967 13 weeks @ $100.40) $1305.20 Less Interim Earnings 822.04 Balance $ 483 .16 483.16 TOTAL $583.56 Interest at the rate of 6 percent per annum will continue to accrue until the date of payment of all backpay due. tut week ending June 3 , he was paid $ 104 50 for 47-1/2 hours, whereas the amount should have been $112 75 if hours over 40 were paid at $3 30 Similarly, in the week ending September 9, he was paid $ 103 40 for 47 hours work, whereas the amount would be $111 10 if time and a half were paid for at the rate of $3 30 s This holding is not intended to condone the contumacious refusal of Respondent's president to answer questions directed to him at the hearing See also the comments of Trial Examiner George A Downing, affirmed by the Board, in the original hearing in this case 172 NLRB No 253 However, the General Counsel had made no attempt to seek judicial enforcement of a subpena or enforcement of the original court order for production of books and records through contempt proceedings Respondent did not petition to revoke the subpena previously issued (Board Regulations, Sec 10231 (b)) The Trial Examiner refrains from commenting of the conduct of Respondent, its president or its counsel, with respect to a subpena 6 In any event, Respondent's contention is patently without merit. See, e.g, Golay & Co v N LR B, 477 F 2d 290, 294 (C A. 7) Payment shall be less any taxes required to be withheld by Respondent. There is no merit in the Company's contention that the Board erroneously used the quarterly computation methods in determining net backpay . The quarterly computation method was established in F W Woolworth . for that case and future cases and was approved by the Supreme Court in N LR B v Seven-Up Bottling Co, 334 U S 344 it is the "usual formula" for the computation of net backpay s The net loss of pay is determined for each quarter or portion thereof and the earnings for one quarter are to have no effect on the liability for any other quarter N LR B v Seven-Up Bottling Co, 344 U S 344,345 7 In any event, despite the absence of any allegation, Respondent was permitted to cross-examine Chalmon concerning this matter Neither by such cross-examination nor by the proffer of any other evidence did Respondent adduce a scintilla of evidence of a lack or of diligence or a wilful loss of earnings on the part of Chalmon On the contrary, Chalmon appears to have been unusually dilligent (as well as successful ) in seeking other employment