Browning Industries

BROWNING INDUSTRIES 283 Browning Industries, Venetian Marble of Kentucky and Norbert C. Krimple. Case 9-CA-8289 October 6, 1976 - SECOND SUPPLEMENTAL DECISION AND - ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On April 30,1976, Administrative Law Judge Wal- ter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order to the extent consis- tent herewith. 1. In our Supplemental Decision and Order Re- manding Case to Administrative Law Judge we di- rected the Administrative Law Judge to compute the number of hours per workweek to be used in the backpay computation as follows: Utilizing the 21 weeks preceding Krimple's discharge as a base period, the total number of hours during the base period which Krimple was unable to work because of his alcoholism should be computed. This total should then be convert- ed into a weekly average for the entire base peri- od. This weekly average should then be deduct- ed from 40 hours. The resulting figure will be the basic hourly workweek for purposes of comput- ing backpay.1 Throughout the decision presently before us, the Ad- ministrative Law Judge indicates that he viewed our direction to be limited solely to those absences which are directly attributable to Krimple's alcoholism- when he was actually drinking or too drunk to report to work-and not the absences resulting from his al- coholism, viz, tardiness and absences due to morn- ing-after illness and weakness. Respondent takes ex- ception to the Administrative Law Judge's restrictive 'Browning Industries, Venetian Marble of Kentucky, 221 NLRB 949 (1974) interpretation of our earlier decision. We find merit in this exception. Krimple is an admitted alcoholic who, during both the 21-week base time period and the period of un- lawful discharge, suffered considerable weakness for alcohol and as a result missed substantial worktime. Noting this fact, in our Supplemental Decision we directed the Administrative Law Judge to compute backpay in light thereof. The Administrative Law Judge's implementation of our decision, however, overlooks the reality, contemplated in our earlier de- cision, that alcoholism has serious aftereffects which visit its victim even after he has ceased drinking. Thus, in determining Krimple's average workweek for backpay purposes, we shall deduct not only those hours absent from work due to actual drinking, but we shall also deduct absences attributable to the af- tereffects of drinking such as physical illness and weakness rendering Krimple unable to work a full workweek. As indicated in our earlier decision, it would be unfair to impose backpay obligations on the Respondent for periods when Krimple would not have been able to work full time due to his admitted alcoholism. 2. The Administrative Law Judge found that dur- ing the first week of the base period (the week ending on September 14, 1973) Krimple worked only 8 hours. Without evidentiary support, however, he con- cluded that these absences were because Krimple had not yet reported to work and therefore they were not related to his alcoholism. Undisputed evidence establishes that Krimple was told to report to work when he was able during the week of September 14. On Monday of that week Krimple visited Browning at the plant and told him that he was not feeling well, was going to the River Region Services facility, and would report to work when he felt better. Since Krimple is treated for this alcoholism at River Re- gion, his statement that he did not feel well and was going to River Region for help implicitly acknowl- edges that his inability to report to work earlier in the week was related to his alcoholism. Thus, the Admin- istrative Law Judge's failure to attribute the 32 hours of work missed during that first week to alcoholism is contrary to our earlier decision. We shall therefore consider the 32 hours missed during the week of, Sep- tember 14, 1973, as due to alcoholism, and we shall include those 32 hours in,computing the weekly aver- age of work hours missed. 3. The Administrative Law Judge concluded that the few hours missed during weeks in which Krimple worked approximately 38 hours''were not due to his alcoholism. We find this to be in error since these are hours not worked for which Krimple has offered no explanation.' In fact, Krimple generally testified that 226 NLRB No. 44 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time missed was due to alcohol-related illness and weakness following nights of drinking. Thus, we find, contrary to the Administrative Law Judge, that the 1-3/4 hours missed the week ending October 12, 1973, and the 1-1/2 hours missed the week ending December 21, 1973, were due to Krimple's alcohol- ism. Accordingly, we shall include these absences in our determination of the average workweek. 4. There is undisputed testimony at the March 31, 1975, hearing that Respondent's plant was closed from September 25 until October 3, 1974, in order to move operations from Jeffersontown, Kentucky, to Clarksville, Indiana. In the backpay specification the General Counsel did not seek backpay for the por- tion of this downtime falling in September; however, he sought backpay for the days in October during which the plant was closed. Respondent has excepted to the Administrative Law Judge's adoption of the General Counsel's backpay specification and to his failure to exclude backpay for the first 3 days in Oc- tober. We find merit in this exception. In view of the undisputed evidence that Respondent's plant was closed not only during the final days in September, but also from October 1-3, we shall not award Krim- ple backpay for these days in which work was not available. 5. We agree with the Administrative Law Judge's conclusion that during the weeks of December 28, 1973, and January 4, 1974, the workweek consisted of 24 hours. While Respondent testified that the plant was open for operations on both Christmas Day and New Year's Eve, record evidence indicates that only one employee worked on those days. While Krimple 'himself worked 28-1/2 hours during the week ending December 28, 1974, this was consistent with previous weeks in which he worked extra hours. We do not find it equitable to attribute Krimple's absences on these days to alcoholism when the over- whelming majority of Respondent's employees did not work either. In order to balance the equities of this situation, we shall consider that the workweeks of December 28, 1973, and January 4, 1974, consist- ed of 24 hours. Furthermore, in determining the number of hours missed due to alcoholism we shall only credit Krimple with a full workweek of 24 hours rather than the 28-1/2 hours he actually worked.2 6. In light of the above modifications to the Ad- ministrative Law Judge's Decision, we apply our pre- viously stated formula to determine the average 2 While Krimple worked 46 hours of overtime during the 21-week base period, the inclusion of the overtime hours to the number of hours worked and to the total hours of work available does not affect the average numbers of hours missed due to alcoholism. Therefore, contrary to the Administra- tive Law Judge's handling of the overtime hours worked, we shall disregard these hours in our computation of the average number of hours worked. number of hours Krimple worked per week as fol- lows: Record evidence discloses that during the 21- week base period Krimple worked a total of 587 hours. Adding to this figure the 24 hours missed due to appearances in Juvenile Court which were unrelat- ed to Krimple's alcoholism3 and subtracting 4-1/2 hours overtime worked (those worked in excess of the 24-hour full-time workweek) and included in the weekly total for the week ending December 28, 1973, Krimple worked an adjusted total of 606.5 hours during the base period (587 + 24 = 611 - 4.5 = 606.5). During the 21-week base period, 18 workweeks consisted of 40 hours, 2 workweeks consisted of 24 hours (Christmas week and New Year's week) and 1 week consisted of 32 hours (Thanksgiving week). Thus, a total of 800 hours of work were available during the 21-week base period. Subtracting the adjusted total number of hours of work performed (606.5) from the total number of hours of work available (800), we find that Krimple was absent a total of 193.5 hours due to his alcohol- ism. Averaged over the 21-week period, Krimple missed 9.2 hours a week due to alcoholism, or stated conversely, he worked an average of 30.8 hours a week. 7. The following is a summary of the amount due and owing Krimple, utilizing the 30.8 hour base: Net 1974 Hrs. and Gross Interim Net Qtr. Rate Backpay Earnings Backpay (1) 30.8 hrs. x 8 wks., 246.4 hrs. at $3 per hr. $ 739.80 $177.19 $ 562.61 (2)4 (3) 30.8 hrs. x 2.6 wks.,5 80.08 his. at $3.50 per hr. 280.28 3 Based on undisputed record testimony, we adopt the Administrative Law Judge's finding that Knmple was absent from work on 3 days (a to- tal of 24 hours), for the purpose of appearing at Juvenile Court These hours, therefore, are not attributable to Krimple' alcoholism, and we will not include them in our computation of the hours missed because of that illness. 4 No claim for backpay is sought due to Knmple's illness dung the quarter and interim earnings in excess of possible backpay liability. 5 Backpay claimed for the period of August 14-31, 1974, when Krimple was willing and able to work BROWNING INDUSTRIES 285 30.8 his. x 3.4 wks.,6 104.72 hrs. at $3.75 per hr. 392.70 Subtotal $ 672.98 $163.50 (4) 30.8 hrs. x 4.2 wks? 129.36 hrs. at $3.75 per hr. 485.10 1 wk. vac. pay s '40 hrs. at $3.75 per hr. 150.00 Subtotal $ 635.10 $420.00 TOTALS $2,047.88 $760.69 ORDER $ 509.48 $ 210.10 $1,287.19 Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that the Respondent, Browning Industries, Venetian Marble of Kentucky, Jeffersontown, Kentucky, its officers, agents, successors, and assigns, shall pay backpay to Nor- 6 Backpay claimed for September 1-23, 1974 As noted, supra, no claim is made for September 24-30, 1974, when Respondent's plant was closed for relocation ' Backpay claimed for October 1-November 1, 1974 Backpay period ends November 11, the date Krimple was offered reinstatement. No back- pay is claimed for November 1-11 because Krunple was ill and unable to work. No backpay is awarded for October 1-3, 1974, when Respondent's plant was closed. (see par 4, supra.) 8 We find no merit in, Respondent's exception to the Administrative Law Judge's inclusion of a week of paid vacation in the backpay liability. Ai L' XVIII "Vacations" of the applicable contract setting the terms and condi- tions of employment for Respondent's employees provides. After one (1) year continuous service an employee shall be entitled to one (1) weeks' vacation with pay. Knmple began working for Respondent in August 1973 and was unlawfully discharged on February 1, 1974 Thus, from February 1 until November 11, 1974, Krimple was unlawfully discharged, and in our previous decision we ordered Respondent to make Krimple whole for any losses suffered by virtue of that unlawful discharge. As such, during this period of time, Krim- pie is entitled to his employee rights under the contract as if he were contin- uously employed. During the period of time he was unlawfully discharged Krimple celebrated his 1-year anniversary with Respondent and thereby became entitled to 1 week of vacation with pay Accordingly, we find in agreement with the Administrative Law Judge that Knmple is entitled to 1 week's vacation pay, and we shall include this amount in the backpay liabil- ity. bert C. Krimple in the amount of $1,287.19 with interest thereon accrued at the date of payment at the rate of 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), less FICA, state, local, and Federal income taxes which are required to be deducted. MEMBER JENKINS, concurring in part and dissenting in part: I concur in the result reached by my colleagues , except that, as I stated in my dissent in the underlying decision here, in determining the amount of Krimple's backpay I would not include his time worked as a supervisor. SECOND SUPPLEMENTAL DECISION Walter H. Maloney, JR., Administrative Law Judge: On December 3, 1975, the Board issued a Supplemental Deci- sion in which it remanded this case to me to recompute the backpay due and owing to discrimmatee Norbert C. Krim- ple in accordance with the formula announced by the Board, and to make additional findings, conclusions, and recommendations on this question. In my original decision, I adopted the backpay formula proposed by the General Counsel; namely, that backpay should be computed on the basis of a 40-hour base period. The Board felt that the discriminatee would have been physically unable to regu- larly work a full 40-hour week during the backpay period because of his alcoholism. Therefore it determined that a proper formula should utilize the 21 weeks preceding Krimple's discharge as a base period, and that from that period there should be derived the "total number of hours ... which Krimple was unable to work because of his alcoholism." This figure is then to be converted into a weekly average for the entire base period and deducted from 40 hours to arrive at the basic workweek to be used as a base period. The previous record herein was inadequate to make the specific findings necessary to comply with the Board's de- termination, so I ordered an additional hearing to be held for the purpose of permitting the parties to adduce evi- dence which would establish how much time Krimple missed each week of his employment with Respondent be- cause of alcoholism as distinct from time lost for some other reason. A hearing for this purpose took place on April 5, 1976, in Louisville, Kentucky. Thereafter Respon- dent filed a brief to me setting forth its position. In adducing evidence in diminution of Krimple's claim in order to meet the Board's standard as announced in the December 3 decision, the burden of proof falls 'on Respon- dent, not on the Charging Party, to establish how much time Krimple lost during his employment with Respondent due to alcoholism because, in backpay proceedings, the burden of proof is on the wrongdoer, not on the victim. To establish the number of hours less than 40 which Krimple worked during each of the 21 weeks, company records were introduced which show the total amount of time he worked in each week. They indicate that, in 11 of the 21 weeks which Krimple worked for the Respondent between September 1973 and January 1974 he' put in less than 40 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours. They also show that during 7 of the weeks he worked for Respondent, Kemple worked in excess of 40 hours a week, and that, during some weeks when his regu- lar payroll record indicates less than a 40-hour week, he also put in time designated as "casual" on the Company's payroll records. He also worked as a "casual" employee during other weeks and accumulated working hours which augmented the 40-hour week normally expected. Krimple came in after hours to perform duties which generally con- sisted of cleaning up the plant. For this effort he was paid straight time, even though in several instances the aggre- gate time he worked amounted to more than 40 hours in a single week. The Board's formula is silent as to how the equities of this situation should be balanced. At the original backpay hearing 'on March 31, 1975, Krimple testified that the reason for his absence on the days that he did not work was that he was sick and that his sickness was alcoholism. At the hearing on April 5, 1976, Krimple categorically denied ever having missed any time because he was drunk. In determining how much time Krimple lost during his employment in each of the 21 weeks at issue because of alcoholism, Respondent would have me credit Krimple's first statement, ignore or discred- it his second statement, and presume that any time which Krimple missed other than time directly attributable to some identifiable alternative cause was due to alcoholism. Such an approach ignores the burden which Respondent must shoulder to come forward with substantial and credi- ble evidence upon which concrete findings of weekly ab- sences can be made to comply with the Board's directive. Respondent's payroll periods are found on payroll sum- maries dated on the Friday of each week. ' However, the number of hours and amounts of pay indicated on_ each Friday's sheet reflects a week which began on the preced- ing Friday and which ended on the Thursday before the sheet was made up. As daily timecards have been disposed of long ago,' it is these weekly payroll summaries which must form the basis for findings in this case. For the week contained on the summary dated Friday, September 14, 1973, Krimple worked 1 day. Respondent's president, Browning, testified that Krimple probably worked the. Thursday which constituted the end of the preceding pay- roll period. He also testified that he told Krimple that Krimple could start back to work when he wanted to. Browning also stated that he suggested to Krimple that Krimple come in on Monday. In light of Browning's per- mission to Krimple to start work when he wanted and in view of the fact that any dimunition of the base period from a40-hour norm for the first week would mean dimin- ishing Krimple's base period'before he actually started, his employment at Respondent's factory, I would conclude that any time not worked during this week was not due to alcoholism but rather was due to the fact that Krimple simply 'Iliad not reported for duty. 1 The Browmngs are no longer in the marble business and Venetian Mar- ble Company no longer exists. The Brownings now operate a coal company 2 If Kemple had started on Monday, September 10, the most that would be reflected on the September 14 summary would be 32 hours, not 40 hours. Thanksgiving fell within the payroll period described in the summary of November 23, so that 8 hours not worked during that week are attributable to a holiday. Respond- ent's plant did not operate on Christmas, which fell within the December 28 summary. Moreover, the Respondent, while asserting that work was available on Christmas Eve and New Year's Eve (which fell on Monday in 1973), ad- mitted that all other employees were given time off on those days without pay and that the plant in fact did not operate. Therefore I conclude that 16 hours per week not worked by Krimple during each of these 2 weeks was due to reasons other than alcoholism. Krimple testified that he missed 3 or 4 days of work during his most recent employment by Respondent be- cause he was summoned to Juvenile Court to explain or dispute his nonpayment of alimony for child support. He does not know during which weeks these absences oc- curred. Respondent placed no evidence in the record to contradict Krimple's testimony but on this point is not able to pin down which days he missed because he was called to court. while many of Krimple's problems both on and off the_ job may have stemmed from a weakness for drink, I find it too remote to conclude that time spent in court as a defendant in a nonsupport proceeding constitutes time which he was unable to work which was directly attribut- able to alcoholism. On Friday, January 4, 1974, Kemple was injured in an accident on the job when he slipped on ice on company premises while unloading marble from a truck. The injury occurred when Krimple was trying to throw gravel under the wheels of the truck. Respondent sent him home imme- diately to attend to his injury. Respondent is not sure just how much time Krimple was off because of this injury. Krimple testified' that it was not more than a week. The payroll summary for January 11 indicates that Krimple worked 27-3/4 hours. I conclude that the 12- 1/4 hours less than the 40-hour norm which he did not work during the payroll period are attributable to an injury arising out of and in the course of his employment, not alcoholism. Krimple's total for 3 or 4 of the 21 weeks in question indicates that he worked a number of hours just short of the 40-hour norm for the plant._ Respondent' s president, Browning, speculates that the slight variation occurred be- cause Krimple came in late in the morning. The record is silent as to which days Krimple was late for work and the reasons for the lateness are both conflicting and specula- tive. Browning testified that he presumed that Krimple's lateness on these occasions was because of alcoholism but admitted that there could have been other reasons besides alcoholism which caused him to be late for work. Browning also testified that Krimple never came to work drunk, that he did not want anyone to be drunk on the job, and that he would send a man home if he were not in condition to work when he arrived. Krimple was always sober when he was on the job. - Krimple testified that he did his drinking at night and that his drinking sometimes resulted in insomnia and diar- rhea making him too weak to work. In light of the other testimony, I do not believe that such occasions described the days on which he arrived late for work. As the burden BROWNING INDUSTRIES of proof is on the Respondent , I conclude that it has not established that the relatively minor defections from the 40-hour norm owing to lateness are attributable to alco- holism. The question remains as to whether these drinking bouts and Krimple's trips for treatment to the River Region Hos- pital for assistance with his problem constitute the precipi- tating cause for Krimple's other and more extended ab- sences, specifically a loss of 24 hours during the week ending September 21, a loss of 38 -3/4 hours during the week ending November 15, a loss of 32 hours during the week ending November 23, and a loss ending 40 hours during the week of January 18, 1974. It is not at all clear that these 124-3/4 hours of missed time are directly attrib- utable to alcoholism rather than some other cause. Howev- er, in light of Krimple's admissions, a fair inference can be drawn that most of it is. I would deduct from this figure of 124-3/4 hours the amount of 3 hours which Krimple states he was called to court, since it is uncertain in which of the weeks such appearance took place and Respondent has not established that they occurred during other times account- ed for above. Subtracting from 124-3/4 hours 24 attribut- able to court appearance leaves a total of 100 -3/4 hours of missed time ostensibly due to alcoholism. In balancing the equities and arriving at the formula an- nounced in its December 3 decision, the Board was un- aware of the fact that Krimple worked a total of 45-3/4 hours of extra time which was spread out over a 9-week period. Some of this extra time was treated by Respondent as part of his normal workweek and some was treated for pay purposes as "sub-contract labor," but whatever the name, it was time worked which should be accounted for in determining how much time less than a 40-hour norm Krimple worked because of alcoholism . Accordingly, I have deducted this figure of 45-3 /4 hours from the 100-3/4 hours missed ostensibly as a result of alcoholism during his 21 weeks of employment . The remainder , when divided by 21 weeks, means that 2.63 hours per week should be de- ducted from the 40-hour norm in arriving at Knmple's base period, so that the base period comes to 37.37 hours. It is the figure of 37.37 hours per week which I will use in computing Krimple's backpay for the quarters following his discharge. There is nothing in the Board's December 3 decision which suggests that I should in any way review or reevalu- ate any other findings concerning the computation of backpay, except to recompute what it owed in light of a new base period rather than a 40-hour base period previ- ously used. The following is a summary of the amount due and owing utilizing the 37.37-hour base. Net 1974 Hrs. and Gross Interim Net Qtr. Rate Backpay Earnings Backpay 1 299 hrs. (as opposed to 320 hrs. in orig. computation) $3 per hr. $898.00 $177.19 $ 719.81 2 3 89 hrs. (as opposed to 104 hrs. in orig. computation) at $3.50 per hr., $311.50 287 117 hrs. (as opposed to 136 in orig. computation) at $3.75 per hr., $438.753 $750.25 $163.50 $ 586.75 4 179 hrs. (as opposed to 192 hrs. in orig. computation) at $3.75 per hr., $671.254 Vac. pay, 1 wk. by contract - 40 hrs. at $3.75 per hr., $150 $821.25 $420.00 401.25 $1,707.81 Except as modified, I hereby reaffirm all findings and conclusions previously made and, in light of the foregoing considerations, make the following recommended: ORDERS Walter S. Browning and Adeline Browning, doing busi- ness as Browning Industries, Venetian Marble of Ken- tucky, and their agents, successors, and assigns, shall pay 3 Krimple's new total base for this quarter is 486 hours, rather than the original 520 hours, from which a total of 280 has been deducted, since no claim was made for that time in August and September 1974 This leaves a total of 206 hours for which compensation is due 4 These figures have been reduced from the original total of hours found by the ratio of what 37 37 bears to 40 hours s In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay to Norbert C. Krimple in the amount of $1,707.81 forth in the Board's Decision in his Plumbing & Heating with interest thereon accrued to the date of payment at the Co., 138 NLRB 716 (1962), less FICA and state, local, and rate of 6 percent per annum, computed in the manner set Federal income taxes which are required to be deducted.