Lane Aviation Corp.

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lane Aviation Corporation and John E. Hook and John D. Zaros and Teamsters Union, Local 413 Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America. Cases 9-CA-8183, 9-CA-8263, 9- CA-8420-1, and 9-CA-8420-2 March 23, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On October 22, 1976, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding, finding in agreement with the Administrative Law Judge, that Respondent had, inter alia, unlawfully discharged employees John E. Hook and John D. Zaros, and had unlawfully refused to reinstate Zaros pursuant to the terms of a settle- ment agreement which was later set aside by the Regional Director. The Board further found, how- ever, contrary to the Administrative Law Judge, that Respondent "need not be required to do again what it has already done." In this regard the Board noted that Hook had been given backpay and had been offered reinstatement which he declined in writing. The Remedy and Order were therefore amended accordingly. On November 16, 1976, the Charging Parties filed a motion for reconsideration requesting that the Board reconsider its decision . Thereafter, on November 26, 1976, the Respondent filed a response to the motion. 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. Upon consideration of the relevant pleadings and contentions, the majority hereby grants the Charging Parties' motion for reconsideration. The Charging Parties contend, inter alia, that Hook did not receive a bona fide offer of reinstatement and that, even if he did and refused it, the offer and refusal should be ignored with the rest of the terms of the broken settlement agreement. It is clear, as we earlier found, that Hook did indeed sign a letter refusing an offer of reinstatement. As we stated in our previous decision herein, normally a respondent need not be made to do what it has already done even where a settlement agreement is set aside. Upon reconsideration of the facts of this case, however, we find that the reinstatement of Zaros was an integral part of Hook's agreement to 226 NLRB 575. s As Respondent has already complied with the notice -postmg require- 228 NLRB No. 97 waive reinstatement, and that Respondent's breach of that agreement by not reinstating Zaros warrants a new offer of reinstatement to Hook along with backpay. The record discloses that part of the consideration for (1) Hook's agreement to waive reinstatement for himself and (2) the amount of money he would receive was the reinstatement of Zaros. Hook testi- fied: Q. The amount of money which you were willing to accept, was that in part, conditioned on their reinstatement of Zaros? A. Yes. Q. And it is true, is it not, that you understood that in order to receive the backpay you would decline an offer of reinstatement, is that not correct? You would decline reinstatement? A. It was part of the overall agreement. Under these circumstances Respondent's obligation to Hook could not be said to have been completed without the reinstatement of Zaros. Zaros, however, was never reinstated, as noted above. Our dissenting colleague is therefore clearly in error when he states "all considerations of the settlement relevant to him [Hook] . . . have been fulfilled." Therefore, we conclude that the Administrative Law Judge correct- ly ordered that Hook, as well as Zaros, be offered reinstatement and further backpay. Accordingly, we hereby vacate the Amended Remedy portion of our Decision and Order insofar as it is inconsistent with the findings herein.2 We also hereby vacate the Order issued by this Board on October 22, 1976, and order that Respondent take the action set forth below. 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Lane Aviation Corporation, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(c): "(c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act." meats with respect to its violations of Sec. 8(a)(l), it will not be required to do so again. LANE AVIATION CORPORATION 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER WALTHER, dissenting: I disagree with my colleagues' decision to grant the motion for reconsideration. I concurred in the result of the initial decision, although, as there indicated, I found it unnecessary, unlike my colleagues, to set aside the settlement agreement. For whatever subjec- tive reasons Hook may have had for refusing rein- statement, all considerations of the settlement rele- vant to him and agreed to by Respondent have been fulfilled. My colleagues make the bold statement that reinstatement of Zaros was "an integral part" of Hook's waiver of reinstatement. That assertion was left without explanation in their first opinion, and here again it is left without foundation. Unlike my colleagues, I see no reason now for engaging in what amounts to an "about-face" by granting the motion for reconsideration. The record, including the testimony of Hook, was fully consid- ered in reaching the initial decision. Further, the motion for reconsideration contains nothing not previously considered by the Board. For these reasons I would deny the motion. APPENDIX 1029 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge you, refuse to reinstate you, or otherwise discriminate against you be- cause you have engaged in organizing activity, or are a member or supporter of Teamsters Union, Local 413, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL offer John D. Zaros and John E. Hook reinstatement to their former jobs or, if those jobs no longer exist, to jobs substantially equivalent, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay they may have suffered because we discharged them, with interest at the rate of 6 percent per annum. LANE AvIATIoN CORPORATION