Midwest Hanger Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Midwest Hanger Co. and Liberty Engineering Corp. and United Steelworkers of America, AFL-CIO. Case 17-CA-4331 April 27, 1977 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 8, 1971, the National Labor Relations Board issued its Decision and Order directing that Respondent make whole certain employees for their losses resulting from Respondent's unfair labor practices in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended.' On February 20, 1973, the United States Court of Appeals for the Eighth Circuit issued its judgment enforcing the Board's Order.2 Respondent's petition for certiorari to the United States Supreme Court was denied on October 9, 1973. 3 On June 7, 1974, the Regional Director for Region 17 issued a backpay specification and notice of hearing to which Respondent filed an answer and an amended answer. A hearing was held before Admin- istrative Law Judge Julius Cohn on September 10 through 13, and November 11 through 15, 1974, for the purpose of determining the amount of backpay due the discriminatees. On May 20, 1975, the Administrative Law Judge issued a Supplemental Decision in which he found that the discriminatees were entitled to backpay as set forth in his recom- mended Order. On December 1, 1975, 4 the Board issued a Supplemental Decision and Order which adopted as its backpay order the recommended Order of the Administrative Law Judge. On March 3, 1977, the United States Court of Appeals for the Eighth Circuit issued its judgment enforcing the Board's Order with the exception of employee Elaine Peu- kert's backpay award which was remanded to the Board for the purpose of excluding therefrom the period November 6, 1972, to January 22, 1973. 5 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I 193 NLRB 616. 2 474 F.2d 1155. 3 414 U.S. 823. 229 NLRB No. 48 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In response to the court's remand, we make the following modifications in Peukert's backpay award: As indicated in the Appendix of the Administrative Law Judge's Supplemental Decision, he found, in agreement with the General Counsel's backpay specification, that Peukert was entitled to gross backpay in the amount of $1,629 for 11 of the 13 weeks in the fourth quarter of 1972.6 However, as the court directed the exclusion from that quarter of the 8 weeks from November 6 to December 31, 1972, we find that Peukert's gross backpay amounted to $444 for 3 weeks in the fourth quarter of 1972. According- ly, as her net interim earnings of $589 exceeded the gross backpay, Peukert was not entitled to any net backpay for the quarter. The Administrative Law Judge also found, in agreement with the General Counsel's backpay specification, that Peukert's gross backpay was $1,953 for the entire 13 weeks in the first quarter of 1973. However, as the court directed the exclusion from that quarter of the 3 weeks from January I to 22, 1973, we find that Peukert was entitled to gross backpay in the amount of $1,502 for 10 weeks in that quarter. Accordingly, Peukert's net backpay for the quarter represents the difference between the gross backpay of $1,502 and the net interim earnings of $1,166, namely, $336. In view of the revised net backpay for the two quarters in question, we conclude that Peukert's total net backpay amounts to $12,557 rather than the $14,048 stated in the Administrative Law Judge's Appendix. We therefore so amend our backpay order. We shall also attach hereto a revision of that portion of the Appendix which pertains to Peukert. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board, in accordance with the remand of the United States Court of Appeals for the Eighth Circuit, revises its backpay order by reducing the net backpay for Elaine Peukert from $14,048, to $12,557. 4 221 NLRB 911. 5 94 LRRM 2878, 81 LC 113.095. 1 The gross backpay for the entire quarter would have been $1,926. 308 MIDWEST HANGER CO. REVISED APPENDIX YEAR AND GROSS OIIARTER BACKPAY INTERIM EXPENSES NET INTERIM EARNINGS EARNINGS E. Peukert TOTAL NAME NET BACKPAY 1970 1970 1971 1971 1971 1971 1972 1972 1972 1972 1973 1973 1973 1973 3 4 1 2 3 4 1 2 3 4 1 2 3 4 $1,352 1,354 1,440 1,665 1,819 2,085 2,069 1,713 1,953 444 1,502 1,953 1,979 667 $ NONE NONE NONE 26 624 618 686 1,033 1,392 603 1,187 1,505 1,458 676 $ 24 33 56 21 14 21 21 21 14 $ NONE NONE NONE 26 624 594 653 977 1,371 589 1,166 1,484 1,437 662 $ 1,352 1,354 1,440 1,639 1,195 1,491 1,416 736 582 NONE 336 469 542 5 $12,557 -·-------- ------ -- ------ 309