Kimball's Motor Dispatch, Inc.

KIMBALL'S MOTOR DISPATCH Kimball's Motor Dispatch, Inc. and Henry A. Kim- ball and Local Union No. 707, a/w The Eastern Conference of Teamsters and International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Case 2-CA- 19016 19 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 3 October 1984 Administrative Law Judge Steven B. Fish issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Kimball's Motor Dispatch, Inc., and Henry A. Kimball Jr., an Individual, Great Barrington, Massachusetts, their officers, agents, successors, and assigns, shall take the action set forth in the Order. I No party filed exceptions to the remedy recommended by the judge We agree with the judge's finding that the court-enforced arbitration award regarding Edward Dixey's discharge is valid and binding on the Respondents and the Board and therefore that Dixey was an employee entitled to backpay at the time the Respondents committed the unfair labor practices involved in this case We do not rely, however, on the judge's discussion or application of Olin Corp, 268 NLRB 573 (1984), United Technologies Corp, 268 NLRB 557 (1984), or Spielberg Mfg Co, 112 NLRB 1080 (1955) SUPPLEMENTAL DECISION STEVEN B. FISH , Administrative Law Judge. The sup- plemental proceeding herein was initiated by the Region- al Director for Region 2 of the National Labor Relations Board by issuance of a backpay specification and notice of hearing on November 30, 1983. The backpay specifi- cation was amended at the hearing held before me on February 16, 1984, in New York, New York Respondents filed an answer to the backpay specifica- tion as well as an amended answer , filed subsequent and in response to counsel for the General Counsel 's amend- ment to the specification.' i Respondents were not present at the hearing before me However, Lawrence Ehrhard, their attorney , sent a telegram to the Regional office dated February 15, 1984, stating that he had discussed the instant case with counsel for the General Counsel, and that he would not be present at the hearing since he perceived legal issues only The telegram also re- quested leave to file a brief 133 On April 8, 1983, Administrative Law Judge James Morton issued a decision and recommended order in the underlying case.2 No exceptions having been filed to this decision, the Board on May 12, 1983, issued an Order adopting the recommended Order of the administrative law judge On June 21, 1983, the Board issued an Order correcting its previous order Subsequently on January 12, 1984, the Board's Order was enforced by the Second Circuit Court of Appeals based on the Board's Motion for Summary Judgment, filed on December 1, 1983 As pertinent herein, the Board's order, enforced by the court, ordered Respondent Dispatch and Respondent Kimball jointly and severally to make whole their em- ployees in the bargaining unit,3 as follows. It is appropriate to require Respondent Dispatch to bargain collectively with the Union and to re- quire it to pay the employees in the unit described above backpay at the rate of their normal wages when last in Respondent Dispatch's employ for 5 days after the date of this decision until the occur- rence of the earliest of the following conditions. (1) the date Respondent Dispatch bargains to agree- ment with the Union on those subjects pertaining to the effects of the closing of its operations on its em- ployees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of Respondent Dispatch's notice of its desire to bargain with the Union, or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum to any of these employees exceed the amount he or she would have earned as wages from May 28, 1982, the date on which Re- spondent Dispatch terminated its operations, to the time he or she secured equivalent employment else- where, or the date on which Respondent Dispatch shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in Respondent Dispatch's employ. Interest on all backpay awarded herein shall be paid in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). The specification, as amended, provides for backpay for five unit emplo,. es of Respondent Dispatch: John Arias, Joseph Fleri, Louis Melendez, Edward Dixey, and Vincent Calabrese.4 3 I note that the record reveals that neither Respondent Kimball's Motor Dispatch Inc (Respondent Dispatch ), nor Henry Kimball Jr (Re- spondent Kimball or Kimball) appeared at the hearing before the judge 3 The bargaining unit consists of all full-time and part-time drivers, warehousemen , and helpers employed by Respondent Dispatch at its New York City terminal The Union representing these employees is Local 707 a/w the Teamsters Conference of Teamsters , Chauffeurs, Warehousemen and Helpers of America (the Union or Local 707) * While the administrative law judge's decision had indicated that there were seven employees in the unit , the backpay specification seeks backpay for only these five employees 274 NLRB No. 27 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The specification requests the minimum 2 weeks of backpay for employees Arias, Fleri, and Melendez, and these sums are not contested by Respondent. At issue are the amounts claimed by the General Counsel for employees Dixey and Calabrese. Respondent claims initially that Dixey was terminated by Respondent prior to the date of the closing, and the commission of unfair labor practices, and is therefore ineligible for any backpay The General Counsel concedes the fact of Dixey's pre- vious termination, but argues that a subsequent arbitra- tion award finding his discharge to have been improper, and ordering his reinstatement with backpay, retroactive- ly accords him employee status insofar as this proceeding is concerned. The parties are also in dispute as to the commence- ment of the backpay period. Briefs have been received from the General Counsel and Respondent and have been carefully considered. On the entire record herein, including my observation of the deamnor of the witness, I make the following At the close of the hearing, the committee representa- tives stated that they would not issue a decision at that time, but would notify Respondents and give them 14 days to respond to the minutes of the hearing. On July 14, 1982, an arbitration award was issued by the New York Joint Local Committee. The award in the form of a letter to Kimball, reads as follows: Re: Case No. 2041 Local 707 vs Kimball's Motor Dispatch Violation Art. 47, Sec. 1 Voluntary quit-Edward Dixey Dear Mr. Kimball: Pursuant to our letter of June 1, 1982-re: the above dispute please be advised that due to your failure to appear on June 24, 1982 the Committee has no alternative other than to rule that 1. The Union's position and claim is upheld. 2. The grievant Edward Dixey is to be immedi- ately restored to his rightful seniority position and with full back pay plus related Welfare and Pension contributions. FINDINGS OF FACT A. Edward Dixey Dixey was employed as a driver by Respondent Dis- patch at its New York terminal for 15 years. On March 29, 1982, he received a telegram from Respondent Dis- patch notifying him that he was fired for "involuntarily" walking off the job. Dixey immediately notified the Union and spoke to Union Vice President Mickey Morris. A grievance was subsequently filed over Dixey's termination. Pursuant thereto an arbitration hearing was scheduled for late April 1982, before the New York City Joint Local Com- mittee This committee is a joint management and labor committee set up pursuant to the contract to dispose of arbitration cases. At the initial date scheduled for the hearing, no representative from Respondent Dispatch ap- peared. As a result of this fact, the hearing was post- poned to a second date, when again Respondent Dis- patch failed to appear Once again for this reason, the hearing was postponed. Finally, the third hearing was scheduled for June 24, 1982, at a hotel in Long Island City. Again no one from Respondent Dispatch nor Respondent Kimball made an appearance, and the committee decided to proceed none- theless. Vice President Morris asked Dixey to give his version of the events precipitating his termination. Dixey testified that there was an informal agreement on the job to rotate the work to prevent layoffs. Thus, Dixey contend- ed that the reason that he did not work on the day in question was pursuant to this informal agreement, and in order to allow less senior men to work. In fact he testi- fied that another senior man, in addition to himself, also did not work on that day, in accordance with that agree- ment Respresentatives of the trucking association on the panel then cross-examined Dixey and, according to Dixey, "took up his part of the argument." Sincerely Frank Scotto Employer Co-Chairman On January 1, 1983, Dixey obtained substantially equivalent employment by becoming self-employed 5 Pursuant to an action commenced by the Union on December 6, 1982, a default judgment was issued by the U.S. District Court, Southern District of New York, on February 25, 1983, confirming the above-cited award, and ordering a judgment against Respondents Dispatch and Kimball personally for $28,985.40 plus costs and dis- bursements 6 It appears however from the record that, since Kim- ball is a Massachusetts resident, the Union has thus far been unsuccessful in enforcing the judgment of the dis- trict court. On September 30, 1983, Respondent Dispatch, by its attorney, sent a letter to the Union, requesting a meeting to bargain concerning the effects on its employees of the decision of Respondent Dispatch to close its New York City terminal.7 B. Vincent Calabrese Calabrese was employed by Respondent Dispatch for 7 years as a driver. His salary was $510 per week. He was employed when Dispatch closed its facility on May 5 The General Counsel does not seek backpay for Dixey subsequent to January 1, 1983 B This judgment included $11,197 39 in backpay for Dixey, as well as moneys allegedly owed him for vacation pay, sick pay, and personal leave Additionally, the judgment included vacation pay, wage supple- ments, and dues owed to and on behalf of other employees of Respond- ents The record includes proof of personal service upon Kimball of the summons and complaint in the Union 's action in the U S district court Neither Respondents nor their attorney filed an answer to this complaint Thus as noted, a default judgment was entered against both Dispatch and Kimball for the amounts specified v The General Counsel concedes that this letter cuts off Respondents' backpay obligations as of that date KIMBALL'S MOTOR DISPATCH 28. In April 1983, after not finding employment, Cala- brese returned and began to collect a pension from the Union of $650 per month Calabrese has continued to look for employment however, but only at non-Team- sters employers.8 Analysis A John Arias, Joseph Flert, and Louis Melendez The specification alleges the minimum amount of back- pay due to these three employees , since they each se- cured equivalent employment within 2 weeks of their terminations Respondents in its answer admits the com- putations with respect to these three individuals . Thus, I shall recommend in accordance with the specification that Respondent be ordered to pay them the sum of $ 1,020.80 each plus interest. B Vincent Calabrese While Respondents in their answers contend that Cala- brese secured equivalent employment as of May 28, 1982, no evidence was adduced by them to sustantiate this as- sertion. Thus, Calabrese's testimony stands unrebutted and is therefore credited that he did not do so. An issue does arise however concerning the method of computing the backpay period for Calabrese.9 The specification alleges that backpay begins to run for Calabrese on May 28, 1982, the date Respondent ter- minated its employees. Respondents contend that the backpay period as speci- fied by the decision of the administrative law judge and adopted unchanged by the Board, provides that backpay liability commences 5 days after the date of the decision, and that the proper period for starting backpay computa- tions is therefore April 13, 1983,10 5 days after the ad- ministrative law judge's decision The General Counsel responds that the order in effect provides for two separate backpay periods, one measured from 5 days after the decision to the earliest of the four specified conditions, and the other from the date of ter- mination until either the obtaining of equivalent employ- ment or the Respondents' offer to bargain, whichever occurs sooner, with the employee to receive the smaller amount of the computations for these two periods. While it is true that the Transmarine remedy, which was followed in the instant case, is not by its terms the model of clarity with respect to this issue, the Board has had occasion to interpret the language in dispute, and has supported the General Counsel's position herein. 8 The specification has included the $650 pension payments to Cala- brese as interim earnings, and deducted same from the amounts due him 9 This issue applies to the computation of backpay in general herein, but has no significance with respect to Arias, Fleri, and Melendez, since they concededly are entitled to the minimum award of 2 weeks' pay The issue does have relevance to Dixey's claim, which as noted below also requires a determination of whether Dixey is eligible for any backpay due to his discharge by Respondent prior to the shutdown 10 Respondents argue the reason for the remedy being drafted as it was must have been because of the "extraordinary remedy of the personal li- ability for a corporate officer which it imposed " This contention is with- out merit The remedy ordered is the standard and well-settled remedy for the violations alleged herein Transmanne Navigation Corp, 170 NLRB 389 (1968), Ohio Brake & Clutch Corp, 244 NLRB 35 (1979) 135 Thus in W. R. Grace & Co., 247 NLRB 698, 699 (1980), the Board concluded that- A Transmarine remedy establishes a set number of weeks of backpay liabilty based on the period from 5 days after the Board's decision until the oc- currence of one of the four specified events, noted previously. These weeks are then applied in full to the time period following termination of employ- ment, unless substantially equivalent employment was found during that period. On applying this interpretation of Transmarine to the facts in W. R. Grace, supra, the Board reversed an ad- ministrative law judge who had calculated the obtaining of sustantially equivalent employment from 5 days after the decision, and concluded that the relevant question whether the employee obtained equivalent employment after the layoff, rather than the period utilized by the judge. In applying this criteria to the instant case, the back- pay period from 5 days after the decision to the occur- rence of the four specified conditions is still running, since none of the four conditions has been satisfied inso- far as this record is concerned Although Respondents had offered to bargain with the Union on September 3, 1983, this does not satisfy any of the four conditions set forth above which are sufficient to termmiate backpay liability measured from 5 days after the decision. i i It is then appropriate, as in W. R. Grace, supra, to de- termine whether from the date of the terminination, i.e, May 28, 1982, the employees either obtained substantially equivalent employment or Respondents offered to bar- gain, whichever occurs sooner In the case of Calabrese, the General Counsel con- cedes consistent with the specification, as amended, that Respondents' offer to bargain with the Union on Septem- ber 3, 1983, terminates the liability period for Calabrese which began on May 28, 1982. Therefore, I find based on the above analysis that the General Counsel is correct with respect to this issue, and that Calabrese is entitled to the backpay in accordance with the specification of $28,844.72, plus interest. C. Edward Dixey Respondent, as noted, contends that Dixey is not eligi- ble for the award of any backpay, since he was not em- ployed by Respondent on May 28, 1982, the date of the unfair labor practice. The General Counsel argues however that the arbitra- tion award issued in July 1982, awarding Dixey retroac- tive backpay and reinstatement, transforms Dixey into an employee in the unit as of May 28, and therefore eligible for backpay. The Board has, in the case of employees terminated in violation of Section 8(a)(3) of the Act, retroactively de- termined that they were eligible to vote in an election. Bonanno Family Foods, 230 NLRB 555 (1977). The Gen- ' i Cf Ohio Brake, supra 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD era] Counsel argues that similar effect should be given to the arbitration award in the circumstances herein I agree. The Board has in its recent decisions in Olin Corp. 12 and United Technologies Corp. 13 modified then current law in extending the Board's policies of the deferring to arbitration proceedings While the issue here is not pre- cisely the same, i e , the Board is not being asked to defer jurisdiction or dismiss a complaint based on an award, the concepts and theories are analogous, and the Board's language therein is most instructive and pertinent to a resolution of this rather novel issue. Thus the Board in Olin, supra observed "[i]t hardly needs repeating that national policy strongly favors the voluntary arbitration of disputes. The importance of arbi- tration in the overall scheme of Federal labor law has been stressed in innumerable contexts and forums." 14 In United Technologies, supra, 268 NLRB at 558, the Board commented in more detail and with more empha- sis on the subject- Arbitration as a means of resolving labor disputes has gained widespread acceptance over the years and now occupies a respected and firmly established place in Federal labor policy. The reason for its success is the underlying conviction that the parties to a collective-bargaining agreement are in the best position to resolve, with the help of a neutral third party if necessary, disputes concerning the correct interpretation of their contract. Congressional intent regarding the use of arbitration is abundantly clear: Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes aris- ing over the application or interpretation of an existing collective-bargaining agreement It is this congressional mandate on which the Su- preme Court has consistently relied in sanctioning arbitration as a preferred instrument for preserving industrial peace. Similarly, the concept of judicial and administra- tive deference to the arbitral process and the notion that courts should support, rather than interfere with, this method of dispute resolution have become entrenched in American jurisprudence. Over the years, the Board has played a key role in fostering a climate in which arbitration could flourish. Finally, and even more pertinent to the issue at hand, the Board commented (id. at 559): It is fundamental to the concept of collective bar- gaining that the parties to a collective-bargaining agreement are bound by the terms of their contract. When a employer and a union have voluntarily elected to create dispute resolution machinery cul- minating in final and binding arbitration, it is con- 12 268 NLRB 573 (1984) 13 268 NLRB 557 (1984) 14 268 NLRB 574 trary to the basic principles of the Act for the Board to jump into the fray prior to an honest at- tempt by the parties to resolve their disputes through that machinery For dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiat- ing the contract 15 It would seem that the Board's emphasis on binding the parties to the terms of their collective-bargaining agreement, including the arbitration clause, as expressed in these cases, would also extend to binding the employ- er to the results of the arbitration award, which arose out of the contract to which it voluntarily agreed I therefore conclude that it is proper and appropriate to rely on the arbitration award in determining the ques- tion of Dixey's employee status on the date of the unfair labor practice. Respondents argue that any question of deferral to an arbitration award must be evaluated under the Speil- berg16 standards, as modified by Olin, supra. While I am not persuaded that this is precisely a Sped- berg case since, as noted, this is not a case of the Board dismissing a complaint because of an arbitration award, it is arguable that the standards therein are revelant to the disposition of the instant case Although I believe that the utilizing of the arbitrator's decision in determing em- ployee status is not technically a Speilberg issue, and it may not be necessary to meet all the criteria therein in order to rely upon the arbitrator's award in this case, I shall consider and resolve the issue Respondents contest the utilization of the award solely on the grounds that the proceeding allegedly was not fair and regular. They do not contest the fact that the parties agreed to be bound by virtue of the collective- bargaining agreement, nor do they contend that the award is repugnant to the Act As to the criteria of consideration and presentation of the unfair labor practice issue which has also not been raised by Respondents, the Board has held in Olin, supra, that it will presume the arbitrator has adequately consid- ered the unfair labor practice if the contractual issue is factually parallel to the unfair labor practice issue and if the arbitrator was presented with the facts relevant to re- solving the unfair labor practice. While we are not dealing with the issue of deferring to a finding concerning an unfair labor practice, we are concerned with the issue of Dixey's status as of the date of the unfair labor practice. Thus, the issues are parallel and the facts relevant to resolving the issue herein- Whether Dixey was discharged with just cause, which would retroactively grant him employee status as of May 28, 1982-were presented at the arbitration. Thus, I con- clude that this criteria has been met 17 1 s The Supreme court stated in Steelworkers v Warrior & Gulf Co, 363 U S 574 578 ( 1960), that "arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself" Id at 559 fn 16 16 Spielberg Mfg Co., 112 NLRB 1080 (1955) 17 1 note again that Respondents have not argued to the contrary KIMBALL'S MOTOR DISPATCH Respondents do contend, however, that the arbitration was not fair and regular because Respondents were not given any notice of the arbitration proceeding: They argue that the General Counsel has presented no facts showing fairness, since the basis for fairness in an adver- sary proceeding is notice. They further contend that, since the General Counsel has the burden of proof in this proceeding and was put on notice by Respondents' answer that they claimed not to have received such notice, it was incumbent on the General Counsel to prove the existence of such notice, which it did not do. Thus, Respondents conclude that no reliance can be placed on the arbitration award. I do not agree. First and foremost, Respondents misperceive the burden in a Spielberg and Olin situation The Board places the burden on the party seeking to have the Board ignore the determination of the arbitrator to affirmatively demonstrate the defects in the arbitral process or the award Olin, supra. Thus, the burden is on Respondents , the parties attack- ing the award , to prove that the proceeding was not fair and regular. They have adduced absolutely no evidence in support of this contention As noted, they made no ap- pearance at the trial herein , called no witnesses , and in- troduced no evidence whatsoever An unsupported con- tention in their answer, that no notice was received, is of no evidentiary value, and cannot be relied on to meet such a burden. Moreover, the evidence of record supports the infer- ence that Respondents were notified of the arbitration, and the affirmative finding which I make that the pro- ceedings were fair and regular. Thus, Dixey's unrebutted testimony establishes that the hearing was postponed twice because of the failure of Respondents to appear, and that Respondents were given 14 days to review the minutes of the arbitration before an award was issued. i 8 The award itself is corroborative of the facts, since it specifically refers to "our letter of June 1, 1982 re: the above dispute," which tends to support the logical infer- ence that Respondents were notified of the hearings Ad- ditionally, the record contains the summons and com- plaint of the Union's action to enforce the award, which establishes proof of personal service therein of Respond- ents. It would seem logical that if, as contended by Re- spondents, they did not receive notice of the arbitration hearings , when they received the summons and com- plaint they would have contested the action on that basis. Yet they did not do so, and a default judgment was entered. Based on all the above facts, I am of the opinion that the criteria of the arbitration, being fair and regular, have clearly been met, and that Respondents have shown no basis for not deferring to the award on the issue of Dixey's status. I therefore conclude that for purposes of this proceed- ing and for the computation of backpay, Dixey should be 18 While the findings are based on Dixey's hearsay testimony , such tes- timony was admitted without objection , and constitues probative evi- dence Avon Mirror & Distributing Co, 247 NLRB 225, 228 (1980), Today's Man, 263 NLRB 332 (1982) 137 considered an employee as of May 28, 1982, and eligible for the award of backpay from the date forward. The General Counsel goes further, however, and argues that Dixey should be awarded backpay starting on April 1, 1982, the date of his original discharge. The General Counsel, while conceding that April 1 is prior to the commission of the unfair labor practices at issue herein , still insists that it is appropriate to award him backpay as of that date. No authority was cited for this rather unprecedented extension of current Board law The General Counsel reasons as follows in her brief The Backpay Specification, as amended, includes wages for Dixey for the period April 1, 1982, through January 1, 1983. This inclusion of the pre- unfair labor practice wages is based upon the premise that Dixey did not become entitled to, and therefore did not earn money until the issuance of the arbitrator's award in July 1982, after unfair labor practice and within the backpay period. Ac- cordingly, since these April and May wages are monies which Dixey would have received absent the unfair labor practice, they are properly reflected in the Specification and should be included in Dixey's award I find this contention unsupportable and the reasoning seriously flawed. Dixey's entitlement to the April and May wages flowed not from any unfair labor practices committed herein, but solely from the arbitration award. The fact that the award issued within the backpay period is irrelevant . These wages have no relation to Respond- ents' refusal to bargain about the effects of the shutdown, which occurred on May 28, 1982. While I am persuaded that it is appropriate to rely on the arbitration award in determining that Dixey should be considered an employ- ee on May 28, I find it inappropriate and improper to go beyond that, and in effect to enforce the entire arbitra- tion award as to Dixey by extending the backpay period for him to April 1, 1982. The amounts due between April 1, and May 28, 1982, are not properly before me, and must be obtained by the Union in their attempts to enforce the arbitration award. I therefore shall commence the backpay period for Dixey on May 28, 1982, and end it on December 31, 1983, as alleged in the specification. 19 Curiously, although the General Counsel argues that backpay for Dixey should commence on April 1, 1982, and the specification, as amended, reflects those dates, the calculations set forth therein do not. Thus, the calcu- lations set forth in the amendment and the original speci- fication for Dixey are identical for the second quarter of 1982, i.e., 4.6 weeks at $51040 per week, totaling $2347 84. This appears to coincide with calculating back- 19 The issue of whether the backpay period begins 5 days after the judge's decision as contended by Respondents, and discussed infra with respect to Calabrese, is equally applicable to Dixey Thus Respondents contend that if Dixey is entitled to any backpay , it should have began to run on April 13, 1983 For the same reasons set forth above, I reject this contention , I find that Dixey's period commences May 28 , 1982, and ends when he obtained substantially equivalent employment 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay from what I have found to be the proper starting point for Dixey's award, that of May 28, 1982 20 Accordingly, I shall award Dixey backpay as set forth in the calculations , including $2347.84 for the second quarter of 1982,21 and totaling $13,697 04 plus interest On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondents, Kimball's Motor Dispatch, Inc., and Henry A. Kimball Jr., an individual, their officers, agents, successors, and assigns, shall pay to each of the following employees as backpay the amount set forth op- posite each name, plus interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977),23 less tax witholdings required by Federal and state laws. 20 I can only conclude that the General Counsel inadvertently failed to update the calculations in accordance with her position that backpay should commence for Dixey on April 1 I need not decide whether the failure to so provide in the specification would preclude such a finding on procedural or due process grounds, since I have found that on the merits the General Counsel's position is untenable 21 There are no interim earnings included for the second quarter of 1982 Thus the amounts set forth coincide with a May 28,1982 starting date 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the John Arias $ 1,020.80 Joseph Fleri 1,020.80 Louis Melendez 1,020.80 Edward Dixey 13,697.04 Vincent Calabrese 28,844.72 Board and all objections to them shall be deemed waived for all pur- poses 23 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)