Norco Products

616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD USA McDonald Corporation d/b/a Norco Products and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Union No. 2, AFL-CIO. Cases 19-CA-18986 and 19-CA-19184 August 28, 1990 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 2, 1990, Administrative Law Judge Richard J Boyce issued the attached supplemental decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authority in tins proceeding to a three- member panel 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 1 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Supplemental Order of the adminis- trative law judge and orders that the Respondent, USA McDonald Corporation d/b/a Norco Prod- ucts, Missoula, Montana, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Supplemental Order 1 The judge states that the Respondent did not file a formal answer to the ongmal backpay specification, "instead submitting various letters to Region 19" We note that the Board treated Respondent's letters as a timely answer Norco Products, 297 NLRB 778 (1990) In its exceptions, the Respondent contends that by filing a Motion for Summary Judgment on the backpay specification, Region 19 did not honor its promise to the Respondent that there would be a hearing The Board found in the earlier proceeding that the Respondent's answer was insufficiently specific to entitle the Respondent to a hearing over gross backpay allegations of the specification except as they related to Joseph Bauer under the Board's Rules and Regulations, Secs 102 56(b) and (c) 297 NLRB 778 supra However, the matter was remanded to the Region for a heanng regarding the interim earnings of the discnmmatees and re- garding the gross backpay for discnmmatee Joseph Bauer The Respondent contends that Region 19 engaged in misconduct In- tended to "intentionally and wrongfully damage the Respondent" The Board previously considered and rejected the Respondent's claim of mis- conduct by Region 19 297 NLRB 778 at fn 3 James C Sand, Esq , for the General Counsel Ronald Preston, for the Respondent SUPPLEMENTAL DECISION Statement of the Case RICHARD J BOYCE, Administrative Law Judge By Decision and Order dated May 31, 1988, reported at 288 NLRB 1416, the National Labor Relations Board (Board) directed USA McDonald Corporation d/b/a Norco Products (Respondent) to make some 16 employ- ees whole for any losses they may have incurred as a result of Respondent's unfair labor practices The Board's Order was enforced by the Umted States Court of Appeals for the Ninth Circuit, in an unreported deci- sion dated December 1, 1988 On January 5, 1989, the Regional Director for Region 19 issued a backpay specification allegmg the amounts due under the Board's Order Respondent did not file a formal answer to the specification, mstead submitting various letters to Region 19 and filing a misplaced motion to dismiss with the Ninth Circuit Court of Ap- peals in which it denied the allegations of the specifica- tion paragraph by paragraph On February 22, 1989, the General Counsel filed with the Board a Motion for Partial Summary Judgment, al- leging that Respondent had failed to file an answer as re- quired by the Board's Rules and Regulations By Supple- mental Decision and Order dated February 23, 1990, re- ported at 297 NLRB 778 the Board granted the General Counsel's motion "with respect to the gross backpay al- legations of the specification, except concerning the wage rate of Joseph Bauer," and remanded the proceed- ing to the Regional Director to schedule a hearing before an administrative law judge, which— shall be limited to taking evidence concerning the wage rate of Joseph Bauer and the interim earmngs of Joseph Bauer, Richard Chapdelame, Montana Boyd, Ron Butcher, Jim Gates, Scott Green, Kathy Hambley, Roger Hambley, Richard Harris, Ken Juhnke, Don Martin, Patty Martin, Kelly Qumn, Steve Rodriquez, Gary Tnmp, and Tom Yelton I accordingly conducted a hearing in Missoula, Mon- tana, on March 29, 1990 The Backpay Specification The specification as first issued alleged that Respond- ent's "obligation will be discharged" by paying the following amounts Joseph Bauer $1,740 Richard Chapdelame 1,309 Montana Boyd 1,869 Ron Butcher 2,430 Jim Gates 2,203 Scott Green 2,637 Kathy Hambley 1,405 Roger Hambley 2,069 Richard Harris 1,325 1 Plus interest accrued to the date of payment, less taxes withheld in keeping with Federal and state laws 299 NLRB No 93 NORCO PRODUCTS 617 Ken Juhnke 1,734 Don Martin 2,309 Patty Martin 3,732 Kelly Quinn 2,113 Steve Rodnquez 2,285 Gary Tnmp 2,402 Tom Yelton 1,084 The original specification further alleged that Bauer's entitlement assumed an hourly wage of $750 On March 2, 1990, the Regional Director amended the specification to state that the claim on behalf of Montana Boyd thereby was "withdrawn" because his entitlement was fully offset by interim earmngs, and, on March 6, the Regional Director again amended the specification, alleging that Joseph Bauer's hourly wage was $5 75, not $7 50, reducing his entitlement from $1740 to $1334 The $5 75 corresponds with the rate provided by Respondent in its dismissal motion to the Ninth Circuit The Missing Claimants By letter to Respondent dated March 6, 1990, counsel for the General Counsel stated that Region 19 had been unable to locate Ron Butcher and Jim Gates to inquire into their interim earnings The letter continued that should their whereabouts remain unknown any payments made by Respondent in discharge of its obligation to them would be put in escrow for a year, after which the funds would "revert to" Respondent Further in this vein, counsel for the General Counsel represented dunng the hearing that he had yet to find Butcher and Gates, and "request[ed] that the escrow procedures be used with respect to them" The Issues as Defined by the Board A Bauer's Wage Rate As noted above, the Regional Director amended the specification on March 6, 1990, to allege that Bauer's hourly wage was $5 75 Inasmuch as this figure matches that Respondent gave to the Ninth Circuit, I find that it is correct, that the calculations in the amended specifica- tion based on it likewise are correct, and that Bauer's en- titlement therefore is $1334, as now alleged B Interim Earnings The burden of proof is upon the General Counsel to establish the claimants' gross backpay entitlement, after which the burden shifts to the wrongdoer "as to dimmu- tion of damages," including interim earnings 2 Respond- 2 Mastro Plastics Carp, 136 NLRB 1342, 1346 (1962) ent declined, during the hearing, to come forward with any evidence on the issue of interim earnings I conclude, therefore, that the claimants' entitlements are as set forth in the specification as now constituted On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, McDonald Corporation d/b/a Norco Products, its officers, agents, successors, and assigns, shall make the following claimants whole by paying them these amounts, less taxes appropriately withheld Joseph Bauer $1,334 Richard Chapdelame 1,309 Scott Green 2,637 Kathy Hambley 1,405 Roger Hambley 2,069 Richard Harris 1,325 Ken Juhnke 1,734 Don Martin 2,309 Patty Martin 3,732 Kelly Quinn 2,113 Steve Rodriquez 2,285 Gary Tnmp 2,402 Tom Yelton 1,084 Respondent shall, in addition, place certain amounts in escrow for Ron Butcher and Jim Gates, as follows Ron Butcher $2,430 Jim Gates 2,203 The amounts due Butcher and Gates shall be paid to the Regional Director for Region 19, to be held in escrow for a period not to exceed 1 year The 1-year escrow period shall begin upon Respondent's compliance by payment of the backpay for deposit into escrow or the date the Board's supplemental decision and order be- comes final, including enforcement thereof, whichever is later 4 All of the above amounts shall be with interest, to be computed as prescribed in New Horizons for the Retard- ed 5 3 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 Board and all objections to them shall be deemed waived for all pur- poses Starhte Cutting, 284 NLRB 620 (1987) 5 1n accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1987 amendment to 26 U S C § 6621