Eastgate I.G.A. Foodliner

EASTGATE I.G.A. FOODLINER Eastgate I.G.A. Foodliner and Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica AFL-CIO, Local Union No. 576. Case 17- CA-7784 December 12, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 30, 1978, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding,' finding, inter alia, that Re- spondent had discriminatorily discharged Ed Stoner in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Re- spondent was directed to make an offer of immedi- ate and full reinstatement to Stoner to his former or a substantially equivalent position and to make Stoner whole for any loss of earnings resulting from the discrimination. On February 6, 1979, the United States Court of Appeals for the Eighth Cir- cuit entered its judgment enforcing the Board's Order in full. Thereafter, pursuant to a backpay specification and appropriate notice of hearing issued by the Re- gional Director for Region 17, a hearing was held before Administrative Law Judge Richard J. Boyce for the purpose of determining the amount of backpay due Stoner. On September 5, 1980, the Ad- ministrative Law Judge issued his Supplemental Decision in which he found that Stoner was entitled to back- pay for the period starting with his discharge on July 4, 1977, and ending on October 1, 1977,2 when he replaced John Heinrich as a permanent part-time employee at Schnuck's Market. In its ex- ceptions and brief the General Counsel contends that the Administrative Law Judge's determination to cut off any backpay after October I was unwar- ranted and that additional backpay is due for the period extending until Stoner was promoted to a full-time position at Schnuck's Market about Octo- ber 1, 1978.3 Respondent's exceptions allege that the Administrative Law Judge erred in not finding that Stoner's part-time employment with Schnuck's Market was contrary to Respondent's policy against employees having second jobs. We find merit in the General Counsel's exceptions. The record establishes that prior to his discharge on July 4 Stoner was employed by Respondent for i 236 NLRB 1305. ' Unless otherwise specified, all dates are 1977. ' While the amended backpay specification establishes that the backpay period for Stoner extends from July 4. 1977, through March 23, 1979, the General Counsel does not contend that any backpay is due after October 1. 1978. 5 days each week on a 40-hour schedule. On June 30, shortly before his discharge, Stoner accepted a part-time position with Schnuck's Market, replac- ing meatcutter John Heinrich who, for medical rea- sons, had become unable to work. As agreed, the part-time position with Schnuck's Market was not to conflict with his job for Respondent, and on July I Stoner observed that he had been scheduled to begin work at Schnuck's Market on July 5 on a 28-hour-per-week schedule. Stoner remained on this schedule during the entire period of his part- time employment at Schnuck's Market. Stoner also worked additional hours on a voluntary on-call basis after being unlawfully discharged by Re- spondent on July 4. At the time Stoner started working at Schnuck's Market, it was uncertain how long Heinrich would be unable to work. 4 While Schnuck's Market's meat manager testified that he initially intended to reemploy Heinrich upon his recuperation, he also stated that he was "well pleased" and "well satis- fied" with Stoner's work. He added, however, that he also was satisfied with Stoner's flexibility to work on an oncall basis. When Heinrich again became able to work, Gilpin declined to reemploy him, retaining Stoner instead. 5 The General Counsel, in support of the backpay formula contained in the specification, claims that Stoner's part-time work at Schnuck's Market should be viewed as "moonlighting" or alternate employment and that his earnings stemming from his scheduled 28-hour workweek should not be de- ducted from the gross backpay amount.6 As an affirmative defense to its backpay liability, Respondent contends that it would have learned of Stoner's additional employment at Schnuck's Market soon after he started work there and that it would have not permitted him to continue working at both places. Respondent's president, Dale Cor- nelison, testified that he assumes his employees' full-time jobs are exclusive and that on several oc- casions in the past he has requested employees who he has learned have accepted additional employ- ment elsewhere to choose between their two em- ployers. Cornelison admitted, however, that its policy in this regard is unwritten and has never I Schnuck's Market's meat manager, Gilpin, testified that in addition to Heinrich's part-time job at Schnuck's Market, which he had held for at least 4 years, he also had a primary full-time job elsewhere. Gilpin ob- served that Heinrich was being worn down by that many hours of work each week. 5 Heinrich was reemployed by Schnuck's on a part-time basis in Octo- ber 1978 after Stoner had been promoted to a full-time position. Heinrich has since been replaced I The General Counsel has deducted from Respondent's gross backpay liability amounts earned by Stoner while additionally employed on an oncall basis. It appears that this additional employment would have con- flicted with his job for Respondent had he not been discharged. 253 NLRB No. 106 735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been announced generally to employees. Corneli- son also admitted that he has made exceptions to this policy and that one employee had a job else- where without being found out. The Administrative Law Judge rejected Re- spondent's affirmative defense, finding that its pur- ported policy was "an ill-defined, haphazardly pub- licized, and loosely policed prohibition of sorts against its employees' having second jobs." He also found that there was no basis for inferring when Respondent would have learned of Stoner's addi- tional employment, or what its reaction would have been. He found, however, that had Stoner re- mained employed by Respondent, his employment with Schnuck's Market would have ended on or about October 1, as Schnuck's Market's decision to continue Stoner's employment after that date was based on Stoner's flexibility to work on an oncall basis in addition to his scheduled hours. Accord- ingly, he found that all earnings after that date were to be viewed as interim earnings deductible from the gross backpay amount. We disagree with the Administrative Law Judge's limitation on the backpay liability for the reasons stated below. In backpay proceedings, the initial burden is on the General Counsel to establish a respondent's gross backpay liability. 7 Once the gross backpay li- ability is established, the burden then shifts to re- spondent, who must prove the amount by which the gross backpay should be diminished.8 Any un- certainties in the record regarding deductions from this gross backpay figure are to be resolved against respondent, because the Board has consistently found that it is the backpay claimant, rather than the wrongdoer, who is to receive the benefit of any doubt regarding such deductions.9 Under this framework, Respondent has the burden to establish the extent to which Stoner's earnings at Schnuck's Market may be considered interim earnings deductible from the gross backpay figure. We agree with the Administrative Law Judge that Stoner was still employed by Respond- ent when he agreed to work part-time at Schnuck's Market. We also agree that Respondent has failed to show that this part-time position necessarily would have been incompatible with continued em- ployment with Respondent.' ° Accordingly, we find that Stoner's part-time earnings under the 28- T See Mastro Plastics Corporation, 136 NLRB 1342. 1346 (1962). s See McCann Steel Corporation, Inc., 212 NLRB 394, 395 (1974); United Aircraft Corporation, 204 NLRB 1068 (1973). Id. 'o Even assuming that Respondent has a policy against outside em- ployment, the Administrative Law Judge correctly concluded that Re- spondent relied entirely on speculation as to when it would have discov- ered Stoner's job with Schnuck's Market. hour-per-week schedule are alternate earnings not deductible from the gross backpay figure. 1 We further find, contrary to the Administrative Law Judge, that Respondent has not established that Stoner's alternate employment at Schnuck's Market would have ceased on or about October 1, 1977, had he continued to be employed by Re- spondent. Although Stoner initially was employed by Schnuck's Market as a replacement for Hein- rich, the record clearly indicates that this employer was "well pleased" and "well satisfied" with Ston- er's work after several months' employment. While Stoner's additional ability to work extra hours may have contributed to Schnuck's Market's later deci- sion to retain him after Heinrich was able to be reemployed, the record does not establish that it was this flexibility, rather than his work perform- ance, which accounted for this decision by Schnuck's Market. 12 Therefore, contrary to the Administrative Law Judge, we find that Stoner's part-time employment on a 28-hour-per-week schedule continued to be an alternate form of em- ployment after October 1, 1977, and is not deduct- ible as interim earnings from the gross backpay amount. Accordingly, we find that Respondent's backpay obligation extends for the entire time that Stoner was employed by Schnuck's on a part-time basis, consistent with the amended backpay specifi- cation. 3 ORDER On the basis of the foregoing Supplemental De- cision and the entire record in this case, the Na- tional Labor Relations Board hereby orders that the Respondent, Eastgate I.G.A. Foodliner, Co- lumbia, Missouri, its officers, agents, successors, and assigns, shall pay to Ed Stoner the sum of $9,742.54, plus interest thereon until paid, in ac- cordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962), as modified by Florida Steel Corporation, 231 NLRB 651 (1977), less any tax withholding required by law. " See Lee Cylinder Division of Golay & Co., Inc., 184 NLRB 241, 245 (1970); Rice Lake Creamery Company, 151 NLRB 1113, 1115, fn. 4 (1965). '2 In view of this finding, we need not consider whether Respondent's backpay liability would be affected had it shown that Stoner would have been unable to retain his part-time position at Schnuck's Market if he had been employed full-time by Respondent. 13 The Administrative Law Judge found that the General Counsel has not sought any backpay for Stoner after he accepted full-time employ- ment at Schnuck's Market on October 1, 1978. This finding is based on the backpay specification and no party has excepted to this finding. Ac- cordingly, in the absence of exceptions to this computation, we adopt the finding that no backpay is due for the period after October 1, 1978. 736 EASTGATE I.G.A FOODLINER SUPPLEMENTAL DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: By de- cision dated June 30, 1978, reported at 236 NLRB 1305, the Board found that Eastgate I.G.A. Foodliner, herein Respondent, had violated Section 8(a)(3) and (1) by dis- charging two meatcutters, Ed Stoner and Raymond Old, on July 4 and August 19, 1977, respectively. The Board accordingly ordered Respondent, among other things, to make Stoner and Old whole, with interest, for earnings lost as a result of the discharges. The Board's decision was sustained by the United States Court of Appeals, 8th Circuit, in an unreported decision dated February 6, 1979. On February 14, 1980, the Acting Regional Director for Region 17 issued a backpay specification setting forth the amounts of backpay assertedly due Stoner and Old. The parties thereafter resolved their differences concern- ing Old, leaving Stoner's entitlement the only matter in dispute. A hearing on that matter was held before me in Columbia, Missouri, on June 26, 1980. II. ISSUES The specification, as amended during the hearing, al- leges that Stoner's backpay period is from July 4, 1977, to September 30, 1978, and that his net entitlement, de- ducting certain interim earnings from projected earnings with Respondent in that period, is $9,742.54. The specifi- cation asserts that other interim earnings would have been realized, even had Stoner remained with Respond- ent, and thus should not be deducted. Respondent does not dispute the correctness or accu- racy of the figures and calculations contained in the amended specification. It takes the position, however, that all of Stoner's interim earnings should be deducted from his gross entitlement, and that he therefore is enti- tled to nothing inasmuch as the former exceeded the latter in all pertinent calendar quarters. IV. FACTS At the time of his discharge, Stoner worked a daytime schedule for Respondent, putting in a 40-hour week. On July 5, 1977-i.e., the day after the discharge- Stoner began working at Schnuck's, a store in competi- tion with Respondent in Columbia. He remained at Schnuck's throughout the backpay period. All during that time, he worked a regularly scheduled 28-hour week and was classified by Schnuck's as a part-time employee. The 28 hours consisted of 5 days at 4 hours day (6 to 10 p.m.) and I day at 8 hours a day (I to 10 p.m., with an hour's break). Apart from his regularly scheduled hours, he commonly worked several hours per week for Schnuck's on a voluntary, oncall basis. It is true, as Respondent contends and the specification reflects, that Stoner's total interim earnings exceeded his gross entitlement throughout the backpay period. The point in contention is whether those earnings attributable to the regularly scheduled 28 hours per week should work as an offset. As earlier indicated, the General Counsel says not, on the theory that this was "moon- lighting" income that would have accrued in any event. Stoner's employment with Schnuck's derived from a telephone call from Thomas Gilpin, the manager of its meat department, on June 30. Schnuck's was shorthand- ed, primarily because the "night man" in its meat depart- ment, John Heinrich, was to undergo surgery.' Stoner agreed to work in Heinrich's stead provided there were no scheduling conflict between that and his regular work with Respondent. 2 Gilpin credibly testified that he hired Stoner "for a limited period of time," pending Heinrich's return. Gilpin then had "no idea" how long that might be. As it turned out, Heinrich notified Gilpin on or about October 1, 1977, of his readiness to return. By then, however, Gilpin had come to appreciate Stoner's avail- ability for oncall work above and beyond his regularly scheduled 28 hours per week, made possible because he no longer had other employment. Heinrich, on the other hand, worked full-time days in the meat department of another store, as had Stoner before his discharge, so did not give Schnuck's the flexibility that Stoner did. For that reason, Gilpin told Heinrich and Stoner that he was retaining Stoner, and told Heinrich that he would con- tact him later "if something came up."3 Matters remained in that posture until about October 1, 1978, when Schnuck's changed Stoner's status to that of regular full-time employee. As earlier indicated, no backpay is claimed beyond September 30, 1978. The weight of evidence indicates that Respondent at relevant times had an ill-defined, haphazardly publicized, and loosely policed prohibition of sorts against its em- ployees' having second jobs. The record reveals that var- ious employees nevertheless worked elsewhere from time to time and that Respondent, upon learning of this, gen- erally asked the employee to make a choice between jobs. The record discloses one instance, however, in which an employee holding an outside job of finite dura- tion was not required to give it up. There is no basis for inferring when, had Stoner remained with Respondent, it would have learned of his employment with Schnuck's, or what it would have done about it upon so learning, at least so long as the original fill-in-for-Heinrich premise obtained. V. CONCLUSIONS Although Stoner began working for Schnuck's after being discharged by Respondent, it cannot be doubted that he would have done the same had his employment with Respondent continued. It is evident, moreover, that, i Gilpin testified that Schnuck's shorthandedness also was owing in part to the advent of the vacation season. He added, however, that Stoner probably would not have been hired but for the added burden im- posed by Heinrich's absence z Despite the suspect nature of the timing, Gilpin and Stoner are con- vincing that Stoner's commitment to Schnuck's was made on June 30 and that he did not take the Schnuck's job with the idea of its supplanting his job with Respondent. There is no competent evidence to support Re- spondent's assertion that Stoner applied at Schnuck's on June 29 3 The General Counsel to the contrary, there is no warrant in the record for inferring that Gilpin regarded Stoner as superior in ability to Heinrich, or that anything other than Stoner's greater availability contrib- uted to Schnuck's preference for him. 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had he remained in the employ of Respondent, his job with Schnuck's would have ended on or about October 1, 1977, coincident with Heinrich's again being available. It is concluded in these circumstances that those of Stoner's interim earnings until October I attributable to his regularly scheduled 28 hours per week would have been realized even had he stayed on Respondent's pay- roll, and thus should not be deducted from his entitle- ment. Lee Cylinder Div. of Golay, 184 NLRB 241, 244-45 (1970); Richard W. Kaase Company, 162 NLRB 1320, 1330 fn. 15 (1967). It follows, adopting the unchallenged figures contained in the amended specification, that Ston- er's net entitlement for the quarter ending September 30, 1977, is $2,915.33. 4 4 Respondent's argument is rejected that, applying its prohibition against outside jobs, it would have discovered and halted Stoner's moon- lighting within 2 weeks, at most; and that all earnings from Schnuck's after that therefore should be treated as offset. This argument relies wholly on speculation concerning when the discovery would have been made, if ever, and how Respondent would have reacted to it, given the It is further concluded that none of Stoner's earnings from Schnuck's on and after October 1, 1977, would have been realized had he remained on Respondent's payroll. All of them therefore must be regarded as alter- native rather than supplemental and properly deductible from his entitlement. Consequently, since they exceeded his gross entitlement in each quarter, he is entitled to nothing from October 1. [Recommended Order 5 is omitted from publication] nebulous character of the rule and Respondent's less than consistent en- forcement of it. As stated in United Aircraft Curporation, 204 NLRB 1068, 1068 (1973), the "innocent discriminatee .. . should receive the benefit of any doubt rather than . . the wrongdoer responsible for the existence olf any uncertainty and against whom any uncertainty must be resolved." 5 All outstanding motions inconsistent with this recommended Order are hereby denied. 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. 738