Meatxcorp

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meatxcorp (Formerly Seymour Packing Division of Seymour America, Inc.) and Local 248, Meat and Allied Food Workers, United Food and Commercial Workers International Union, AFL-CIO.' Cases 30-CA-4378 and 30-CA- 4547 August 20, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 6, 1980, Administrative Law Judge Thomas R. Wilks issued the attached Supplemental Decision in this proceeding. Thereafter, the Gener- al Counsel filed limited exceptions to certain arith- metic errors contained in the Supplemental Deci- sion of the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified and restated herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and set out in full below, and hereby orders that the Respondent, Meatxcorp (Formerly Sey- mour Packing Division of Seymour America, Inc.), Milwaukee, Wisconsin, it officers, agents, succes- sors, and assigns, shall pay to the employees named below as net backpay the amounts set forth oppo- site their names. Each of the moneys stated below shall accrue in- terest computed in the manner set forth in the un- derlying Decision minus the tax withholding re- quired by state and Federal laws: Ben Coneglio Herbert Evers Vicent Goggans Emmett Maxwell Donald Nathan George Nelson Tom Pavasil Reginald Perine Stu. Riedl Naftali Santiago Angel Sevilla Michael Trabert Ken Zirkelbach 238.60 1,468.74 225.47 1,780.86 1,029.45 9,176.41 802.93 10,622.26 1,069.16 11,817.67 1,982.16 1,831.82 1,003.97 IT IS FURTHER ORDERED that the attached Ap- pendixes A and B [omitted from publication] be substituted for those of the Administrative Law Judge. SUPPLEMENTAL DECISION ST'ATEMENT OF HI CASE THOMAS R. W KS, Administrative Law Judge: This backpay proceeding was heard pursuant to notice on January 28, 1980, at Milwaukee, Wisconsin, to determine the amount of backpay due employees Perine, Nelson, Evers, and Santiago who were discharged in violation of Section 8(a)(3) of the Act, and backpay due the boning employees of Respondent as a result of unilateral changes in the boning piece rate which were effectuated in violation of Section 8(a)(5) and (1) of the Act, in com- pliance with the October 18, 1978, Board Order adopting a recommended Order of Administrative Law Judge Hutton S. Brandon, as enforced on January 18, 1979, by the Court of Appeals for the Seventh Circuit in N.L.R.B. v. Meatxcorp (Formerly Seymour Packing Division o Sey- mour America, Inc.), No. 79-1059. All parties were afforded a full opportunity to partici- pate in the proceedings. Briefs have been filed by the General Counsel and Respondent and have been consid- ered. Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINI)NGS ANt) CONCI.USIONS The Dispute The parties are in dispute as to the appropriate formula to be utilized in determining the amount of backpay due to the 4 dischargees and 11 additional employees who had been engaged in the boning operation. In the underlying unfair labor practice proceeding, it had been found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Perine, Nelson, Evers, and Santiago. The backpay formula pro- posed by the General Counsel set forth a backpay amount for those discriminatees based on the earnings of representative employees which were attained at Respon- dent's plant after the discharge. However, those earnings are directly related to the issue of what the boning em- John Carter Jesus Castillo $ 1,977.91 1,989.91 i The name of the Charging Party has been changed to reflect its merger with the Retail Clerks International Union 2 The General Counsel excepts to what he alleges are certain arithme- tic errors in the Administrative Law Judge's computation of the hackpay owed several employees We have determined that the errors were indeed made as alleged and have in our Order incorporated the correc- lions in the amounts due the affected employees. We also order that the attached corrected Appendixes A and B [omitted from publication] hbe substituted or those of the Administrative Law Judge 251 NLRB No. 47 MEATXCORP 351 ployees at Respondent's slaughterhouse operation would have earned had the Respondent not unilaterally changed the piece rates which had been the method of employee compensation. Administrative Law Judge Brandon stated in his Decision that, from mid-November 1976 until the third week of July 1977, Respondent paid its boners 92 cents and 85 cents for front and hind- quarters boned respectively, and $1.50 for hind and front quarters each for the large horses. The Administrative Law Judge found thereafter that the Respondent unlaw- fully and unilaterally changed the piece rate. He stated that the rate was reduced to 82 cents per piece. He fur- ther stated that in September the rates were unilaterally lowered to 72 cents for 1 week, raised again to 82 cents, and finally lowered again on September 27 to 72 cents. After September 27, Evers, Santiago, Nelson, and Perine were constructively discharged and replacements were hired at a rate of $5 per hour which was quickly re- placed with a piecework rate at 62 cents per hour. The Administrative Law Judge found that Respondent in January 1977 unilaterally instituted a $4-per-barrel bonus for boned hindquarters. Regional Office Compliance Officer Cecil Sutphen tes- tified at this proceeding as to the construction of the backpay formula utilized for the General Counsel's back- pay specification. The backpay period determined by the General Counsel based on the compliance officer's com- putations was July 17, 1977, to August 1, 1978. On the latter date, the Union and Respondent reached a contrac- tual agreement thus terminating the backpay period aris- ing from the unilateral action. The backpay period of the dischargees runs from September 28, 1977, until April 24, 1978. The backpay periods are not disputed. Respondent in the answer, and at the hearing, chal- lenged the appropriateness of the backpay formula, argu- ing that the formula did not take into consideration the number of horses slaughtered, the proportion of quarters boned, i.e., large, small, front, and rear, and the payment of $1.50 per large fronts and did not consider the $4-per- barrel bonus for hind pieces. Respondent adduced testi- monial evidence in support of its position which in es- sence was that a more definitive backpay formula should have been calculated based on the aforementioned fac- tors. Compliance Officer Sutphen testified that it was his original intention to construct a backpay formula which was based on the specific production of each employee during the backpay period and which took into consider- ation the proportion of the types of sections or quarters boned as well as the number of barrels of hinds, and the barrel bonus. He testified that he abandoned that plan in- asmuch as Respondent failed to supply the needed pro- duction information. The Compliance Officer testified that only computer printouts and timecards of employees were supplied to him. These documents only disclosed the gross weekly pay of each employee. Each timecard had three separate figures which he assumed were com- ponents of the gross pay, but which were not identified as to hind, front, etc. He decided to add the piece rates that existed immediately prior to the unilateral change and divide by three, i.e., 92 cents for fronts, 82 cents for hinds, and $1.50 for large horses. He testified that he did not consider the proportion of large horses because he did not know what proportion of total horses they had comprised. He thus concluded that the pre-July piece rate was $1.09. If the Compliance Officer were correct in assuming that each piece rate was equally proportionate, clearly he should have calculated 95 cents for small fronts, 82 cents for small hinds, $1.50 for large fronts. and $1.50 for large hinds, and divided by 4 with the re- suiting average piece rate of $1.19. Respondent, of course, does not advance this argument. The earnings of employees are proportional to the piece rates as is obvious in a piece rate system. The com- pliance officer determined the percentage difference for piecework rate after July 17, 1977, as compared to the basic average of $1.09 per piece prior to that date. He then multiplied the percentage of difference between the basic rate and the average piece rate paid by Respondent after July for the appropriate periods of time. For those employees who worked throughout the backpay period, a gross backpay figure was then computed by adding the sum of differences for each week. Having arrived at each employee's average weekly earnings on a quarterly basis, the Compliance Officer by comparing employees' weekly wages, chose for each of the four employees who had been discharged a represen- tative employee who worked throughout the backpav period. As a result of the comparison, each of the four discriminatees during the period of unemployment was credited with wages, as adjusted by the computation made to remedy the unilateral changes earned by "his" representative. Respondent in its answer challenged the use of a representative employee and asserted that a more proper criteria would have been to determine pre- cisely what kind of boning work each discriminatee would have performed. It submitted no evidence at the hearing to support such determination. It also averred in its brief that, had the discriminatees not been discharged, the amount of boning work would have been less for each employee. However, had there been no discharge there would have been no replacements. In any event Respondent adduced no evidence in support of an alter- native formula for the discriminatees. Respondent also submitted no evidence to mitigate its liability to the dis- criminatees, and the General Counsel's specification as to interim earnings was unchallenged. With respect to the Compliance Officer's arithmetic, he calculated an average post-July rate by subtracting the 72-cent and 82-cent rate from $1.09 with a resulting 37-cent difference and 27-cent difference. He then ascer- tained the percentage of the old rate by dividing the dif- ference in rates; i.e., 37 cents and 27 cents by the old rate of $1.09. He concluded that the rate of difference from the old rate was therefore 33.9 percent and 29.8 percent, respectively. Similarly he calculated a 43-percent rate of difference from the 62 cents paid for replacements. The Compliance Officer thereafter took the figures represent- ing the percentage of difference of the old rate and mul- tiplied those percentages, i.e., 33.9 percent, 29.8 percent, or 63 percent, by each weekly gross pay figure of em- ployees during the pay period and concluded that the re- sulting figure established the amount of gross pay which MFATXCORP 351 352 I)'tCISIONS ()F NATI()NAL LABOR RELATIONS BOARD was the difference from what the employee would have earned at a $1.09-piece rate. Assuming the reasonableness of the basic formula the arithmetic application of it is er- roneous. However, this error, as was the first one, inures to Respondent's benefit. The Compliance Officer deter- mined the percentage difference between the old rate and new rate. To correctly obtain the difference in gross pay received from that which should have been received you must first ascertain what percentage that difference constitutes of the new rate. Therefore it is necessary to divide the difference in rates by the new rate, not by the old rate. The resulting figure is therefore the percentage of difference of gross pay actually received. The next step is to multiply the percentage difference of rates by the gross amount of wages which were received. The re- sulting figure will determine the amount of gross back- pay d ue. Thus 37 cents difference in rate does not consti- tute 33.9 percent of 75 cents but rather 51.39 percent; and 27 cents does not constitute 29.8 percent of 82 cents but rather 32.9 percent. Thus, before we explore further the reasonableness of the General Counsel's formula, it is apparent that the General Counsel had constructed a backpay formula pre- mised upon arithmetic errors. The compliance officer testified that he initially re- quested payroll records from Respondent and that was furnished computer printouts which reflected only gross earnings. tie testified that "it was suggested that perhaps the only source would be timecards." The Compliance Officer then upon receipt of timecards decided that they were inadequate. In March 1979, Respondent's counsel conveyed, to the Compliance Officer, the contents of a letter he had received from Respondent's president, Melton A. Neale.' That letter suggested a formula which set forth (I) that in addition to the 82-cent-72-cent rates boners also received, after July 17, 1977, a $1.50 rate for large fronts, (2) that 25 percent of all fronts are large, (3) that of 84,000 hinds, 15,400 are shipped unboned, and (4) that 6,431 barrels of hinds were boned during the back- pay period from July 1977 to August 1978. The letter stated: "we assume that [Respondent] slaughters 750 head per week for a 56 week period [the backpay period] which is a total of 42,000 head or 168,000 quarters." The Compliance Ofiicer disregarded the information contained in the March communication on the presumed ground that the number of cattle slaughtered as set forth therein was merely a hypothetical assumption. He testi- fied that he required information as to the actual number of cattle slaughtered in order to construct a more defini- tive formula. He conceded that a more definitive formula could be worked out given the number of cattle slaugh- tered. However, the Compliance Officer conceded that he did not request any further information from Respon- dent as to the slaughter count, at that time or at any time thereafter. No explanation was offered as to why he ig- nored the information as to the proportion of hinds bar- reled. That information was not set forth as a mere as- sumption. Ihe subhtanlce of thai letter boas apparrentls redulced ttl a ,ritten colmmuicallon ad forwarded to he Compliance Of)ficer 'Tihe Compli- ance ()Officer admitted Io receiving a1ll irformation set forth ill Neale's letier Io R'plrdellt,, C o U,,cs1L Neale testified that, in March 1979, he made an "as- sumption" that Respondent slaughtered 750 head a week or a total of 42,000 head, for the backpay period. There- after he checked Respondent's records as to its hide count, and he checked records from the United States Department of Agriculture and determined that, for the 56-week period from July 1977 through July 1978, 39,037 head were slaughtered, and further set forth the monthly slaughter figure. The accuracy of those figures is stipulated to by the parties. The answer alleges further that a more accurate backpay formula can be calculated from the slaughter figure, the proportions of quarters, the amount of barrels of hinds produced, etc. It is Neale's uncontroverted and unchallenged testimo- ny that, in addition to the piece rate reduction in July 1977, Respondent also instituted payment of $1.50 for large fronts and that 25 percent of the fronts were from large horses. Nothing in the transcript of the underlying case contradicts Neale's testimony, and, as to the $1.50 rate, portions thereof are in accord that the $1.50 rate was paid for large fronts during the backpay period. Indeed the Compliance Officer testified that employees timecards for the backpay period disclosed three compo- nent figures for the gross earnings. He testified that he assumed that these figures constituted separate earnings for fronts, hinds, and "smalls," and that they incorporat- ed the barrel bonus. There is no explanation of his under- standing of the term "smalls" of which there was no other reference in this proceeding. It is also Neale's un- controverted testimony in this proceeding that, during the 56-week period from July through July, 6,931 barrels of hinds were boned, and that about 25 percent of all hinds are not boned but are shipped fresh. It is conceded that Respondent has no records of indi- vidual employment productivity. Neale testified that a portion of the boner's work is not related to productiv- ity; i.e., some time is spent sharpening knives or loading trucks. However, Respondent adduced no evidence as to the amount of time spent on nonboning work, nor even submitted an estimate of such time. Accordingly, I con- sider nonproductive work to have constituted only a negligible factor, and I place no weight upon it. Neale testified that approximately four boners engage in front boning, four in hind boning, and two or more will either bone fronts or hinds depending on production requirements. He testified that front and hind boners earn about the same gross pay. He further testified that assign- ment to front or hind boning often is determined by who shows up first at work. Respondent adduced no evidence as to the identity of employees who were regularly as- signed to hind or front boning. Neale was not certain whether any records contain that information. Each em- ployee maintains his own record of what he actually boned. His personal daily record is presented to a fore- man or some superior who verifies it by a bone count and then records only the gross amount due the boner for the day and returns the record to the employee. The Compliance Officer testified that his investigation deter- mined that employees records may be incomplete. It is therefore uncertain as to what extent employees have re- tained these daily work records beyond the point in time MEAIXCORP when they verify the accuracy of their weekly pay- checks. Conclusions In a backpay proceeding the General Counsel has the burden of establishing as nearly as possible what the em- ployees would have earned had it not been for the un- lawful conduct of the respondent. Virginia Electric & Power Co. v. iV.L.R.B, 319 U.S. 533, 544 (1943); Phelps Dodge Corp. v. N'.L.R.B., 313 U.S. 177, 194 (1941). The General Counsel has the burden of establishing a formula for the calculation of gross backpay due to employees, but in many cases it is difficult to ascertain the precise amount due, and therefore a wide range of discretion is accorded the fashioning of such a formula provided that it is reasonably designed to produce approximations and it is not arbitrary and unreasonable. '.L.R.B. v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963). Once the Gener- al Counsel has established a reasonable formula, the burden then falls on the respondent to establish facts which would negate or diminish the existence of liability for a given employee. .. L.R.B. v. Brown & Root, ibid.; N.L.R.B. v. Mastro Plastics Corporation, 354 F.2d 170 (2d Cir. 1965), cert. denied 384 U.S. 972 (1965). On the facts of this case, I conclude that, because of the absence of records or other information as to the spe- cific production of employees, that the General Coun- sel's reliance on a formula based on the average piece rates before and after the unlawful unilateral changes of Respondent to determine the average amounts of gross pay that the employees would have earned is reasonable and proper. I also conclude that the General Counsel's selections of representative employees as criteria for what the dischargees would have earned is also reason- able and proper given the limited amount of information available. However, I do not conclude that the General Coun- sel's construction of that formula was effectuated in a reasonable and appropriate manner with respect to the determination of the average piece rates prior to the un- lawful change of rates, nor with respect to the average piece rates which were effectuated thereafter. With regard to the computation of the average piece rate as it existed before July 17, 1977, the $1.09 figure was clearly arrived at arbitrarily without consideration to the proportion of large horses slaughtered. Although the Compliance Officer initially received at best an esti- mate of horses slaughtered, he was informed at that time that only 25 percent were large horses and that a per- centage of hinds were not boned. The Compliance Offi- cer made no effort to verify those percentages by re- questing further information or documentation. There is no evidence that Respondent refused to cooperate in sub- mitting additional information as to the proportion of hinds boned, portion of large horses, or actual total head slaughtered. I credit Neale as to his testimony with re- spect to the proportions of quarters processed and head of cattle slaughtered. Accordingly, I conclude that a rea- sonable formula to construct the average pre-July 17 piece rate must be based on a proper apportionment of hinds boned, and the proportion of large quarters. There- fore. the average pre-July 17 rate should he calctIltaicd ;,, follows: Of every 32 quarters (pieces) there %xcre 1 hinds. of which 75 percent, 12, were boned. Of those 12 honed hinds. 75 percent, or 9, were small and boned at a rte of 85 cents for a total of 7.65. The remaining three hinds were boned at $1.50 a piece for a total of $4.50(. ()f 32 quarters, 16 were fronts. of which 75 percent, or 12. were small fronts and boned at a rate of 92 cents cach for a total of $11.04; and 25 percent, or 4. ere large fronts and honed at a rate of $1.50 each for a total of . Thus every 28 hinds (16 front and 12 hinds) were boned for a total of $29.19, or an average of $1.0425 per qu;ar- ter. The average pre-July 17 piece rate to be utilized is of necessity $1.0425 and not the erroneous $1.09 utili.ed by the General Counsel. With respect to the piece rates effectuated after Jull 17, 1977, it is the uncontroverted testimony of Neale, whom I credit, that, concurrent with the unilateral changing of the 92-cent-85-cent rates to a reduced rate, he also paid the boners $1.50 a piece for large fronts. This information was conveyed to the Compliance Offi- cer in March but was disregarded. The underlying case transcript which the Compliance Officer utilized in esti- mating average piece rates also referred to two sets of rates, i.e., small horses and large horses, and that during the backpay period the $1.50 rate for large quarters was paid. No argument is advanced by the General Counsel as to why the $1.50 for large fronts ought not to be cal- culated into the average rates actually received by the employees after July 17. The Administrative Law Judge's finding of law was limited to finding that piece rates were unilaterally changed. llis discussion of facts refers to the 72-cent-82-cent change and a subsequent 4- barrel bonus. I do not construe his silence to the (1.50 large front rate as a finding determinative that no other rates were unilaterally instituted Accordingly, I do not conclude that the Administrative l.aw Judge's observa- tions as to the amount of piece rates paid in his Decision foreclose me from consideration of w'hat other changes or rates of pay were actually paid to employees during the backpay period. Respondent initiated a bonus of 59 for every barrel of hinds honed. It was determined in the underlying Deci- sion in this matter that such bonus was effectuated some time in the month of January 1978. At most it can be concluded that the barrel bonus was paid from FcbruarN 1977 through July 1977. No information was adduced hb Respondent as to what portion of the month of January the barrel bonus was paid. Accordingly. with respect to January 1978, no calculation can be premised upon the assumption that barrel bonuses were paid during that month. Respondent conveyed to the Compliance Officer in March 1979 the number of barrels of hinds produced from an assumed amount of cattle processed. Respondent apparently understood that he had conve\ ed an estimate of horses slaughtered. The ('ompliance ( )ftier ullnder- stood that Respotident lnerclv submiltted a; hpolhctical formula based on a hypolhetical estimatel . IHe did nothing about it. lie asked for no further illflrllalion lie askedl for no clarificatlion [tl did ilot calcuil itt the ilnblhr of' 51 A 354 I)tCISI()N S (): NAII()NAI. IAB()R REIATI()NS BOARI) hindquarters per barrel based upon the March 1979 com- munication which, if it did not set forth absolute figures. did indeed set forth unqualified proportions. The Compliance Officer admitted in cross-examination that after he made his backpay "computation" Respon- dent informecd him "how many animals they believed they had slaughtered for the [backpay period]" but that he asked for no documents thereafter regarding the number of cattle slaughtered The General Counsel argues that its backpay specifica- tion must be accepted because it is based on a reasonable and appropriate formula which was challenged by the mere assertions unsupported by evidence. Respondent, however, submitted unchallenged, uncontroverted testi- monial evidence as to the number of horses slaughtered, the proportion of large horses, the proportion of non- boned hinds, the payment of $1.50 for large fronts, and the number of barrels produced during the backpay period, to support its alternative formula. I credit this testimony. Although Respondent did not demonstrate to whom the barrel bonus was paid, the General Counsel's own formula is not premised on specific piece rates paid to specific employees or to specific categories of employ- ees. On the contrary, the General Counsel's formula is one composed of averages. Thus the General Counsel is seeking the average backpay due to all boners. Accord- ingly I conclude that the General Counsel's calculation of the post-July 17 piece rates arbitrarily and unreason- ably disregarded the $1.50 piece rate for large fronts, the proportion of large fronts, the proportion of hinds not boned, and the barrel bonus which can be calculated given the total head slaughtered, the resulting number of hinds boned, and the number of barrels of hinds pro- duced. It is my conclusion that the correct application of the General Counsel's formula should be calculated accord- ing to the following method. With respect to the pre-February 1, 1978, segment of the backpay period during which the barrel bonus was not extant the method to determine the backpay due is as follows.2 At a rate of 72 cents for hinds and small fronts, and $1.50 for large fronts, of every eight quarters, four were hinds of which three were boned at a rate of 72 cents each, and four were fronts of which three were small fronts boned at the rate of 72 cents each, and I was a large front boned at the rate of $1.50 a piece for a total of seven pieces at $5.82, at an average of .8314 cents apiece. The difference between the new rate of .8314 cents and old rate of $1.0425 is .2111 cents. That .2111- cent difference is 25.39 percent of the new rate. There- fore the gross earnings of employees during the period of time when and where the 72-cent rate was effective for hinds and small fronts prior to Februay 1, 1978, must be multiplied by 25.39 percent to determine the amount of lost gross earnings. At a rate of 82 cents for hinds and small fronts and $1.50 for large fronts, of every eight quarters, four were hinds of which 3 were boned at a rate of 82 cents, and :' Iml Ch , Itt , R IcIClIIl adduccd C o. .II iC , I x1 l:1 plrI l ti 1 ol h I 1ll11 tt JaIrlllllr I . I ol1 II\ Ih s \I, I. 1 'fft1i,. 1 I C . II Inol i ll lgl tI II i ahili[ he' -.OI11C Idt' *-II 1 Iht . har l hnll. s If I or 111, I (nllh etl J;ll ll llj I 1'78 four were fronts of which three were small fronts boned at the rate of 82 cents and one was a large front boned at a rate of $1.50 a piece for a total of seven pieces at $6.42, at all average of .9171 cents a piece. The difference be- tween that new rate of $0.9171 and the old rate of $1.0425 is .1254 cents. That .1254-cent difference is 13.67 percent of the new rate. Therefore, the gross earnings of employees during the period of time when and where the 82-cent rate was effective for hinds and small fronts prior to February 1, 1978, must be multiplied by 13.67 percent to determine the amount of lost gross earnings. With respect to the post-February 1, 1978, segment of the backpay period during which the barrel bonus aug- mented the 72-cent rates for hinds and small fronts the method to determine the average backpay due is as fol- lows. Of a total of 39,037 horses slaughtered during the backpay period, there were 156,148 quarters of which there were 78,074 hinds. Seventy-five percent, or 58,555.5 hinds, were boned. For the same period of time 6,431 barrels of hinds were produced, for an average of 9.11 hinds per barrel. For every barrel of hinds boned from February 1, 1978, there was a $4 bonus. Thus for every boned hind there was an additional bonus of .44 cents. Thus the piece rate for nonreplacement employees was $1.16 (.72 + .44) for hinds, 72 cents for small fronts, and $1.50 for large fronts. Accordingly, of every seven quarters boned, one large front was boned at $1.50, three small fronts were boned at 72 cents or a total of $2.16, and 3 hinds were boned at $1.16 for a total of $3.48. Therefore a total of $7.14 w'as paid for every seven quar- ters at an average of 51.02 per quarter. This was .0225 cents less than the old average rate of $1.0425. That dif- ference is 2.2 percent of the new rate. Therefore the post-February I gross earnings of nonreplacement em- ployees must be multiplied by 2.2 percent in order to as- certain any amount of backpay due each nonreplacement employee after February , 1978. With respect to the replacement employees they were paid at a new rate of 62 cents. The Compliance Officer testified that he utilized the Administrative Law Judge's Decision and the transcript in the underlying case to construct his formula of average rates. Neale's uncontro- verted testimony in this proceeding is that boners were paid $1.50 for large fronts in addition to the new rate, as well as the barrel bonus. There was no rebuttal evidence adduced that replacement employees did not receive the $1.50 rate for large fronts or that they did not receive the barrel bonus. In the underlying case it was Plant Foreman Kroenig's uncontradicted testimony that new employees hired received the reduced rate of 62 cents, and the $1.50 piece rate for large quarters. Administra- tive Law Judge Brandon made no finding that the re- placement employees were precluded from the barrel bonus or the $1.50 rate. Accordingly, I conclude that the replacement employees were paid at a rate of 62 cents for small fronts and hinds, arid $1.50 for large fronts, and that they received the 4-barrel bonus. Therefore the for- mula to ascertain the average backpay due to the re- placement employees should be calculated by the follow- ing formula. MEA-ITXCORI' 355 With respect to the period of time prior to February 1. 1979, the replacement employees were paid at a rate of 62 cents for hinds and small fronts and $1.50 for large fronts. Therefore, of every eight quarters, four were hinds of which three were boned at a rate of 62 cents each, and four were fronts of which three small fronts were boned at a rate of 62 cents and one large front was boned at a rate of .7457 cents which was .2968 cents less than the pre-July rate. That difference is 39.96 percent of the post-July rate. Therefore, the gross earnings preced- ing February 1, 1978, must be multiplied by 39.96 per- cent to obtain the amount of average gross earnings due the replacement employees. With respect to the post-February 1, 1978, segment of the backpay period during which the barrel bonus aug- mented the 62-cent piece rate for hinds and small fronts the method to determine the average backpay due re- placement employees is as follows: Of every seven quar- ters boned, one large front was boned at $1.50, three small fronts were boned at 62 cents each at a total of $1.86, and three hinds were boned at $1.16 (.62 + .44) a piece for a total of $3.48. Therefore, a total of $6.84 was paid for every seven quarters at an average of .9771 cents per quarter barrel. This was .0654 cents less than the pre-July 17 rate of $1.0425. That difference is 6.69 percent of the new rate. Therefore the post-February I gross earnings of replacement employees must be multi- plied by 6.69 percent in order to ascertain the average amount of backpay due each replacement employee after February I. 1978. In conclusion, the backpay computations of the em- ployees calculated by the General Counsel in calendar quarters as set forth in Appendix A(I)-(15) of the specifi- cation is amended by the substitution of the following percentage multiplier figures: (1) For the period of time preceding February 1. 1978, the percentage multipliers are corrected as follows: 33.9 percent is corrected to 25.39 percent; 24.8 percent is cor- rected to 13.67; and 43 percent is corrected to 39.96 per- cent. (2) For the period of time subsequent to February 1. 1978, the percentage multipliers are corrected as follows: 33.9 percent is corrected to 2.2 percent; and 43 percent is corrected to 6.69 percent. The foregoing corrected segment of the backpay specification is attached hereto as Appendix A(l)-(6) [omitted from publication]. Appendix B of the specification as amended setting forth the amounts of new backpay due employees is cor- rected herein as appears in Appendix 13 attached hereto [omitted from publication]. [Recommended Order omitted from publication.] M FAIXCOR I' 355