Webel Feed Mills & Pike Transit Co., 1192 (1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

George Webel d/b/a Webel Feed Mills & Pike Transit Company and Local 217, American Federation of Grain Millers, AFL-CIO. Cases 14 CA 7884 and 14-CA--7952

June 27, 1978 SECOND SUPPLEMENTAL DECISION AND

ORDER

By CHAIRMAN FANNING AND MEMBERS PENI 10() AND) TRAIF SI)AI.F On April 10, 1978, Administrative Law Judge Jerry B. Stone issued the attached Second Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified.' ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent,

George Webel d/b/a Webel Feed Mills & Pike Transit Company, Pittsfield, Illinois, its officers, agents, successors, and assigns, shall pay to Earl L.

Hull a sum of money equal to the composite sum of the following amounts indicated, minus such deductions as may be required by Federal or state law and which are appropriately paid to such governments:

1. 1976-2d Quarter-$1.203.67, plus interest thereon from the end of day of June 30, 1976. to date of payment, at the rate of 6 percent per annum.

2. 1976-4th Quarter-$2,011.47, plus interest thereon from the end of daN of December 31, 1976, to date of payment, at the rate of 6 percent per annum.

3. 1977--1st Quarter--$3.294.85, plus interest thereon from the end of March 31, 1977, to date of payment, at the rate of 6 percent per annum.

4. 1977-2nd Quarter-$1,774.15, plus interest thereon from the end of June 30, 1977, to date of payment, at the rate of 6 percent per annum.

lAdministrative Law Judge Stone ordered Respondent to pay Earl L H1ull specified sums of money for each of four quarters during certain periods in 1976 and 1977, with interest added to each of the four sums cornmputed in accord with Floridca Steel Corporation.231 NLRB 651 (1977). Inasmuch as the court of appeals, in enforcing the Decision and Order of the National Labor Relations Board. 217 NLRB 815 i 1975), adopted a remedy providing, inter alia. that interest shall be added to net backpay at the rate of 6 percent per annum. the recommended Order of Administrative Law Judge Stone is modified to specify an interest rate of 6 percent per annum SECOND SUPPLEMENTAL DECISION

STATEMENr OF THE CASE JERRY B.STONE. Administrative Law Judge: This backpay proceeding involving the determination of backpay due to discriminatee Earl L. Hull for the period of time April 1, 1976, through May 14, 1977, was held at St. Louis, Missouri, on February 28. 1978. The only issue in this case is whether or not the Respondent made a proper offer or offers of reinstatement to Hull on July 19, 1976, and on July 20, 1976, and thereby tolled liability for backpay due to Hull after such offer.' All parties were afforded full oppurtunity to participate in the proceeding. Arguments were made by the parties, and a brief has been filed by the General Counsel. Arguments and brief have been considered.

Upon the entire record in this case and from my observation of the witnesses, I hereby make the following:

I he National L abor Relations Board. i its Decision and Order issued on M:ly 7. 1975. directed the Respondent herein to reinstate Hull to his former position and to make IHull whole forhlss of wages resulting from a found discriminatory discharge of Hull ton Maiy 18 1974 Said Board Decision and Order is reported at 217 NLRB 815 ihe (Court iof Appeals for the Seventh Circuit issued its decree on April 16, 1976. enforcing said Board Decision and Order. On July 19 and 20, 1976. Administrative Law Judge Ladwig conducted a backp:ly hearing concerning backpay due Hull from May 18, 1974, to March 31. 1976. In said hearing the parties litialted the question of whether Respondent's backpay obligation was terminated as iof JanuarN 15. 1975. bs a purported settlement between Respondent and Hull involving payment of a sum of monesIo Htull purportedly for 'backpas and 'other' ilatcli, arid hherein Hull executed a waiver of reinstatement Administrative Law Judge Ladwig found, in effect. that such purported settlement did not properly determine the amount of hackpay due and did not eliminate the ieteid i IItatementn rights if lull Administrative La% Judge Ladwig determined the amount of hackpas due to Hull by the Respolndent up to March 31. 1976. and issued a recommended Order that Respondent pay Hull the amount of backpas due to March 31. 1976. 1herea;fter. the National Labor Relations Board, on April 21. 1977In a case reported at 229 NLRB 178. adopted Administrative Law Judge Ladwig's rulings. findings. conclusions, and recornmmendedOrder asIts own The Respondent has petitioned the Seventh Circuit ('ourtof Appeals for reviewof the April 21 1977. Board Order. [he General (Coiunsel has cross-;applied it, the said Circuit (Court of Appeals for enforcetnlent of said April 21. 1977.

Board Order The instant ba.ckpas proceeding is based upon backpav specifications issued by the Regional t)irectir on Novsember 15, 1977. Ihe Respondent's answer to such backpay specifications was duly filed and continues to contend that backpay and reinstatement rights were complied with as of January 15. 1975 and furthermore that proper offers of reinstatement were made to IHull on Juls 19 and 20, 1976, and Ihlat no, backpay is due Hull a:ccordingls. IThe Respondent dioes not dispute the mathematical computation of hackpas due Hullotherwise.

236 NLRB No. 153

1192

WEBEL FEED MILLS & PIKE TRANSIT FINDINGS OF FACT

1. INTRODUCTION The National Labor Relations Board's Decision and Order, issued on May 7, 1975, directing Respondent to make whole Hull for loss of wages and to reinstate Hull to employment adopted the following recommended Order and reference to remedy of Administrative Law Judge Silberman as set forth as follows (217 NLRB at 825-826):

   (b) Offer to Earl Hull immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's unlawful discrimination against him in the manner set forth in the section of this Decision entitled 'The Remedy.' * * +.

   Vl THF REMEDY Having found that Respondent unlawfully laid off its employee, Earl Hull, on May 18, 1974, I shall recommend that Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his layoff to the date of Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).

2. HULL'S ENTITLEMENT TO...