Akron Paint Co.

National Labor Relations Board - Board Decisions

Sep 26, 1991

304 N.L.R.B. 1096 (N.L.R.B. 1991)

1096
304 NLRB No. 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The original Decision and Order is reported at 293 NLRB 781 (1989). On
December 1, 1989, the Sixth Circuit granted enforcement of the Board’s
Order, enfd. mem. 890 F.2d 416.
1 Following reinstatement, Simon worked for 4 days and, then, voluntarily
quit his employment.
The Akron Paint and Varnish Company and Frank
T. Simon. Case 8–CA–20959
September 26, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 19, 1991, Administrative Law Judge Irwin
H. Socoloff issued the attached supplemental decision.1
The Respondent filed exceptions and a supporting brief
and the General Counsel filed a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief 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 rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Akron Paint and Var-
nish Company, Akron, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Victoria Belfiglio, Esq., for the General Counsel.
H. Brian Rector, of Akron, Ohio, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On April
24, 1989, the Board issued its Decision and Order (293
NLRB 781) in the above-entitled proceeding, directing Re-
spondent, inter alia, to take certain affirmative action to rem-
edy the unfair labor practices therein found, including the re-
instatement of Frank T. Simon and payment to him of back-
pay. Thereafter, on December 1, 1989, the United States
Court of Appeals for the Sixth Circuit entered its judgment
enforcing the Board’s Order (No. 89–6082). The present con-
troversy concerns the amount of backpay due to Simon under
the terms of the Order.
Pursuant to notice, hearing in this matter was held before
me in Akron, Ohio, on October 17, 1990, and in Cleveland,
Ohio, on February 20, 1991, at which the General Counsel
and the Respondent were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence. Thereafter, the General Counsel filed a brief
which has been duly considered.
On the entire record in this case, and from my observa-
tions of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
The General Counsel’s compliance specification seeks,
inter alia, recovery of wages lost by Simon, at straight time
plus overtime, for the period April 1, 1988, the date of dis-
charge, to June 12, 1990, when he was reinstated to his
former position.1 As issued on July 27, 1990, the specifica-
tion contains calculations showing a net backpay obligation
to Simon of $48,519, plus interest to the date of payment.
Respondent, essentially, has raised two objections to the
General Counsel’s manner of calculation. First, it claims that
the specification does not reflect fully the amount of interim
earnings enjoyed by Simon during the backpay period. Sec-
ond, Respondent urges that, throughout the backpay period,
Simon, had he remained employed by Respondent, would
have worked fewer overtime hours than the number of such
hours assigned in the specification and used to calculate net
backpay.
With respect to the first matter, the General Counsel, at
trial, introduced a revised backpay specification summary re-
flecting additional interim earnings by Simon of $1178 for
the third quarter of 1989. Region 8 Compliance Officer
Normand Richard, who prepared the initial summary, and the
revised one, testified that that amount had been reported, pre-
viously, by Simon, but had been overlooked by Richard
when he prepared the initial summary. This addition to in-
terim earnings for the third quarter of 1989, reduces the
claimed backpay obligation owed to Simon to $47,341, plus
interest. Respondent, at trial, offered no evidence of any in-
terim earnings by Simon in addition to that reflected in the
revised summary. Accordingly, those figures must be accept-
ed as accurate.
As to the calculation of overtime hours, Richard testified
that, in preparing his estimate of Simon’s gross backpay for
the April 1, 1988, to June 12, 1990 period, he reviewed the
pay records for Simon, before and after the backpay period,
and those of Tim Sanders and Virgil Foster, Respondent’s
other employees who, like Simon, were classified as master
paintmakers. Richard arrived at the number of overtime
hours that Simon would have worked during the backpay pe-
riod, some 10 hours per week, by adding the overtime hours
actually worked by Sanders and Foster, on a quarterly basis,
and dividing by 2. In Respondent’s view, this method of cal-
culation produced an inflated result since, Respondent ar-
gues, had Simon remained employed during the backpay pe-
riod, the total number of overtime hours available to master
paintmakers would have remained constant, and would have
been divided among Sanders, Foster, and Simon. In other
words, the same number of hours actually worked by Sand-
ers and Foster would have been divided among the three
master paintmakers.
Richard testified that he chose the method of calculation
which he did because his review of Respondent’s records
showed that, prior to the backpay period, Sanders, Foster,
and Simon all worked approximately 10 hours of overtime
per week and, during the backpay period, Sanders and Foster
continued to work the same number of overtime hours. Thus,
the termination of Simon did not result in an increase in the
number of overtime hours worked by Sanders and Foster.
1097AKRON PAINT CO.
2 283 NLRB 1173 (1987). Interest will be computed at the ‘‘short-term Fed-
eral rate’’ for the underpayment of taxes as set out in the 1986 Amendment
to 26 U.S.C. § 6621.
Documentary evidence, prepared from Respondent’s payroll
records, support these assertions.
Simon, in his testimony, stated that, prior to his discharge,
he, Sanders, and Foster each worked approximately 50 hours
per week, accumulating about 1 hour of overtime per week-
day, and 4 to 5 hours of overtime every Saturday. This pat-
tern continued for the brief period of Simon’s employment
following his reinstatement.
As the uncontradicted record evidence shows that the esti-
mate of overtime hours that Simon would have worked dur-
ing the backpay period, as contained in the specification, was
appropriate and reasonable under the circumstances, it was
properly relied upon in calculating the gross backpay due to
Simon. I so find and conclude.
ORDER
The Respondent, The Akron Paint and Varnish Company,
Akron, Ohio, its officers, agents, successors, and assigns,
shall pay backpay to Frank T. Simon in the amount of
$47,341, together with interest thereon to be computed in the
manner prescribed in New Horizons for the Retarded,2 less
tax withholding required by Federal and state laws.