B. F. Goodrich Co.

National Labor Relations Board - Board Decisions

Mar 6, 1978

234 N.L.R.B. 1185 (N.L.R.B. 1978)

B. F. GOODRICH
B. F. Goodrich General Products Company, A Divi-
sion of the B. F. Goodrich Company and Interna-
tional Chemical Workers Union and its Local 343,
AFL-CIO-CLC. Case 9-CA-8909
March 6, 1978
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On December 15, 1977, Administrative Law Judge
Irwin H. Socoloff issued the attached 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 Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, B. F. Goodrich
General Products Company, A Division of the B. F.
Goodrich Company, Marietta, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: On
October 31, 1975, the Board issued its Decision and Order
in 221 NLRB 288, directing Respondent, inter alia, to take
certain affirmative action to remedy the unfair labor
practices therein found, including the reinstatement of
certain individuals and payment to them of backpay. The
present controversy concerns the amount of backpay due
to two of those individuals; namely, Diane Pape Rayburn
and Hilda Cline, under the terms of the Board's Order.
A hearing in this matter was held before me at Marietta,
Ohio, on August 31, 1977. Thereafter, the General Counsel
and the Respondent filed briefs which have been duly
considered.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
234 NLRB No. 185
FINDINGS OF FACT
A. Background
The Board, in its Decision herein, found that Respon-
dent, by discharging its cafeteria employees, and subcon-
tracting its cafeteria operation to Macke Company, in
September 1974, violated Section 8(a)(3), (5), and (1) of the
Act. Pursuant to the Board's Order, Respondent resumed
operation of the cafeteria in December 1975, and thereafter
offered reinstatement to the discriminatees.
Under the subcontracting arrangement previously con-
sidered by the Board, Macke Company assumed operation
of the cafeteria in September 1974, and hired the employ-
ees unlawfully discharged by Respondent. However, on
October 15, 1974, Macke laid off one of those employees,
Diane Pape Rayburn, and on December 27, 1974, laid off
Hilda Cline. Thereafter, Rayburn was periodically utilized
by Macke on an "on-call" basis, until reinstated by
Respondent on February 1, 1976. Cline was also so utilized
until May 6, 1975, when she made herself unavailable for
further employment of any kind at the cafeteria.
Respondent now contends that Macke's elimination of
the jobs of Cline and Rayburn during the backpay period,
for economic reasons, absolves Respondent of its backpay
liability to those employees. Thus, according to Respon-
dent, had it not engaged in the unlawful subcontracting of
the cafeteria operation, it would have taken the same
nondiscriminatory actions pursued by Macke; namely, the
layoffs of Rayburn and Cline. Respondent further argues
that, in any event, Rayburn declined unconditional offers
of reinstatement to her former position on January 17,
1975, and again on July 14, 1975, thereby terminating her
backpay entitlement.
The parties agree that Cline was unavailable for work
after May 6, 1975, and thus, is not entitled to backpay
covering periods after that date. They further agree that
Rayburn was unavailable for work during the periods of
September 5 through 30, 1975, and October 4 through
November 11, 1975, due to illness. Respondent concedes
that, if its defenses do not prevail, the backpay calculations
and amounts set forth in the General Counsel's backpay
specification (summarized in the appendix to this Supple-
mental Decision) are a correct measure and determination
of its backpay liability to the subject employees.
B. Facts and Conclusions
Respondent's contention that Rayburn declined uncon-
ditional reinstatement offers during the backpay period is
without record support. Thus, according to Rayburn's
credited, uncontradicted testimony, she was not offered
reinstatement to her former position, or its equivalent,
during the period between her October 1974 layoff and the
reinstatement offer of February 1976. She did work for
Macke during that period, at sporadic intervals, on an "on-
call" basis. On occasions, due to short notice or illness,
Rayburn turned down such offers of temporary work of
short duration. Accordingly, I find and conclude that
Rayburn was not offered reinstatement to her former
position prior to February 1976.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's further contention, that the jobs of Ray-
burn and Cline were eliminated furing the backpay period,
is premised on the argument that those employees were laid
off by Macke because of a decline in the number of
potential customers of the cafeteria, that is, the number of
working plant employees. Thus, according to that argu-
ment, Respondent, historically, had observed a correlation
between the number of plant employees and the number of
cafeteria employees and Macke simply continued that
practice during the subcontracting period. However, docu-
mentary evidence offered by Respondent concerning that
practice does not demonstrate any precise historical corre-
lations. In addition, that evidence reveals that, in October
1974, when Rayburn was laid off, the number of working
plant employees was at its highest point for that year. I
therefore conclude that Respondent has not shown that
had it continued to operate the cafeteria between Septem-
ber 1974 and December 1975 it would have made the same
business judgments which Macke made following the
unlawful subcontracting arrangement, including the layoffs
I Of course, the fact that Macke, following Respondent's unlawful
decision to subcontract, may have operated with a reduced employee
complement does not, in itself, relieve Respondent of its backpay obliga-
tions. See Thomas Engine Corporation and Upshur Engine Co., Inc., d/b/a
Tomadur, Inc., 179 NLRB 1029(1970), affd. 442 F.2d 1180(C.A. 9, 1971).
2 In the event no exceptions are filed, as provided by Sec. 102.46 of the
of Rayburn and Cline. For that reason alone, I conclude
that Respondent's defense must fail.'
Upon the foregoing findings and conclusions, and upon
the entire record in this case, I hereby issue the following
recommended:
ORDER 2
The Respondent, B. F. Goodrich General Products
Company, A Division of the B. F. Goodrich Company, its
officers, agents, successors, and assigns, shall make Diane
Pape Rayburn and Hilda Cline whole by payments to them
in the amounts set forth below, together with interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977),3 less tax with-
holding required by Federal and state laws.
Diane Pape Rayburn $2,563.32
Hilda Cline $1,366.74
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.
3 See, generally, Isis Plumbing and Heating Co., 138 NLRB 716 (1962).
APPENDIX
DIANE PAPE RAYBURN
YEAR ANqD CROSS INTERIM
QUARTER BAaCPAY EARNINGS
1974-4
1975-1
19 75-2
1975-3
19 75-4
1976-1
TOTALS:
$ 926.80
1,222.00
1,222.00
921.20
750.80
448.80
$5,491.60
$ 854.40
244.40
545.20
789.60
494.68
$2,928.28
NET INTERIM NET
EXPS . E&ARNINGhS BACKPAY
0
0
0
0
0
0
0
$ 854.40
244.40
545.20
789.60
494.68
0
$2,928.28
$ 72.40
977.60
676.80
131.60
256.12
448.80
92,563.32
HILDA CLIN E
1974-4
1975-1
1975-2
TOTALS:
$ 56.40
1,222.00
470.00
$1,748.40
$ 0
282.60
99.06
$ 381.66
0
0
0
0
$ 0
282.60
99.06
$ 381.66
$ 56.40
939.40
370.94
$1,366.74
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