Bodolay Packaging Machinery

National Labor Relations Board - Board Decisions

Jun 28, 1984

271 N.L.R.B. 10 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bodolay Packaging Machinery, Inc. and Bodolay/-
Pratt, Division of Packaging Machinery Compa-
ny and United Electrical, Radio, and Machine
Workers of America (UE). Cases 12-CA-9491
and 12-CA-9584
28 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 January 1984 Administrative Law Judge
Steven M. Charno issued the attached supplemental
decision. ' The General Counsel filed exceptions
and a supporting brief to which the Respondent
filed an answering brief. The Respondent also filed
a cross-exception to which the General Counsel
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings, and conclusions, 2 but not to adopt the
Supplemental Order.
In its cross-exception, in which the General
Counsel joins, the Respondent seeks only to cor-
rect an error in computation contained in the rec-
ommended Supplemental Order. The Respondent
contends, and an examination of the backpay speci-
fication confirms, that the judge inadvertently
failed to reduce discriminatee Robert Chartier's
gross backpay of $2845.45 by his interim earnings
for the first quarter of 1981, a sum of $876.24. This
results in net backpay due Chartier of $1969.21. We
shall modify the Supplemental Order accordingly.
I The original Decision and Order is reported at 263 NLRB 320
(1982).
2 The record shows that a Board Order directing the Respondent to
reinstate employee Chartier with backpay issued 12 August 1982, and
that Chartier was reinstated 18 October 1982. The General Counsel does
not allege as a separate theory that the Respondent unlawfully delayed
Chartier's reinstatement during this time. Under these particular circum-
stances, we do not find it appropriate to order backpay for a period of
time other then that set forth in the judge's supplemental decision, i.e.,
from 5 December 1980, the date of Chartier's discharge, until 21 Febru-
ary 1981, the date of the attempted delivery of the Respondent's initial
offer of reinstatement.
Member Dennis agrees that Chartier is entitled to backpay from the
date of his unlawful layoff until the date of the attempted delivery of the
Respondent's offer to reinstate him. She would also find, however, that
the backpay liability revived 5 days after the Board's Decision and Order
directing the Respondent to offer Chartier reinstatement and ran until the
Respondent complied with its obligation. She believes the resumption of
backpay liability in this circumstance will ensure that the Respondents
fulfill their legal obligation to offer reinstatement. She notes that, con-
trary to the majority's implication, the General Counsel's argument seek-
ing backpay encompasses the period of time from the date of the Board's
Decision and Order directing reinstatement to the date of Chartier's rein-
statement.
271 NLRB No. 4
ORDER
The National Labor Relations Board orders that
the Respondent, Bodolay Packaging Machinery,
Inc. and Bodolay/Pratt, Division of Packaging Ma-
chinery Company, Lakeland, Florida, its officers,
agents, successors, and assigns, shall pay to Robert
Chartier the sum of $1969.21, with interest, less tax
withholdings required by Federal or state law.
SUPPLEMENTAL DECISION
STEVEN M. CHARNO, Administrative Law Judge. On
August 12, 1982, the National Labor Relations Board
issued a Decision and Order directing Bodolay Packag-
ing Machinery, Inc. (Bodolay), its successors and assigns,
to offer reinstatement to its employee Robert Chartier
and to make him whole for any loss of pay resulting
from Bodolay's discrimination against him. A controver-
sy having arisen over the amount of backpay due Char-
tier from Bodolay/Pratt Division of Package Machinery
Company (Bodolay/Pratt), t the successor to Respondent
Bodolay, the Regional Director for Region 12 of the
Board issued a backpay specification and notice of hear-
ing on July 20, 1983. On August 4, 1983, Respondent
Bodolay/Pratt filed an answer admitting certain allega-
tions of the specification and denying others. A hearing
was held before me in Tampa, Florida, on September 26,
1983. At the hearing, the parties agreed to waive the
presentation of testamentary evidence and jointly stipu-
lated the facts which comprise the record in this case.
Briefs were filed under due date of October 31, 1983, by
the General Counsel and Respondent.
FINDINGS OF FACT
A. Relevant Events
Chartier was laid off by Respondent on December 5,
1980. Respondent attempted to recall Chartier by send-
ing a certified letter to Chartier's correct address on Feb-
ruary 20, 1981. It was stipulated that this letter constitut-
ed a valid, good-faith offer of reinstatement. The United
States Postal Service unsuccessfully attempted to deliver
the certified letter on February 21, 1981. Additional
Postal Service notices concerning the letter were deliv-
ered to Chartier's address on February 26 and March 8
and 12, 1981. The letter was not claimed and was re-
turned to Respondent on March 27, 1981. Respondent
made no further attempt to communicate its offer of rein-
statement to Chartier.
At the unfair labor practice hearing which was held in
this case on July 14, 1981, Chartier gave direct testimony
on behalf of the General Counsel and was cross-exam-
ined by Respondent's counsel. Respondent made no at-
tempt at that time to notify Chartier of the "outstanding
offer of reinstatement," and Chartier did not request re-
instatement during the hearing or at any subsequent
point in time.
I The name of the successor corporation has been changed from
Bodolay/Pratt Division Package Machinery Company to conform to the
joint stipulation of the parties.
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BODOLAY PACKAGING MACHINERY
Administrative Law Judge Donald R. Holley issued
his decision in this case on December 31, 1981. That de-
cision contained the finding that Chartier's layoff was
discriminatory, but the judge concluded that Chartier's
failure to answer the certified letter extinguished Re-
spondent's obligation to reinstate him. The General
Counsel took exception to that conclusion. On August
12, 1982, the Board issued a Decision and Order direct-
ing Respondent to offer Chartier reinstatement and to
make him whole for any loss in pay resulting from Re-
spondent's discrimination against him. Respondent rein-
stated Chartier on October 18, 1982.
B. Discussion
There is no dispute that Chartier is entitled to backpay
from the date of his unlawful layoff on December 5,
1980, until the date of the attempted delivery of the offer
of reinstatement on February 21, 1981. The sole issue in
this proceeding is whether Chartier is entitled to backpay
from the date of the unfair labor practice hearing on July
14, 1981, until the time of his ultimate reinstatement on
October 18, 1982.
Respondent's letter of February 20, 1981, was an un-
successful, good-faith attempt to communicate a valid
offer of reinstatement to a discriminatorily laid off em-
ployee.2 See Rental Uniform Service, 167 NLRB 190,
197-198 (1967); Rollash Corp., 133 NLRB 464, 465
(1961); Jay Co., 103 NLRB 1645, 1647 (1953), enfd. 227
F.2d 416 (9th Cir. 1954). While an unsuccessful, good-
faith attempt to offer reinstatement does not relieve an
employer of its ultimate obligation to reinstate an em-
ployee, Burnup & Sims, 256 NLRB 965, 966 (1981); Jay
Co., supra, it has long been established that such an at-
tempt will toll an employer's backpay liability as of the
date of the attempt. E.g., Rollash Corp., supra; Knicker-
bocker Plastic Co., 132 NLRB 1209, 1236 (1961); Jay Co.,
supra. The applicability of these principles in this case
appears to be uncontested.
The General Counsel contends, however, that Re-
spondent's backpay obligation recommenced on the day
Respondent's representatives were present at the same
time and place as Chartier and did not reiterate the offer
of reinstatement. I have been unable to find any author-
ity in support of this contention, and the two cases cited
2 Notwithstanding its stipulation to this effect, the General Counsel ap-
pears to question Respondent's good faith by arguing on brief that Re-
spondent could have used other methods to communicate its offer to
Chartier. I disagree. Respondent's use of a certified letter directed to
Chartier's correct address constituted transmittal of its offer of reinstate-
ment "in good faith and in a manner in which it could be reasonably an-
ticipated that the employee would receive notice of the offer." See Salem
Paint, 257 NLRB 336, 341 (1981).
by the General Counsel are inapposite. In Rollash Corp.
and Jay Co., unsuccessful, good-faith attempts to offer re-
instatement were held to toll the employers' backpay ob-
ligations. Those obligations were held to recommence
only when the employers subsequently denied employee
requests for reinstatement.
The General Counsel appears to argue in support of its
position that, when a good-faith attempt to offer rein-
statement is unsuccessful, the employer has an affirma-
tive duty to repeat its offer of reinstatement to the em-
ployee if they should at any time thereafter come into
contact. The case cited by the General Counsel for the
proposition that an affirmative duty should be imposed,
Marlene Industries Corp., 234 NLRB 285 (1978), con-
cerned an offer of reinstatement which was made in bad
faith and has no persuasive value in the situation before
me. In addition to being without authoritative support,
the General Counsel's position appears to suffer from
two major defects. First, it is not appropriate to penalize
Respondent in this case for good-faith reliance on estab-
lished Board precedent. More importantly, adoption of
the General Counsel's position would render almost
meaningless the long line of Board decisions which have
held that an unsuccessful, good-faith attempt to commu-
nicate an offer of reinstatement tolls backpay liability. I
do not have the authority to take such a step.
For the foregoing reasons, I conclude that Chartier is
entitled to backpay and related benefits only for the
period between December 5, 1980, and February 21,
1981. The parties have stipulated that the appropriate
backpay for this period is S2845.45.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
The Respondent, Bodolay/Pratt Division of Package
Machinery Company, Lakeland, Florida, its officers,
agents, successors, and assigns, shall satisfy its obligation
to make Robert Chartier whole by payment to him of
net backpay in the amount of $2845.45, plus interest
thereon accrued to the date of payment computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977), 4 minus any tax withholding required by Federal
or state law.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
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