Browning Industries

National Labor Relations Board - Board Decisions

Oct 6, 1976

226 N.L.R.B. 283 (N.L.R.B. 1976)

BROWNING INDUSTRIES 283
Browning Industries, Venetian Marble of Kentucky
and Norbert C. Krimple. Case 9-CA-8289
October 6, 1976 -
SECOND SUPPLEMENTAL DECISION AND -
ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
PENELLO
On April 30,1976, Administrative Law Judge Wal-
ter H. Maloney, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 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 to the extent consis-
tent herewith.
1. In our Supplemental Decision and Order Re-
manding Case to Administrative Law Judge we di-
rected the Administrative Law Judge to compute the
number of hours per workweek to be used in the
backpay computation as follows:
Utilizing the 21 weeks preceding Krimple's
discharge as a base period, the total number of
hours during the base period which Krimple was
unable to work because of his alcoholism should
be computed. This total should then be convert-
ed into a weekly average for the entire base peri-
od. This weekly average should then be deduct-
ed from 40 hours. The resulting figure will be the
basic hourly workweek for purposes of comput-
ing backpay.1
Throughout the decision presently before us, the Ad-
ministrative Law Judge indicates that he viewed our
direction to be limited solely to those absences which
are directly attributable to Krimple's alcoholism-
when he was actually drinking or too drunk to report
to work-and not the absences resulting from his al-
coholism, viz, tardiness and absences due to morn-
ing-after illness and weakness. Respondent takes ex-
ception to the Administrative Law Judge's restrictive
'Browning Industries, Venetian Marble of Kentucky, 221 NLRB 949
(1974)
interpretation of our earlier decision. We find merit
in this exception.
Krimple is an admitted alcoholic who, during both
the 21-week base time period and the period of un-
lawful discharge, suffered considerable weakness for
alcohol and as a result missed substantial worktime.
Noting this fact, in our Supplemental Decision we
directed the Administrative Law Judge to compute
backpay in light thereof. The Administrative Law
Judge's implementation of our decision, however,
overlooks the reality, contemplated in our earlier de-
cision, that alcoholism has serious aftereffects which
visit its victim even after he has ceased drinking.
Thus, in determining Krimple's average workweek
for backpay purposes, we shall deduct not only those
hours absent from work due to actual drinking, but
we shall also deduct absences attributable to the af-
tereffects of drinking such as physical illness and
weakness rendering Krimple unable to work a full
workweek. As indicated in our earlier decision, it
would be unfair to impose backpay obligations on
the Respondent for periods when Krimple would not
have been able to work full time due to his admitted
alcoholism.
2. The Administrative Law Judge found that dur-
ing the first week of the base period (the week ending
on September 14, 1973) Krimple worked only 8
hours. Without evidentiary support, however, he con-
cluded that these absences were because Krimple
had not yet reported to work and therefore they were
not related to his alcoholism. Undisputed evidence
establishes that Krimple was told to report to work
when he was able during the week of September 14.
On Monday of that week Krimple visited Browning
at the plant and told him that he was not feeling well,
was going to the River Region Services facility, and
would report to work when he felt better. Since
Krimple is treated for this alcoholism at River Re-
gion, his statement that he did not feel well and was
going to River Region for help implicitly acknowl-
edges that his inability to report to work earlier in the
week was related to his alcoholism. Thus, the Admin-
istrative Law Judge's failure to attribute the 32 hours
of work missed during that first week to alcoholism is
contrary to our earlier decision. We shall therefore
consider the 32 hours missed during the week of, Sep-
tember 14, 1973, as due to alcoholism, and we shall
include those 32 hours in,computing the weekly aver-
age of work hours missed.
3. The Administrative Law Judge concluded that
the few hours missed during weeks in which Krimple
worked approximately 38 hours''were not due to his
alcoholism. We find this to be in error since these are
hours not worked for which Krimple has offered no
explanation.' In fact, Krimple generally testified that
226 NLRB No. 44
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time missed was due to alcohol-related illness and
weakness following nights of drinking. Thus, we find,
contrary to the Administrative Law Judge, that the
1-3/4 hours missed the week ending October 12,
1973, and the 1-1/2 hours missed the week ending
December 21, 1973, were due to Krimple's alcohol-
ism. Accordingly, we shall include these absences in
our determination of the average workweek.
4. There is undisputed testimony at the March 31,
1975, hearing that Respondent's plant was closed
from September 25 until October 3, 1974, in order to
move operations from Jeffersontown, Kentucky, to
Clarksville, Indiana. In the backpay specification the
General Counsel did not seek backpay for the por-
tion of this downtime falling in September; however,
he sought backpay for the days in October during
which the plant was closed. Respondent has excepted
to the Administrative Law Judge's adoption of the
General Counsel's backpay specification and to his
failure to exclude backpay for the first 3 days in Oc-
tober. We find merit in this exception. In view of the
undisputed evidence that Respondent's plant was
closed not only during the final days in September,
but also from October 1-3, we shall not award Krim-
ple backpay for these days in which work was not
available.
5. We agree with the Administrative Law Judge's
conclusion that during the weeks of December 28,
1973, and January 4, 1974, the workweek consisted
of 24 hours. While Respondent testified that the
plant was open for operations on both Christmas
Day and New Year's Eve, record evidence indicates
that only one employee worked on those days. While
Krimple 'himself worked 28-1/2 hours during the
week ending December 28, 1974, this was consistent
with previous weeks in which he worked extra hours.
We do not find it equitable to attribute Krimple's
absences on these days to alcoholism when the over-
whelming majority of Respondent's employees did
not work either. In order to balance the equities of
this situation, we shall consider that the workweeks
of December 28, 1973, and January 4, 1974, consist-
ed of 24 hours. Furthermore, in determining the
number of hours missed due to alcoholism we shall
only credit Krimple with a full workweek of 24 hours
rather than the 28-1/2 hours he actually worked.2
6. In light of the above modifications to the Ad-
ministrative Law Judge's Decision, we apply our pre-
viously stated formula to determine the average
2
While Krimple worked 46 hours of overtime during the 21-week base
period, the inclusion of the overtime hours to the number of hours worked
and to the total hours of work available does not affect the average numbers
of hours missed due to alcoholism. Therefore, contrary to the Administra-
tive Law Judge's handling of the overtime hours worked, we shall disregard
these hours in our computation of the average number of hours worked.
number of hours Krimple worked per week as fol-
lows: Record evidence discloses that during the 21-
week base period Krimple worked a total of 587
hours. Adding to this figure the 24 hours missed due
to appearances in Juvenile Court which were unrelat-
ed to Krimple's alcoholism3 and subtracting 4-1/2
hours overtime worked (those worked in excess of
the 24-hour full-time workweek) and included in the
weekly total for the week ending December 28, 1973,
Krimple worked an adjusted total of 606.5 hours
during the base period (587 + 24 = 611 - 4.5 =
606.5).
During the 21-week base period, 18 workweeks
consisted of 40 hours, 2 workweeks consisted of 24
hours (Christmas week and New Year's week) and 1
week consisted of 32 hours (Thanksgiving week).
Thus, a total of 800 hours of work were available
during the 21-week base period.
Subtracting the adjusted total number of hours of
work performed (606.5) from the total number of
hours of work available (800), we find that Krimple
was absent a total of 193.5 hours due to his alcohol-
ism. Averaged over the 21-week period, Krimple
missed 9.2 hours a week due to alcoholism, or stated
conversely, he worked an average of 30.8 hours a
week.
7. The following is a summary of the amount due
and owing Krimple, utilizing the 30.8 hour base:
Net
1974 Hrs. and Gross Interim Net
Qtr. Rate Backpay Earnings Backpay
(1) 30.8 hrs.
x 8 wks.,
246.4 hrs.
at $3
per hr. $ 739.80 $177.19 $ 562.61
(2)4
(3) 30.8 hrs.
x 2.6
wks.,5
80.08 his.
at $3.50
per hr. 280.28
3 Based on undisputed record testimony, we adopt the Administrative
Law Judge's finding that Knmple was absent from work on 3 days (a to-
tal of 24 hours), for the purpose of appearing at Juvenile Court These
hours, therefore, are not attributable to Krimple' alcoholism, and we will
not include them in our computation of the hours missed because of that
illness.
4 No claim for backpay is sought due to Knmple's illness dung the
quarter and interim earnings in excess of possible backpay liability.
5 Backpay claimed for the period of August 14-31, 1974, when Krimple
was willing and able to work
BROWNING INDUSTRIES 285
30.8 his.
x 3.4 wks.,6
104.72 hrs.
at $3.75
per hr. 392.70
Subtotal $ 672.98 $163.50
(4) 30.8 hrs.
x 4.2
wks?
129.36
hrs. at
$3.75 per
hr. 485.10
1 wk. vac.
pay s
'40 hrs.
at $3.75
per hr. 150.00
Subtotal $ 635.10 $420.00
TOTALS $2,047.88 $760.69
ORDER
$ 509.48
$ 210.10
$1,287.19
Pursuant to Section 10(c) of the National Labor Rela-
tions 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, Browning Industries, Venetian
Marble of Kentucky, Jeffersontown, Kentucky, its officers,
agents, successors, and assigns, shall pay backpay to Nor-
6 Backpay claimed for September 1-23, 1974 As noted, supra, no claim is
made for September 24-30, 1974, when Respondent's plant was closed for
relocation
' Backpay claimed for October 1-November 1, 1974 Backpay period
ends November 11, the date Krimple was offered reinstatement. No back-
pay is claimed for November 1-11 because Krunple was ill and unable to
work. No backpay is awarded for October 1-3, 1974, when Respondent's
plant was closed. (see par 4, supra.)
8 We find no merit in, Respondent's exception to the Administrative Law
Judge's inclusion of a week of paid vacation in the backpay liability. Ai L'
XVIII "Vacations" of the applicable contract setting the terms and condi-
tions of employment for Respondent's employees provides.
After one (1) year continuous service an employee shall be entitled to
one (1) weeks' vacation with pay.
Knmple began working for Respondent in August 1973 and was unlawfully
discharged on February 1, 1974 Thus, from February 1 until November 11,
1974, Krimple was unlawfully discharged, and in our previous decision we
ordered Respondent to make Krimple whole for any losses suffered by
virtue of that unlawful discharge. As such, during this period of time, Krim-
pie is entitled to his employee rights under the contract as if he were contin-
uously employed. During the period of time he was unlawfully discharged
Krimple celebrated his 1-year anniversary with Respondent and thereby
became entitled to 1 week of vacation with pay Accordingly, we find in
agreement with the Administrative Law Judge that Knmple is entitled to 1
week's vacation pay, and we shall include this amount in the backpay liabil-
ity.
bert C. Krimple in the amount of $1,287.19 with interest
thereon accrued at the date of payment at the rate of 6
percent per annum , computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), less
FICA, state , local, and Federal income taxes which are
required to be deducted.
MEMBER JENKINS, concurring in part and dissenting in part:
I concur in the result reached by my colleagues , except
that, as I stated in my dissent in the underlying decision
here, in determining the amount of Krimple's backpay I
would not include his time worked as a supervisor.
SECOND SUPPLEMENTAL DECISION
Walter H. Maloney, JR., Administrative Law Judge: On
December 3, 1975, the Board issued a Supplemental Deci-
sion in which it remanded this case to me to recompute the
backpay due and owing to discrimmatee Norbert C. Krim-
ple in accordance with the formula announced by the
Board, and to make additional findings, conclusions, and
recommendations on this question. In my original decision,
I adopted the backpay formula proposed by the General
Counsel; namely, that backpay should be computed on the
basis of a 40-hour base period. The Board felt that the
discriminatee would have been physically unable to regu-
larly work a full 40-hour week during the backpay period
because of his alcoholism. Therefore it determined that a
proper formula should utilize the 21 weeks preceding
Krimple's discharge as a base period, and that from that
period there should be derived the "total number of hours
... which Krimple was unable to work because of his
alcoholism." This figure is then to be converted into a
weekly average for the entire base period and deducted
from 40 hours to arrive at the basic workweek to be used as
a base period.
The previous record herein was inadequate to make the
specific findings necessary to comply with the Board's de-
termination, so I ordered an additional hearing to be held
for the purpose of permitting the parties to adduce evi-
dence which would establish how much time Krimple
missed each week of his employment with Respondent be-
cause of alcoholism as distinct from time lost for some
other reason. A hearing for this purpose took place on
April 5, 1976, in Louisville, Kentucky. Thereafter Respon-
dent filed a brief to me setting forth its position.
In adducing evidence in diminution of Krimple's claim
in order to meet the Board's standard as announced in the
December 3 decision, the burden of proof falls 'on Respon-
dent, not on the Charging Party, to establish how much
time Krimple lost during his employment with Respondent
due to alcoholism because, in backpay proceedings, the
burden of proof is on the wrongdoer, not on the victim. To
establish the number of hours less than 40 which Krimple
worked during each of the 21 weeks, company records
were introduced which show the total amount of time he
worked in each week. They indicate that, in 11 of the 21
weeks which Krimple worked for the Respondent between
September 1973 and January 1974 he' put in less than 40
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours. They also show that during 7 of the weeks he
worked for Respondent, Kemple worked in excess of 40
hours a week, and that, during some weeks when his regu-
lar payroll record indicates less than a 40-hour week, he
also put in time designated as "casual" on the Company's
payroll records. He also worked as a "casual" employee
during other weeks and accumulated working hours which
augmented the 40-hour week normally expected. Krimple
came in after hours to perform duties which generally con-
sisted of cleaning up the plant. For this effort he was paid
straight time , even though in several instances the aggre-
gate time he worked amounted to more than 40 hours in a
single week. The Board's formula is silent as to how the
equities of this situation should be balanced.
At the original backpay hearing 'on March 31, 1975,
Krimple testified that the reason for his absence on the
days that he did not work was that he was sick and that his
sickness was alcoholism. At the hearing on April 5, 1976,
Krimple categorically denied ever having missed any time
because he was drunk. In determining how much time
Krimple lost during his employment in each of the 21
weeks at issue because of alcoholism, Respondent would
have me credit Krimple's first statement, ignore or discred-
it his second statement, and presume that any time which
Krimple missed other than time directly attributable to
some identifiable alternative cause was due to alcoholism.
Such an approach ignores the burden which Respondent
must shoulder to come forward with substantial and credi-
ble evidence upon which concrete findings of weekly ab-
sences can be made to comply with the Board's directive.
Respondent's payroll periods are found on payroll sum-
maries dated on the Friday of each week. ' However, the
number of hours and amounts of pay indicated on_ each
Friday's sheet reflects a week which began on the preced-
ing Friday and which ended on the Thursday before the
sheet was made up. As daily timecards have been disposed
of long ago,' it is these weekly payroll summaries which
must form the basis for findings in this case. For the week
contained on the summary dated Friday, September 14,
1973, Krimple worked 1 day. Respondent's president,
Browning, testified that Krimple probably worked the.
Thursday which constituted the end of the preceding pay-
roll period. He also testified that he told Krimple that
Krimple could start back to work when he wanted to.
Browning also stated that he suggested to Krimple that
Krimple come in on Monday. In light of Browning's per-
mission to Krimple to start work when he wanted and in
view of the fact that any dimunition of the base period
from a40-hour norm for the first week would mean dimin-
ishing Krimple's base period'before he actually started, his
employment at Respondent's factory, I would conclude
that any time not worked during this week was not due to
alcoholism but rather was due to the fact that Krimple
simply 'Iliad not reported for duty.
1 The Browmngs are no longer in the marble business and Venetian Mar-
ble Company no longer exists. The Brownings now operate a coal company
2 If Kemple had started on Monday, September 10, the most that would
be reflected on the September 14 summary would be 32 hours, not 40 hours.
Thanksgiving fell within the payroll period described in
the summary of November 23, so that 8 hours not worked
during that week are attributable to a holiday. Respond-
ent's plant did not operate on Christmas, which fell within
the December 28 summary. Moreover, the Respondent,
while asserting that work was available on Christmas Eve
and New Year's Eve (which fell on Monday in 1973), ad-
mitted that all other employees were given time off on
those days without pay and that the plant in fact did not
operate. Therefore I conclude that 16 hours per week not
worked by Krimple during each of these 2 weeks was due
to reasons other than alcoholism.
Krimple testified that he missed 3 or 4 days of work
during his most recent employment by Respondent be-
cause he was summoned to Juvenile Court to explain or
dispute his nonpayment of alimony for child support. He
does not know during which weeks these absences oc-
curred. Respondent placed no evidence in the record to
contradict Krimple's testimony but on this point is not able
to pin down which days he missed because he was called to
court. while many of Krimple's problems both on and off
the_ job may have stemmed from a weakness for drink, I
find it too remote to conclude that time spent in court as a
defendant in a nonsupport proceeding constitutes time
which he was unable to work which was directly attribut-
able to alcoholism.
On Friday, January 4, 1974, Kemple was injured in an
accident on the job when he slipped on ice on company
premises while unloading marble from a truck. The injury
occurred when Krimple was trying to throw gravel under
the wheels of the truck. Respondent sent him home imme-
diately to attend to his injury. Respondent is not sure just
how much time Krimple was off because of this injury.
Krimple testified' that it was not more than a week. The
payroll summary for January 11 indicates that Krimple
worked 27-3/4 hours. I conclude that the 12- 1/4 hours less
than the 40-hour norm which he did not work during the
payroll period are attributable to an injury arising out of
and in the course of his employment, not alcoholism.
Krimple's total for 3 or 4 of the 21 weeks in question
indicates that he worked a number of hours just short of
the 40-hour norm for the plant._ Respondent' s president,
Browning, speculates that the slight variation occurred be-
cause Krimple came in late in the morning. The record is
silent as to which days Krimple was late for work and the
reasons for the lateness are both conflicting and specula-
tive. Browning testified that he presumed that Krimple's
lateness on these occasions was because of alcoholism but
admitted that there could have been other reasons besides
alcoholism which caused him to be late for work. Browning
also testified that Krimple never came to work drunk, that
he did not want anyone to be drunk on the job, and that he
would send a man home if he were not in condition to
work when he arrived. Krimple was always sober when he
was on the job. -
Krimple testified that he did his drinking at night and
that his drinking sometimes resulted in insomnia and diar-
rhea making him too weak to work. In light of the other
testimony, I do not believe that such occasions described
the days on which he arrived late for work. As the burden
BROWNING INDUSTRIES
of proof is on the Respondent , I conclude that it has not
established that the relatively minor defections from the
40-hour norm owing to lateness are attributable to alco-
holism.
The question remains as to whether these drinking bouts
and Krimple's trips for treatment to the River Region Hos-
pital for assistance with his problem constitute the precipi-
tating cause for Krimple's other and more extended ab-
sences, specifically a loss of 24 hours during the week
ending September 21, a loss of 38 -3/4 hours during the
week ending November 15, a loss of 32 hours during the
week ending November 23, and a loss ending 40 hours
during the week of January 18, 1974. It is not at all clear
that these 124-3/4 hours of missed time are directly attrib-
utable to alcoholism rather than some other cause. Howev-
er, in light of Krimple's admissions, a fair inference can be
drawn that most of it is. I would deduct from this figure of
124-3/4 hours the amount of 3 hours which Krimple states
he was called to court, since it is uncertain in which of the
weeks such appearance took place and Respondent has not
established that they occurred during other times account-
ed for above . Subtracting from 124 -3/4 hours 24 attribut-
able to court appearance leaves a total of 100 -3/4 hours of
missed time ostensibly due to alcoholism.
In balancing the equities and arriving at the formula an-
nounced in its December 3 decision , the Board was un-
aware of the fact that Krimple worked a total of 45-3/4
hours of extra time which was spread out over a 9-week
period . Some of this extra time was treated by Respondent
as part of his normal workweek and some was treated for
pay purposes as "sub-contract labor," but whatever the
name, it was time worked which should be accounted for in
determining how much time less than a 40-hour norm
Krimple worked because of alcoholism . Accordingly, I
have deducted this figure of 45-3 /4 hours from the 100-3/4
hours missed ostensibly as a result of alcoholism during his
21 weeks of employment . The remainder , when divided by
21 weeks, means that 2.63 hours per week should be de-
ducted from the 40-hour norm in arriving at Knmple's
base period , so that the base period comes to 37.37 hours.
It is the figure of 37.37 hours per week which I will use in
computing Krimple's backpay for the quarters following
his discharge.
There is nothing in the Board 's December 3 decision
which suggests that I should in any way review or reevalu-
ate any other findings concerning the computation of
backpay, except to recompute what it owed in light of a
new base period rather than a 40-hour base period previ-
ously used . The following is a summary of the amount due
and owing utilizing the 37.37-hour base.
Net
1974 Hrs. and Gross Interim Net
Qtr. Rate Backpay Earnings Backpay
1 299 hrs.
(as opposed
to 320 hrs.
in orig.
computation)
$3 per hr. $898.00 $177.19 $ 719.81
2
3 89 hrs.
(as opposed
to 104 hrs.
in orig.
computation)
at $3.50
per hr.,
$311.50
287
117 hrs.
(as opposed
to 136
in orig.
computation)
at $3.75
per hr.,
$438.753 $750.25 $163.50 $ 586.75
4 179 hrs.
(as opposed
to 192 hrs.
in orig.
computation)
at $3.75
per hr.,
$671.254
Vac. pay,
1 wk. by
contract -
40 hrs. at
$3.75 per
hr., $150 $821.25 $420.00 401.25
$1,707.81
Except as modified, I hereby reaffirm all findings and
conclusions previously made and, in light of the foregoing
considerations, make the following recommended:
ORDERS
Walter S. Browning and Adeline Browning, doing busi-
ness as Browning Industries, Venetian Marble of Ken-
tucky, and their agents, successors, and assigns, shall pay
3 Krimple's new total base for this quarter is 486 hours, rather than the
original 520 hours, from which a total of 280 has been deducted, since no
claim was made for that time in August and September 1974 This leaves a
total of 206 hours for which compensation is due
4 These figures have been reduced from the original total of hours found
by the ratio of what 37 37 bears to 40 hours
s In the event no exceptions are filed as provided by Sec. 102 46 of the
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.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay to Norbert C. Krimple in the amount of $1,707.81 forth in the Board's Decision in his Plumbing & Heating
with interest thereon accrued to the date of payment at the Co., 138 NLRB 716 (1962), less FICA and state, local, and
rate of 6 percent per annum, computed in the manner set Federal income taxes which are required to be deducted.