Chemvet Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1973

204 N.L.R.B. 191 (N.L.R.B. 1973)

CHEMVET LABORATORIES, INC.
Chemvet Laboratories , Inc. and Department Store,
Package , Grocery Paper House , Liquor, and Meat
Drivers, Helpers and Warehousemen , Local Union
955 affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers
of America . Cases 17-CA-5095 and 17-RC-6839
June 14, 1973
ORDER GRANTING MOTION FOR
RECONSIDERATION AND SUPPLEMENTAL
DECISION AMENDING DECISION, ORDER,
AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 8, 1973, the Board issued a Decision,
Order, and Direction in the above-captioned proceed-
ing' in which it found that the Respondent had en-
gaged in certain unfair labor practices, and ordered it
to take certain affirmative action to remedy such un-
fair labor practices. The affirmative action so ordered,
however, did not include any requirement for restitu-
tion to the employees found to have been discrimina-
torily denied overtime, since the Board found that,
under the circumstances, such a "make-whole order
would lead only to an evidentiary morass in our com-
pliance proceedings."
Thereafter, on March 23, 1973, General Counsel
filed a motion for reconsideration of the portion of the
Board's decision which denied a make-whole remedy
for the employees found to have been discriminatorily
denied overtime. On April 5, 1973, Respondent filed
a brief in opposition to General Counsel's motion for
reconsideration.
The Board has reviewed its original Decision, Or-
der, and Direction in light of the motion for reconsid-
eration and brief in opposition thereto and has
decided to grant General Counsel's motion for recon-
sideration. While the Board was originally of the opin-
ion that there was "no practical way to measure how
much overtime would have been available or which
employees would have availed themselves of overtime
opportunities, had they been offered," upon further
review of the record the Board now believes that it
overstated the difficulties inherent in awarding back-
pay in this case . The Board is now of the view that it
erred in not issuing the usual backpay remedy, and,
hence, hereby amends its decision to provide such a
remedy.
In denying a make-whole remedy in its original
decision, the Board relied, inter alia, on the fact that
'201 NLRB No 104.
191
employee Ruhl had at one time indicated he would
not be willing to perform as much overtime as he had
in the past. However, the Board failed to note the
Administrative Law Judge's finding that "on several
occasions after March 29, 1972 [when Harmon took
the plant keys away from Ruhl and Terrell], Ruhl
asked Harmon whether he wanted him to stay over-
time to finish up products on which he had been
working, but received negative replies." The Board
also failed to note the Administrative Law Judge's
finding that employee "Downey credibly testified
without contradiction that on several occasions after
the Union filed its petition for certification, she re-
quested `some overtime,' and on each occasion was
told `there wasn't anything to do.' " Finally, the Board
failed to note the Administrative Law Judge's finding
that after being notified of the charge of discriminato-
ry reduction of overtime filed against Respondent,
Yovetich asked employees Ruhl, Terrell, and Downey
whether they wanted overtime work. Ruhl answered
that he wanted the same amount as he had received
previously, between 15 and 25 hours; Downey replied
that she was also available for overtime work; and
while Terrell indicated that he did not want overtime
at that precise time because of other commitments, he
was later given and performed overtime work. Thus,
contrary to the Board's original finding, there is a
substantial amount of evidence to the effect that the
discriminatees would have worked overtime had they
been given the opportunity to do so.
Another reason the Board gave for denying a make-
whole remedy in its original decision in this proceed-
ing was that there was some evidence that new equip-
ment lessened the need for overtime. Yovetich,
however, admitted at the hearing that overtime was
still available. Moreover, the Administrative Law
Judge found that the upstairs employees who did not
sign authorization cards continued to perform ap-
proximately the same amount of overtime as they had
performed in the past.
Thus, upon reconsideration, we now conclude that
there is sufficient evidence in the record to form a
basis for issuing a make-whole remedy. Evidence of
instances where the discriminatees refused overtime,
or would not have been available to work overtime
had it been made available, and evidence of a lessened
need for the performance of overtime for nondiscri-
minatory reasons are issues best left to the compliance
stage for resolution.2 Accordingly,
It is hereby ordered that General Counsel's motion
for reconsideration be, and it hereby is, granted.
IT IS FURTHER ORDERED that the Board 's original De-
cision, Order, and Direction in this proceeding, which
issued on February 8, 1973, be, and hereby is, amend-
2 Westinghouse Pacific Coast Brake Co, 89 NLRB 145
204 NLRB No. 40
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed to vacate so much of that Decision which declined
to provide the usual backpay remedy for those em-
ployees found to have been discriminatorily denied
overtime . In accordance with this amendment, the
following Order is issued in substitution for that previ-
ously issued.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, Chemvet
Laboratories, Inc., Kansas City , Missouri , its officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order, as modified:
Insert the following as paragraph 1(b), and reletter
the present paragraphs 1(b) and (c) as 1(c) and (d):
"(b) Discriminating in regard to the assignment of
overtime to employees."