Fredeman's Calcasieu Locks Shipyard, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1974

208 N.L.R.B. 839 (N.L.R.B. 1974)

FREDEMAN'S CALCASIEU LOCKS SHIPYARD
Fredeman 's Calcasieu Locks Shipyard, Inc. and Inter-
national Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers, and Helpers, Local
79, AFL-CIO. Case 15-CA-4613
January 31, 1974
SUPPLEMENTAL DECISION AND
ORDER DENYING MOTION FOR
RECONSIDERATION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 12, 1973, the National Labor Relations
Board issued its Decision and Order in this proceed-
ing l finding, inter alia, that. Respondent unlawfully
laid off certain employees and ordering Respondent
to offer full and proper reinstatement to each such
employee and to make him whole for any consequent
loss of pay from the date of his unlawful discharge to
"the date of, its full and proper offer of reinstatement
to each employee." On November 5, 1973, counsel
for the General Counsel filed a motion for reconsid-
eration contending that the Board erred in finding
that Respondent's backpay responsibility terminated
as of the date of offer of reinstatement instead of the
date of actual reinstatement . No party filed a motion
in opposition.
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.
It appears that the General Counsel has miscon-
ceived the situation. Although the Board has varied
the language of its backpay provisions in its orders, it
usually provides that backpay shall run until a
proper offer of reinstatement is made . We have
construed such terminology to mean that the
intended cutoff date is not, literally, the date on
which the offer is first tendered, but rather a
reasonable date which affords the discriminatee a
reasonable period of time to determine if he wishes
to accept or reject the offer and during which he can,
if he accepts, take those steps necessary to return to
work pursuant to the offer. What constitutes the
"reasonable time" will depend essentially on the
situation in which an employee finds himself as a
result of the discrimination against him, and thus no
precise fixed date can be set by formula.
For example, an employee may be employed by an
interim employer at the time he receives the offer of
reinstatement. In that situation, we would allow him
1 206 NLRB No. 104.
2 In support of his position, the General Counsel cites American
Manufacturing Company of Texas, 167 NLRB 520, and Southern Household
Products Company, Inc., 203 NLRB No. 138, in which the Board was
839
a reasonable time within which to consider the offer
and to make appropriate arrangements for terminat-
ing his interim employment without imposing an
undue hardship on his temporary employer. 'Or the
offer may set a definite time limitation by which he
must accept it and report to work or else forfeit both
his reinstatement 4nd backpay rights. Here again we
will look to the employee's availability and immedi-
ate circumstances before determining whether the
date set in the offer terminates those rights. Obvious-
ly, if there is no valid reason for his not being able to
return to work at the fixed date, we will likely view
that date as dispositive of the issue . By the same
token, however, the date for accepting the offer and
returning to work may have to be extended by us in
deciding the backpay cutoff date if the terms in
which the offer is couched fail to provide any
reasonable time within which the employee can act
thereon. The most extreme example of this kind of
offer is one that demands the employee accept it and
return to work on the same day he receives it. That
would, except in unusual situations , be an unreason-
able condition to which we would not require strict
compliance by the employee; nor would we find such
an offer to have terminated the backpay period.
Thus, as the above illustrations show, the terms of
each offer and the circumstances affecting the
individual employee at the time of receipt of such
offer will have to be weighed and considered in
determining what constitutes the end of the backpay
period.
In consequence, in most instances , the Board
cannot in advance determine precisely what calendar
date or what particular event shall be a fixed cutoff
date for individual discriminatees in computing
backpay. Rather, the matter is one for resolution at
the backpay stage of the proceeding.2 It was with the
intention of incorporating this customary construc-
tion of, and practice with regard to, the backpay
period that the Board in its decision in this matter
specified that backpay would terminate as of the date
of a "full and proper offer of reinstatement."
In view of the foregoing clarification, the issues
raised by the General Counsel's motion do not
require or warrant amendment of the Decision.
ORDER
It is hereby ordered that the General Counsel's
motion filed in this proceeding on November 5, 1973,
be, and it hereby is, dismissed.
relatively specific in setting precise cutoff dates for the computation of
backpay. However , those decisions were both supplemental decisions
growing out of exceptions to Administrative Law Judge backpay decisions.
208 NLRB No. 109