Hobbs & Oberg Mining Co.

National Labor Relations Board - Board Decisions

Feb 28, 1995

316 N.L.R.B. 542 (N.L.R.B. 1995)

542
316 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 297 NLRB 575.
2 No. 90-9523 (unpublished).
Hobbs & Oberg Mining Company, Inc., Inter-
national Chemical Company, and Eastoak Coal
Company, Joint Employers and Oklahoma
Coal Miners Union. Case 17–CA–16407
February 28, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On January 31, 1990, the National Labor Relations
Board issued a Decision and Order in this proceeding,1
directing Hobbs & Oberg Mining Company, Inc.,
International Chemical Company, and Eastoak Coal
Company, Respondent joint employers, inter alia, to
make whole employees for their losses resulting from
the Respondents’ unfair labor practices. The United
States Court of Appeals for the Tenth Circuit enforced
the Board’s Order in its entirety on August 14, 1991.2
A controversy having arisen over the amount of back-
pay due under the terms of the Board’s Order, as en-
forced by the court of appeals, the Regional Director
for Region 17 issued a compliance specification and
notice of hearing on September 21, 1993. Respondent
Hobbs & Oberg filed an answer and Respondents
International Chemical Company and Eastoak Coal
Company filed an answer and an amended answer. A
hearing was held on December 14, 1993, before Ad-
ministrative Law Judge Elbert D. Gadsden.
On July 27, 1994, the administrative law judge
issued the attached supplemental decision. Respondents
International Chemical Company and Eastoak Coal
Company filed exceptions and a supporting brief.
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 at-
tached supplemental decision in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order.
Respondents International Coal Company (ICC) and
Eastoak Coal Company (ECC) except to the judge’s
finding that they are obligated to make whole Hobbs
& Oberg (H&O) employees who were on layoff when
ICC and ECC took over H&O’s mining operation at
the end of May 1987. Respondents ICC and ECC con-
tend that it would be inequitable and punitive to re-
quire them to make whole these employees of whom
they had no knowledge either when they took over the
operation or thereafter. Respondents ICC and ECC fur-
ther contend that the judge erred by relying on the
joint employer relationship found to exist between
ICC, ECC, and H&O to impute H&O’s knowledge of
these laid-off employees to ICC and ECC. In this re-
gard, ICC and ECC contend that the judge’s reliance
on Emsing’s Supermarket, 299 NLRB 569, 571 (1990),
is misplaced because that case involved single employ-
ers where ‘‘[i]mputing one single employer’s knowl-
edge to the other is justified’’ because the two entitites
are considered a ‘‘single integrated enterprise.’’ By
contrast, because the joint employer theory assumes
that two companies are independent legal entities, the
Respondents assert that it would be unreasonable to as-
sume that one joint employer would be aware of the
other’s employment matters, particularly those that
arose before the joint employer relationship was cre-
ated. Finally, Respondents ICC and ECC contend that
their lack of knowledge is analogous to a successor’s
lack of knowledge of a predecessor’s unfair labor prac-
tices. They contend, in effect, that since the Board
does not hold a successor liable to remedy a prede-
cessor’s unfair labor practices of which it has no
knowledge, the Board should not require ICC and ECC
to make whole the H&O employees who were on lay-
off when they took over H&O’s mining operation. We
disagree.
First, ICC and ECC are wrong in suggesting that
they are akin to successors of H&O, since it was es-
tablished in the underlying proceeding that all three
were joint employers and that their status as such con-
tinued even after ICC and ECC took over the mining
operation. Second, it was established in the underlying
proceeding that all three engaged in an unlawful
scheme to oust the Union, and all three are named in
the underlying order which was enforced by the court
of appeals. Thus, the arguments of ICC and ECC are
essentially an impermissible untimely attack on the un-
fair labor practice order. We also note that in view of
findings of the joint participation in the scheme, the
underlying order was entirely consistent with the
Board’s recent decision in Capitol EMI Music, 311
NLRB 997 (1993).
Finally, Respondents ICC and ECC except to the
judge’s finding that they are obligated to reinstate and
make whole employees Dean and Walker. The Re-
spondents contend that because those employees’ jobs
were eliminated when the Respondents converted from
a dragline to a dozer-scraper operation, Dean and
Walker are not entitled to reinstatement. We find this
argument without merit. The Respondents overlook the
fact that in the underlying proceeding the Board spe-
cifically found that Dean and Walker were unlawfully
terminated in violation of Section 8(a)(3) and were
therefore entitled to reinstatement and backpay. We re-
ject the Respondents’ attempt to relitigate this issue at
the compliance stage of the proceeding. See, e.g.,
Baumgardner Co., 298 NLRB 26, 27–28 (1990).
543HOBBS & OBERG MINING CO.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Hobbs & Oberg Mining
Company, Inc., International Chemical Company, and
Eastoak Coal Company, joint employers, Tulsa, Okla-
homa, their officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Francis A. Molenda, Esq., for the General Counsel.
Thomas F. Birmingham, Esq. (Birmingham, Morley,
Weatherford & Priore), of Tulsa, Oklahoma, for the Re-
spondent.
Stephen Andrew, Esq. (McCormick, Andrew & Clark), of
Tulsa, Oklahoma, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. This
proceeding is initiated pursuant to a Decision and Order of
the National Labor Relations Board in Case 16–CA–13286
on January 31, 1990, directing Respondents Hobbs & Oberg
Mining Company, Inc., International Chemical Company,
and Eastoak Coal Company to take the action set forth in the
Board’s Order described as pertinent here as follows:
On request, bargain with Oklahoma Coal Miners Union
(the Union) as the exclusive representative of the employees
in the appropriate bargaining unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement. The unit
consists of:
All production and maintenance employees employed at
the company’s mine in the United States, excluding all
salaried supervisors, office clerical employees, guards
and supervisors as defined in the Act.
Offer all bargaining unit employees terminated on May 31,
1987, immediate and full reinstatement to their former jobs,
or, if those jobs no longer exist, to substantially equivalent
positions. Do this without prejudice to their seniority or any
other rights or privileges previously enjoyed. Discharge, if
necessary, any employees hired in the interim.
Make the bargaining unit employees whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, and as a result of the repudiation
of the collective-bargaining agreement, in the manner set
forth in the Board’s decision modifying the remedy.
The Board’s Order having been enforced by the U.S.
Court of Appeals for the 10th Circuit on August 14, 1991,
on or about September 21, 1993, the Board issued the com-
pliance specification and notice of hearing here, with Exhib-
its 1, 2, and 3 attached thereto.
Respondents International Chemical Company and Eastoak
Coal Company filed an answer to the compliance specifica-
tion on October 28, 1993, and an amended answer on the
same date, stating that they do not dispute the allegations set
forth in paragraphs 1 through 7 of the compliance specifica-
tion, and conceding that the only issue presented for deter-
mination is the amount of backpay and medical expenses, if
any. Respondents also concede that the backpay period, if
any, is between June 1, 1987, and February 1988.
However, Respondents dispute that there are two major
categories of individuals entitled to backpay, as alleged in
paragraph 2 of the compliance specification.
Without admitting any backpay liability to employees set
forth in paragraph 3, Respondents contend that the method
of computing the backpay is correct, except that it denies the
computation of backpay for Robert Williams is correct, since
Williams quit his employment October 29, 1987.
Respondents dispute that the second major group of em-
ployees and the first and second subgroups of the major
group in paragraph 5 are entitled to backpay, because Re-
spondents have not been given any information on interim
earnings for them. Respondents contend that the individuals
set forth in paragraph 7 of the compliance specification
should not be included in the second subgroup of the major
two groups because Respondent had no knowledge that
Hobbs & Oberg had any employees on layoff until the com-
mencement of the instant proceeding; and they had no way
of confirming that the allegations on interim earnings set
forth in paragraph 7 are true. Therefore, Respondents deny
that they are true. Consequently, Respondents also dispute
the allegations in paragraph 8 of the compliance specifica-
tion.
Respondents deny that Carl Jones incurred medical ex-
penses of $554.83 plus $416.13 alleged medical expenses,
and $138.07 for 1 month insurance; and they contend Jones
was not entitled to medical expenses under the collective-
bargaining agreement. Consequently, they argue that the
computation set forth by the Board on the above matters in
paragraph 13 are incorrect because they are based on erro-
neous assumptions.
Respondents further affirmatively allege that the Union
never demanded bargaining with Eastoak Coal Company;
that the Union was obligated under the collective-bargaining
agreement to file a grievance prior to litigation; that the
Union did not notify Respondents that any of the employees
were on layoff and that such employees are thereby, not enti-
tled to backpay or medical expenses. Moreover, they are es-
topped from asserting such claim because under the terms of
the collective-bargaining agreement, the Respondents had the
right to determine the means and methods of operating the
mine and they were free to subcontract work; that pursuant
to such contractual authority, Eastoak changed from a drag-
line to a dozer-scraper operation, requiring employees classi-
fied as welder, electrician, mechanic, dragline operator, and
other classifications; that the Union consented to the reduc-
tion in wage rate by not filing a grievance over the oper-
ational changes made by Eastoak; and that if liability exists,
it is against Eastoak and not International Chemical Com-
pany, because there is no evidence that the latter two are
joint employers.
However, it is particularly noted that all of Respondents’
contentions in the latter paragraph ignore counsel for the
General Counsel’s argument, and the legal reality that the
Board, upheld by the court of appeals, found that Respond-
ents are joint employers, and as such, repudiated the collec-
tive-bargaining agreement under which they now claim rights
to make changes in operation of the mine. However, the joint
employers issue has been well litigated and cannot and was
not relitigated in this proceeding.
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consequently, a controversy having arisen over the amount
of backpay and reimbursement for medical expenses due em-
ployees under the terms of the Board’s Order of September
21, 1993, as enforced by the Court of Appeals for the 10th
Circuit, the Regional Director for Region 17 issued this com-
pliance specification, alleging that the backpay and reim-
bursement for medical expenses due under the terms of the
Board’s Order of September 21, 1993, is as follows:
Hobbs & Oberg Mining Company, Inc., International
Chemical Company, and Eastoak Coal Company, Joint Em-
ployers (the Respondents) their officers, agents, successors,
and assigns shall jointly and severely make the required pay-
ments to the individual employees under the Board’s Deci-
sion and Order, as enforced, by paying the following
amounts, plus interest at the appropriate rate, subject to the
accrual of additional interest until payment is effectuated:
Employee Total Due
Mike Armstrong $3482.27
Kenneth Dailey 1510.95
Bobby Houtz 1614.00
Albert Jones 2068.08
Carl Jones 7881.28
Frank Linzy 1718.44
Wesley Qualls 1158.51
Philip Thomas 2171.33
Robert Williams 2207.27
Donnie Keele 1705.19
Kenneth Owens 3541.82
John Radaich 4569.26
Earl Franklin 2088.00
James Hilburn 3517.94
Johnny Paul Howe 6972.26
Mike Stockton 6284.51
Lynn Heller 9976.01
Stanley O’Dell 8292.00
Clifton Walker 10,440.00
Homer Johnson 3520.75
Terry Dean 8667.83
Lester Lee 2187.89
Art Ballard 3370.64
Herb Tullos 677.86
Gene Lemley 3266.53
Kelly Grooms 1814.26
Charles Smith 1163.89
Robert Windler 856.14
Alvin Linzy 1891.46
Mark Radaich 1258.21
Gregg J. Blake 570.89
Steve P. Howe 1643.49
The compliance hearing in the above matter was held be-
fore me on December 14, 1993, in Tulsa, Oklahoma. Inter-
national Chemical Company appeared at the hearing through
the representation of Stephen Andrew, Esquire. Although
Hobbs & Oberg Mining Company, Inc. filed an answer here,
it did not appear and was not represented at the hearing.
Briefs have been received from counsel for the General
Counsel and counsel for the Respondents, International
Chemical Company and Eastoak Coal Company, respec-
tively, which have been carefully considered. Since Respond-
ent Hobbs & Oberg did not appear at the hearing and did
not submit a posthearing brief in this matter, I find that
Hobbs & Oberg offered no defense to the specifications as
alleged.
On the entire record in this case, including my observation
of the witnesses and my consideration of the briefs, I make
the following
FINDINGS OF FACT
I. DISPUTING OR QUESTIONING SPECIFICATION
There is no dispute that the relevant backpay period in-
volved commenced on June 1, 1987, and ended February 29,
1988, a period of 9 months when the joint employer relation-
ship among the Respondents ended. The backpay involved
resulted from the Respondents’ repudiation of the collective-
bargaining agreement and shutdown of the mine on May 31,
1987, affecting the employment of 32 discriminatee-employ-
ees in 3 groups. The first group consists of 11 individuals
who were reinstated by Respondents but paid a lower wage
rate than the repudiated collective-bargaining agreement
specified. Consequently, under the Board’s formula, they are
entitled to the difference between what should have been re-
ceived under the agreement, and what they were in fact paid.
The specification alleges that three of the same individuals
were reinstated after some delay and are thereby entitled to
additional backpay along with those discriminatees in the
second group, as described in attached Exhibit 1.
The second group of 13 employees were terminated by the
Respondents on May 31, 1987, but were never reinstated or
offered reinstatement. For this group of individuals, the cred-
ited testimony (Compliance Officer Fetsch) established that
these employees should receive what they would have earned
at the mines between June 1, 1987, and February 29, 1988,
and applying the Board’s quarter formula applicable to in-
terim earnings, if any. The three employees in the first group
whose reinstatement was delayed should receive backpay for
the period of delay, in addition to what they receive from the
difference between the collective-bargaining wage rate re-
quired and what they were actually paid, as described in at-
tached Exhibit 2.
The General Counsel contends that the third group of
discriminatees consist of individuals who were on layoff sta-
tus at the time Respondent repudiated the agreement and shut
down the mine on May 31, 1987. There were 11 individuals
in the group who were never offered reinstatement or in fact
reinstated, and are entitled to backpay under a Board’s for-
mula, which takes into account their previously laid-off sta-
tus. That is, since they would not have worked unless the
weekly work force grew to a number (11) that would allow
for their recall, they would be entitled to backpay on the
probability that they would have been recalled to work dur-
ing those particular weeks, as described in 1d, paragraphs 7–
8 and attached Exhibit 2.
According to testimony of Compliance Officer Fetsch, em-
ployee James Hilburn was terminated May 31, 1987, and he
sought retirement after September 1987, and his backpay was
limited accordingly. James Mashburn was on medical leave
throughout the backpay period and therefore was not entitled
to backpay. Fetsch said Carl Jones incurred medical expenses
during the backpay period and it was determined he was en-
titled to reimbursement for those expenses, in addition to
backpay.
545HOBBS & OBERG MINING CO.
Compliance Officer Fetsch testified he was not aware that
Hobbs & Oberg strip mining operation was done by the
dragline method of operation, which Eastoak Coal Co. did
not utilize. In June 1987, Eastoak Coal commenced operating
five scrapers, three dozers, and two frontend loaders, work-
ing their crews four 10-hour days, and the crew would be off
for 4 days while another crew worked, for perpetual oper-
ation of the mine. However, these changes were implemented
after Respondents repudiated the contract. There was very
limited overtime. Thus, all 11 employees including Arm-
strong would have worked under the unchanged mining
methods. The number of employees working between June
1987 and February 1988 varied between 9 and 27, with ap-
proximately 17 to 18 working most frequently.
Finally, Compliance Officer Fetsch testified that during the
backpay period (June 1, 1987—February 29, 1988) Respond-
ents employed between 9 and 27 employees in any given
week. Thus, Fetsch stated it was properly assumed that em-
ployees desired reimbursement and it was Respondents’ obli-
gation to offer them reinstatement. Consequently, Officer
Fetsch determined backpay according to the Board’s standard
procedure for calculating backpay.
The only evidence Respondents presented in response to
the compliance specification was the testimony of Inter-
national Chemical Company’s vice president, Larry Yeagley,
who testified he instructed Mine Officials Ron Sisney and
Larry Blevins to make sure that applications from
discriminatees for employment would be properly completed.
Yeagley identified certain applications from discriminatees
for employment. The application of Mike Armstrong con-
tained a notation ‘‘did not want to come back’’; a notation
on the application of Carl Jones ‘‘did not come back . . .
took another job’’; and a notation on Stanley O’Dell’s appli-
cation indicated hired 6/19/87, contract mechanic, $16, all of
which notations Yeagley testified he recognized as the hand-
writing of Ron Sisney. However, neither Sisney nor Larry
Blevins testified in this proceeding and the hearsay testimony
of Yeagley about notations on the applications was not sub-
stantiated. The notation on Armstrong’s application was spe-
cifically and credibly denied by him.
Only Mike Armstrong was called by Respondents and tes-
tified he was eventually reinstated by Respondents July 25,
1987. When asked by Respondents’ counsel whether he in-
formed Respondents during an interview that he ‘‘did not
want to come back to work in the mine,’’ Armstrong denied
he was interviewed by Respondents or that he made such a
statement to Respondents. He said he would not have told
Respondents he did not want to come back to work because
he needed a job and the health insurance, since his wife had
just given birth to a baby.
Respondents did not present any credible evidence to re-
fute the compliance formula or the computation set forth in
the compliance specification as explained by Compliance Of-
ficer Fetsch.
Analysis and Conclusions
Respondents’ defense to the compliance specification does
not primarily challenge the mathematical computations nor
the accuracy of the premises on which they were made by
the compliance officer. Instead, Respondents’ arguments rely
on the language of the collective-bargaining agreement which
provided, that the employer has the right to determine the
means, methods, and procedures to be used in operating the
mine; that Respondents, as employers, exercised that right by
changing the mine operations from dragline to a dozer,
scraper, front-end loader operation, which eliminated the
need for some classifications of workers; and that the com-
pliance specification includes some of the workers who were
no longer needed as a result of the change from dragline to
dozer-scraper operation.
Respondents further contend that the Union did not file
any grievances over the elimination of the above-described
job classifications, or the new job classifications, and Re-
spondents did not have an opportunity to engage in arbitra-
tion about these changes.
While Respondents’ contentions about contract provisions
may be correct, it is particularly noted, as pointed by counsel
for the General Counsel, that Respondents raised some of
these defenses and arguments during the hearing in the origi-
nal proceeding, and the administrative law judge’s decision,
affirmed by the Board, and the Board’s Order upheld and en-
forced by the court of appeals, specifically found that the Re-
spondents were joint employers, and were jointly and se-
verely liable for any backpay arising from their unlawful re-
pudiation of the contract and discrimination against the em-
ployees. Consequently, the Respondents were ordered to
cease and desist from making unilateral changes in working
conditions, by subcontracting bargaining unit work, and
thereby repudiating the collective-bargaining agreement and
refusing to recognize and bargain with the Union. Moreover,
the Board held that Respondents repudiated the collective-
bargaining agreement when they stopped using the classified
workers who were eliminated by the change in the operation
of the mine. Hobbs & Oberg Mining Co., 297 NLRB 575,
592 (1990).
However, since Respondents’ arguments are based on
issues they previously raised or should have raised and liti-
gated in the unfair labor practice proceeding, which were
ruled on and affirmed by the Board, they cannot now reliti-
gate these issues in an effort to exonerate themselves from
established liability in this compliance proceeding. Workroom
for Designers, 289 NLRB 1434, 1439 (1988); EDP Medical
Computed Systems, 293 NLRB 857 (1989).
Although Respondents claimed they had no knowledge of
the fact that some employees of Hobbs & Oberg were on
layoff, such lack of knowledge on their part does not exempt
them from their joint employer status, and their attendant
joint and several liability to the laid-off employees. Under
such circumstances ‘‘knowledge’’ of the laid-off employees
is imputed to the Respondents as joint employers. Emsing’s
Supermarket, 299 NLRB 569, 571 (1990).
At the trial here Respondents tried to show that some clas-
sified and other laid-off employees were notified by Re-
spondents through posted notices of job availabilities that
Respondents were accepting applications for employment;
and that many employees included in the compliance speci-
fication did not apply for work on or after June 1, 1987. Re-
spondents also tried to show that it interviewed and made
telephone calls to some discriminatees to inquire of their in-
terest in coming to work. Respondents did not present any
former employees or witnesses who testified they were
called, or were interviewed and offered a job by Respond-
ents.
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
It is especially noted that Respondents did not present any
evidence that it made written or verbal job offers to any of
the discriminatees listed in the backpay specification. Board
law is clear that an employer Respondent who has unlawfully
discriminated against employees must unconditionally offer
the discriminatees reinstatement to their former position or,
if such position does not exist, to substantially equivalent
ones. Chase National Bank, 65 NLRB 827, 829 (1946).
Thus, Respondents failed to present any evidence that they
made any offers of employment to the discriminatees here in-
volved. Certainly posting a notice of job availability or call-
ing discriminatees on the telephone and asking them if they
are interested in work is not unconditionally offering
discriminatees employment.
Although Respondents called one discriminatee (Mike
Armstrong) in an effort to have him testify with respect to
a notation on his application for employment, that he said ‘‘I
do not want to come back to work,’’ Armstrong unequivo-
cally and emphatically denied that he ever told any member
of the Respondents he did not want to return to work. Con-
sequently, the Respondents did not present any evidence
challenging the calculations on interim earnings or reim-
bursement for medical expenses. Having failed to controvert
these calculations or the premises on which they are based
with credited evidence, there is no issue presented with re-
spect to them for resolution. Hansel Bros. Enterprises, 313
NLRB 599 (1933).
Respondent International Chemical’s vice president,
Yeagley, testified that there was a mine plan to extract the
coal by a dozer, frontend loader, and scraper operation. He
said they had three dozers, four scrapers, two frontend load-
ers, totaling nine pieces of equipment, one oiler, a support
crew, foreman, and superintendent as salaried individuals.
They also had a parts runner, secretary, and assistant clerical
support. The mine plan remained in operation from June
1987 to February 1988.
Respondent Eastoak Coal Company’s answer to the speci-
fication maintains that it had the right to determine the
means of not operating the mine just as Hobbs & Oberg op-
erated it.
Notwithstanding, Respondents did not negotiate or speak
with the Union about their change in operation, Respondent
Eastoak cannot now raise and litigate or relitigate this issue
when it did so, or should have done so in 1988 when the
Board found Respondents were joint employers and had re-
pudiated the contract.
Respondents also argue that they were found joint employ-
ers and as such, nevertheless had the right to determine the
means of mine operation and subcontract work. Respondents
admit they did not make this argument at the original trial
because they said the remedy issue was left for compliance.
However, an issue of joint employer status is not an issue
for compliance but for the unfair labor practice proceeding
where Respondents did litigate that issue.
The General Counsel points out that the Board’s Order, as
specifically enforced by the court, provides Respondents
must cease and desist from subcontracting bargaining unit
work and refusing to recognize and bargain with the Union,
or making unilateral changes in wages, hours, terms, and
conditions of employment of unit employees. The Board then
concluded that Respondents repudiated their agreement when
they stopped using certain classified positions of unit work-
ers, or using the dragline operation.
The testimonial evidence does not present any significant
credibility issues for determination, and the extent to which
any may have been raised, I credit the accounts of Compli-
ance Officer Fetsch and discriminatee Armstrong over that of
Respondent’s vice president, Yeagley, because I was per-
suaded by their demeanor and accuracy that their accounts
were more creditable than Yeagley’s.
I therefore conclude and find on the foregoing credited tes-
timony and the documentary evidence of the figures and
computations in the compliance specification, that the parties
do not disagree that such figures and computations are not
accurate, or that they were not established in accordance with
appropriate and correct Board formulas, as they were estab-
lished to be. I therefore find that the backpay specification
is accurate in all respects and issue the following rec-
ommended1
ORDER
The Respondents, Hobbs & Oberg Mining Company, Inc.,
International Chemical Company, and Eastoak Coal Com-
pany, joint employers, Tulsa, Oklahoma, their officers,
agents, successors, and assigns, shall make the discriminatees
listed in Exhibits 1, 2, and 3, incorporated in and appended
hereto, whole for wages and medical reimbursements, in ac-
cordance with the Board’s Order and the court’s judgment in
this proceeding, by paying to them the amounts set forth op-
posite their respective names, plus interest accrued on all of
these amounts computed in accordance with the formula set
forth in the Board’s Decision and Order. The Respondents
shall make the appropriate deductions from the amounts of
any tax withholding required by state and Federal laws.
547HOBBS & OBERG MINING CO.
ATTACHMENTS
EXHIBIT 1
Yr./Qtr. Reg. Hrs. OT Hrs. Amt. Earned Amt. Paid Difference (Amt. Owed)
AMOUNTS OWED TO FORMER HOBBS & OBERG EMPLOYEES WHO WORKED AT EASTOAK
MIKE ARMSTRONG—$10.75/Hr.
1987/2d - 0 - - 0 - - 0 - - 0 - - 0 -
1987/3d 333.5 - 0 - $3,585.13 $3,001.50 $583.63
1987/4th 419.5 17.5 4,791.82 3,966.75 825.07
1988/1st 265 31 3,348.63 2,772.00 576.63
Amount Owed $1,985.33
KENNETH DAILEY—$10.25/Hr.
1987/2d 48.5 - 0 - $497.13 $436.50 $60.63
1987/3d 439.5 .5 4,512.57 3,962.25 550.32
1987/4th 52 10 4,786.75 4,203.00 583.75
1988/4th 250 2 2,593.25 2,277.00 316.25
Amount Owed $1510.95
BOBBY HOUTZ—$10.25/Hr.
1987/2d 40 19.5 $709.81 $758.25 - 0 -
1987/3d 456 19.5 4,973.81 4,358.25 $615.56
1987/4th 452 31.5 5,117.31 4,493.25 624.06
1988/1st 271 19 3,069.88 2,695.50 374.38
Amount Owed $1,614.00
ALBERT JONES—$10.75/Hr.
1987/2d 80 1.5 $884.19 $740.25 $143.94
1987/3d 435.5 - 0 - 4,681.63 3,919.50 762.13
1987/4th 399.5 - 0 - 4,294.63 3,595.50 699.13
1988/1st 264.5 - 0 - 2,843.38 2,380.50 462.88
Amount Owed $2,068.08
CARL JONES—$10.75/Hr.
1987/2d - 0 - - 0 - - 0 - - 0 - - 0 -
1987/3d - 0 - - 0 - - 0 - - 0 - - 0 -
1987/4th 197.5 - 0 - $2,123.13 $1,777.50 $345.63
1988/1st 246.5 - 0 - 2,649.88 2,218.50 431.38
Amount Owed $777.01
FRANK LINZY—$10.25/Hr.
1987/2d 52 - 0 - $533.00 $468.00 $65.00
1987/3d 470.5 33.5 5,337.69 4,686.75 650.94
1987/4th 472.5 30.5 5,312.06 4,664.25 647.81
1988/1st 266.5 11.5 2,908.44 2,553.75 354.69
Amount Owed 1,718.44
WESLEY QUALLS—$10.75/Hr.
1987/2d 80 3.5 $916.44 $767.25 $149.19
1987/3d 425.5 .5 4,582.19 3,836.25 745.94
1987/4th 150.5 - 0 - 1,617.88 1,354.50 263.38
1988/1st - 0 - - 0 - - 0 - - 0 - - 0 -
Amount Owed $1,158.51
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ATTACHMENTS—Continued
EXHIBIT 1
Yr./Qtr. Reg. Hrs. OT Hrs. Amt. Earned Amt. Paid Difference (Amt. Owed)
PHILIP THOMAS—$10.75/Hr.
1987/2d 47.5 - 0 - $510.63 $427.50 $83.13
1987/3d 444.5 10 4,939.63 4,135.50 804.13
1987/4th 420.5 - 0 - 4,520.38 3,784.50 735.88
1988/1st 260 23.5 3,173.94 2,625.75 548.19
Amount Owed $2,171.33
ROBERT WILLIAMS—$10.75/Hr.
1987/2d 80 3.5 $916.44 $767.25 $149.19
1987/3d 445.5 - 0 - 4,789.13 4,014.00 775.13
1987/4th 437.5 9 4,848.26 4,059.00 789.26
1988/1st 245 9.5 2,786.94 2,293.25 493.69
Amount Owed $2,207.27
DONNIE KEELE—$10.75/Hr.
1987/2d 40 13.5 $647.69 $481.50 $166.19
1987/3d 345 20 4,031.25 3,285.00 746.25
1987/4th 360 - 0 - 3,870.00 3,240.00 630.00
1988/1st 93 - 0 - 999.75 837.00 162.75
Amount Owed $1,705.19
KENNETH OWENS—$10.75/Hr.
1987/2d - 0 - - 0 - - 0 - - 0 - - 0 -
1987/3d 396 5 $4,337.63 $3,631.50 $706.13
1987/4th 496 - 0 - 5,332.00 4,464.00 868.00
1988/1st 269 - 0 - 2,891.75 2,421.00 470.75
Amount Owed $2,044.88
EXHIBIT 2
Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay
AMOUNTS OWED TO EMPLOYEES WHO WERE TERMINATED OR DELAYED IN RECALL
MIKE ARMSTRONG
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 84 903.00 - 0 - 903.00
1987/4th 10.75 - 0 - - 0 - - 0 - - 0 -
1988/1st 10.75 - 0 - - 0 - - 0 - - 0 -
Amount Owed $1,496.94
KENNETH OWENS
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 84 903.00 - 0 - 903.00
1987/4th 10.75 - 0 - - 0 - - 0 - - 0 -
1988/1st 10.75 - 0 - - 0 - - 0 - - 0 -
Amount Owed $1,496.94
549HOBBS & OBERG MINING CO.
EXHIBIT 2
Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay
CARL JONES
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 372 3,999.00 - 0 - 3,999.00
1987/4th 10.75 182 1,956.50 - 0 - 1,956.50
1988/1st 10.75 - 0 - - 0 - - 0 - - 0 -
Amount Owed $6,549.44
JOHN RADAICH
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 372 3,999.00 $900.00 3,099.00
1987/4th 10.75 333.25 3,582.44 2,999.25 583.19
1988/1st 10.75 167.5 1,800.63 1,507.50 293.13
Amount Owed $4,569.26
EARL FRANKLIN
1987/2d $10.75 55.25 $593.94 $469.63 $124.31
1987/3d 10.75 372 3,999.00 3,162.00 837.00
1987/4th 10.75 333.25 3,582.44 2,832.63 749.81
1988/1st 10.75 167.5 1,800.63 1,423.75 376.88
Amount Owed $2,088.00
JAMES HILBURN
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 272 2,924.00 - 0 - 2,924.00
1987/4th 10.75 - 0 - - 0 - - 0 - - 0 -
1988/1st 10.75 - 0 - - 0 - - 0 - - 0 -
Amount Owed $3,517.94
JOHNNY PAUL HOWE
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 372 3,999.00 $500 3,499.00
1987/4th 10.75 333.25 3,582.44 1,666.25 1,916.19
1988/1st 10.75 167.5 1,800.63 837.50 963.13
Amount Owed $6,972.26
MIKE STOCKTON
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 372 3,999.00 $1,427.00 2,572.00
1987/4th 10.75 333.25 3,582.44 1,427.00 2,155.44
1988/1st 10.75 167.5 1,800.63 837.50 963.13
Amount Owed $6,284.51
LYNN HELLER
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 372 3,999.00 - 0 - 3,999.00
1987/4th 10.75 333.25 3,582.44 - 0 - 3,582.44
1988/1st 10.75 167.5 1,800.63 - 0 - 1,800.63
Amount Owed $9,976.01
STANLEY O’DELL
1987/2d $11.25 55.25 $621.56 - 0 - $621.56
1987/3d 11.25 372 4,185.00 $690.00 3,495.00
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
EXHIBIT 2
Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay
1987/4th 11.25 333.25 3,749.06 690.00 3,059.06
1988/1st 11.25 167.50 1,884.38 768.00 1,116.38
Amount Owed $8,292.00
CLIFTON WALKER
1987/2d $11.25 55.25 $621.56 - 0 - $621.56
1987/3d 11.25 372 4,185.00 - 0 - 4,185.00
1987/4th 11.25 333.25 3,749.06 - 0 - 3,749.06
1988/1st 11.25 167.5 1,884.38 - 0 - 1,884.38
Amount Owed $10,440.00
HOMER JOHNSON
1987/2d $10.75 55.25 $593.94 $382.33 $211.61
1987/3d 10.75 372 3,999.00 2,574.24 1,424.76
1987/4th 10.75 333.25 3,582.44 2,306.09 1,276.35
1988/1st 10.75 167.5 1,800.63 1,192.60 608.03
Amount Owed $3,520.75
TERRY DEAN
1987/2d $10.75 55.25 $593.94 - 0 - $593.94
1987/3d 10.75 372 3,999.00 - 0 - 3,999.00
1987/4th 10.75 333.25 3,582.44 - 0 - 3,582.44
1988/1st 10.75 167.5 1,800.63 $1,308.18 492.45
Amount Owed $8,667.83
LESTER LEE
1987/2d $10.75 27.5 $295.63 $137.50 $158.13
1987/3d 10.75 145.5 1,564.13 727.50 836.63
1987/4th 10.75 78 838.50 390.00 448.50
1988/1st 10.75 129.5 1,392.13 647.50 744.63
Amount Owed $2,187.89
ART BALLARD
1987/2d $10.25 27.5 $281.88 - 0 - $281.88
1987/3d 10.25 145.5 1,491.38 - 0 - 1,491.38
1987/4th 10.25 78 799.50 - 0 - 799.50
1988/1st 10.25 129.5 1,327.38 $529.50 797.88
Amount Owed $3,370.64
HERB TULLOS
1987/2d $10.75 27.5 $295.63 $220.00 $75.63
1987/3d 10.75 145.5 1,564.13 1,248.25 315.88
1987/4th 10.75 78 838.50 730.86 107.64
1988/1st 10.75 129.5 1,392.13 1,213.42 178.71
Amount Owed $677.86
GENE LEMLEY
1987/2d $9.75 27.5 $268.13 $52.16 $215.97
1987/3d 9.75 145.5 1,418.63 254.73 1,163.90
1987/4th 9.75 78 760.50 136.47 624.03
1988/1st 9.75 129.5 1,262.63 - 0 - 1,262.63
Amount Owed $3,266.53
551HOBBS & OBERG MINING CO.
EXHIBIT 2
Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay
KELLY GROOMS
1987/2d $9.75 27.5 $268.13 $165.00 $103.13
1987/3d 9.75 145.5 1,418.63 - 0 - 1,418.63
1987/4th 9.75 78 760.50 468.00 292.50
1988/1st 9.75 129.5 1,262.63 1,359.75 - 0 -
Amount Owed $1,814.26
CHARLIE SMITH
1987/2d $10.75 27.5 $295.63 $178.75 $116.88
1987/3d 10.75 145.5 1,564.13 945.75 618.38
1987/4th 10.75 78 838.50 507.00 331.50
1988/1st 10.75 129.5 1,392.13 1,295.00 97.13
Amount Owed $1,163.89
ROBERT WINDLE
1987/2d $11.25 27.5 $309.38 $247.50 $61.88
1987/3d 11.25 145.5 1,636.88 1,309.50 327.38
1987/4th 11.25 78 877.50 702.00 175.50
1988/1st 11.25 129.5 1,456.88 1,165.50 291.38
Amount Owed $856.14
ALVIN LINZY
1987/2d $11.25 27.5 $309.38 $160.60 $148.78
1987/3d 11.25 145.5 1,636.88 849.72 787.16
1987/4th 11.25 78 877.50 455.52 421.98
1988/1st 11.25 129.5 1,456.88 923.34 533.54
Amount Owed $1,891.46
MARK RADAICH
1987/2d $9.75 27.5 $268.13 $186.18 $81.95
1987/3d 9.75 145.5 1,418.63 985.04 433.59
1987/4th 9.75 78 760.50 528.06 232.44
1988/1st 9.75 129.5 1,262.63 752.40 510.23
Amount Owed $1,258.21
GREGG J. BLAKE
1987/2d $10.75 27.5 $295.63 $275.00 $20.63
1987/3d 10.75 145.5 1,564.13 1,455.00 109.13
1987/4th 10.75 78 838.50 624.00 214.50
1988/1st 10.75 129.5 1392.13 1,165.50 226.63
Amount Owed $570.89
STEVE P. HOWE
1987/2d $9.75 27.5 $268.13 - 0 - $268.13
1987/3d 9.75 145.5 1,418.63 $1,062.00 356.63
1987/4th 9.75 78 760.50 647.40 113.10
1988/1st 9.75 129.5 1,262.63 357.00 905.63
Amount Owed $1,643.49
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
EXHIBIT 3
Employee Backpay Due to ReducedWages
Backpay Due to
Termination or Delay in
Recall
Medical Reimbursement Total
Mike Armstrong $1,985.33 $1,496.94 - 0 - $3,482.27
Kenneth Dailey 1,510.95 - 0 - - 0 - 1,510.95
Bobby Houtz 1,614.00 - 0 - - 0 - 1,614.00
Albert Jones 2,068.08 - 0 - - 0 - 2,068.08
Carl Jones 777.01 6,549.44 $554.83 7,881.28
Frank Linzy 1,718.44 - 0 - - 0 - 1,718.44
Wesley Qualls 1,158.51 - 0 - - 0 - 1,158.51
Philip Thomas 2,171.33 - 0 - - 0 - 2,171.33
Robert Williams 2,207.27 - 0 - - 0 - 2,207.27
Donnie Keele 1,705.19 - 0 - - 0 - 1,705.19
Kenneth Owens 2,044.88 1,496.94 - 0 - 3,541.82
John Radaich - 0 - 4,569.26 - 0 - 4,569.26
Earl Franklin - 0 - 2,088.00 - 0 - 2,088.00
James Hilburn - 0 - 3,517.94 - 0 - 3,517.94
Johnny Paul Howe - 0 - 6,972.26 - 0 - 6,972.26
Mike Stockton - 0 - 6,284.51 - 0 - 6,284.51
Lynn Heller - 0 - 9,976.01 - 0 - 9,976.01
Stanley O’Dell - 0 - 8,292.00 - 0 - 8,292.00
Clifton Walker - 0 - 10,440.00 - 0 - 10,440.00
Homer Johnson - 0 - 3,520.75 - 0 - 3,520.75
Terry Dean - 0 - 8,667.83 - 0 - 8,667.83
Lester Lee - 0 - 2,187.89 - 0 - 2,187.89
Art Ballard - 0 - 3,370.64 - 0 - 3,370.64
Herb Tullos - 0 - 677.86 - 0 - 677.86
Gene Lemley - 0 - 3,266.53 - 0 - 3,266.53
Kelly Grooms - 0 - 1,814.26 - 0 - 1,814.26
Charles Smith - 0 - 1,163.89 - 0 - 1,163.89
Robert Windler - 0 - 856.14 - 0 - 856.14
Alvin Linzy - 0 - 1,891.46 - 0 - 1,891.46
Mark Radaich - 0 - 1,258.21 - 0 - 1,258.21
Gregg J. Blake - 0 - 570.89 - 0 - 570.89
Steve P. Howe - 0 - 1,643.49 - 0 - 1,643.49
Totals $18,960.99 $103,885.65 $554.83 $123,401.47