I-O Services, Inc.

National Labor Relations Board - Board Decisions

Sep 9, 1976

225 N.L.R.B. 1251 (N.L.R.B. 1976)

1-0 SERVICES , INC. 1251
1-0 Services , Inc. and International Union , United
Automobile , Aerospace and Agricultural Implement
Workers of America (UAW). Case 7-CA-11071
September 9, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On July 17, 1975, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding, inter alga, that Respon-
dent discriminatorily discharged and failed and re-
fused to reinstate six certain named individuals in
violation of Section 8(a)(1) of the National Labor
Relations Act, as amended.
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
7, a hearing was held before Administrative Law
Judge Benjamin K. Blackburn on February 4, 1976,
for the purpose of determining the amounts due the
six claimants.
On April 7, 1976, the Administrative Law Judge
issued the attached Supplemental Decision in which
he awarded backpay to the six claimants. Thereafter,
the General Counsel filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief and cross-exceptions.
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 reviewed the rulings of the Admin-
istrative Law Judge made at the hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Administrative Law Judge's Supplemental Decision,
the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Administrative
Law Judge except as modified herein.
The General Counsel's backpay specification re-
constructed the number of hours each of the claim-
ants would have worked during the backpay period
but for the discrimination against them. In arriving
at these figures, the General Counsel used, as a repre-
sentative group, the Respondent's employees who
regularly worked during this period. However, the
General Counsel excluded from the group several
employees whose employment appeared to be spo-
radic and simply unrepresentative of the work force
'218 NLRB 566
as a whole. Specifically, the Gneral Counsel excluded
employees who consistently worked fewer than 16
hours per week. That figure was selected because the
Respondent's records revealed that employees in the
representative group averaged 32 hours per week.
The Respondent in its answer to the specification
attacked the General Counsel's representative group
on two grounds: First, the specification should have
included all employees who worked during the back-
pay period, including those employees who worked
fewer than 16 hours. Second, for purposes of further
determining the average hours of work during the
backpay period, the specification should have includ-
ed the six discriminatees who had not been reinstat-
ed. The Administrative Law Judge found no merit in
this latter contention, and we agree . For including
the six discriminatees along with employees who re-
placed them ignores the fact that following the dis-
charges work which the six discriminatees would
have performed was either assigned to their replace-
ments or reassigned to other employees. In short, in-
cluding the six claimants in the backpay formula to
arrive at the average weekly hours figure would dis-
tort the size of the Respondent's work force.
However, the Administrative Law Judge did agree
with the Respondent's first contention that employ-
ees working fewer than 16 hours per week should be
included in the representative group. We find merit
in the General Counsel's exceptions.
The Administrative Law Judge found that by its
nature the Respondent's work requirement was errat-
ic, varying from day to day. Nonetheless, work was
allegedly assigned on a nondiscriminatory basis with-
out regard to seniority or ability, with each employee
being afforded the same opportunity to work roughly
the same number of hours as other employees. In this
regard, Respondent's president testified that late in
the afternoon of each day a work schedule was
drawn up and employees were contacted in a manner
consistent with a practice of assigning work equally,
on a rotating basis. In an effort to explain the wide
discrepancies in average weekly hours that existed
between employees who worked overtime and those
who during the same weeks consistently worked only
a few hours a week, or not at all, the Respondent's's
president stated that occasionally employees who
could have worked declined to do so voluntarily or
for a variety of other reasons, such as the inability to
get to work because of illness in the family or the
unavailability of transportation, which forced them
to turn down available work.
However, as the General Counsel pointed out,
over an extended period of time, such as the backpay
period, temporary inconveniences would tend to bal-
ance out if work were assigned on a truly equal basis.
225 NLRB No. 183
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And while a few employees may have repeatedly
turned down the opportunity to work for a variety of
personal reasons it would be unfair to attribute to the
six claimants-all of whom were full-time employees
at the time of their discharge-the same casual atti-
tude toward their work. Moreover, we are not satis-
fied that work was made available on an equal basis,
as the Respondent has maintained. Thus, in its an-
swer to the backpay specification the Respondent
averred that employees were called in to work "on
the basis of their seniority and ability as work was
available." And Respondent's president, while assert-
ing that work was generally made available on a ro-
tating basis, did not specifically deny that work as-
signments were made on the basis of seniority and
ability.
For the foregoing reasons we are not convinced
that work was made available on a strict, rotating
basis, without consideration for such factors as se-
niority and ability. In view of these circumstances,
we find, in agreement with the General Counsel, that
those employees who worked fewer than half of the
average weekly hours of the employees in the repre-
sentative group were properly excluded as unrepre-
sentative of the group as a whole for purposes of
computing average weekly hours.
Finally, the General Counsel excepts to the Ad-
ministrative Law Judge's refusal to provide special
compensation for three of the claimants, Kapanow-
ski, Creedon, and Moore. The record shows that fol-
lowing their reinstatement on January 13, 1975, the
three above-named claimants were paid on the basis
of keystrokes per hour, as opposed to the previous,
straight hourly rate method. There is no contention
that this change in method was discriminatorily mo-
tivated. But the General Counsel does assert that the
three employees involved are entitled to an extension
of their respective backpay periods, from January 12
to March 8, 1975, in order to compensate for the time
required by them to reacquire their keypunch facility
and accumulate weekly earnings under the new key-
strokes method equal to the amounts earned under
the former hourly wage rate method. In each in-
stance, the General Counsel compared the average
weekly earnings of the three employees in a 13-week
base period prior to their discharge in 1974 with their
actual weekly earnings in the January 13-March 8,
1975, period and awarded them the difference as net
backpay.
We have carefully considered the Administrative
Law Judge's decision in light of the General
Counsel's exception and the Respondent's answer.
We agree with the Administrative Law Judge. True,
it may be reasonable to assume that these employees
had lost some of their previous proficiency during
the backpay period due to the Respondent's discrimi-
nation. But as the Administrative Law Judge pointed
out there is no evidence to support this assertion and
none of the three claimants testified in regard to this
matter Absent any evidence to support this position,
the General Counsel's contention remains in the
realm of sheer speculation. Therefore, we shall sub-
tract from the backpay award, contained in the spec-
ification, any additonal compensation for Kapanow-
ski, Creedon, and Moore for the period beyond the
date of their reinstatement. In all other respects ex-
cept as noted below with regard to Madry, we find
that the specification accurately reflects the net
amounts due the six claimants.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts the Administrative Law Judge's
recommendations as modified herein and orders that
Respondent 1-0 Services, Inc., Lathrop Village,
Michigan, its officers, agents, successors, and assigns,
make whole in the amounts set forth oppposite their
names listed below plus interest accrued to the date
of payment in accordance with the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), less deductions for applicable taxes as fol-
lows: Vikki Kapanowski-$1,794.64; Janet
Crews-$1,480.22; Cathy Hoover Cree-
don-$3,061.51; Stella Madry-$1,888.50;2 Susan
Moore-$4,023.86; and Myrtle Andrus-$1,603.13.
1 We arrive at this figure because it appears that the General Counsel
inadvertently credited Madry with net backpay of $102 38 and $159 25 for
the last quarter of 1974 and the first quarter of 1975, respectively, when,
according to his own specification, Madry should not be credited any back-
pay because work was not then available during these quarters of her back-
pay period