Interplastic Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1984

270 N.L.R.B. 1223 (N.L.R.B. 1984)

INTERPLASTIC CORP.
Interplastic Corporation and Oil, Chemical and
Atomic Workers International Union, AFL-
CIO-CLC. Case 18-CA-6276
18 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 18 August 1982 Administrative Law Judge
Steven M. Charno issued the attached supplemental
decision. The General Counsel filed exceptions and
a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
The question presented here is whether the Re-
spondent has fully satisfied its backpay obligation
to Joel Carr, whom it unlawfully discharged. For
reasons fully set forth in the judge's decision and
summarized below, we agree with the judge that
the backpay specification should be dismissed and
that the Respondent has fully complied with the
Board's Order in the underlying proceeding.
The Respondent unlawfully discharged Carr,
then a part-time employee, 1 June 1979. As a
remedy for this violation, the Respondent was or-
dered, inter alia, to reinstate Carr to a substantially
equivalent position without prejudice to his seniori-
ty. Pursuant to the collective-bargaining agreement
in effect at the time of Carr's discharge, part-time
employees did not accrue seniority. In the 5
months following Carr's discharge, the Respondent
hired two full-time employees. On 20 February
1980 the Respondent laid off several employees, in-
cluding the two postdischarge hires, for legitimate
business reasons. Carr would have been laid off at
this time if he had been working. In August 1980
the Respondent recalled the two employees it had
hired after it had discharged Carr. The Respondent
reinstated Carr to a full-time position in February
1981 after it had recalled all of the full-time em-
ployees who were laid off in February 1980.
In the backpay proceeding the General Counsel
sought backpay for the period from August 1980 to
February 1981.1 The General Counsel contended
that the Board's Order obligated the Respondent to
treat Carr as if he had been reinstated as a full-time
employee I June 1979 with attendant recall rights
I The parties have reached a settlement as to the amount of backpay
due Carr for the period from the June 1979 discharge to the time in Feb-
ruary 1980 when he would have been laid off.
270 NLRB No. 177
based on uninterrupted seniority. The General
Counsel argued that, inasmuch as the Respondent
had eliminated part-time positions 1 June 1979,
Carr was entitled to reinstatement as a full-time
employee because that was the closest "substantial-
ly equivalent position" to his prior position. If Carr
had been a full-time employee from I June 1979, he
would have had seniority and recall rights superior
to those of the employees who were hired after he
was discharged 1 June 1979. Some of those em-
ployees were recalled in August 1980. According-
ly, the General Counsel contended that Carr
should have been recalled in August 1980.
In rejecting the General Counsel's contention
and dismissing the backpay specification, the judge
noted that Carr was a part-time employee when he
was discharged, that part-time employees did not
have seniority under the contract, and that the
Board's Order in the underlying proceeding speci-
fied that Carr should have the same seniority that
he enjoyed in his former position. The judge con-
cluded that Carr was only entitled to reinstatement
to his former part-time position and that, as a part-
time employee, Carr's seniority and recall rights
were junior to those of every full-time employee
who was laid off in February 1980. Accordingly,
the Respondent had no obligation to recall Carr
before it did, and it did not owe any backpay.
Contrary to our dissenting colleague, we agree
with the judge and find that the Respondent has
fully complied with the Order issued in the under-
lying unfair labor practice case. We agree that Carr
is not entitled to seniority credit as a full-time em-
ployee from the time of his unlawful discharge
until the time of the lawful layoff. The Board's
Order required the Respondent to reinstate Carr to
his former job or a substantially equivalent position
and mandated that Carr have the same seniority on
reinstatement that he had in his former position.
Because Carr was a part-time employee when he
was discharged and part-time employees did not
accumulate seniority, he was not entitled to the se-
niority of a full-time employee. Thus, we agree
with the judge's finding that Carr's right to recall
was junior to that of every full-time employee in
the Respondent's employ at the time of the 20 Feb-
ruary 1980 layoff. Accordingly, the Respondent
had no obligation to recall Carr before it did. The
fact that the Respondent eliminated part-time posi-
tions does not in any way serve to alter or enlarge
the remedy given in this case.
We disagree with our dissenting colleague's con-
clusion that Carr is entitled to reinstatement as, and
with the seniority of, a full-time employee on the
theory that, absent his discharge, the Respondent
would have converted him from part-time to full-
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time status in the summer of 1979. We note that the
Board did not find that the Respondent violated
the Act by failing to convert Carr to full-time
status after it eliminated part-time positions. In fact,
no such violation was alleged. Treating Carr as if
he would have been converted to full-time status,
as our dissenting colleague would do, is tantamount
to finding a violation never alleged nor found and
then supplying a remedy for it. This would inap-
propriately enlarge the scope of the original Board
Order beyond a remedy for the violation found.
Accordingly, for these reasons, we find that Carr
has been fully made whole for the losses suffered
by virtue of his unlawful discharge.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the backpay specification is
dismissed.
MEMBER ZIMMERMAN, dissenting.
This backpay proceeding involves a question
whether the Respondent is obligated to make
whole discriminatee Joel Carr for its delay in rein-
stating Carr after the end of a lawful layoff which
postdated his unlawful discriminatory discharge. In
particular, the question is whether Carr should
have been credited with seniority such that after
the layoff he would have been reinstated on 11
August 1980 rather than on 25 February 1981. For
reasons discussed below, I disagree with the major-
ity's adoption of the judge's conclusion that the
Respondent has no backpay liability for this period.
On 25 March 1980 the Board issued an Order'
adopting the Decision and Order of Administrative
Law Judge Norman Zankel, finding that the Re-
spondent had discriminatorily discharged Carr on I
June 1979 in violation of Section 8(a)(3) and (1) of
the Act. Carr was a part-time employee at the time
of his unlawful discharge. He had previously
worked full time for the Respondent but had re-
quested and was granted part-time status to attend
college. Two weeks prior to his discharge, Carr
had requested reconversion to full-time status, but
he received no response.
At the unfair labor practice stage of this case,
the Respondent argued that its decision to elimi-
nate its part-time positions was based on economic
considerations and was pursuant to a company
policy. Judge Zankel found, however, that no
policy decision had been made by the Respondent
and that its purported decision was merely a sub-
terfuge to disguise its unlawful motivation. The
i No exceptions were filed by the Respondent to the judge's decision.
The Order is not reported in Board volumes.
Board's Order required the Respondent to offer
Carr "immediate and full reinstatement to his
former job, or if that position no longer exists, to a
substantially equivalent position of employment,
without prejudice to his seniority or other rights
and privileges; and make him whole . . . for any
loss of pay and other benefits suffered" by reason
of the Respondent's discriminatory conduct.
In compliance negotiations, the General Counsel
was informed that on 20 February 1980 the Re-
spondent had a general layoff of its production
workers, and that the unreinstated Carr would
have been laid off had he been employed at that
time. The General Counsel was not informed, how-
ever, that two of the full-time employees who had
been laid off were hired after Carr's discharge.
During ensuing negotiations, the General Counsel
argued that Carr was entitled to backpay as if he
had been a full-time employee since June 1979,
while the Respondent contended that, because Carr
had been employed on a part-time basis from 24
September 1978 until the date of his discharge, his
backpay should be calculated as if he were a part-
time employee. The Respondent also argued that,
under the Board's, Order it was only required to
offer Carr reinstatement to his former or substan-
tially equivalent position, i.e., part-time status.
Under the applicable collective-bargaining agree-
ment, part-time employees did not accrue seniority.
On 24 June 1980 the Respondent informed the
General Counsel that Carr's reinstatement was sub-
ject to the seniority rights of those employees who
were currently on layoff status. The next day, the
parties settled the issue of the Respondent's pre-
layoff backpay liability to Carr. 2
On 7 August 1980 the Respondent began recall-
ing those employees it had laid off in February
1980. The Respondent, however, did not offer Carr
a position until all of the full-time employees who
were laid off in February 1980 were recalled. The
two full-time employees hired after Carr's dis-
charge were recalled on 11 and 27 August 1980.
Carr was recalled by the Respondent to a full-time
position in February 1981.
The backpay specification seeks backpay for
Carr as a full-time employee from the date the Re-
spondent first recalled a laid-off employee hired
after Carr's discharge until 25 February 1981, the
date of Carr's actual reinstatement. The judge
found, however, that the Board's Order in the
unfair labor practice proceeding required the Re-
spondent to offer reinstatement to Carr with the
I The Respondent agreed to compensate Carr as a full-time employee
for the period from I June to 30 September 1979 and as a part-time em-
ployee for the period from I October 1979 to 20 February 1980.
1224
INTERPLASTIC CORP.
same seniority he had enjoyed in his former posi-
tion. Because Carr was a part-time employee who
accrued no seniority rights, the judge concluded
that he was only entitled to recall to the first posi-
tion available after the Respondent had recalled all
full-time employees laid off in February 1980.
Finding that no employees with less seniority than
Carr were recalled prior to his actual reinstate-
ment, the judge recommended dismissing the back-
pay specification in its entirety.
In exceptions, the General Counsel contends that
under the circumstances of this case Carr was enti-
tled after his unlawful discharge to be reinstated to
full-time employment before the Respondent could
hire any new full-time production employees. I
agree.
By the Respondent's own admission in the un-
derlying unfair labor practice proceeding, there
were no part-time positions in existence in its plant
after Carr's discharge. In fact, it is now undisputed
that the Respondent eliminated part-time positions
as a pretext designed to rid itself of Carr. Having
found this conduct unlawful, I would not now
permit the Respondent to reap the benefit of its
own wrongdoing by reversing its prior stand and
indulging in the fiction of a nunc pro tunc rein-
statement, which never took place, to a part-time
position, which no longer existed. On the contrary,
it is well established that the Respondent bears the
burden of its unlawful conduct and that any doubts
about its liability must be resolved against it.s
Under the circumstances, full-time employment
should be substantially equivalent to the eliminated
part-time production position. Under the Board's
original Order, the Respondent should have rein-
stated Carr to that position after his discharge and
prior to hiring new employees.
Alternatively, assuming arguendo that the Re-
spondent could have reinstated Carr to part-time
employment, I would find that the General Coun-
sel has proved Carr's entitlement to conversion to
full-time status, but for his unlawful discharge,
prior to the hiring of new employees. In this
regard, I rely on Carr's prior employment as a full-
time employee; his undisputed qualification for
such work; the Respondent's apparent satisfaction
with his work performance; Carr's request for re-
conversion to full-time status; the parties' stipula-
tion that the Respondent had previously granted an
identical request by a part-time employee who had
finished school; the obvious availability of full-time
positions; Carr's ultimate recall to full-time work;
and, finally, the Respondent's failure to offer any
3 E.g., Southern Household Products, 203 NLRB 881 (1973).
reason why it would not have honored Carr's re-
quest.
For the foregoing reasons, I would find that
Carr was entitled to full-time employment after his
unlawful discharge and before the Respondent
hired any new employees in his production posi-
tion. Giving full remedial effect to the seniority
which Carr would have accrued as a full-time em-
ployee, but for the Respondent's unfair labor prac-
tice, I would find that the Respondent should have
recalled Carr, rather than a junior employee, from
layoff on 11 August 1980 and that the Respondent
is liable to Carr for backpay.
SUPPLEMENTAL DECISION
STEVEN M. CHARNO, Administrative Law Judge. On
March 25, 1980, the National Labor Relations Board
issued an Order in this proceeding which directed Inter-
plastic Corporation (Respondent), among other things, to
offer reinstatement to and make Joel Carr whole for any
loss of earnings resulting from Respondent's discrimina-
tion against him. A controversy having arisen over the
amount of backpay due Carr, the Regional Director for
Region 18 of the Board issued a backpay specification
and notice of hearing on August 20, 1981. On September
2, 1981, Respondent filed an answer admitting certain al-
legations of the specification and denying others. A hear-
ing was held before me in Minneapolis, Minnesota, on
May 14, 1982. Briefs were filed under due date of June
18, 1982, by the General Counsel and Respondent.
FINDINGS OF FACT
1. THE UNDERLYING DECISION
Carr was discharged by Respondent on June 1, 1979.
In a charge filed by the Oil, Chemical and Atomic
Workers International Union, AFL-CIO, CLC (the
Union) and in a complaint issued July 17, 1979,' it was
alleged that Carr was discharged by Respondent in vio-
lation of the Act. The case was tried before Administra-
tive Law Judge Norman Zankel who issued a Decision
on February 13, 1980, which was later adopted by the
Board and which contains several findings and conclu-
sions of relevance to the issue of compliance.
First, Carr was found to be a part-time employee at
the time of his discharge. It was noted that Carr had
worked full time but had requested conversion to part-
time status in order to attend college. It was further
noted that, 2 weeks prior to his discharge, Carr had ap-
proached his immediate supervisor and requested conver-
sion to full-time status. Neither the decision nor the
record before me discloses whether that request was
denied or, indeed, was referred by Carr's supervisor to
other members of Respondent's management for consid-
eration. It is clear, however, that neither the charge nor
the complaint in this proceeding alleges that Respond-
Official notice is taken of both documents pursuant to Respondent's
request.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's failure to convert Carr to full-time status was un-
lawful.
Second, Judge Zankel rejected Respondent's conten-
tion that Carr was terminated because the Company had
decided to eliminate part-time positions, and he conclud-
ed that Respondent's purported decision was merely a
subterfuge used to disguise its unlawful motivation in dis-
charging Carr. While the collective-bargaining agree-
ments between Respondent and the Union in effect at all
times material herein make provision for Respondent's
employment of part-time workers, it was stipulated that
Respondent did not employ any part-time workers be-
tween June 1, 1979, and the date of the instant hearing.
Finally, the decision contained a finding that Carr's
discharge violated the Act and an order for appropriate
relief. Judge Zankel's recommended Order, which was
adopted in the absence of exceptions2 by the Board's
Order of March 25, 1980, required Respondent to offer
Carr
. . .immediate and full reinstatement to his former
job, or if that position no longer exists, to a substan-
tially equivalent position of employment, without
prejudice to his seniority or other rights and privi-
leges; and make him whole ... for any loss of pay
and other benefits suffered by reason of Respond-
ent's conduct found herein to be discriminatory.
The collective-bargaining agreement between Respond-
ent and the Union which was in effect at the time of
Carr's discharge provided that part-time student employ-
ees "shall not be privileged to establish any seniority
rights."
II. COMPLIANCE NEGOTIATIONS
On February 19, 1980, a letter was sent by the Region-
al Director for Region 18 to Terence M. Fruth, counsel
of record for Respondent in the unfair labor practice
proceeding, and Paul T. Lindgren, representative of the
Union in that proceeding, with a copy to Marvin Weiss,
Respondent's plant manager. This letter offered Re-
spondent an opportunity to comply with the judge's de-
cision and noted that offers of reinstatement to discrimin-
atees must be in writing with copies provided to the Re-
gional Director.
Shortly thereafter, Marlin O. Osthus, counsel for the
General Counsel in the unfair labor practice proceeding,
telephoned Fruth concerning the letter. In the course of
one or two telephone conversations, Osthus was in-
formed of the facts that, on February 20, 1980, there was
a general layoff of production workers by Respondent
and that Carr would have been laid off on that date had
he then been employed by Respondent. 3 (Respondent
laid off five full-time employees, two of whom had been
hired after Carr's discharge. Osthus was not apprised of
the fact that employees had been hired after Carr's dis-
charge at any time during the compliance negotiations.)
After discussing the manner of Carr's reinstatement,
s Although Respondent initially filed exceptions to Judge Zankel's de-
cision, they were withdrawn by letter of March I1, 1980.
3 At the hearing, the parties entered a stipulation as to these facts.
Osthus understood Fruth to agree that Carr would be as-
signed a June 15, 1979 seniority date for purposes of
recall from the layoff. 4 After these conversations, Fruth
assigned one of the associates in his law firm, Kathleen
A. Hughes, to work on the case under the supervision of
Fruth's partner, Frederick Finch.
On March 7, 1980, Osthus sent a letter to Finch and
Lindgren which contained Osthus' calculation of the
backpay due Carr and which stated in pertinent part:
It is also my understanding that the Employer
. will send Joel Carr a letter notifying him that
he is on temporary lay off status, effective February
21, 1980, with seniority measuring from June 15,
1979 to February 21, 1980 for purposes of
recall. ...
If the above, or the enclosed computations, do
not conform with your understanding of the Em-
ployer's agreement to comply or with the agree-
ment regarding backpay as discussed in separate
telephone conversations with me during the past
two weeks, please contact me immediately.
Immediately thereafter, Lindgren contacted Osthus to
inform him that the backpay calculations in the March 7
letter were in error. Osthus wrote Finch and Lindgren
on March 11, 1980, revising his backpay calculations and
noting his agreement with the Union's contention that
Carr was entitled to backpay as if he had been a full-time
employee since June 1979. About March 15, 1980, a
meeting was held between Finch, Hughes, and Osthus
concerning compliance. This meeting was followed by
several telephone conversations between Hughes and
Osthus. Neither the meeting nor telephone calls con-
cerned Carr's reinstatement or backpay.
On April 28, 1980 Hughes replied to Osthus' March
letters. Her letter set forth Respondent's contention that,
since Carr had been employed on a part-time basis from
September 24, 1978, until the date of his discharge, his
backpay should be calculated as if he were a part-time
employee. The letter asserted that "[a]s a part-time em-
ployee, Carr was not entitled to any benefits, vacation or
seniority under the collective bargaining agreement" and
went on to state:
4 The version of the telephone conversations set forth in the text is
that of Osthus, who testified about them in a clear and straightforward
manner with some precision of recall. While Fruth admitted that he had
had discussions with Osthus at the time Respondent filed and withdrew
its exceptions, he initially testified that he did not believe that he had dis-
cussed compliance. He then testified, "I have no recollection of discuss-
ing and I don't believe I did discuss with him, compliance." Finally, in
response to a leading question by counsel for Respondent, Fruth affirma-
tively testified that he had not reached an agreement with Osthus. He
based this statement, not on his memory of the conversations with
Osthus, but on his recollection that compliance negotiations had been
handled by his associates after the withdrawal of exceptions. Since the
request to withdraw exceptions was dated March 11, 1980, and the con-
versations between Fruth and Osthus were stated by Osthus to have
taken place between February 19 and March 7. 1980, the transfer of au-
thority over this case to Fruth's associates would seem to provide no
basis for Fruth's conclusion that he would not have been involved in the
conversations. For the foregoing reasons, and based on my observation of
the demeanor of the witnesses as they testified, I do not credit Fruth's
affirmative testimony that the conversations described by Osthus did not
take place.
1226
INTERPLASTIC CORP.
In response to Carr's claim that he should be
awarded backpay and preferred recall status based
upon full-time employment from June 1, 1979, I
refer you to the Administrative Law Judge's deci-
sion at page 21, lines 38-40:
The Order shall require Respondent to offer
Rick Shanor and Joel Carr immediate and full re-
instatement to their former or substantially equiva-
lent jobs. [Emphasis added.]
Carr's former job was as a part-time employee.
There was no finding that the Employer discrimi-
nated against Carr by refusing to offer full-time em-
ployment.
Osthus regarded the quoted portions of Hughes' letter as
"ambiguous" and effectively ignored them in his subse-
quent dealings with the Union's representative and coun-
sel for Respondent.
In ensuing telephone conversations, Osthus and
Hughes reached a compromise on the amount of Carr's
backpay. The calculation of that amount was based on
Carr's compensation as a full-time employee for the
period of June I to September 30, 1979, and as a part-
time employee for the period from October 1, 1979, to
February 20, 1980. Osthus communicated the figure thus
arrived at to Carr, who agreed to the amount. On June
20, 1980, a check for the agreed amount was sent to Carr
who acknowledged receipt on June 25, 1980.
On June 23, 1980, Osthus wrote Finch concerning
compliance with the notice provision of the Board's
Order. Osthus supplemented this letter with a telephone
call to Hughes asking her to send a letter setting forth
Carr's recall status. On June 24, 1980, Hughes wrote
Osthus:
Joel Carr has not been reinstated due to a lay-off
by the company of persons having greater seniority
than Carr. Carr has been offered reinstatement sub-
ject to the seniority rights of five full-time employ-
ees currently on lay-off status. A check has been
forwarded to the Board in settlement of Carr's
backpay claim.
A June 26, 1980, letter from an official of Respondent to
Osthus stated as follows:
Interplastic Corporation hereby offers to reinstate
Joel Carr to his former position as required by the
order of the Administrative Law Judge. Carr's
former position was as a full-time employee during
the summer, June I to September 15, and as a part-
time employee for the remainder of the year. Rein-
statement is offered subject to the seniority rights of
five full-time employees who are currently on lay-
off status. Carr will be placed on the company's lay-
off list and will be called back to work after full-
time employees who are laid-off have been recalled
to work.
The Union, which had received none of the letters au-
thored by Respondent, reasonably assumed that it had
been agreed that Carr was to be given a June 15, 1979
seniority date for purposes of recall from layoff. Based
on this assumption and on a telephone call concerning
the compromise reached concerning Carr's backpay, the
Union indicated that it was satisfied with the settlement.
On June 30, 1980, the Regional Director wrote Finch
and Fruth acknowledging satisfactory compliance with
the affirmative requirements of the Board's Order and
closing the case, conditional upon Respondent's contin-
ued observance of the Order.
111. ALLEGED NONCOMPLIANCE
On August 7, 1980, Respondent began to recall the
production employees which it had laid off in February
of that year. On August 11 and 26, 1980, Respondent re-
called employees who had been hired subsequent to June
15, 1979. This recall was performed in accordance with a
seniority list prepared June 27, 1980, which did not con-
tain Carr's name or seniority date. In October 1980, after
completion of the recall of all full-time employees who
had been laid off in February, a new seniority list was
prepared which, at the insistence of the president of the
Union's local, contained Carr's name with a seniority
date of June 1, 1979. 5 Respondent's seniority lists dated
October 20, 1980, and December 11, 1980, both bear this
information.
In the third week of August 1980, Lindgren contacted
the Board, asserting that Respondent had breached the
compliance agreement as the Union understood it. On
August 20, 1980, Osthus wrote to Hughes asserting his
understanding that, under the compliance agreement,
Carr began accruing seniority as of the date of his dis-
charge. On August 21, 1980, Hughes replied to Osthus
that Respondent would comply with the agreement as
set forth in her June 26, 1980 letter. Subsequent commu-
nication between Respondent and the General Counsel
was of no avail and, ultimately, the backpay specification
which is the subject of this proceeding issued.
IV. ANALYSIS
The issue before me, that is, whether Respondent has
complied with the Board's Order in this proceeding, is
best resolved in the context of the policy considerations
which underlie the Act. The considerations relevant here
were succinctly summarized in Trinity Valley Iron & Steel
Co. v. NLRB, 410 F.2d 1161, 1167-1168 (5th Cir. 1969)
[T]he policy of the Act is to restore the situation as
nearly as possible to the status quo ante the unfair
labor practice. Such a purpose requires that those
deprived of a recognized and protected interest by
violations of the Act should be made whole so as to
prevent the violator from profiting from his mis-
deeds. We are aware that a backpay proceeding is
designed to vindicate a public, not a private, right
as to deter unfair labor practices; the employee is
but a beneficiary. Finally, the Act is remedial, not
punitive, in its aims.
s Respondent's plant manager Weiss testified that he had acceded to
the Union's request to place Carr on the seniority list without inquiring
as to the Union's reason for the request. None of Weiss' testimony was
contradicted or rebutted and, based on my observation of his demeanor
while testifying, I credit it.
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Translated into practical standards in a reinstate-
ment backpay situation, the balance of the equities
is as follows. The Employer is required to place the
employee in the same position-with no more ad-
vantages and no fewer advantages-than before the
discrimination against him for union activities.
A significant portion of the relief required by the
Board's Order has been effected and is not at issue here.
Thus, it is agreed that Carr has been made whole for the
period from his discharge on June 1, 1979, to February
20, 1980, the date on which it is agreed that he would
have been laid off had he then been employed by Re-
spondent.
The backpay specification herein seeks backpay for the
period from August 1980 to February 25, 1981. This
claim is based on the General Counsel's contention that
Respondent's liability for backpay extends from the time
it began recalling laid-off employees with less seniority
than Carr until the date of Carr's actual reinstatement. In
order to support this contention, the General Counsel
argues that the Board's Order requires that Carr be
granted seniority as a full-time employee retroactive to
the date of his discharge. In answer, Respondent con-
tends that Carr, as a part-time employee, had no seniori-
ty and, therefore, no one with less seniority was recalled
prior to the date of Carr's actual reinstatement.
There is no question that Carr was a part-time employ-
ee at the time he was unlawfully discharged. The collec-
tive-bargaining agreement in effect at that time provided
that part-time employees had no seniority. The Board's
Order in the unfair labor practice proceeding, which re-
quired that Carr be accorded on reinstatement the same
seniority he had enjoyed in his former position, could
not grant Carr something which he did not have at the
time of his discharge, i.e., the seniority of a full-time em-
ployee. Thus, Carr's right to recall was junior to that of
every full-time worker in Respondent's employ at the
time of the February 20, 1980 layoff. Since it is undis-
puted that Carr was recalled to the first position avail-
able after Respondent had completed its recall of the
full-time employees laid off on February 20, it must be
concluded that no employees with less seniority than
Carr were recalled prior to his actual reinstatement.
In attempted contravention of this conclusion, the
General Counsel appears to argue that Carr should have
been treated as if he had been discharged from a full-
time position 6 because he sought conversion to full-time
status prior to his discriminatory discharge. There is no
evidence that Carr's request was ever considered by
members of Respondent's management empowered to act
on it. Further, there is no evidence that his request was
ever denied. Indeed, there is no evidence in the record
6 Although the General Counsel uses the language that "Respondent
should reinstate Carr as a full-time employee," I have found it logically
necessary to restate the argument in the manner set forth above. A re-
quirement that Carr be reinstated to full-time employment would not re-
quire any change in my conclusion that Respondent recalled no employ-
ees junior to Carr prior to his reinstatement. The essence of the General
Counsel's case is based on the contention that Carr should have had the
seniority of a full-time employee as of the date of his discharge. Thus, it
is not reinstatement to a full-time position but the existence of retroactive
full-time seniority on which the General Counsel depends.
before me that, had he not been discriminatorily dis-
charged, Carr would have been other than a part-time
employee at the time of Respondent's February 20, 1980
layoff.7
Even if it were proper to infer that Carr's request was
transmitted by his supervisor to other members of Re-
spondent's management and was denied by them, no alle-
gation was made in the unfair labor practice proceeding
that Respondent's failure to convert Carr to full-time
status was unlawful. Accordingly, the General Counsel's
attempt to provide a remedy for such an inferred denial
in the compliance phase of this proceeding is inappropri-
ate, especially in the absence of any indication that the
issue was fully litigated before Judge Zankel. 8
The General Counsel also appears to argue that, be-
cause Respondent had previously asserted that Carr's dis-
charge was due to an elimination of part-time employ-
ment, Respondent must treat Carr as if he were dis-
charged from a full-time position.9 This argument suffers
from two fundamental defects: its conclusion does not
follow from its premise, and it ignores Judge Zankel's
finding that the elimination of part-time employment was
a subterfuge used to obscure Respondent's unlawful mo-
tivation. The fact that a part-time employee was discri-
minatorily discharged on the pretext that part-time posi-
tions were being eliminated does not, standing alone,
modify a respondent's legal obligation to reinstate that
employee to a part-time position. See Florsheim Shoe
Store Co., 227 NLRB 1153 (1977), enfd. 565 F.2d 1240
(2d Cir. 1977), on remand 240 NLRB 919 (1979). i °
While they have no impact on the outcome of this de-
cision, two additional considerations raised by the parties
deserve brief mention. First, a great deal of time and at-
tention were devoted at the hearing and on brief to the
question of whether the parties had entered a settlement
agreement concerning Carr's seniority for purposes of
recall. The outcome of this decision would obviously be
unaffected by a determination that no agreement was
reached or that an agreement was reached which coin-
cided in effect with the result I have arrived at. Any
agreement which did not adequately remedy the viola-
tion should be set aside in favor of a de novo examina-
tion of Respondent's compliance. See NLRB v. Arm-
strong Tire & Rubber Co., 263 F.2d 680, 682 (5th Cir.
' In computing the backpay already received by Carr for the period
from June I, 1979, to February 20, 1980, the General Counsel and Re-
spondent stipulated that they assumed that Carr would have been em-
ployed on a part-time basis from October 1, 1979, to February 20, 1980.
8 Similarly, in the absence of any charge, complaint allegation, or
record evidence on the issue of Carr's request to work full time, I do not
find merit in the General Counsel's contention that the "spirit" of Judge
Zankel's decision requires reinstatement to a full-time position with full-
time seniority retroactive to the date of discharge.
9 See fn. 6, supra.
10 Two distinctions between the case before me and Florsheim Shoe
Store Co. are worthy of mention. First, an employer's freedom to imple-
ment economic policy, which was the subject of a portion of the court of
appeal's opinion, is not in issue here. Second, in Florsheim Shoe Store Co.,
Respondent offered full-time reinstatement to employees who wished to
regain their part-time positions; here, Carr accepted reinstatement to full-
time employment without protest. It is clearly inappropriate to punish
Respondent for offering more than it was legally required to offer (i.e.,
reinstatement to a part-time position) by requiring it to also offer full-time
seniority retroactive to the date of discharge.
1228
INTERPLASTIC CORP.
1959), enfng. 119 NLRB 353 (1957); Ace Beverage Co.,
250 NLRB 646, 648-49 (1980). Finally, an agreement
which would have compensated Carr to an extent great-
er than was necessary to make him whole would be pu-
nitive, rather than remedial. The imposition of such an
award would run counter to the policies underlying the
Act and would be beyond the Board's authority. NLRB
v. J. S. Alberici Construction Co., 591 F.2d 463, 470 (8th
Cir. 1979); NLRB v. Plumbers Local 2, 360 F.2d 428, 434
(2d Cir. 1966); see generally, Carpenters Local 60 v.
NLRB, 365 U.S. 651, 655 (1961). Thus, the existence or
nature of a settlement agreement is logically immaterial
to the disposition of this case.
Second, the General Counsel asserts that Carr is enti-
tled to backpay for the period August 1980 through Feb-
ruary 1981 because Respondent never made an offer of
reinstatement directly to Carr and Respondent's backpay
obligation therefore continued to run until Carr was ac-
tually reinstated on February 25. Given the General
Counsel's admission that no backpay is due prior to the
time Carr should have been recalled and my conclusion
that Carr should have been recalled on February 25,
1981, no further award of backpay is due by virtue of
Respondent's failure to make a proper offer of reinstate-
ment.
In summary, Carr was recalled in a manner dictated
by the fact that, at the time of his discharge, he held a
position without seniority rights. His recall in this
manner therefore places him in the position he would
have occupied but for his unlawful discharge. Accord-
ingly, I conclude that Respondent's compliance with the
Board's Order restores the status quo ante the violation
and Respondent is not liable for the backpay sought by
Specification herein.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'i
ORDER
The backpay specification is dismissed in its entirety.
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1229