Interurban Gas Corp.

National Labor Relations Board - Board Decisions

May 25, 1967

164 N.L.R.B. 1072 (N.L.R.B. 1967)

1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interurban Gas Corporation and Donald Corporation, Trenton, Michigan, its officers, agents,
Gillingham . Case 7-CA-3202. successors, and assigns, shall take the action set
forth in the Order of the attached Trial Examiner's
May 25,1967 Supplemental Decision.
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On October 21, 1966, the Acting Regional Director
for Region 7 issued the second backpay
specification in the above-entitled proceeding,
alleging that, in addition to the sum of $9,846.07,
with interest, due to Donald Gillingham, the
Charging Party, under the Decision and Order (135
NLRB 604) and the Supplemental Decision and
Order (149 NLRB 576) previously issued by the
National Labor Relations Board, Gillingham was
entitled to receive the sum of $2,878.25, with interest
and customary adjustments, for the period
commencing October 1, 1963, and ending
February 6, 1966. Thereafter, pursuant to notice in
the second backpay specification, a hearing was
held on December 5, 1966, before Trial Examiner
Herman Tocker.
On February 8, 1967, the Trial Examiner issued
his Supplemental .-Decision on Second Backpay
Specification, attached hereto, recommending the
award to Gillingham of the specified amount of
backpay. Thereafter the Respondent filed
exceptions to the Trial Examiner's Supplemental
Decision, and the General Counsel filed a motion to
strike Respondent's exceptions and a brief in
support of the Trial Examiner's Supplemental
Decision. The Respondent thereafter filed an answer
to the General Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the
Supplemental Decision on Second Backpay
Specification, the exceptions, motions, and prior
decisions, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Interurban Gas
I The General Counsel's motion to strike Respondent's
exceptions alleges that the exceptions were not timely filed, were
not timely served, and lacked the specificity required by National
Labor Relations Board Rules and Regulations and Statements of
Procedure, Series 8, as amended. We recognize that the
exceptions were mildly deficient in all three respects. However,
we see no purpose to be served in disregarding the exceptions in
this case, particularly because the Respondent raises a question
of due process upon which we feel constrained to comment. We
have therefore accorded the exceptions full consideration The
only noteworthy exception advanced by the Respondent pertains
to the refusal of the Acting Regional Director to extend the date
set for the hearing on the backpay specification. Notification that
the hearing date was set for December 5, 1966, was received by
Respondent's attorney on October 24, 1966 On November 11, the
attorney's law firm requested the Acting Regional Director to
extend the time for filing an answer to the backpay specification
from November 8 to November 29, giving as the reason a death in
the attorney's family on October 31 On November 16, the Acting
Regional Director granted Respondent's November 11 request in
substantial part, extending the filing date from November 8 to
November 22. On November 18, Respondent's attorney
requested a further extension of time for answering (until
December 6) and also requested a postponement of the hearing
(until January 5) On November 21, the Acting Regional Director,
by telegram, granted a 1-day extension of the period for filing the
answer, but denied the request for postponement of the hearing.
It is thus clear that, by November 21, counsel for Respondent was
on notice that the hearing would convene on December 5, as
scheduled Neither counsel of record nor any other representative
of Respondent appeared at the hearing. It seems clear to the
Board that the issues which might have arisen at the hearing were
relatively uncomplicated, and that Respondent was afforded
ample time to retain new counsel if, as alleged, it appeared as of
November 21 that personal problems would make it impossible
for its regular counsel to attend the hearing. We conclude that the
Acting Regional Director's denial of the request for extension of
the date set for hearing was a proper exercise of his discretion and
that Respondent was not unfairly deprived of its right to be heard
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
ON SECOND BACKPAY SPECIFICATION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner: On January 29,1962,
the National Labor Relations Board issued its Decision
and Order directing Interurban Gas Corporation to offer to
Donald Gillingham immediate and full reinstatement to his
former or a substantially equivalent position and to make
him whole for any loss of pay resulting from Respondent's
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act (135 NLRB 604). On May 27, 1963, the United
States Court of Appeals for the Sixth Circuit entered its
Decree enforcing in full the reinstatement and backpay
provisions of the Board's Order herein (317 F.2d 724).
Controversy having arisen over the validity of
Respondent's offer of reinstatement to Gillingham and the
amount of backpay due under the terms of the Board's
Order as enforced, the Board, on November 6, 1964,
issued its Supplemental Decision and Order directing
Respondent to pay Gillingham backpay in the amount of
$9,846.07, plus an additional undetermined amount
accruing from October, 1, 1963, to the date of a valid offer
164 NLRB No. 137
INTERURBAN GAS CORP 1073
of reinstatement (149 NLRB 576). On December 22, 1965,
the United States Court of Appeals for the Sixth Circuit
entered its Decree enforcing in full the Board's
Supplemental Decision and Order (354 F .2d 76).
Further controversy having arisen over the additional
amount of backpay due Gillingham since October 1, 1963,
the Acting Regional Director for Region 7 issued a second
backpay specification and alleged that , in addition to the
sum of $9,846.07 with interest due under the Board's
Supplemental Decision and Order , as enforced,
Gillingham was entitled to receive from Respondent the
additional amount of $2,878 .25, for the period commencing
October 1 , 1963 , and ending February 6, 1966 , less any tax
withholding required by Federal , State , or local law but
plus interest at the rate of 6 percent per annum on $563.12
from December 31, 1963; on $443.32 from March 31,1964;
on $149.12 from June 30, 1964; on $922.57 from
September 30, 1964 ; on $614 .44 from December 31, 1964;
and on $185 .68 from March 31, 1965.
A schedule entitled , "Weekly Earnings of Replacement
Employee , Roger Janisse ," was attached to and made a
part of the backpay specification . (Janisse had replaced
Gillingham as a driver -salesman .) Another schedule
entitled , "Interim Earnings and Expenses ," was attached
to and also made a part of the backpay specification. Both
of these, taken together , support the conclusions resulting
in the total amount of additional backpay heretofore
mentioned as $2,878.25 and the separate amounts
mentioned for the purpose of computing interest.
On November 11, 1966, Respondent ' s attorney
requested an extension of time within which to answer the
backpay specification and notice , referred to by him as
"the notice of formal hearing."
The Regional Director partially granted this request by
extending Respondent's time to answer to November 22,
1966.
By application dated November 18, 1966, Respondent's
attorney protested the partial granting of the prior request
for extension and requested that the "time set for hearing
be extended to January 5, 1967 , and that the time for filing
an answer to the specification be extended to December 6,
1966." (There had been embodied within the backpay
specification a notice that a hearing would be conducted
upon the matter before a Trial Examiner of the Board on
December 5, 1966 , in the Book Building, 1249 Washington
Boulevard, Detroit , Michigan.)
By telegraphed order dated November 21, 1966, the
Regional Director further extended Respondent's time to
answer until and including November 23, 1966 , but denied
Respondent's application for postponement of the hearing.
There is proof in the record that this telegraphed order
was delivered to the Respondent ' s attorney on
November 21,1966.
I was assigned to conduct the hearing on the backpay
specification . I attended for that purpose at 10 a.m. on
December 5, 1966 , in Room 555, Book Building, 1249
Washington Boulevard , Detroit , Michigan , and I then and
there called the matter for hearing.
In the meantime , the Respondent had failed to file any
answer to the backpay specification and, as of the time of
the writing of this decision , no answer has been received.
The Respondent and no one on its behalf appeared at
the hearing . For the purpose of averting the possibility that
Respondent or its attorney might have been delayed in
coming to the hearing, I, after having called for the
Respondent at 10 a . m., waited until 10:30 a . m. to make
certain that the Respondent 's failure to attend was not due
merely to delay. At 10:30 a.m. I again called for the
Respondent to appear . No appearance was made by it or
anyone on its behalf.
I then proceeded to make a formal record of the hearing
thus called. I inquired of the General Counsel's
representative whether any appeal had been taken by the
Respondent from the last order of the Regional Director
and was informed that none had been taken. I have
received no communication from the Respondent or his
attorney . The representative of the General Counsel then
presented to me and there was incorporated in the record,
in addition to the exhibits showing the prior proceedings
herein , a motion for judgment on the pleadings.
I thereafter requested the employee , Donald
Gillingham , to take the witness stand . Gillingham
thereupon testified that he had made diligent efforts, apart
from the position he finally obtained, to obtain
employment and that the best employment he was able to
obtain was that set forth in the schedule entitled, "Interim
Earnings and Expenses."
The Relevant Rules of Procedure
The relevant portions of the Board's rules governing
backpay specifications are:
Section 102 .54(a), in part:
(a) Filing and service of answer to specification.
-The respondent shall , within 15 days from the
service of the specification , if any, file an answer
thereto.
Section 102.54(b), in part:
(b) Contents of the answer to specification.
The respondent shall specifically admit, deny, or
explain each and every allegation of the specification,
unless the respondent is without knowledge , in which
case the respondent shall so state , such statement
operating as a denial.
Section 102 . 54(c), in part:
(c) Effect of failure to answer or to plead
specifically and in detail to the specification. -If the
respondent fails to file any answer to the specification
within the time prescribed by this section , the Board
may, either with or without taking evidence in support
of the allegations of the specification and without
notice to the respondent , find the specification to be
true and enter such order as may be appropriate. If
the respondent files an answer to the specification but
fails to deny any allegation of the specification in the
manner required by paragraph (b) of this section, and
the failure so to deny is not adequately explained,
such allegation shall be deemed to be admitted to be
true, and may be so found by the Board without the
taking of evidence supporting such allegation , and the
respondent shall be precluded from introducing any
evidence controverting said allegation.
Findings of Fact and Conclusions
Now, upon the entire record herein including all
proceedings prior to the service of the second backpay
specification and notice of hearing, the allegations in and
the appendixes attached thereto, the notice to the
Respondent and its attorney , the defaults of the
Respondent by failing to answer the backpay specification
and by failing to appear at the hearing, I hereby make the
1074 DECISIONS OF NATIONAL
following findings of fact and conclusions in addition to the
findings of fact heretofore made in prior proceedings:
1. Interurban Gas Corporation is the Respondent
herein and is the Respondent which was the party against
whom all such prior proceedings were taken and prior
orders issued.
2. Donald Gillingham is the employee on whose behalf
the backpay is due pursuant to the orders heretofore
entered.
3. Gillingham was awarded and is entitled to receive
from the Respondent, in accordance with the Board's
Supplemental Decision of November 6, 1964, the sum of
$9,846.07, together with interest from September 30, 1963.
4. Gillingham is entitled to receive from the
Respondent further net backpay, computed as follows:
LABOR RELATIONS BOARD
5. Gillingham is entitled to receive, in addition to said
sum of $9,846.07 plus interest as stated and the sum of
$2,878.25, interest on each of the individual net backpay
amounts from the last day of the quarter in each of the
applicable quarters, as set forth in the finding of fact
immediately preceding this finding of fact,-all less any
tax withholdings as may be required by Federal, State, or
local laws.
6. Respondent is required to pay to Gillingham the
aforesaid amounts as and in the manner heretofore
provided.
On the basis of the foregoing findings and conclusions, I
recommend that the Board issue the following:
Net Interim Net
ORDER
Year and Quarter Gross Backpay Earnings Backpay
1963 4th Q $1,686.10)
The Respondent, Interurban Gas Corporation, shall pay
to Donald Gillingham the following sums of money less
Christmas Bonus 122.00) $1,244.90 $563.12
,
an withholdin r uir F ral Stat l l ld b d
1964 1st Q 1 659.97 1 216.65 443.32
y gs ,eq e y e e e, or oca aw:
2nd Q
,
1 588 95
,
1 439 83 149 12
(a) $9,846.07 plus interest at 6 percent per annum from
3rd Q
, .
1,964.25
, .
1 041.60
.
922.57 September 30, 1963 to the date of payment; (b) $2,878.25
4th Q 1,769.85)
,
plus interest on $563.12 from December 31, 1963; on
Christmas Bonus 122.00) 1,277.41 614.44 $443.32 from March 31, 1964; on $149.12 from June 30,
1965 1st Q 1,759.40 1,573.72 185.68 1964; on $922.57 from September 30, 1964; on $614.44
2nd Q 1,673.00 1,848.65 0 from December 31, 1964; and on $185.68 from March 31,
3rd Q 1,629.60 1,753.88 0 1965; all in accordance with Isis Plumbing & Heating Co.
4th Q 1,766.80)
,
138 NLRB 716 720-721
Christmas Bonus 122.00) 1,893.98 0
, .
1966 1st Q 636.65 758.31 0 The Respondent shall notify the Regional Director for
(thru 2/6/66) Region 7, in writing, within 20 days from the date of this
$2,878.25 Supplemental Trial Examiner's Decision, what steps the
Respondent has taken to comply herewith t
' In the event that this Recommended Order is adopted b'y the
Board this provision shall be modified to read . "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."