K-D Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 30, 1971

188 N.L.R.B. 303 (N.L.R.B. 1971)

K-I) MFG. CO.
K-D Manufacturing Company and Allied Industrial
Workers of America , AFL-CIO, Local No. 487.
Case 16-CA-2873
January 30, 1971
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On January 9, 1968, the National Labor Relations
Board issued its Decision and Order in the above-
entitled case,' directing the Respondent, inter alia, to
make whole all employees in a bargaining unit repre-
sented by the Charging Union for loss of earnings
resulting from Respondent's discriminatory failure to
give them a Christmas gift on December 24, 1966.
Thereafter, on December 3, 1969, the Board's Order
was enforced by the United States Court of Appeals
for the Fifth Circuit .2
On July 20, 1970, the Regional Director for Region
16 issued and served on the parties a Backpay Specifi-
cation and Notice of Hearing, and Respondent filed
an answer to the Backpay Specification. A hearing
was held before Trial Examiner Melvin Pollack on
August 21, 1970, for the purpose of determining
Respondent's backpay obligation to these employees
arising from the discriminatory denial of the Christ-
mas gifts.
On September 28, 1970, the Trial Examiner issued
the attached Backpay Decision in which he found the
employees to be entitled to backpay in the amount
specified. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Backpay Decision.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the backpay hearing and finds no
prejudicial error was committed. The Board has con-
sidered the Backpay Decision, Respondent's excep-
tions, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
SUPPLEMENTAL ORDER
On the basis of the entire record in this case, the
National Labor Relations Board hereby orders that
the Respondent, K-D Manufacturing Company,
Waco, Texas, its officers, agents, successors, and as-
1 169 NLRB No. 10
i 419 1F 2d 467.
303
signs, shall pay to the appropriate employees as net
backpay the amount set forth in the attached Trial
Examiner's Backpay Decision.
TRIAL EXAMINER'S BACKPAY DECISION
STATEMENT OF THE CASE
MELVIN POLLACI. Trial Examiner: The National Labor
Relations Board on January 9, 1968, issued a Decision and
Order directing the Respondent, K-D Manufacturing Com-
pany, inter a/ia, to make whole all employees in a bargaining
unit represented by the Charging Union, who were on the
payroll on December 24, 1966, for loss of earnings resulting
from Respondent's discriminatory failure to give them a
Christmas gift. (169 NLRB No. 10.) On December 3, 1969,
the United States Court of Appeals for the Fifth Circuit
enforced the Board's Order (419 F.2d 467.) On July 20,
1970, the Board's Regional Director for Region 16 issued a
Backpay Specification and Notice of Hearing. The Respon-
dent filed an answer on August 10, 1970. At the hearing on
August 21, 1970, at Waco, Texas, the parties agreed that the
sole issue in the proceeding was whether the employees in
the bargaining unit, absent the discrimination against them,
would have received a Christmas gift in 1966 valued at $7,
as contended by the General Counsel, or one valued at $4,
as contended by Respondent. The General Counsel filed a
brief.
Upon the basis of the entire record, I make the following:
FINDINGS AND CONCLUSIONS
Respondent's President, Key, testified that, acting for
Respondent in December 1966, he gave fruit baskets valued
at $7 to supervisors and office employees, and fruit baskets
valued at $4 to customers. Citing the heavy losses suffered
by Respondent in 1966, he said, had he decided to give a
Christmas gift to the employees in the bargaining unit, he
would have given them the $4 baskets because all but one
of those employees were recent hires. Key further testified
that approximately half the supervisors and half the office
employees given $7 fruit baskets were also recent hires. In
past years Respondent had given identical gifts to supervi-
sors, office employees, production employees, and custom-
ers.
It is, of course, impossible to know whether the employees
in the bargaining unit in 1966 would have received $7 or $4
fruit baskets as December gifts. Key rationalized that he
would have treated the production employees like the cus-
tomers rather than like the office employees and supervisors
because of Respondent's poor business year and because
they were new employees. However, as Key gave $7 Christ-
mas fruit baskets to new as well as old -time supervisors and
office employees, it may also be reasonably supposed that
he wouldhave treated all employees alike as he had in
previous years. In any event, under Board practice, backpay
is ordinarily based on earnings of employees in comparable
circumstances, and uncertainties in determining backpay
are resolved against the employer whose unlawful conduct
has made it impossible to determine the pay the discrimina-
tees would have earned but for the discrimination against
them. Roger Mfg. Co., 164 NLRB 284. I consider this proce-
dure in determining backpayy applicable to this case and
find that the employees in the bargaining unit, absent the
discrimination against them, would have received the same
1966 Christmas gift as the employees outside the bargaining
unit. I therefore conclude that each discriminates is entitled
188 NLRB No. 55.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to backpay in the sum of $7 plus interest accrued to the date to pay each of the bargaining unit employees on the payroll
of payment minus any tax withholding required by Federal on December 24, 1966, the sum of $7, as backpay due under
and state law. the Board 's order of January 9, 1968 , plus interest at the rate
of 6 percent per annum minus the tax withholding required
RECOMMENDED ORDER
by Federal and state laws.'
Respondent alleges in its answer to the backpay specification that it sent
Upon the basis of the foregoing findings and conclusions, a check in the sum of $4.57 to each discnminatee . Respondent may, of
and upon the entire record m the case, -l recommend that course, deduct any backpay already received by the discnmmatees from the
the National Labor Relations Board order the Respondent backpay due under this recommendation.