K. & H. Specialties Co., Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1967

163 N.L.R.B. 644 (N.L.R.B. 1967)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enunciated in Exchange Parts, supra , has been applied by
the Board to the situation after an election where
objections to the election are pending , Ambox,
Incorporated , 146 NLRB 1520 . The question is whether
the benefits are granted for the purpose of affecting the
pending representation proceeding . In Champion
Pneumatic Machinery Co., 152 NLRB 300, where the
Board held that the benefits therein granted were not
granted for the purpose of affecting the pending
proceeding the Board adverted to the circumstances
prevailing in Ambox , supra, and found that they were not
present in the case under consideration indicating that
each case must stand on its own facts and circumstances.
An analysis of the case here at hand presents
circumstances prevailing in Ambox in that here there is,
for consideration , the Respondent 's earlier unlawful
conduct in the surveillance and interrogation of its
employees and the unlawful promulgation and
enforcement of its no-solicitation rules all of which I am
convinced were part of a clear overall plan on the part of
the Respondent to discourage membership in the.Union
and to influence the employees in their choice or rejection
of a bargaining representative . Consequently , I find the
grant of benefits by the Respondent herein subsequent to
the election calculated to interfere with and influence its
employees in the choice of a bargaining representative and
therefore interferes with, restrains , and coerces
employees in violation of Section 8(a)(1) of the Act.
IV. THE OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE ELECTION
The matters raised by objection 2 and additional
allegation (a) of the objections, not disposed of in the
report on objections were referred to the Trial Examiner
for disposition here . They allege , as Objection 2, that on
numerous occasions company officials and supervisors
spoke to employees on the bargaining unit and promised
them benefits for voting against the Union and in other
ways coerced the employees in their selection of a
bargaining representative ; and as additional allegation (a)
that the Respondent engaged in unlawful surveillance of
the concerted activityof its employees.
In view of the findings , supra, of violations of Section
8(a)(1) of the Act by the Respondent herein through its
conduct of unlawful surveillance , unlawful interrogation of
employees , unlawful grants of benefits , and unlawful
promulgation and enforcement of no-solicitation rules, and
to the extent that such conduct and violations occurred
within the period commencing November 26, 1965, the
date of the filing of the petition and March 4, the date of
the election , and including the grant by the Respondent on
March 14 , 1966 , of a general wage increase during the
pendency of the objections to the election herein , I hereby
find that Objection 2 and additional allegation (a) have
been established by ample credible testimony on the
record . Accordingly , I find that during said period the
Respondent through its conduct aforesaid exercised a
coercive influence on its employees sufficient to interfere
with and prevent a free, fair election and did deprive the
Respondent 's employees of their right under the Act to
choose or not to choose a bargaining representative free
from interference by the Respondent . It is accordingly
recommended that the election conducted on March 4,
1966 , be set aside and declared a nullity and that the
Board conduct a second election by secret ballot at such
time as it shall deem appropriate.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above , have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Brearley Company, the Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Warehouse and Mail Order Employees Union, Local
No. 743, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By its conduct of interrogation , surveillance , grant of
benefits , and promulgation and enforcement of rules set
forth in section III hereof , which have been found to
constitute unfair labor practices , the Respondent has
interfered with, restrained , and coerced its employees in
the exercise of rights guaranteed to them by Section 7 of
the Act and has thereby engaged in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices , it is recommended that it
cease and desist therefrom and that it take certain
affirmative action necessary to effectuate the policies of
the Act.
In view of the findings that certain objections to the
election herein have been sustained it is recommended
that the election be set aside and declared a nullity and
that a second election by secret ballot be conducted at a
time deemed appropriate by the Board.
[Recommended Order omitted from publication.]
K. & H. Specialties Co., Incorporated and
Lowell B. Hanon , Sr., An Individual and
Printing Specialties and Paper Products
Union No. 550 , International Printing
Pressmen and Assistants ' Union of North
America , AFL-CIO. Case 7-CA-5100.
March 28,1967
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On November 18, 1966, Trial Examiner
Milton Janus issued his Supplemental Decision,
attached hereto, finding that specific amounts of
backpay be awarded to certain employees of the
163 NLRB No. 79
K. & H. SPECIALTIES CO., INCORPORATED
Respondents.' Thereafter, the Respondents filed
exceptions to the Trial Examiner's Supplemental
Decision and the General Counsel filed a brief in
answer to the Respondents' exceptions and cross-
exceptions.
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 Trial
Examiner's Supplemental Decision, the exceptions,
the cross-exceptions, and brief, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents, K.
& H. Specialties Co., Incorporated, its officers,
agents, successors, and assigns, and Lowell B.
Hanon, Sr., his agents, successors, and assigns,
shall make the employees involved in this proceed-
ing whole by payment to them of the amounts set
forth opposite their names in the Supplemental
Order in the Trial Examiner's Supplemental Deci-
sion attached hereto.
' The National Labor Relations Board by its Order of June 30,
1965 (not published in NLRB volumes), directed the Respondents
to execute a collective-bargaining agreement reached on or about
February 10, 1965, with the duly certified bargaining
representative, and to make whole those employees who had
suffered losses through the Respondents' refusal to execute the
agreement Thereafter, on November 30, 1965, the United States
Circuit Court of Appeals for the Sixth Circuit entered its decree
enforcing the aforesaid Board Order, N L.R B v
K & H. Specialties Co, Incorporated and Lowell B Hanon, Sr,
An Individual
645
Respondent's refusal to execute the agreement. The
Board's Order was enforced on November 30, 1965, by a
decree of the Court of Appeals for the Sixth Circuit. The
agreement was then executed on December 15, 1965.
The hearing on the backpay specification was held
before me in Detroit, Michigan, on July 28 and 29, 1966
All parties were afforded full opportunity to examine and
cross-examine witnesses and to introduce evidence
pertinent to the issues. Briefs were received from the
General Counsel and the Respondent, and have been
considered.
Upon the entire record and from my observation of the
witnesses, I make the following findings, conclusions, and
recommendations:
A. Background
Respondent performs duplicating services for other
companies. It uses such equipment as rotary presses,
multilith machines, collating machines, papercutters, and
camera reproduction devices. Collating is also done
manually by employees classified as tableworkers. During
the period under consideration, there were from 20 to 30
employees at any one time.
The contract between the Respondent and the Union
which was negotiated in February 1965, and eventually put
into effect in December of that year, provides for six
female and seven male job classifications, the titles of
which were generally self-explanatory. An hourly rate with
increments after specified time intervals are listed for
each classification. Of the 34 persons named in the
specification as having been employed during this period,
the General Counsel admits that no backpay is due to 14,
and the Respondent admits that the amounts of backpay
claimed by 9 employees are correct. There remain
differences as to the amounts of backpay, if any, which are
due to the remaining 11 employees, under the job
classifications and wage schedules enumerated in the
contract, for the period February 10-December 15, 1965.
B. The Issues
1. Did the work actually performed by some employees
entitle them to be paid at the rate of the job classification
which the backpay specification assigns to them?
2. Are additional payments made to some employees,
on a basis other than their stated hourly rate, to be
considered as an offset to Respondent's backpay liability?
C. Preliminary Matters
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: This is a proceeding on
backpay specifications issued by the Regional Director of
the National Labor Relations Board for Region 7 on
May 27, 1966, pursuant to Section 102.52 of the Board's
Rules and Regulations, Series 8, as amended.
On June 30, 1965, the Board adopted the findings and
conclusions of a Decision issued by Trial Examiner
Sidney Lindner on June 2, 1965, and ordered the corporate
and individual Respondents (referred to hereafter as the
Respondent) to execute a collective-bargaining agreement
reached on or about February 10, 1965, with the duly
certified bargaining representative, and to make whole
those employees who had suffered losses through the
Before the hearing, the General Counsel had moved to
strike Respondent's answer to the backpay specification,
and for judgment on the pleadings. On June 30, 1965, Trial
Examiner Lindner issued an order to show cause why the
answer should not be stricken, and Respondent thereafter
filed an answer to that order. At the hearing, the General
Counsel renewed his motion for judgment on the
pleadings. I denied the motion, considering Respondent's
answer to the order to show cause as complying
substantially with Section 102.54 of the Board's Rules and
Regulations. The answer to the order to show cause was
thereafter considered to be an amended answer to the
backpay specification.
At the hearing, and again in its brief to me, Respondent
moved, in effect, to dismiss the backpay specification
because the backpay dispute involves an interpretation of
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractual provisions, cognizable under the grievance-
arbitration procedures of the contract, which should not be
construed by the Board. Although it is true, as Respondent
points out, that the Board has no general powers to
adjudicate contractual disputes, it is not precluded from
doing so if the dispute is related to the commission of
statutory unfair labor practices or to the Board's functions
under Section 9 or 10 of the Act. Section 10(a) specifically
provides that the Board's power to prevent any person
from engaging in unfair labor practices, "shall not be
affected by any other means of adjustment or prevention
that has been or may be established by agreement, law, or
otherwise ...... Here, one of the issues as to the amounts
of backpay due can be resolved only by determining that
the work performed by particular backpay claimants is
within one or another of the undefined job titles listed in
the contract. These questions have not been raised under
the grievance procedure of the contract, so that there is no
possibility of a conflict between the findings of the Board
and those of an arbitrator. Furthermore, even if
determination of the backpay due can be said to require
the interpretation of a contractual provision, it is within
the Board's authority to do so in the effectuation of its
remedial powers, and is clearly within its competence. For
the foregoing reasons, I affirm my ruling at the hearing,
denying Respondent's motion to dismiss the backpay
specification.
D. The Classification Issues
1. Earline Brown: During the backpay period,
Respondent had one operable Xerox machine, used for
producing, by a photographic process, a plate or master
which could then be reproduced on other equipment. The
machine is utilized most efficiently if it is operated by two
persons, one to set up the camera and change the plates,
and the other to load the camera and to clean and bake the
plates. The wage schedule appended to the collective-
bargaining agreement lists both a Xerox operator
(platemaker) with an hourly rate range from $1.70 to $2.25,
and an assistant Xerox operator at $1.50 to $2. The more
skilled of the two jobs is that of setting up the camera and
changing the plates.
Brown was the only person at the plant who regularly
performed the more skilled portion of the Xerox operation.
For the first 8 months of the backpay period she received
$1.85, and for the last 2 months $2 per hour. The backpay
specification claims that Brown performed primarily the
work, functions, and tasks of a Xerox operator, and on the
basis of her years of service, was entitled to $2.25 per hour
for the entire backpay period. The total claimed for her is
$847.79.
Respondent admits some backpay liability to Brown. It
agrees in effect with the General Counsel's contention that
Brown was entitled to be paid the rate established for
Xerox operator in the first, second, and fourth quarters of
1965, but claims that in the third quarter she was entitled
i My findings, based on the actual practice in the plant, that
each employee was considered to have a primary job
classification is also supported by article III of the contract which
provides (a) that layoffs and recall of employees were to be
determined in part by their seniority in their assigned
classification, and (b) that when an employee's classification was
changed from a higher to a lower rated job, he was entitled to
retain his former rate for 5 working days
2 Charles Hanon , one of the Respondent's representatives in
the contract negotiations , testified that during the negotiations he
only to a tableworker's rate of $1.65 per hour. Her actual
rate of $1.85 was not reduced during that quarter, and
Respondent contends that she was paid 20 cents more per
hour than she was entitled to as a tableworker.
As noted, Brown was the only person regularly assigned
to perform the work which was understood to be within the
Xerox operator classification. When such work was not
available, she was assigned to other jobs such as hand
collating, the work performed by the tableworker
classification. No breakdown of Brown's time spent as
Xerox operator or as a tableworker, based on timecards or
other objective records, is available, and the estimates by
Brown and by Respondent's witnesses as to the time she
spent in the Xerox operation are far apart. Brown said that
she spent 90 percent of her time in the Xerox operation,
while Respondent argues that it was closer to 50 percent.
The only objective evidence available is Respondent's
Exhibit 2 which shows the number of Xerox plates which
were produced each week between February 10 and
December 15, 1965. The exhibit does indicate that Brown
produced fewer plates in the third quarter of that year than
in either the first or second quarters. However, it also
establishes that her plate production was more than twice
as great in the third as in the fourth quarter, despite
Respondent's contention that she was not entitled to be
classified as a Xerox operator in the third, but was entitled
to that classification in the fourth quarter.
Although it is the customary and normal practice in the
plant to shift workers from one type of job to another as
daily production needs dictate, it is nonetheless true that
employees were considered 'to have a primary or regular
job to which they would return after completing other
work.' In the case of Brown, I find that her regular job,
which had priority, was that of Xerox operator and that, as
claimed in the backpay specification, she was entitled to
be paid the rate established for that classification for all
her services, even though she spent some unspecified part
of her time at work classified at a lower rate.
2. Hattie Johnson: One of the job classifications
enumerated in the contract is that of assistant Xerox
operator. During her backpay period from April to
November 1965, Hattie Johnson assisted Earline Brown in
the operation of the Xerox camera, by loading it and
cleaning and baking the plates. The Respondent admits
that Johnson worked with Brown, but contends that (a) the
contract should be interpreted as meaning that an
assistant Xerox operator must be capable of performing
the work of a Xerox operator in order to be entitled to the
rate for the assistant's job; and (b) Johnson in fact spent
most of her time as a tableworker. I am not persuaded that
the parties intended that the contract be construed as
Respondent suggests,2 and such a construction appears to
me to be forced and arbitrary. Job classifications normally
define jobs in terms of the duties and skills actually
exhibited by those assigned to such work, and if capability
to perform a higher rated job is to be a requirement, one
had protested that the second operator on the Xerox was a helper
or assistant and should not be entitled to the operator's rate The
Union agreed to a separate classification for an assistant I
consider it quite improbable that the Union would also have
agreed , as Hanon testified , that the assistant would have to be
capable of doing the operator's work in order to be paid the
assistant 's rate , in the face of Respondent 's contention during the
negotiations that the assistant was not required to, and in fact did
not, do the same work as the operator
K. & H. SPECIALTIES CO., INCORPORATED
would expect it to be specifically noted. The contract does
not define the duties of assistant Xerox operator, except
insofar as the title is self-explanatory. As Johnson was
required to, and did perform, a less skilled and lower rated
job in the operation of the Xerox camera, her duties would,
in normal parlance, be those of an assistant. Moreover,
under Respondent's suggested construction, there would
be no one in the plant entitled to be paid as an assistant
Xerox operator, even though the operation of the camera
required two people to do the job properly.
Johnson's regular job to which she reported daily, and to
which she returned from other assignments, was assisting
Brown in the operation of the camera. She estimated that
she spent 90 percent of her time at that job, and even
though this may have been somewhat exaggerated, I find
that she worked on the camera as much as Brown did. She
is entitled, for the reasons mentioned in Brown's case, to
be classified and paid the rate established for the assistant
Xerox operator. The backpay claimed in the specification
is $661.04, and is, I find, the amount owed her.
3. Marvin Misiak: Misiak started working for
Respondent in March 1965, as a part-time employee doing
miscellaneous general work, including operating a
multilith machine. A few weeks later he was transferred to
full-time work on that type of machine, and continued
doing so for the remainder of the backpay period. The
backpay specification asserts, and it is not denied, that he
was paid less than the rate established in the contract for
the classification of multilith operator. Respondent
contends that Misiak is not entitled to that classification
because he did not exercise the full range of skills
exhibited by other multilith operators.
Misiak does, in fact, practically everything that other
operators do, such as setting up his machine, making
adjustments, cleaning, etc. The only respect in which his
work differs from that of more experienced operators is
that he has not been given two-color work to do. However,
according to the estimate of one of the multilith operators
who does two-color work, the time spent on this type of
operation is about 1 percent of the total time spent on his
machine. As Misiak has been assigned to operate a
multilith, he fits the classification of multilith operator
exactly. The fact that he may not be as fully skilled as
some of the other operators is no reason to classify him as
something other than-what he is. I find the amount of
$1,049.85 claimed as due him in the backpay specification
is correct.
4. Dorothy Holcomb: Her backpay period began
March 25, 1965, when she was employed as a tableworker
at a rate 15 cents an hour less than the wage schedule of
the contract called for. Respondent admits its liability
from that date to October 1, 1965, when Holcomb was
assigned to the operation of a multilith machine. As to the
period after October 1, Respondent claims that Holcomb
worked only half time as a multilith operator, and that her
proper rate continued to be that of a tableworker. In the
alternative, Respondent argues that if in fact Holcomb
spent most of her time after October 1 on the multilith
machine, she was nevertheless not entitled to the rate for
that classification because it is listed in the contract as a
man's job, and that she should instead be awarded
backpay computed at the rate listed in the contract for
"machine operator (female)."
647
Holcomb's testimony that she spend full time after
October 1 in operating a multilith machine is not refuted.
Respondent's other point, that a woman who operates a
multilith machine is not a multilith operator but is a
machine operator (female), entitled to a lesser rate than is
paid to men doing the same work, is patently fallacious. An
employer may no longer assign a woman to what may be
classified by contract as a man's job, and expect to pay her
less money for the same work than a man is entitled to.3
5. Mary Phillips: The wage schedule of the contract
lists a job called "machine operator (female)." The only
large piece of equipment in the plant which is not
specifically listed in the contract is the automatic collator.
There were two such collators, one of which was operated
during the backpay period by Mary Phillips. The backpay
specification claims that she was entitled to the maximum
rate of $1.75 per hour, set for the machine operator
(female) classification, or 25 cents more per hour than she
had been paid. The Respondent contends that she is more
properly classified as a tableworker (the classification for
women doing hand collating), and concedes that she was
entitled to the maximum rate for that job. It points out that
the second collator was operated during the backpay
period by Jeanne Fuqua, and that the backpay claim for
Fuqua is based on the assertion that she was a
tableworker. Respondent has not, however, refuted the
testimony of Phillips that she operated her machine
collator about 90 percent of her working time, and that
Fuqua operated the other collator about half the time.
Because the General Counsel, on the basis of his
investigation, concluded that Fuqua was primarily a
tableworker is no reason for finding that Phillips, who
spent practically all her time on the collator, was also a
tableworker. I find that Phillips should have been
classified as a machine operator (female), and that she is
entitled to the backpay claimed for her, in the amount of
$494.82.
6. Kenneth Varo: The backpay specification alleges
that Varo was engaged primarily in operating a
papercutting machine during the backpay period, and that
he was entitled, because of past services, to the maximum
rate of $2.40 per hour, established for that classification
under the contract's wage schedule. In its amended
answer and in its brief to me , the Respondent contends
that Varo was primarily an expediter and checker; that
there was no such classification specified by the contract;
and that it was therefore free to establish a rate
unilaterally for Varo's job until it and the Union negotiated
one. It denied that Varo is entitled to any backpay.
There are two papercutting machines at the plant, and it
is undisputed that supervisors, salesmen, and unit
employees all did some cutting at times. It is also agreed
that another employee, David Perrin, worked primarily as
a cutter during the last 2 months of the backpay period,
and that Varo performed a variety of tasks in addition to
his cutting duties. Among these tasks were some which
can be characterized as expediting and checking on other
employees, such as the tableworkers. Here, as with some
of the other claimants, the problem is to determine what
Varo's primary job was, in the absence of any records as to
the allocation of his time. Varo estimated that he spent 80
percent of his time in papercutting, and the rest in varied
work in the shop. Hendricks, a salesman, who spent much
a Title VII of the Civil Rights Act of 1964, 78 Stat 253, 42
U.S C Sec. 2000, et seq (1964).
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the day outside the shop, estimated that Varo did
cutting no more than half his time. Of course, his
opportunity to observe Varo's work was limited, since
even when both of them were present in the shop,
Hendricks was engaged in his own work. Charles Hanon
also testified that the cutting work available would have
kept Varo busy about half his time. Based on their
demeanor and the relative probabilities of their testimony,
I credit Varo that he spent about 80 percent of his time as
a cutter. I find that this was his primary job, and that he is
entitled to the maximum rate for cutters during his
backpay period.
E. Set-offs of Additional Compensation Against Backpay
Of the 11 claimants named in the specification as to
whom there is a dispute about the total amount of backpay
owed, there are 5 whose claims raise issues relating to set-
offs for compensation paid them in addition to their hourly
wages. There are three different factual situations
involved, each of which raises a separate issue in my
opinion.
1. Regular monthly bonuses (Earline Brown and
Kenneth Varo): I have found previously that Brown was a
Xerox operator entitled to the maximum hourly rate of
$2.25 specified in the contract for that classification. She
was in fact compensated for the first 10 months of the
backpay period at $1.85 per hour, and for the last 2 months
at $2 per hour. For some years preceding the backpay
period Brown had also received a bonus of $25 per month.
Lowell Hanon, president of the Company., testified that he
gave her this bonus because she kept a record of her
production on the Xerox camera, and he regarded it as
extra work for which she should be separately
compensated. Brown continued to receive the bonus for
part of the backpay period, specifically from February
through October 1965. When Respondent raised Brown's
hourly rate from $1.85 to $2 in November, it discontinued
her bonus payment. The additional 15 cents per hour paid
to her amounted to $6 per week for a normal 40-hour week,
or almost exactly the $25 per month she had previously
gotten.
Hanon's stated reason for paying her a bonus seems
dubious to me: (1) an employee who is asked to keep a
record of her own production can hardly be said to be
performing work outside the normal requirements of the
job and requiring extra compensation; (2) Johnson,
Brown's assistant, testified that she made the entries on
the production record whenever Brown was busy, so that
in fact Brown was not expected to exert any extra effort or
time on recordkeeping; and (3) so far as the record shows,
Brown was not relieved of her "extra" recordkeeping
duties when her bonus stopped and her hourly rate was
raised.
Varo was first paid a bonus, also $25 monthly, beginning
in January 1965, just before tbi start of the backpay
period. He continued to receive it until his hourly rate was
increased by 15 cents in November 1965. Hanon testified
that he paid Varo a monthly bonus because he was doing
extra work, but as was also true in Brown's case, there was
no change in Varo's duties when the bonus was
discontinued and his hourly rate increased.
It is the General Counsel's position that Brown and Varo
4 In July 1965, more than a month after he had been
terminated, Wollenbecker succeeded in obtaining $180 from
Respondent which I find, based on Wollenbecker's testimony,
was his vacation payment He was entitled to a vacation under the
are entitled to backpay computed on the difference
between the contract hourly rates for their classifications
and the hourly rates they actually received, for the number
of hours worked during the backpay period. He argues that
the monthly bonuses were given for work over and above
their regular and normal duties, without regard to the
wages based on their hourly rates, and that they may not
be set off against amounts due as computed in the backpay
specification. Respondent's decision to pay Brown and
Varo bonuses for "extra work" was based, according to
the General Counsel, on a longstanding practice and was
related to factors other than their hourly rates.
It is true, as the General Counsel argues, that the
backpay claimants were entitled to the hourly rates
specified in the contract for their particular job in addition
to whatever fringe benefits, either under the contract or
unilaterally bestowed, that they may also have received.
But in Brown's and Varo's cases, it seems to me, the
monthly bonuses were regarded as compensation directly
related to and based upon normal performance of regularly*
assigned duties. The bonuses were an integral part of
these employees' monetary wage package which they had
a right to expect would continue to be paid until their total
wages were otherwise adjusted. As noted above, when the
monthly bonuses paid to Brown and Varo were
discontinued, an equivalent amount was incorporated into
their hourly rates, while their job duties remained
unchanged. Only the method of compensation was
modified, from a combination of hourly rate and monthly
bonus to a straight hourly rate. If the monthly bonuses
were unrelated to the determination of the hourly rate, as
the General Counsel asserts, it would follow logically, that
Brown and Varo should be entitled to receive the same
bonuses for November and December 1965, within the
backpay period, on the basis of the Respondent's past
practice. The General Counsel's failure to include the
monthly bonuses for those 2 months in his backpay claim
is an implicit recognition on his part that the increase in
the hourly rates for Brown and Varo, instituted in October,
was designed to keep their total wage package at the old
level.
Brown and Varo are entitled to be made whole for their
losses during the backpay period, but the losses are to be
determined by measuring what they should have earned in
the performance of their regularly assigned work against
what they actually earned for that work. I therefore find
that Respondent is entitled to set off $225 against Brown's
and Varo's backpay bills, for the nine payments at $25
which each of them received for the months February
through October 1965. The correct amount of backpay due
Brown is $622.79; and for Varo it is $998.87.
2. Intermittent bonuses (Buchowski, Buhl, and
Wollenbecker): During the backpay period three
employees received bonuses of a different type than those
paid to Brown and Varo. Buchowski and Buhl, multilith
operators, received $125 and $100, respectively, late in
June for completing expeditiously certain large orders
which Respondent had been working on. Wollenbecker,
also a multilith operator, was given a bonus in the gross
amount of $190 (a net of $157.51 after tax deductions,
etc.) late in May, for his operation of the rotary press, a
more complicated piece of equipment than a multilith.4
contract Buchowski and Buhl also received vacation payments
Respondent is not entitled to set off vacation payments against
backpay claims
K. & H. SPECIALTIES CO., INCORPORATED
Buchowski and Buhl had received bonuses in past years
for doing extra or especially good work, but never on any
regular predetermined basis, and apparently in smaller
amounts. Wollenbecker testified that he had been given
bonuses in past years every 3 months or so because he was
able to operate the rotary press. The amounts or frequency
of these payments was not stated, and from the absence of
evidence on the point, I presume that Wollenbecker had
never consider that he was entitled to a definite amount of
money at agreed on intervals as a bonus.
Although the bonuses paid to Buchowski, Buhl, and
Wollenbecker were based on their performance of
services, they are otherwise quite unlike the fixed monthly
payments made to Brown and Varo. The latter were
payments given for the routine day-to-day performance of
work which was closely related to the range of services
already expected of the employees, while the former were
given as unexpected, gratuitous rewards either for
extraordinary efforts, or in Wollenbecker's case, for the
performance of services beyond the range of his primary
duties. Because the bonuses to Buchowski, Buhl, and
Wollenbecker were given intermittently and irregularly,
and were not obligatory on the Respondent, I hold that
they should not be treated as regular compensation to
these employees and may not be set off against their
backpay claims.
3. Hourly rate higher than contract rate (Buhl): His
claim also presents another type of question. As a multilith
operator, Buhl was entitled to the maximum rate under the
contract of $2.75 per hour during the entire backpay
period. From February 10 to mid-August, he received only
$2.50; but from that date to the end of the backpay period,
on December 15, 1965, he received $3 per hour. The
backpay specification claims 25 cents per hour as due to
Buhl for the number of hours he worked in the third
quarter of 1965 at the $2.50 rate, but does not set off,
against the amount claimed, what Buhl earned that
quarter at a rate which was 25 cents higher than the
contract rate. Respondent contends that the amounts
earned, in excess of the $2.75 rate during the third and
fourth quarters, should be set off against the total backpay
claim.
It is customary in those cases in which an employer has
refused to execute a negotiated agreement to order him to
do so, to put its provisions into effect retroactively, and to
make employees whole for any losses incurred by his
failure to execute the contract promptly upon completion
of the negotiations . This was precisely what Trial
Examiner Lindner's order provided for in this case. Unlike
supplemental backpay proceedings arising out of
discriminatory discharges, there could be no issue here as
to reinstatement of employees, their interim earnings for
other employment, or how such earnings were to be set off
against the employee's lost earnings. Consequently, no
provision was made therefor in the original Order, and the
formula as to setoff of interim earnings, as established in
F. W. Woolworth Company, 90 NLRB 289, was not
prescribed. That formula provided that interim earnings
for each calendar quarter be set off only against what the
employee would have earned, absent the discrimination
practiced against him , in that quarter . Its purpose was to
5 The specification 's claim for Buhl in the third quarter was
$89 06, computed by multiplying the 356- 1/4 hours he worked at
$2 50 per hour by the 25 - cent underpayment G C Exh 2(c),
Buhl's payroll sheet, shows that he also worked 317-1/4 hours that
649
diminish the effects of fluctuations in interim earnings by
considering each calendar quarter separately for
reinbursement, and by treating interim earnings on a
quarterly basis as the proper setoff against lost backpay.
The most equitable solution to the problem raised by
Buhl's receipt of more than the contract rate is, in my
opinion, the application of the Woolworth formula to the
specific facts in his case. I find that Buhl's total earnings
within the third calendar quarter constitute the proper
basis of measurement of what is due him in that quarter,
and that his fourth quarter earnings, at the $3 per hour
rate, should not be used to reduce his backpay for earlier
quarters. On that basis I find that Buhl is entitled to the
amounts claimed in the backpay specification except for
the third quarter, in which the proper amount due him is
$9.75.5 As thus corrected, Buhl's backpay is $335.81.
Buchowski and Wollenbecker are entitled to $584.82 and
$604, respectively, as claimed in the specification.
F. Miscellaneous
1. Marie Clark: Clark worked 737-3/4 hours during the
backpay period and was underpaid $142.05. Respondent's
answer denied only $16 of this amount, claiming that the
specification includes that amount as vacation pay to
which she was not entitled. In fact, the specification does
not assert that Clark was entitled to vacation pay, and
Respondent's payroll sheet for Clark, General Counsel's
Exhibit 2(d), shows that Clark actually worked almost
exactly the number of hours claimed for her in the
specification. I find that Clark is entitled to $142.05, as
alleged in the specification.
2. Jackie Hunley: The amount claimed for this
employee, incorrectly referred to as Jackie Hurley in the
specification, is $117.95. Respondent's answer admitted
this as the amount due, but at the hearing it was amended
to reduce it to $2.53, on the assertion that there had been
an arithmetical mistake in the computation, No further
explanation of the alleged mistake was offered, either at
the hearing or in Respondent's brief. In seeking to give
Respondent its full due, Fattempted to track down the
claimed error by making my own arithmetical
computations, only to discover that the backpay
specification was itself guilty of an arithmetical error, and
that it had understated Hunley's claim by $20. Hunley had
worked 381-3/4 hours the first quarter for 20 cents less per
hour than his contract rate. He was therefore entitled to
$76.35, rather than the $56.35 shown on the specification. I
find that Hunley is entitled to recover $137.95.
Concluding Findings
Upon the basis of the foregoing findings and
conclusions, and on the entire record in this case, I find
that Respondent's obligation to make the following named
employees whole under the Board's order and the court's
decree will be discharged by payment to them of the
amounts set forth opposite their names, plus interest
accrued at the rate of 6 percent per annum to the date of
quarter at $3 per hour. At the contract rate, he would have earned
$1,852 13 (673-1/2 hours at $2 75). He actually earned $1,842 38
that quarter, and his backpay is the difference between those two
figures, or $9 75
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment, less the tax withholding required by applicable
law:
W. Baldridge $21.94
E. Brown 622.79
J. Buchowski 584.82
K. Buhl 335.81
M. Clark 142.05
E. Diaz 445.66
J. Fuqua 257.25
B. Grimmett 275.33
D. Holcomb 463.38
J. Hunley 137.95
H. Johnson 661.04
L. Johnson 22.46
M. Misiak 1,049.85
M. Myricks 46.54
F. Patrick 276.07
M. Phillips 494.82
C. Porter 76.78
L. Rutherford 23.66
K. Varo 998.87
F. Wollenbecker 604.00
RECOMMENDED ORDER
It is recommended that the Board adopt the foregoing
findings and conclusions.
American Bosch Arma Corporation (Missis-
sippi Division ) and Independent Tool and
Die Makers of Columbus , Mississippi,
Petitioner . Case 26-RC-2563.
March 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN,
JENKINS, AND ZAGORIA
On March 17 , 1966, the Regional Director for
Region 26 issued a Decision and Direction of
Election in the above -entitled proceeding , finding
that Employer 's toolroom department employees
constitute an appropriate unit which may be served
from the established production and maintenance
unit . Thereafter , in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations , Series 8, as amended , the Employer
and the Intervenor , Local 794, International Union
of Electrical, Radio and Machine Workers,
AFL-CIO, filed timely request_s for review of the
Regional Director's Decision on the grounds that the
decision was clearly erroneous with respect to
substantial factual issues and that there were
compelling reasons for reconsideration of an
important Board policy involved in the case. The
Board , by telegraphic order dated April 11, 1966,
' The Petitioner and the Employer have requested oral
argument These requests are hereby denied as the record and
briefs adequately present the issues and positions of the parties
granted the requests for review and stayed the
election.
The Board has considered the entire record in this
case with respect to the Regional Director's
determination under review and the positions of the
parties set forth in their briefs, ' and makes the
following findings:
The Employer manufactures electric motors at its
plant in Columbus, Mississippi , where it employs
approximately 900 employees . In 1954 the
Intervenor was certified as the bargaining
representative of a unit of production and
maintenance employees at this plant . The last of the
successive collective - bargaining contracts covering
this unit expired on February 28, 1966.
Petitioner seeks to sever from the production and
maintenance unit 23 toolroom employees classified
as tool -and-die makers, and tool and cutter grinders.
In directing a severance election , the Regional
Director found , contrary to the position of the
Employer and Intervenor , that the toolroom
employees constituted a separately identifiable
group of skilled craftsmen and that the Petitioner is
a labor organization which qualifies as a
"traditional" representative of the craft involved. In
so holding, the Regional Director rejected
contentions of the Employer and Intervenor that the
Petitioner is not a "true craft union"; the employees
requested do not constitute a separate craft group;
and their severance would be detrimental to the
interests of employees in related crafts who have
comparable skills and to the integrated nature of the
Employer ' s overall operation.
After reexamining its craft severance policies in
the recent Mallinckrodt2 decision , the Board stated
that it would no longer limit the scope of inquiry to
whether the employees for whom severance is
requested are true craftsmen and whether the union
seeking to represent them qualifies as a traditional
representative . Instead , the Board indicated it would
base its determination upon a balancing of the
various interests affected, weighing all relevant
factors in each case before it.
The toolroom employees were requested to make
and repair tools, dies, jigs, and fixtures for use in the
production operation under the supervision of the
toolroom foreman . They perform similar functions in
connection with research and development work in
the laboratory at which time they work with and take
instructions from engineering personnel . All tool and
die work requiring welding or plating must be taken
to those areas of the plant where such equipment is
located . Toolroom employees also set , adjust, and
repair dies and fixtures on the production floor, and
regularly work alongside production and
maintenance workers "troubleshooting" faulty
2 Mallinckrodt Chemical Works, Uranium Division , 162 NLRB
387
163 NLRB No. 80