Kimball's Motor Dispatch, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1985

274 N.L.R.B. 133 (N.L.R.B. 1985)

KIMBALL'S MOTOR DISPATCH
Kimball 's Motor Dispatch , Inc. and Henry A. Kim-
ball and Local Union No. 707, a/w The Eastern
Conference of Teamsters and International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 2-CA-
19016
19 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 3 October 1984 Administrative Law Judge
Steven B. Fish issued the attached decision. The
Respondents filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Kimball's
Motor Dispatch, Inc., and Henry A. Kimball Jr.,
an Individual, Great Barrington, Massachusetts,
their officers, agents, successors, and assigns, shall
take the action set forth in the Order.
I No party filed exceptions to the remedy recommended by the judge
We agree with the judge's finding that the court-enforced arbitration
award regarding Edward Dixey's discharge is valid and binding on the
Respondents and the Board and therefore that Dixey was an employee
entitled to backpay at the time the Respondents committed the unfair
labor practices involved in this case We do not rely, however, on the
judge's discussion or application of Olin Corp, 268 NLRB 573 (1984),
United Technologies Corp, 268 NLRB 557 (1984), or Spielberg Mfg Co,
112 NLRB 1080 (1955)
SUPPLEMENTAL DECISION
STEVEN B. FISH , Administrative Law Judge. The sup-
plemental proceeding herein was initiated by the Region-
al Director for Region 2 of the National Labor Relations
Board by issuance of a backpay specification and notice
of hearing on November 30, 1983. The backpay specifi-
cation was amended at the hearing held before me on
February 16, 1984 , in New York, New York
Respondents filed an answer to the backpay specifica-
tion as well as an amended answer , filed subsequent and
in response to counsel for the General Counsel 's amend-
ment to the specification.'
i Respondents were not present at the hearing before me However,
Lawrence Ehrhard, their attorney , sent a telegram to the Regional office
dated February 15, 1984, stating that he had discussed the instant case
with counsel for the General Counsel, and that he would not be present
at the hearing since he perceived legal issues only The telegram also re-
quested leave to file a brief
133
On April 8, 1983, Administrative Law Judge James
Morton issued a decision and recommended order in the
underlying case.2 No exceptions having been filed to this
decision, the Board on May 12, 1983, issued an Order
adopting the recommended Order of the administrative
law judge On June 21, 1983, the Board issued an Order
correcting its previous order
Subsequently on January 12, 1984, the Board's Order
was enforced by the Second Circuit Court of Appeals
based on the Board's Motion for Summary Judgment,
filed on December 1, 1983
As pertinent herein, the Board's order, enforced by the
court, ordered Respondent Dispatch and Respondent
Kimball jointly and severally to make whole their em-
ployees in the bargaining unit,3 as follows.
It is appropriate to require Respondent Dispatch
to bargain collectively with the Union and to re-
quire it to pay the employees in the unit described
above backpay at the rate of their normal wages
when last in Respondent Dispatch's employ for 5
days after the date of this decision until the occur-
rence of the earliest of the following conditions. (1)
the date Respondent Dispatch bargains to agree-
ment with the Union on those subjects pertaining to
the effects of the closing of its operations on its em-
ployees; (2) a bona fide impasse in bargaining; (3)
the failure of the Union to request bargaining within
5 days of Respondent Dispatch's notice of its desire
to bargain with the Union, or (4) the subsequent
failure of the Union to bargain in good faith; but in
no event shall the sum to any of these employees
exceed the amount he or she would have earned as
wages from May 28, 1982, the date on which Re-
spondent Dispatch terminated its operations, to the
time he or she secured equivalent employment else-
where, or the date on which Respondent Dispatch
shall have offered to bargain, whichever occurs
sooner; provided, however, that in no event shall
this sum be less than these employees would have
earned for a 2-week period at the rate of their
normal wages when last in Respondent Dispatch's
employ. Interest on all backpay awarded herein
shall be paid in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).
The specification, as amended, provides for backpay
for five unit emplo,. es of Respondent Dispatch: John
Arias, Joseph Fleri, Louis Melendez, Edward Dixey, and
Vincent Calabrese.4
3 I note that the record reveals that neither Respondent Kimball's
Motor Dispatch Inc (Respondent Dispatch ), nor Henry Kimball Jr (Re-
spondent Kimball or Kimball ) appeared at the hearing before the judge
3 The bargaining unit consists of all full-time and part-time drivers,
warehousemen , and helpers employed by Respondent Dispatch at its
New York City terminal The Union representing these employees is
Local 707 a/w the Teamsters Conference of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (the Union or Local 707)
* While the administrative law judge's decision had indicated that
there were seven employees in the unit , the backpay specification seeks
backpay for only these five employees
274 NLRB No. 27
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The specification requests the minimum 2 weeks of
backpay for employees Arias, Fleri, and Melendez, and
these sums are not contested by Respondent.
At issue are the amounts claimed by the General
Counsel for employees Dixey and Calabrese. Respondent
claims initially that Dixey was terminated by Respondent
prior to the date of the closing, and the commission of
unfair labor practices, and is therefore ineligible for any
backpay
The General Counsel concedes the fact of Dixey's pre-
vious termination, but argues that a subsequent arbitra-
tion award finding his discharge to have been improper,
and ordering his reinstatement with backpay, retroactive-
ly accords him employee status insofar as this proceeding
is concerned.
The parties are also in dispute as to the commence-
ment of the backpay period.
Briefs have been received from the General Counsel
and Respondent and have been carefully considered.
On the entire record herein, including my observation
of the deamnor of the witness, I make the following
At the close of the hearing, the committee representa-
tives stated that they would not issue a decision at that
time, but would notify Respondents and give them 14
days to respond to the minutes of the hearing.
On July 14, 1982, an arbitration award was issued by
the New York Joint Local Committee. The award in the
form of a letter to Kimball, reads as follows:
Re: Case No. 2041
Local 707 vs Kimball's Motor Dispatch
Violation Art. 47, Sec. 1
Voluntary quit-Edward Dixey
Dear Mr. Kimball:
Pursuant to our letter of June 1, 1982-re: the
above dispute please be advised that due to your
failure to appear on June 24, 1982 the Committee
has no alternative other than to rule that
1. The Union's position and claim is upheld.
2. The grievant Edward Dixey is to be immedi-
ately restored to his rightful seniority position and
with full back pay plus related Welfare and Pension
contributions.
FINDINGS OF FACT
A. Edward Dixey
Dixey was employed as a driver by Respondent Dis-
patch at its New York terminal for 15 years. On March
29, 1982, he received a telegram from Respondent Dis-
patch notifying him that he was fired for "involuntarily"
walking off the job.
Dixey immediately notified the Union and spoke to
Union Vice President Mickey Morris. A grievance was
subsequently filed over Dixey's termination. Pursuant
thereto an arbitration hearing was scheduled for late
April 1982, before the New York City Joint Local Com-
mittee This committee is a joint management and labor
committee set up pursuant to the contract to dispose of
arbitration cases. At the initial date scheduled for the
hearing, no representative from Respondent Dispatch ap-
peared. As a result of this fact, the hearing was post-
poned to a second date, when again Respondent Dis-
patch failed to appear Once again for this reason, the
hearing was postponed.
Finally, the third hearing was scheduled for June 24,
1982, at a hotel in Long Island City. Again no one from
Respondent Dispatch nor Respondent Kimball made an
appearance, and the committee decided to proceed none-
theless.
Vice President Morris asked Dixey to give his version
of the events precipitating his termination. Dixey testified
that there was an informal agreement on the job to
rotate the work to prevent layoffs. Thus, Dixey contend-
ed that the reason that he did not work on the day in
question was pursuant to this informal agreement, and in
order to allow less senior men to work. In fact he testi-
fied that another senior man, in addition to himself, also
did not work on that day, in accordance with that agree-
ment
Respresentatives of the trucking association on the
panel then cross-examined Dixey and, according to
Dixey, "took up his part of the argument."
Sincerely
Frank Scotto
Employer Co-Chairman
On January 1, 1983, Dixey obtained substantially
equivalent employment by becoming self-employed 5
Pursuant to an action commenced by the Union on
December 6, 1982, a default judgment was issued by the
U.S. District Court, Southern District of New York, on
February 25, 1983, confirming the above-cited award,
and ordering a judgment against Respondents Dispatch
and Kimball personally for $28,985.40 plus costs and dis-
bursements 6
It appears however from the record that, since Kim-
ball is a Massachusetts resident, the Union has thus far
been unsuccessful in enforcing the judgment of the dis-
trict court.
On September 30, 1983, Respondent Dispatch, by its
attorney, sent a letter to the Union, requesting a meeting
to bargain concerning the effects on its employees of the
decision of Respondent Dispatch to close its New York
City terminal.7
B. Vincent Calabrese
Calabrese was employed by Respondent Dispatch for
7 years as a driver. His salary was $510 per week. He
was employed when Dispatch closed its facility on May
5 The General Counsel does not seek backpay for Dixey subsequent to
January 1, 1983
B This judgment included $11,197 39 in backpay for Dixey, as well as
moneys allegedly owed him for vacation pay, sick pay, and personal
leave Additionally, the judgment included vacation pay, wage supple-
ments , and dues owed to and on behalf of other employees of Respond-
ents The record includes proof of personal service upon Kimball of the
summons and complaint in the Union 's action in the U S district court
Neither Respondents nor their attorney filed an answer to this complaint
Thus as noted, a default judgment was entered against both Dispatch and
Kimball for the amounts specified
v The General Counsel concedes that this letter cuts off Respondents'
backpay obligations as of that date
KIMBALL'S MOTOR DISPATCH
28. In April 1983, after not finding employment, Cala-
brese returned and began to collect a pension from the
Union of $650 per month Calabrese has continued to
look for employment however, but only at non-Team-
sters employers.8
Analysis
A John Arias, Joseph Flert, and Louis Melendez
The specification alleges the minimum amount of back-
pay due to these three employees , since they each se-
cured equivalent employment within 2 weeks of their
terminations Respondents in its answer admits the com-
putations with respect to these three individuals . Thus, I
shall recommend in accordance with the specification
that Respondent be ordered to pay them the sum of
$ 1,020.80 each plus interest.
B Vincent Calabrese
While Respondents in their answers contend that Cala-
brese secured equivalent employment as of May 28, 1982,
no evidence was adduced by them to sustantiate this as-
sertion. Thus, Calabrese's testimony stands unrebutted
and is therefore credited that he did not do so.
An issue does arise however concerning the method of
computing the backpay period for Calabrese.9
The specification alleges that backpay begins to run
for Calabrese on May 28, 1982, the date Respondent ter-
minated its employees.
Respondents contend that the backpay period as speci-
fied by the decision of the administrative law judge and
adopted unchanged by the Board, provides that backpay
liability commences 5 days after the date of the decision,
and that the proper period for starting backpay computa-
tions is therefore April 13, 1983,10 5 days after the ad-
ministrative law judge's decision
The General Counsel responds that the order in effect
provides for two separate backpay periods, one measured
from 5 days after the decision to the earliest of the four
specified conditions, and the other from the date of ter-
mination until either the obtaining of equivalent employ-
ment or the Respondents' offer to bargain, whichever
occurs sooner, with the employee to receive the smaller
amount of the computations for these two periods.
While it is true that the Transmarine remedy, which
was followed in the instant case, is not by its terms the
model of clarity with respect to this issue, the Board has
had occasion to interpret the language in dispute, and
has supported the General Counsel's position herein.
8 The specification has included the $650 pension payments to Cala-
brese as interim earnings, and deducted same from the amounts due him
9 This issue applies to the computation of backpay in general herein,
but has no significance with respect to Arias, Fleri, and Melendez, since
they concededly are entitled to the minimum award of 2 weeks' pay The
issue does have relevance to Dixey's claim, which as noted below also
requires a determination of whether Dixey is eligible for any backpay due
to his discharge by Respondent prior to the shutdown
10 Respondents argue the reason for the remedy being drafted as it was
must have been because of the "extraordinary remedy of the personal li-
ability for a corporate officer which it imposed " This contention is with-
out merit The remedy ordered is the standard and well-settled remedy
for the violations alleged herein Transmanne Navigation Corp, 170
NLRB 389 (1968), Ohio Brake & Clutch Corp, 244 NLRB 35 (1979)
135
Thus in W. R. Grace & Co., 247 NLRB 698, 699
( 1980), the Board concluded that-
A Transmarine remedy establishes a set number
of weeks of backpay liabilty based on the period
from 5 days after the Board's decision until the oc-
currence of one of the four specified events, noted
previously. These weeks are then applied in full to
the time period following termination of employ-
ment, unless substantially equivalent employment
was found during that period.
On applying this interpretation of Transmarine to the
facts in W. R. Grace, supra, the Board reversed an ad-
ministrative law judge who had calculated the obtaining
of sustantially equivalent employment from 5 days after
the decision, and concluded that the relevant question
whether the employee obtained equivalent employment
after the layoff, rather than the period utilized by the
judge.
In applying this criteria to the instant case, the back-
pay period from 5 days after the decision to the occur-
rence of the four specified conditions is still running,
since none of the four conditions has been satisfied inso-
far as this record is concerned
Although Respondents had offered to bargain with the
Union on September 3, 1983, this does not satisfy any of
the four conditions set forth above which are sufficient
to termmiate backpay liability measured from 5 days
after the decision. i i
It is then appropriate, as in W. R. Grace, supra, to de-
termine whether from the date of the terminination, i.e,
May 28, 1982, the employees either obtained substantially
equivalent employment or Respondents offered to bar-
gain, whichever occurs sooner
In the case of Calabrese, the General Counsel con-
cedes consistent with the specification, as amended, that
Respondents' offer to bargain with the Union on Septem-
ber 3, 1983, terminates the liability period for Calabrese
which began on May 28, 1982.
Therefore, I find based on the above analysis that the
General Counsel is correct with respect to this issue, and
that Calabrese is entitled to the backpay in accordance
with the specification of $28,844.72, plus interest.
C. Edward Dixey
Respondent, as noted, contends that Dixey is not eligi-
ble for the award of any backpay, since he was not em-
ployed by Respondent on May 28, 1982, the date of the
unfair labor practice.
The General Counsel argues however that the arbitra-
tion award issued in July 1982, awarding Dixey retroac-
tive backpay and reinstatement, transforms Dixey into an
employee in the unit as of May 28, and therefore eligible
for backpay.
The Board has, in the case of employees terminated in
violation of Section 8(a)(3) of the Act, retroactively de-
termined that they were eligible to vote in an election.
Bonanno Family Foods, 230 NLRB 555 (1977). The Gen-
' i Cf Ohio Brake, supra
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
era] Counsel argues that similar effect should be given to
the arbitration award in the circumstances herein I
agree.
The Board has in its recent decisions in Olin Corp. 12
and United Technologies Corp. 13 modified then current
law in extending the Board's policies of the deferring to
arbitration proceedings While the issue here is not pre-
cisely the same, i e , the Board is not being asked to
defer jurisdiction or dismiss a complaint based on an
award, the concepts and theories are analogous, and the
Board's language therein is most instructive and pertinent
to a resolution of this rather novel issue.
Thus the Board in Olin, supra observed "[i]t hardly
needs repeating that national policy strongly favors the
voluntary arbitration of disputes. The importance of arbi-
tration in the overall scheme of Federal labor law has
been stressed in innumerable contexts and forums." 14
In United Technologies, supra, 268 NLRB at 558, the
Board commented in more detail and with more empha-
sis on the subject-
Arbitration as a means of resolving labor disputes
has gained widespread acceptance over the years
and now occupies a respected and firmly established
place in Federal labor policy. The reason for its
success is the underlying conviction that the parties
to a collective-bargaining agreement are in the best
position to resolve, with the help of a neutral third
party if necessary, disputes concerning the correct
interpretation of their contract. Congressional intent
regarding the use of arbitration is abundantly clear:
Final adjustment by a method agreed upon by
the parties is hereby declared to be the desirable
method for settlement of grievance disputes aris-
ing over the application or interpretation of an
existing collective-bargaining agreement
It is this congressional mandate on which the Su-
preme Court has consistently relied in sanctioning
arbitration as a preferred instrument for preserving
industrial peace.
Similarly, the concept of judicial and administra-
tive deference to the arbitral process and the notion
that courts should support, rather than interfere
with, this method of dispute resolution have become
entrenched in American jurisprudence. Over the
years, the Board has played a key role in fostering a
climate in which arbitration could flourish.
Finally, and even more pertinent to the issue at hand,
the Board commented (id. at 559):
It is fundamental to the concept of collective bar-
gaining that the parties to a collective-bargaining
agreement are bound by the terms of their contract.
When a employer and a union have voluntarily
elected to create dispute resolution machinery cul-
minating in final and binding arbitration, it is con-
12 268 NLRB 573 (1984)
13 268 NLRB 557 (1984)
14 268 NLRB 574
trary to the basic principles of the Act for the
Board to jump into the fray prior to an honest at-
tempt by the parties to resolve their disputes
through that machinery For dispute resolution
under the grievance-arbitration process is as much a
part of collective bargaining as the act of negotiat-
ing the contract 15
It would seem that the Board's emphasis on binding
the parties to the terms of their collective-bargaining
agreement, including the arbitration clause, as expressed
in these cases, would also extend to binding the employ-
er to the results of the arbitration award, which arose
out of the contract to which it voluntarily agreed
I therefore conclude that it is proper and appropriate
to rely on the arbitration award in determining the ques-
tion of Dixey's employee status on the date of the unfair
labor practice.
Respondents argue that any question of deferral to an
arbitration award must be evaluated under the Speil-
berg16 standards, as modified by Olin, supra.
While I am not persuaded that this is precisely a Sped-
berg case since, as noted, this is not a case of the Board
dismissing a complaint because of an arbitration award, it
is arguable that the standards therein are revelant to the
disposition of the instant case Although I believe that
the utilizing of the arbitrator's decision in determing em-
ployee status is not technically a Speilberg issue, and it
may not be necessary to meet all the criteria therein in
order to rely upon the arbitrator's award in this case, I
shall consider and resolve the issue
Respondents contest the utilization of the award solely
on the grounds that the proceeding allegedly was not
fair and regular. They do not contest the fact that the
parties agreed to be bound by virtue of the collective-
bargaining agreement , nor do they contend that the
award is repugnant to the Act
As to the criteria of consideration and presentation of
the unfair labor practice issue which has also not been
raised by Respondents, the Board has held in Olin, supra,
that it will presume the arbitrator has adequately consid-
ered the unfair labor practice if the contractual issue is
factually parallel to the unfair labor practice issue and if
the arbitrator was presented with the facts relevant to re-
solving the unfair labor practice.
While we are not dealing with the issue of deferring to
a finding concerning an unfair labor practice, we are
concerned with the issue of Dixey's status as of the date
of the unfair labor practice. Thus, the issues are parallel
and the facts relevant to resolving the issue herein-
Whether Dixey was discharged with just cause, which
would retroactively grant him employee status as of May
28, 1982-were presented at the arbitration. Thus, I con-
clude that this criteria has been met 17
1 s The Supreme court stated in Steelworkers v Warrior & Gulf Co, 363
U S 574 578 ( 1960), that "arbitration of labor disputes under collective
bargaining agreements is part and parcel of the collective bargaining
process itself" Id at 559 fn 16
16 Spielberg Mfg Co., 112 NLRB 1080 (1955)
17 1 note again that Respondents have not argued to the contrary
KIMBALL'S MOTOR DISPATCH
Respondents do contend, however, that the arbitration
was not fair and regular because Respondents were not
given any notice of the arbitration proceeding: They
argue that the General Counsel has presented no facts
showing fairness , since the basis for fairness in an adver-
sary proceeding is notice . They further contend that,
since the General Counsel has the burden of proof in this
proceeding and was put on notice by Respondents'
answer that they claimed not to have received such
notice, it was incumbent on the General Counsel to
prove the existence of such notice, which it did not do.
Thus, Respondents conclude that no reliance can be
placed on the arbitration award. I do not agree.
First and foremost , Respondents misperceive the
burden in a Spielberg and Olin situation The Board
places the burden on the party seeking to have the Board
ignore the determination of the arbitrator to affirmatively
demonstrate the defects in the arbitral process or the
award Olin, supra.
Thus, the burden is on Respondents , the parties attack-
ing the award , to prove that the proceeding was not fair
and regular . They have adduced absolutely no evidence
in support of this contention As noted, they made no ap-
pearance at the trial herein , called no witnesses , and in-
troduced no evidence whatsoever An unsupported con-
tention in their answer , that no notice was received, is of
no evidentiary value, and cannot be relied on to meet
such a burden.
Moreover, the evidence of record supports the infer-
ence that Respondents were notified of the arbitration,
and the affirmative finding which I make that the pro-
ceedings were fair and regular.
Thus, Dixey's unrebutted testimony establishes that the
hearing was postponed twice because of the failure of
Respondents to appear , and that Respondents were given
14 days to review the minutes of the arbitration before
an award was issued. i 8
The award itself is corroborative of the facts, since it
specifically refers to "our letter of June 1, 1982 re: the
above dispute," which tends to support the logical infer-
ence that Respondents were notified of the hearings Ad-
ditionally, the record contains the summons and com-
plaint of the Union's action to enforce the award, which
establishes proof of personal service therein of Respond-
ents.
It would seem logical that if, as contended by Re-
spondents, they did not receive notice of the arbitration
hearings , when they received the summons and com-
plaint they would have contested the action on that
basis . Yet they did not do so, and a default judgment was
entered. Based on all the above facts, I am of the opinion
that the criteria of the arbitration, being fair and regular,
have clearly been met, and that Respondents have shown
no basis for not deferring to the award on the issue of
Dixey's status.
I therefore conclude that for purposes of this proceed-
ing and for the computation of backpay, Dixey should be
18 While the findings are based on Dixey's hearsay testimony , such tes-
timony was admitted without objection , and constitues probative evi-
dence Avon Mirror & Distributing Co, 247 NLRB 225, 228 (1980),
Today's Man, 263 NLRB 332 (1982)
137
considered an employee as of May 28, 1982, and eligible
for the award of backpay from the date forward.
The General Counsel goes further, however, and
argues that Dixey should be awarded backpay starting
on April 1, 1982, the date of his original discharge.
The General Counsel, while conceding that April 1 is
prior to the commission of the unfair labor practices at
issue herein , still insists that it is appropriate to award
him backpay as of that date.
No authority was cited for this rather unprecedented
extension of current Board law The General Counsel
reasons as follows in her brief
The Backpay Specification, as amended, includes
wages for Dixey for the period April 1, 1982,
through January 1, 1983. This inclusion of the pre-
unfair labor practice wages is based upon the
premise that Dixey did not become entitled to, and
therefore did not earn money until the issuance of
the arbitrator's award in July 1982, after unfair
labor practice and within the backpay period. Ac-
cordingly, since these April and May wages are
monies which Dixey would have received absent
the unfair labor practice, they are properly reflected
in the Specification and should be included in
Dixey's award
I find this contention unsupportable and the reasoning
seriously flawed. Dixey's entitlement to the April and
May wages flowed not from any unfair labor practices
committed herein, but solely from the arbitration award.
The fact that the award issued within the backpay period
is irrelevant . These wages have no relation to Respond-
ents' refusal to bargain about the effects of the shutdown,
which occurred on May 28, 1982. While I am persuaded
that it is appropriate to rely on the arbitration award in
determining that Dixey should be considered an employ-
ee on May 28, I find it inappropriate and improper to go
beyond that, and in effect to enforce the entire arbitra-
tion award as to Dixey by extending the backpay period
for him to April 1, 1982.
The amounts due between April 1, and May 28, 1982,
are not properly before me, and must be obtained by the
Union in their attempts to enforce the arbitration award.
I therefore shall commence the backpay period for
Dixey on May 28, 1982, and end it on December 31,
1983, as alleged in the specification. 19
Curiously, although the General Counsel argues that
backpay for Dixey should commence on April 1, 1982,
and the specification, as amended, reflects those dates,
the calculations set forth therein do not. Thus, the calcu-
lations set forth in the amendment and the original speci-
fication for Dixey are identical for the second quarter of
1982, i.e., 4.6 weeks at $51040 per week, totaling
$2347 84. This appears to coincide with calculating back-
19 The issue of whether the backpay period begins 5 days after the
judge's decision as contended by Respondents , and discussed infra with
respect to Calabrese, is equally applicable to Dixey Thus Respondents
contend that if Dixey is entitled to any backpay , it should have began to
run on April 13, 1983 For the same reasons set forth above, I reject this
contention , I find that Dixey 's period commences May 28 , 1982, and ends
when he obtained substantially equivalent employment
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay from what I have found to be the proper starting
point for Dixey's award, that of May 28, 1982 20
Accordingly, I shall award Dixey backpay as set forth
in the calculations , including $2347.84 for the second
quarter of 1982,21 and totaling $13,697 04 plus interest
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
The Respondents, Kimball's Motor Dispatch, Inc., and
Henry A. Kimball Jr., an individual, their officers,
agents, successors, and assigns, shall pay to each of the
following employees as backpay the amount set forth op-
posite each name, plus interest computed in the manner
prescribed in Florida Steel Corp., 231 NLRB 651
(1977),23 less tax witholdings required by Federal and
state laws.
20 I can only conclude that the General Counsel inadvertently failed to
update the calculations in accordance with her position that backpay
should commence for Dixey on April 1 I need not decide whether the
failure to so provide in the specification would preclude such a finding
on procedural or due process grounds, since I have found that on the
merits the General Counsel' s position is untenable
21 There are no interim earnings included for the second quarter of
1982 Thus the amounts set forth coincide with a May 28,1982 starting
date
22 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
John Arias $ 1,020.80
Joseph Fleri 1,020.80
Louis Melendez 1,020.80
Edward Dixey 13,697.04
Vincent Calabrese 28,844.72
Board and all objections to them shall be deemed waived for all pur-
poses
23 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)