Lane Aviation Corp.

National Labor Relations Board - Board Decisions

Mar 23, 1977

228 N.L.R.B. 1028 (N.L.R.B. 1977)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lane Aviation Corporation and John E. Hook and
John D. Zaros and Teamsters Union, Local 413
Affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America . Cases 9-CA-8183, 9-CA-8263, 9-
CA-8420-1, and 9-CA-8420-2
March 23, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On October 22, 1976, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding, finding in agreement with the
Administrative Law Judge, that Respondent had,
inter alia, unlawfully discharged employees John E.
Hook and John D. Zaros, and had unlawfully refused
to reinstate Zaros pursuant to the terms of a settle-
ment agreement which was later set aside by the
Regional Director. The Board further found, how-
ever, contrary to the Administrative Law Judge, that
Respondent "need not be required to do again what it
has already done." In this regard the Board noted
that Hook had been given backpay and had been
offered reinstatement which he declined in writing.
The Remedy and Order were therefore amended
accordingly.
On November 16, 1976, the Charging Parties filed a
motion for reconsideration requesting that the Board
reconsider its decision . Thereafter, on November 26,
1976, the Respondent filed a response to the 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
authority in this proceeding to a three-member panel.
Upon consideration of the relevant pleadings and
contentions, the majority hereby grants the Charging
Parties' motion for reconsideration.
The Charging Parties contend, inter alia, that Hook
did not receive a bona fide offer of reinstatement and
that, even if he did and refused it, the offer and
refusal should be ignored with the rest of the terms of
the broken settlement agreement.
It is clear, as we earlier found, that Hook did indeed
sign a letter refusing an offer of reinstatement. As we
stated in our previous decision herein, normally a
respondent need not be made to do what it has
already done even where a settlement agreement is
set aside . Upon reconsideration of the facts of this
case, however, we find that the reinstatement of
Zaros was an integral part of Hook's agreement to
226 NLRB 575.
s As Respondent has already complied with the notice -postmg require-
228 NLRB No. 97
waive reinstatement, and that Respondent's breach of
that agreement by not reinstating Zaros warrants a
new offer of reinstatement to Hook along with
backpay.
The record discloses that part of the consideration
for (1) Hook's agreement to waive reinstatement for
himself and (2) the amount of money he would
receive was the reinstatement of Zaros. Hook testi-
fied:
Q. The amount of money which you were
willing to accept, was that in part, conditioned on
their reinstatement of Zaros?
A. Yes.
Q. And it is true, is it not, that you understood
that in order to receive the backpay you would
decline an offer of reinstatement , is that not
correct? You would decline reinstatement?
A. It was part of the overall agreement.
Under these circumstances Respondent's obligation
to Hook could not be said to have been completed
without the reinstatement of Zaros. Zaros, however,
was never reinstated, as noted above. Our dissenting
colleague is therefore clearly in error when he states
"all considerations of the settlement relevant to him
[Hook] . . . have been fulfilled." Therefore, we
conclude that the Administrative Law Judge correct-
ly ordered that Hook, as well as Zaros, be offered
reinstatement and further backpay. Accordingly, we
hereby vacate the Amended Remedy portion of our
Decision and Order insofar as it is inconsistent with
the findings herein.2 We also hereby vacate the Order
issued by this Board on October 22, 1976, and order
that Respondent take the action set forth below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Lane Aviation Corporation, Columbus, Ohio,
its officers, agents, successors , and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act."
meats with respect to its violations of Sec . 8(a)(l), it will not be required to do
so again.
LANE AVIATION CORPORATION
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER WALTHER , dissenting:
I disagree with my colleagues' decision to grant the
motion for reconsideration. I concurred in the result
of the initial decision, although, as there indicated, I
found it unnecessary, unlike my colleagues, to set
aside the settlement agreement. For whatever subjec-
tive reasons Hook may have had for refusing rein-
statement, all considerations of the settlement rele-
vant to him and agreed to by Respondent have been
fulfilled. My colleagues make the bold statement that
reinstatement of Zaros was "an integral part" of
Hook's waiver of reinstatement. That assertion was
left without explanation in their first opinion, and
here again it is left without foundation.
Unlike my colleagues, I see no reason now for
engaging in what amounts to an "about-face" by
granting the motion for reconsideration. The record,
including the testimony of Hook, was fully consid-
ered in reaching the initial decision. Further, the
motion for reconsideration contains nothing not
previously considered by the Board. For these
reasons I would deny the motion.
APPENDIX
1029
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge you, refuse to reinstate
you, or otherwise discriminate against you be-
cause you have engaged in organizing activity, or
are a member or supporter of Teamsters Union,
Local 413, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the National
Labor Relations Act.
WE WILL offer John D. Zaros and John E. Hook
reinstatement to their former jobs or, if those jobs
no longer exist, to jobs substantially equivalent,
without prejudice to their seniority or other rights
and privileges, and WE WILL make them whole for
any loss of pay they may have suffered because we
discharged them, with interest at the rate of 6
percent per annum.
LANE AvIATIoN
CORPORATION