Lyman Steel Company, 8-CA-11113

National Labor Relations Board - Board Decisions

Dec 4, 1979

246 N.L.R.B. 712 (N.L.R.B. 1979)

I)ECISIONS OF NATIONAL. LABOR RELATIONS BOARD)
Lyman Steel Company and Timothy James McCon-
nell, Douglas S. Ciprian, Charles W. Diehl, David
Shanholtzer, Lamont MacCannon, Ralph Redmon,
and Ray Norris. Cases 8-CA 11113, 8 CA 11127.
8 CA 11137. 8-CA-11160, 8 CA-11217, 8 CA
11481, and 8 CA 11565
December 4, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS JENKINS
AND TRUESI)AI.E
Pursuant to a settlement stipulation executed on
February 22, 1978, by, inter alia, Lyman Steel Com-
pany, herein called Respondent, the Charging Parties,
and the General Counsel of the National Labor Rela-
tions Board, the National Labor Relations Board is-
sued a Decision and Order on May 15, 1978,' direct-
ing, inter alia, that Respondent make whole certain
employees for the loss of pay due to alleged discrimi-
nation against them and that a hearing be conducted
to determine the amount of backpay due Timothy
McConnell, Terry McConnell, and James Rakowicz.
On July 14, 1978,2 the Regional Director for Re-
gion 8 issued an Order consolidating cases, backpay
specification, and notice of consolidated hearing,
which alleged, inter alia, that the backpay period for
Timothy McConnell began May 17, 1977, and ended
February 22, 1978; that Terry McConnell was due
backpay for the period May 19 through May 24,
1977, and from June 20, 1977, through February 22,
1978; that the backpay period for James Rakowicz
began on June 10, 1977, and ended on February 22,
1978; and that Rakowicz is also entitled to 3 hours'
pay for time lost as a result of a suspension on May 9,
1977.
In amended answers filed July 24 and November
27, 1978, Respondent admitted in part and denied in
part the allegations of the backpay specification. Re-
spondent's amended answer of November 27, 1978,
specifically alleges, inter alia, that the backpay period
for Rakowicz and the McConnells terminated on or
about September 16, 1977, when they waived rein-
statement and accepted a backpay settlement offer.
Subsequently, on January 29, 1979, Respondent.
the Charging Parties, and counsel for the General
Counsel entered into a motion to transfer the pro-
ceeding to the Board and a stipulation of facts. In the
motion the parties agreed that the Board's Decision
and Order of May 15, 1978; the United States Court
of Appeals for the Sixth Circuit consent judgment of
July 11. 1978; the order consolidating cases, backpay
' Not reported in volumes of Board Decisions.
2On July 11, 1978, the United States Court of Appeals for the Sixth Cir-
cuit entered a consent judgment enforcing the Board's Order.
specification, and notice of consolidated hearing; the
first amended consolidated answer of Respondent
dated July 24, 1978; the tfurth amended consolidated
answer of Respondent dated November 27, 1978; and
the order severing cases3 dated January 25, 1979, con-
stitute the entire record in this case, and that no oral
testimony is necessary or desired by any of the par-
ties. The parties further stipulated that they waived a
hearing before an administrative law judge, the mak-
ing of findings of fact and conclusions of law by an
administrative law judge, and the issuance of an ad-
ministrative law judge's decision; and desired to sub-
mit this case for findings of fact, conclusions of law,
and order directly by the Board.
By order dated May 9, 1979, the Board granted the
motion, approved the stipulation, transferred the pro-
ceeding to itself, and set a date for the filing of briefs.
Thereafter, timely briefs were filed by the General
Counsel and Respondent.4
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein
as stipulated to by the parties as well as the briefs and
makes the following findings and conclusions.
FACTIS
1. TH BUSINESS () IHiE MPI.OYER
Respondent is now, and has been at all times mate-
rial herein, a corporation duly organized under and
existing by virtue of the laws of the State of Ohio with
its sole facility located at 4947 Commerce Parkway.
Warrensville Heights. Ohio, where it is engaged in the
fabrication of steel products. Annually, in the course
and conduct of its business operations, Respondent
receives goods valued in excess of $50,000 directly
from points located outside the State of Ohio.
In accordance with the stipulation of the parties,
we find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
II. '111E BACKPAY ISSUE
A. The Issue
The issue presented is whether Respondent's liabil-
ity for backpay to Timothy and Terry McConnell and
IThat order, inter aia, severed Case 8 RC 10916, which had been con-
solidated with certain of these cases on August 4, 1977.
'The General Counsel has filed a motion to strike certain portions of
Respondent's brief alleging that Respondent has asserted facts not contained
in the stipulation of facts. Thereafter. Respondent filed a memorandum in
opposition to the General Counsel's motion. We find it unnecessary to rule
on he (General Counsel's motion in view of our disposition of this case
246 NLRB No. 116
712
I.YnIAN S It11 ('()MPANY
James Rakowicz was tolled as of September 16. 1977.
or such liability continued until Respondent ofered
these individuals reinstatement on February 22. 1978.
B. 7Ihe Siipulatld Facr
Pursuant to charges filed by Timothy James Mc-
(onnell and several other employees, the Acting Re-
gional Director tr Region 8 issued a complaint on
August 4, 1977, alleging. inter alia, that Respondent
had discriminatorily discharged certain employees
because of their union activities.
Prior to settlement conference on September 16.
1977, Respondent offered to reinstate and make
whole certain employees with the exception of the
two McConnells and Rakowicz and further agreed to
enter into a settlement stipulation calling tor a con-
sent judgment. As stipulated by the parties, the pur-
pose of the September 16 settlement conference was
to discuss the pertinent language to be included in the
settlement stipulation and to resolve the matter of re-
instatement and backpay due the McConnells and
Rakowicz.
Participating in the conference were employees
Timothy McConnell 5 and James Rakowicz, counsel
for Respondent. and a field attorney and a compli-
ance officer of Region 8. At the conference Respon-
dent, the McConnells, and Rakowicz orally agreed
that Respondent would make the three discharged
employees whole by paying a sum certain in money
and would send them letters of recommendation.
Thus, without written or oral offers of reinstatement
from Respondent, and without executing written
waivers of reinstatement, but after being fully in-
formed of their rights, the McConnells and Rakowicz
orally agreed that in exchange fi)r the backpay and
letters of recommendation they would waive their
rights to reinstatement. The parties further agreed
that the field attorney would draft in final form the
settlement stipulation and it would be sent to all par-
ties for execution.
On October 6, 1977, counsel for the General Coun-
sel sent copies of the settlement stipulation to all par-
ties. On October 20. 1977. Respondent's counsel, by
letter. objected to certain language used in the settle-
ment stipulation. Consequently, counsel or the Gen-
eral Counsel revised the language objected to and for-
warded revised copies to the parties on October 28.
1977, fr execution.
On November 1. 1977, Ralph Redmon, an em-
ployee of Respondent, filed a charge against Respon-
dent alleging that Respondent had discriminated
against him because of his union activity. Upon the
' limot h McConnell was acting on behal ol himseil nd his brother.
terry Mc(Connell.
filing of the charge. counsel lor thie General Counsel
notified all parties to the settlement negotiations that
a charge had been iled and requested that they ah-
stain rom executing the agreement until a determina-
tion could be made on the merits of the charge.
In the latter part oft'November the McConnells and
Rakowicz. in contormitx with Respondent's profit-
sharing plan. proposed to Respondent written elec-
tions of the method of payment of their vested bene-
fits under the said plan. Subsequently. on l)ecember
6. 1977. another charge was tiled against Respondent
by Ray Norris, an employee. alleging that Respon-
dent was discriminating against him and other em-
ployees because of their union activity. T'hereafter, on
January 25, 1978. the Regional Director issued an
order consolidating cases. consolidated complaint.
and notice of consolidated hearing. Following the is-
suance of the order. Respondent agreed to make
whole Ralph Redmon and Ray Norris and to revise
the proposed settlement agreement and notice to em-
ployees to include language which would remedy the
unfair labor practices alleged in the January 25. 1978.
consolidated complaint. At this time ITimoths Mc-
Connell indicated that he would not execute the set-
tlement stipulation unless he, Terry McConnell. and
James Rakowicz were made whole through February
1978. Respondent refused this request on grounds
that backpay was tolled as of the September 16. 1977,
settlement conference. Because of this dispute con-
cerning the amount of backpaN due, all parties agreed
on or about Februar 20, 1978, that the amount of
backpay due would be determined at a backpay hear-
ing. On February 22. 1978, all parties executed a set-
tlement stipulation which provided for such a hear-
ing. Also on February 22, 1978, Respondent, without
waiving its claim that backpay had tolled as of Sep-
tember 16, 1977. made written offers of reinstatement
to the McConnells and Rakowicz. Subsequently. all
three individuals rejected, in writing. Respondent's
offer.
On January 29, 1979. the parties executed a stipu-
lation of facts which in addition to the facts described
above provided that in lieu of the backpay hearing
the case would be submitted directly to the Board fi)r
findings of fact. conclusions of law, and Board order.
The stipulation also sets forth the amount of backpay
each of the McConnells and Rakowicz were to re-
ceive if the Board decided that backpay tolled as of'
September 16. 1977. or as of February 22. 1978.
C. Contlnlion.s of the Parties
Respondent contends that its liability for hackpay
ceased as of the September 16, 1977. settlement con-
ference and that the presence or absence of a formally
executed settlement and wail ers of reinstatements are
711
I)LF('ISIONS OF1 NATIONAL IABO)R RELA'IINS B()OARD
not dispositive in this case.6 In support of its conten-
tions Respondent urges that the execution of the for-
mal settlement document would have had no effect
on its backpay liability as all matters to be agreed to
for the settlement of the case had been resolved at the
settlement conference, and that in any event the Re-
gional Director could have set aside a settlement
agreement had he found that Respondent engaged in
further violations of the Act. Respondent therefore
contends that its backpay liability ceased as of the
date of' the settlement conference.7
The General Counsel contends that the McCon-
nells and Rakowicz are due backpay from the date of
their discharges until February 22, 1978, when they
were first offered reinstatement. In support of this
contention the General Counsel argues that the settle-
ment discussions of September 16. 1977, could not
have the effect of terminating the backpay rights of
the alleged discriminatees under existing Board law,
inasmuch as no valid offer of reinstatement was made
to the three men at that time.
Discussion
The issue herein is whether Respondent's liability
for backpay to the McConnells and Rakowicz was
tolled by the oral agreement reached at the Septem-
ber 16, 1977, settlement conference or whether the
backpay liability continued until Respondent offered
the three individuals reinstatement on February 22.
1978.
Board policy ha: long been that in order to remedy
an unlawful discharge the discriminatee must be both
made whole and offered reinstatement to his former
or a substantially equivalent position. This policy is
expressly sanctioned in Section 10(c) of the Act, and
under Board practice such a remedy is required in
cases where the respondent and the General Counsel
have agreed to settle alleged unfair labor practices, as
well as in cases in which the Board has found that
unfair labor practices have been committed.
In the instant case, as noted above, the parties
stipulated that no offer of reinstatement was made at
the September 16. 1977, conference. Also, from the
facts recited above, it is clear that the agreement
reached on September 16, 1977, was at best tentative.
Thus, the agreement was not at that time reduced to
writing, and, when the formal document was later
6 Respondent further stated in its brief that none it the parties at the
settlement conference contemplated, anticipated. or expected an offer of re-
instatement, and that the discriminatees ere merely interested in the p-
ment of' specified sums of money These allegation were the subject ofi the
General Counsel's motion to strike upon which, as noted above. e hase
found it unnecessary to pass.
7 Respondent further points out that shortly after the settlement conter-
ence the McConnells and Rakowlcz gave to Respondent their written elec-
tion of the method of payment f vested benefits under Respondent's profit-
sharing plan.
prepared and forwarded to the parties for execution,
Respondent objected to certain language in it, thus
establishing that it did not consider itself bound by
the precise language of' the settlement as submitted.
Furthermore, Respondent reneged on its obligations
under the terms of the oral agreement: i.e., it neither
tendered the sum of money which had been agreed
upon as the appropriate amount of backpay nor fur-
nished letters of recommendation to the McConnells
and Rakowicz. Finally. neither the original nor re-
vised settlements which were prepared pursuant to
the September conference were executed or approved.
In these circumstances, we conclude that in fact the
agreement reached at the September 1977 conference
had no legal effect and was thus not binding on the
parties.6 and the General Counsel, therefore, properly
refused to sanction the waiver.9
Furthermore, as the General Counsel contends, in-
asmuch as the parties failed to reach a final settle-
ment agreement. Respondent could have extin-
guished its backpay liability only by offering
reinstatement to the McConnells and Rakowicz. The
Board has long held, with court approval, that in or-
der to toll backpay an employer must communicate a
genuine offer of reinstatement so that the employee is
put to a true test of having to make a reinstatement
decision: '0 thus, where an employer has failed to
make a genuine offer of' reinstatement, it does not
effectuate the policies of the Act to terminate the em-
ployee's backpay rights prior to the time a genuine
offer is made, since a statement of waiver absent such
an offer does not manifest an "unequivocal resolve
not to accept reinstatement."i ' In the instant case the
parties stipulated that no oral or written offers of rein-
statement were communicated to the McConnells or
Rakowicz at the time of the September conference.
Accordingly, Respondent's liability for backpay con-
tinued until it offered reinstatement on February 22.
1978.
From the foregoing. it is clear that there is no merit
8 Surely. Respondent would not concede that, had it wished to withdraw
from the settlement at any time before its execution or approval and litigate
the case on the merits. it nevertheless would have been hound to pay the
Mc(omnnells and Rakowicz the backpay sums agreed to between it and the
alleged discriminatees at the conference. Yet that is the converse of the argu-
ment Respondent urges here. See Ship Rite Fids, Ins, 216 NRB 256
(19751.
' See rKge -hel dh/{ h Iel Feed Mill & PAe ruanusi ( onipane. 229
Nl.RB 178. 180(1977).
1° See. e.g.. Burnup and Smin. Inc, 157 N RB 366 19661. enlid. 383 1.2d
987 5th (ir. 1967): C Qiuaide. . 239 NI.RB 650) (1978).
1 IIiriih lflrr. Incl. 166 NI.RB 783. 785 (1967). As explicated more
tully i that case. toi preserve the public interest in rectifying discriminatory
discharges and protecting a discrimnatee's rights the Board policy has been
to discount statements made priol to a hona fide offer of reinstatement indi-
eating unwillingness to accept reinstatement. In the instant case. of course
the waiver of reinstatement issue has arisen in the context of settlement
negollatilons concerning complaint issued b the General (Counsel rather
than ioilatlons found by the Board We find that this difference In context is
meaningless, and that in either situation the Board's polic of discounting
ia ,cr, ot reinstatement. ithoui ain Ioffer thercol. appertains.
714
I.NYMAN STITl (OMPANY
to Respondent's contention that its liability tbr back-
pay was tolled as of September 16. 1977. We there-
fore conclude that Respondent was liable for backpa'
until it offered reinstatement on February 22. 1978.
and shall order Respondent to paN the amounts the
parties stipulated would he due should the Board find
backpay tolled as of that date.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National l.ahor Rela-
tions Board hereby orders that the Respondent. Ly-
man Steel Company. its officers. agents, successors.
and assigns. shall pay the amounts set forth below.
Interest thereon is to he computed in the manner pre-
scribed in Isi.s Plumhing & Itcatling Co. 138 NLRB
716 (1962). and Florida Steel C( 'otrporation, 231 N I. R B
651 (1977). minus the tax withholding required hb
Federal and state laws:
Bac'kpa
Timothy James McConnell
l'errD McConnell
James Rakowicz
Profit-Sharing Plan
limothy James McConnell
-Ierry McConnell
James Rakowicz
$7,054.57
10.304.89
12.612.82
$. 176.45
2,895.35
2.755.96
715