McCann Steel Co., Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1979

239 N.L.R.B. 1302 (N.L.R.B. 1979)

DECI)(SIONS OF NATlION AL LABOR RELATIONS BOARD
McCann Steel Company, Inc. and Shopmen's Iocal
Union No. 733 of the International Association of
Bridge, Structural and Ornamental Iron Workers.
AFL-CIO and J. C. Hindslev. Cases 26 ('A 3661
and 26 CA 3717
January 15, 1979
SECOND SUPPLEMEMNAIL I)EC(ISION ON
REVIEW AND ORI)ER
BY CHAIRMAN F'ANNIN(; A\NI) MlBI RS JINKINS
AND) PI NI II
On June 10, 1976. the National Labor Relations
Board issued a Supplemental Decision on Review
and Order in this proceeding. affirming the rulings.
findings, and conclusions of the Administrative Law
Judge and adopting his recommended Order that the
Respondent, McCann Steel Company, Inc., Nash-
ville, Tennessee, its officers, agents. successors. and
assigns, pay to J. C. Hindsley as net backpay the
sum of $1,922 together with interest thereon at 6 per-
cent per annum less any tax withholdings required hby
Federal and state law. r
Thereafter, the Respondent filed with the United
States Court of Appeals for the Sixth Circuit a peti-
tion for review of the Supplemental Decision on Re-
view and Order, and the Board filed a cross-petition
for enforcement. On February 21, 1978. the court is-
sued its opinion granting the petition for review, de-
nying the cross-petition for enforcement, and re-
manding the case for further proceedings.2
The Board accepted the court's remand and, on
April 21, 1978, advised the parties that they could
submit statements of position. Thereafter, the Re-
spondent filed a statement of position.
Pursuant to the provisions of Section 3(b) of the
Net
Calendar Gross Interi m
Quarter Backpay Earnings
1970--2 $181.07 -0-
6/ 23-6/30
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proteeding to a three-member panel.
In its decision the court stated (570 F.2d at 655):
We believe that "substantially equivalent em-
plonment" refers to the hours worked at the in-
terim employer as well as the nature of the work
there. 'Ihus Hindslev refused to accept "substan-
tially equivalent employment" when he refused
to work the same number of hours at his interim
employer as he had worked at McCann. This
was a willful loss of earnings. The NLRB should
calculate a constrictive interim earnings figure
based upon the amount of pay Hindsley would
have received at his interim employer had he al-
ways worked the same number of hours, includ-
ing overtime, he averaged at McCann to the ex-
tent those hours were available at the interin
employer. The NLRB should then deduct the
new constructive interim earnings figure from
the amount Hindsiey would have earned at Mc-
Cann in calculating the back pay award.
Having full, considered the views of the court of
appeals and the Respondent's contentions, we accept
as the law of this case the court's findings and con-
clusions. Inasmuch as Hindsley worked an average
of 42-1 ,/2 hours per week while employed by Respon-
dent, in accordance with the court's decision, we
shall employ a constructive interim earnings figure
representing what Hindsley would have earned if he
had worked a 42-1,2-hour week at the interim em-
ployer, to the extent those hours were available.3 We
have for the sake of simplicity used the same method
of calculating backpay as the Administrative Law
Judge in 224 NLRB 607. Thus, we calculate the
amount of backpay owing Hindsley as follows:
Co[Ibtructic
In ter im
Earnings
Net
Bac kpay
$181.00
No change from original specification. Hindsley did not work the
first week of his discharge.
1970-3 $2,353.91 $1,759.00 $595.00
' 224 NLRB 607. Previously. on April 23. 1971. the Board issued a l)ecl-
sion and Order in this proceeding finding. inter lahi, that Respondent had
discnminatorily discharged J. C. Hindsle., in violation of Sec. 8al)( i ) of the
National Labor Relations Act. as amended, and ordering Respondent to
reinstate and make whole Hindisey for any loss of earnings resulting frlm
the discrimination. By an unpublished order dated Ma. 12. '972. the
United States Court of Appeals for the Sixlh (Circuit entered Is ludgmlcll
enforcing the Board's Order. On May 18. 1973, the Board issued a Supple-
mental Decision and Order affirming. as modified. the rulings. findigs, aind
conclusions of an Administrative Law Judge and ordering hackpa.s in the
amount of $4.967 (203 NLRB 749) The Sixth ('ircuir remand the case io the
Board for clarification on January 8, 1974 M-C('unn Stice( /,'rnputl, In rr/,l
rated v. NL.R.B., 489 F,2d 1328 (1974) On June 28. 1974. the Board issued
its Decision on Review reaffirming the amount tof hbackpac osved lfindles
(212 NLRB 394). Thereafter. hb unpublished order dated Septemher IS.
10975. the court again remanded the case to the Board. No 73 1598 Pur-
suant to that remand, the Board made the reduced hackpas finding of
$1 922 at issue herein.
McCann Steel ('oimpan .l, In I R i f. 5 Itt i ' 6S2 (lh ( ir 19781.
Judge Edwards dissenting.
I he Rerpnderlt's contenln that the constructive Interim earnings fig-
ure should he based .n a. 45-hour workweek. representing the average
iniounl of .oerirme wotlked hb other emplioyees of the Interim employer. is
learls it odds vlth the courl's remand IHowever. we note that the Respon-
dent clncedes in the alternatile that it vould he proper to use the 42-
I 2 hour workweek hat Iiindslev wo;rked at Respondent for the quarters in
quesml. namely 1971 I through 1972 2
I he Admiristrat.ne l.as. Judge in his hackpas computation In 224
1 302
McCANN STEFL COMPANY. INC.
Net Constructive
dar Cross Interim Interim
er Bac kpay Earnings Earnings
No change from original specification. Hindsley worked 40 hours
a week, plus average overtime of other draftsmen.
$2,353.91 $2,724.00
Net
Backpay
-0-
No change from original specification. Hindsley worked an excess of
interim earnings.
$2,353.91 $2,084.25 $270.00
No change from original specification. Hindsley worked overtime hours
in January, and worked less than 40 hours a week in February and March,
as did other draftsmen when Englert cut out overtime in February.
$2,353.91 $2, 049.60 $ 2, 071.6( $282.00
Hindsley worked less than a 40-hour week as did the other draftsmen,
except for the 2-week period of June 14-26, when other draftsmen worked
overtime. Assuming that overtime was available to Hirdsley June 14--26,
his constructive earnings are increased as follows: 5 hours $4.20, $21.
Thus, constructive interim earnings would be increased by $21.
$1,991 .77 ($1,587.60) $1,743.00 $249.00
No change from original specification for July and August. In September,
after Englert reinstated overtime, Hindsley worked 48 hours in biweekly period
of September --18, and should have worked 85 hours. His constructive
earnings are increased as follows: 37 hours $4.20, $155.40. Hindsley did
not work September 20 through October 2, and these weeks were not included
in the original specifications nor here.5/
$2,353.91 ($1,337.30) $2,320.50 $33.00
Constructive interim earnings computed as requiring Hindsley to work a
42-1/2-hour week for 13 weeks, at $4.20 per hour, $2,320.50.
$2,353.91 $2,431.00 -0-
Constructive interim earnings computed as requiring Hindsley to work a
42-1/2-hour week for 13 weeks, at $4.40 per hour, $2,431.
$2,353.91 ($1,024.89) $2,431.00 -0-
Constructive interim earnings computed as requiring Hindsley to work
a 42-1/2-hour week for 13 weeks, at $4.40 per hour, $2,431. 6/
Total Net Backpay
$1,610.00
ORDER
Pursuant to remand by the United States Court of
Appeals for the Sixth Circuit, we hereby substitute
the following for our Order of June 10, 1976:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
NLRB 607 omitted the S595 amount for 1970- 3; the Board noted and cor-
rected that error in In I
The onkl difference between this figure and that in 224 NLRB 607 is
that there the Adminnistrative Law Judge found Hindsley should have
worked 80 hours during biweekly period of September 6- 18 instead of 85
hours. hus, we have added $21 to the constructive inter;m earnings.
" Hindslte was self-employed from April 1972 until June 29. 1972. when
lations Board hereby orders that the Respondent,
McCann Steel Company, Inc., Nashville, Tennessee,
its officers, agents. successors, and assigns, shall pay
to J. C. Hindsley as net backpay the sum of $1,610
together with interest thereon at 6 percent per an-
num, less any withholdings required by Federal and
state laws.
he was reinstated by the Respondent In its Supplemental Decision on Re-
vlew and Order. 224 NL RB 607. the Board accepted as the law of this case
the court's rejection of its finding that a claimant who goes into business for
himself is treated as one who obtains Interim employ ment and affirmed the
Administrative Law Judge's finding that net backpay for the period of self-
emplohment was the difference between gross backpay and the amount he
would have earned had he continued at the interim employer
Calend
Quar t
1970-- 4
1971--1
1971--2
197 1--3
1971--4
197 2-1
197 2-2
1303