Norco Products

National Labor Relations Board - Board Decisions

Aug 28, 1990

299 N.L.R.B. 616 (N.L.R.B. 1990)

616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
USA McDonald Corporation d/b/a Norco Products
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America Local Union No. 2, AFL-CIO. Cases
19-CA-18986 and 19-CA-19184
August 28, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 2, 1990, Administrative Law Judge
Richard J Boyce issued the attached supplemental
decision The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief
The National Labor Relations Board has delegat-
ed its authority in tins proceeding to a three-
member panel
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 1 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Supplemental Order of the adminis-
trative law judge and orders that the Respondent,
USA McDonald Corporation d/b/a Norco Prod-
ucts, Missoula, Montana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Supplemental Order
1 The judge states that the Respondent did not file a formal answer to
the ongmal backpay specification, "instead submitting various letters to
Region 19" We note that the Board treated Respondent's letters as a
timely answer Norco Products, 297 NLRB 778 (1990)
In its exceptions, the Respondent contends that by filing a Motion for
Summary Judgment on the backpay specification, Region 19 did not
honor its promise to the Respondent that there would be a hearing The
Board found in the earlier proceeding that the Respondent's answer was
insufficiently specific to entitle the Respondent to a hearing over gross
backpay allegations of the specification except as they related to Joseph
Bauer under the Board's Rules and Regulations, Secs 102 56(b) and (c)
297 NLRB 778 supra However, the matter was remanded to the Region
for a heanng regarding the interim earnings of the discnmmatees and re-
garding the gross backpay for discnmmatee Joseph Bauer
The Respondent contends that Region 19 engaged in misconduct In-
tended to "intentionally and wrongfully damage the Respondent" The
Board previously considered and rejected the Respondent's claim of mis-
conduct by Region 19 297 NLRB 778 at fn 3
James C Sand, Esq , for the General Counsel
Ronald Preston, for the Respondent
SUPPLEMENTAL DECISION
Statement of the Case
RICHARD J BOYCE, Administrative Law Judge By
Decision and Order dated May 31, 1988, reported at 288
NLRB 1416, the National Labor Relations Board
(Board) directed USA McDonald Corporation d/b/a
Norco Products (Respondent) to make some 16 employ-
ees whole for any losses they may have incurred as a
result of Respondent's unfair labor practices The
Board's Order was enforced by the Umted States Court
of Appeals for the Ninth Circuit, in an unreported deci-
sion dated December 1, 1988
On January 5, 1989, the Regional Director for Region
19 issued a backpay specification allegmg the amounts
due under the Board's Order Respondent did not file a
formal answer to the specification, mstead submitting
various letters to Region 19 and filing a misplaced
motion to dismiss with the Ninth Circuit Court of Ap-
peals in which it denied the allegations of the specifica-
tion paragraph by paragraph
On February 22, 1989, the General Counsel filed with
the Board a Motion for Partial Summary Judgment, al-
leging that Respondent had failed to file an answer as re-
quired by the Board's Rules and Regulations By Supple-
mental Decision and Order dated February 23, 1990, re-
ported at 297 NLRB 778 the Board granted the General
Counsel's motion "with respect to the gross backpay al-
legations of the specification, except concerning the
wage rate of Joseph Bauer," and remanded the proceed-
ing to the Regional Director to schedule a hearing
before an administrative law judge, which—
shall be limited to taking evidence concerning the
wage rate of Joseph Bauer and the interim earmngs
of Joseph Bauer, Richard Chapdelame, Montana
Boyd, Ron Butcher, Jim Gates, Scott Green, Kathy
Hambley, Roger Hambley, Richard Harris, Ken
Juhnke, Don Martin, Patty Martin, Kelly Qumn,
Steve Rodriquez, Gary Tnmp, and Tom Yelton
I accordingly conducted a hearing in Missoula, Mon-
tana, on March 29, 1990
The Backpay Specification
The specification as first issued alleged that Respond-
ent's "obligation will be discharged" by paying the
following amounts
Joseph Bauer $1,740
Richard Chapdelame 1,309
Montana Boyd 1,869
Ron Butcher 2,430
Jim Gates 2,203
Scott Green 2,637
Kathy Hambley 1,405
Roger Hambley 2,069
Richard Harris 1,325
1 Plus interest accrued to the date of payment, less taxes withheld in
keeping with Federal and state laws
299 NLRB No 93
NORCO PRODUCTS 617
Ken Juhnke 1,734
Don Martin 2,309
Patty Martin 3,732
Kelly Quinn 2,113
Steve Rodnquez 2,285
Gary Tnmp 2,402
Tom Yelton 1,084
The original specification further alleged that Bauer's
entitlement assumed an hourly wage of $750
On March 2, 1990, the Regional Director amended the
specification to state that the claim on behalf of Montana
Boyd thereby was "withdrawn" because his entitlement
was fully offset by interim earmngs, and, on March 6,
the Regional Director again amended the specification,
alleging that Joseph Bauer's hourly wage was $5 75, not
$7 50, reducing his entitlement from $1740 to $1334 The
$5 75 corresponds with the rate provided by Respondent
in its dismissal motion to the Ninth Circuit
The Missing Claimants
By letter to Respondent dated March 6, 1990, counsel
for the General Counsel stated that Region 19 had been
unable to locate Ron Butcher and Jim Gates to inquire
into their interim earnings The letter continued that
should their whereabouts remain unknown any payments
made by Respondent in discharge of its obligation to
them would be put in escrow for a year, after which the
funds would "revert to" Respondent Further in this
vein, counsel for the General Counsel represented dunng
the hearing that he had yet to find Butcher and Gates,
and "request[ed] that the escrow procedures be used
with respect to them"
The Issues as Defined by the Board
A Bauer's Wage Rate
As noted above, the Regional Director amended the
specification on March 6, 1990, to allege that Bauer's
hourly wage was $5 75 Inasmuch as this figure matches
that Respondent gave to the Ninth Circuit, I find that it
is correct, that the calculations in the amended specifica-
tion based on it likewise are correct, and that Bauer's en-
titlement therefore is $1334, as now alleged
B Interim Earnings
The burden of proof is upon the General Counsel to
establish the claimants' gross backpay entitlement, after
which the burden shifts to the wrongdoer "as to dimmu-
tion of damages," including interim earnings 2 Respond-
2 Mastro Plastics Carp, 136 NLRB 1342, 1346 (1962)
ent declined, during the hearing, to come forward with
any evidence on the issue of interim earnings
I conclude, therefore, that the claimants' entitlements
are as set forth in the specification as now constituted
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, McDonald Corporation d/b/a Norco
Products, its officers, agents, successors, and assigns,
shall make the following claimants whole by paying
them these amounts, less taxes appropriately withheld
Joseph Bauer $1,334
Richard Chapdelame 1,309
Scott Green 2,637
Kathy Hambley 1,405
Roger Hambley 2,069
Richard Harris 1,325
Ken Juhnke 1,734
Don Martin 2,309
Patty Martin 3,732
Kelly Quinn 2,113
Steve Rodriquez 2,285
Gary Tnmp 2,402
Tom Yelton 1,084
Respondent shall, in addition, place certain amounts in
escrow for Ron Butcher and Jim Gates, as follows
Ron Butcher $2,430
Jim Gates 2,203
The amounts due Butcher and Gates shall be paid to the
Regional Director for Region 19, to be held in escrow
for a period not to exceed 1 year The 1-year escrow
period shall begin upon Respondent's compliance by
payment of the backpay for deposit into escrow or the
date the Board's supplemental decision and order be-
comes final, including enforcement thereof, whichever is
later 4
All of the above amounts shall be with interest, to be
computed as prescribed in New Horizons for the Retard-
ed 5
3 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
Board and all objections to them shall be deemed waived for all pur-
poses
Starhte Cutting, 284 NLRB 620 (1987)
5 1n accordance with New Horizons for the Retarded, 283 NLRB 1173
(1987), interest on and after January 1, 1987, shall be computed at the
"short-term Federal rate" for the underpayment of taxes as set out in the
1987 amendment to 26 U S C § 6621