Ozark Hardwood Co.

National Labor Relations Board - Board Decisions

Dec 12, 1961

134 N.L.R.B. 1188 (N.L.R.B. 1961)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there apparently are complicated factual and legal issues, it is desir-
able first to secure a complete record, based upon a full hearing. At
that hearing all interested parties would have the opportunity to in-
troduce evidence, to examine and cross-examine witnesses, to file
briefs, to argue orally, and to participate to the extent necessary to
present their positions. The Board is of the view that in this par-
ticular case these procedures are necessary to enable it to make an in-
formed judgment on the jurisdictional issue which has been raised.
ACCORDINGLY, IT IS HEREBY ORDERED that the petition for declaratory
order herein be, and it hereby is, dismissed. The Board's dismissal
is not to be construed as a determination of the merits of the jurisdic-
tional issue.
Ozark Hardwood Company and General Drivers and Helpers,
Local 373, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. Case No. 26-
CA-72 (formerly 32-CA-72). December 12, 1961
PROPOSED SUPPLEMENTAL DECISION AND
RECOMMENDATION
For reasons hereinafter stated, we are issuing this Proposed Sup-
plemental Decision and Recommendation. Any party may, within
20 days from the date hereof, file with the Board in Washington,
D.C., seven copies of 'a statement setting forth exceptions thereto, to-
gether with seven copies of a brief in support of said exceptions, and,
immediately upon such filing, serve copies thereof on each of the other
parties.
On November 3, 1960, the Board issued a Decision and Order in
this case in which it found, inter alia, that Ozark Hardwood Com-
pany had violated Section 8(a) (3) and (1) of the Act by its dis-
charge of 27 employees on May 16, 1949.1 The Board thereupon
ordered that Ozark Hardwood Company and its "officers, agents, suc-
cessors, and assigns" make the discriminatees whole for any loss of
pay which they may have suffered as a result of the discrimination
against them.
On March 7, 1952, the Court of Appeals for the Eighth Circuit
enforced the Board's Order? Thereafter, the court authorized the
Board to conduct a supplemental proceeding to determine whether
Ozark Hardwood Manufacturing Company, herein called Respond-
ent, was a "successor" of Ozark Hardwood Company and responsible
for remedying its unfair labor practices.
191 NLRB 1443.
2194 F. 2d 963.
134 NLRB No. 121.
OZARK HARDWOOD COMPANY 1189
On December 19, 1957, following the holding of the further hear-
ing, the Board issued a Supplemental Decision and Order,3 finding
that Respondent was a "successor" of Ozark Hardwood Company and
jointly obligated with it to comply with the Board's Order, and, on
the basis of the record before it, determining the specific amounts of
backpay due under the backpay provisions of its Order through
March 31, 1954, in a total amount exceeding $58,000. Any backpay
accruing after March 1954 was left for subsequent determination,
with the backpay formula applied in the decision to be utilized in
each case.
On August 2, 1960, the Court of Appeals for the Eighth Circuit
granted the Board's motion for a supplemental decree as to the
Board's determination that Respondent was a "successor" of Ozark
Hardwood Company and thus within the scope of and subject to the
court's original enforcement decree 4 However, the court denied the
motion for a supplemental decree in respect to the determination of
backpay allowances made and it remanded the case to the Board "for
determination of the amounts of remedial backpay which it regards
as being entitled to be awarded up to the present time." At the same
time, the court suggested that the parties seek to arrive at a settle-
ment and avoid further litigation.
Efforts to settle this case have proved unsuccessful. The Respond-
ent has rejected settlement on any basis. However, we have ascer-
tained administratively that Respondent has shut down its operation.
Furtheimore, an audit of Respondent's books which we caused to be
made by accountants before the shutdown, and a field investigation
which followed the shutdown, indicate that Respondent is in a some-
what straitened financial position. In view of these facts, it appears to
us that there would be little purpose in further processing this case in
order to determine what additional amounts of backpay may have
accrued since March 31, 1954. Such an inquiry would further delay
ultimate reimbursement of the discriminatees, would require exten-
sive hearings, and would otherwise entail expenditure of considerable
time and money in a situation where there appears to be only a remote
possibility of any realization of additional backpay sums. In addi-
tion, delay may well be prejudicial to the discriminatees for whatever
assets of Respondent are now available for payment of Respondent's
backpay indebtedness may become dissipated before steps may be
taken to effect reimbursement. Under all the circumstances, we there-
fore believe it would effectuate the policies of the Act if at this point
we were to accept the amount of backpay which was found in the
Board's Order of December 19, 1957, to be due the discriminatees as
of March 31, 1954, in total liquidation of Respondent's backpay in-
3119 NLRB 1130.
4 282 F. 2d 1.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
debtedness herein and turn our attention toward effectuating pay-
ment of the sums so long due and unpaid.
RECOMMENDATION
Upon the entire record in this case, the National Labor Relations
Board recommends to the United States Court of Appeals for the
Eighth Circuit that the Order issued by the Board on December 19,
1957, be enforced with the modification suggestedherein, namely, that
the sums therein required to be paid by Respondent to each discrimi-
nates therein named shall be in full liquidation and discharge of all
backpay due in this proceeding in consequence of Respondent's dis-
crimination, with no other or further liability herein.
Reactive Metals, Inc. and Oil, Chemical and Atomic Workers
International Union . Case No. 8-CA-2367. December 13, 1961
DECISION AND ORDER
On September 5, 1961, Trial Examiner Phil Saunders issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any of the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief; the Respondent
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings and conclusions.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with the Respondent and the General Counsel represented, was
heard before the duly designated Trial Examiner , in Ashtabula , Ohio, on May 23
and 24, 1961 , on complaint of the General Counsel and answer of Reactive Metals,
Inc., herein called the Respondent or the Company. The issues litigated were
whether or not the Respondent violated Section 8(a)(1) and (3) of the Act. All
parties were afforded full opportunity to be heard , to examine and cross-examine
witnesses , and to introduce evidence pertinent to the issues . The General Counsel
presented oral argument at the conclusion of the hearing, and the Respondent filed a
brief.
134 NLRB No. 117.