Panscape Corp.

National Labor Relations Board - Board Decisions

Aug 8, 1978

237 N.L.R.B. 357 (N.L.R.B. 1978)

PANSCAPE CORPORArION
Panscape Corporation and Robert E. Shreve. ('ase
25 CA -7145
August 8, 1978
SUPPLEMEN'AIL DEC('ISION AN[) ORDl) R
B'r C( ilRS1AN F,%NNIN(, AND) Mi1 HI RS J.I NKINS
ANt) Mt RPltM
On May 1, 1978. Administrative Law Judge Flenry
L. Jalette issued the attached Supplemental I)ecision
in this proceeding. Ihereafter. Respondent filed cx-
ceptions and a supporting brief, and General ( oun-
sel filed it brief in support of the Adtministrative lIaxs
Judge's Supplemental Decision.
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 alu-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulilngs.
findings, and conclusions of the Administiatie L[ao
Judge and to adopt his recommended Order.
ORI):'R
Pursuant to Section 10(c) of the National labor
Relations Act, as amended. the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative laws Judge and herebs
orders that the Respondent. Panscape ('orporation.
Muncie. Indiana, its officers. agents. successors. and
assigns. shall take the action set forth in the said rec-
ommended Order.
SUPPLEMENTAL DECISION
HENRY L JAI II it Administrative 1 aw Judge: I his is a
supplementary proceeding to determine the amount of
backpay due Robert E. Shreve. David R. Jackson. and
Richard D. Burton, individuals found by the Board in a
Decision and Order issued on .lune 10. 1976.1 to have been
discharged by the above-named Respondent in violation of
Section 8(a)( ) and (3) of the Act. On Juls 5. 1977, the
Court of Appeals for the Seventh Circuit entered its judg-
ment. enforcing in full the backpas provisions of the
Board's Order, and, controversy having arisen over the
amount of backpays due under the terms of such Order. the
Regional Director for Region 25 on December 14. 1977.
issued a backpa, specification and notice of hearing detail-
ing the sums of money due Shreve. Jackson, and Burton.
On December 22, 1977. Respondent timel' filed its answer
' 224 NI RB 616
to the backpay specification and hearing on the matter was
opened on March 6, 1978, and closed on March 7. 1978.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties. I make the following:
I INI)IN(S oi F(-i
I PRFI iIMINAR' S 'rI ,IMN1 Ri SPONl)FNT'S REQItESr FOR
D)[l)I A1s11 IINItlON Of l1111 )MINISIRAIIVF LAW JU' (iF
The backpa, specification issued in this case gave notice
of hearing for March 6. 1978. at 10 a.m. Pursuant to infor-
mal arrangements. the hearing was rescheduled for 11 a.m.,
on March 6. but due to transportation problems I did not
arrive at the hearing until around 12:30 p.m. At that time,
counsel for Respondent had already left, presumably for
lunch: however, when he did not return, attempts were
made to reach him by calling his office and leaving a mes-
sage that I had arrived. A call was also placed to the office
of Respondent in Muncie. Indiana. by counsel for General
Counsel who advised that one of the individuals who had
been present with counsel at the hearing had returned to
Muncie. Indiana, and said individual reported that he did
not know where counsel for Respondent was. At 4:05 p.m.
the record was opened for the purpose of reciting the fore-
going, as well as to instruct counsel for the General Coun-
sel to advise counsel for Respondent, both by telephone
and telegram, that the matter had been postponed until
9:30 the following morning, with advice that the hearing
would proceed with or without his attendance. At 9:35 a.m.
the following morning the hearing was resumed. Counsel
for General Counsel advised that he had telephoned coun-
sel for Respondent's office the previous afternoon to notify
him that the hearing would resume at 9:30 a.m. and would
proceed with or without him. The message was left with
counsel for Respondent's secretary. A similar message was
left with Respondent's general field superintendent. At that
time the hearing was recessed until 10 a.m. with instruc-
tions to the General Counsel to advice counsel for the Re-
spondent as well as Respondent in Muncie that the hearing
would proceed at 10 a.m., and that if they intended to
appear they were to let the court know and the court would
accommodate them and wait a reasonable period of time
for their arrival. Counsel for Respondent appeared at 10
a.m. and the hearing proceeded. Thereafter, upon consider-
ation of Respondent's answer to the backpay specification.
I granted a motion of the General Counsel to strike certain
portions of the answer. Essentialls, what was stricken was
Respondent's denial that the gross backpay formula was
an appropriate formula for ascertaining the gross backpas
due the discriminatees. Ilowever. Respondent was given
lease to adduce evidence that the interim earnings of the
discriminatees exceeded those which the General Counsel
had conceded in the backpay specification. After the testi-
mons of two witnesses. Respondent requested the continu-
ance of the matter on the grounds that the witnesses to
prove offers of reinstatement, namely. Kuhrman Hall.
president of Respondent. and Bruce Sutton. general man-
ager and ,ice president of Respondent, were not available
that day. Hall was not available assertedly because of ne-
gotittions with a union. Sutton could probably have been
237 NILRB No. 58
357
I)EI( ISIONS ()F NATIONAL LABOR RELATIONS BOARD
there that day, but counsel for Respondent was not certain.
The request for a continuance to a later date was denied
with leave to counsel to contact Hall and Sutton to arrange
for their appearance that day. After a brief recess, counsel
for Respondent returned to advise the court he had been
instructed that, due to the court's previous rulings that
morning, Respondent did not feel it could receive a fair
hearing even if its witnesses were there, and the request for
a continuance was renewed. Ihe request was denied and
the hearing was closed.
Based upon the foregoing, Respondent in its brief has
moved that I disqualify myself and in support of such mo-
tion submitted an affidavit of bias prejudice and request
for disqualification executed by its president, Kuhrman L.
Hall. The request for disqualification is denied. Section
102.37 of the Rules and Regulations of the National Labor
Relations Board, Series 8. as amended, provides for the
disqualification of an administrative law judge upon the
filing of a request with affidavit setting forth in detail the
matters alleged to constitute grounds for disqualification.
Such affidavit has been filed and it is evident, and I find,
that it is insufficient on its face to support the request for
disqualification. Essentially. the affidavit for disqualifica-
tion is predicated upon the grounds that I granted the (ien-
eral Counsel's motion to strike portions of Respondent's
answer, and I denied a request for a continuance of the
hearing after the opening of the hearing had been delayed
due to the lateness of my arrival. The fact that I ruled
adversely to Respondent on the motion to strike certain
portions of its answer to the backpay specification is insuf-
ficient ground for disqualification, and the fact that the
opening of the hearing was delayed due to the lateness of
my arrival was insufficient basis for Respondent's failure
to have witnesses available on the following day.
II. IIF BiA( KP.Y (()MPI IAIAION
A. Richard ). Burton
The specification alleges, Respondent's answer did not
deny, and I find that Burton's backpay period began June
6. 1975, and ended on August 17, 1975, insofar as this pro-
ceeding is considered. The specification alleged, Respon-
dent's answer did not deny, and I find that Burton's gross
backpay was determined by using the earnings of replace-
ment employee Kent Sutton.
The specification alleges, Respondent's answer did not
deny, and I find that during the second quarter of 1975.
from June 6 to June 30, 1975. Burton was unemployed and
had no interim earnings, that Sutton's earnings for the pe-
riod were $492.03. Accordingly, I find that the net backpay
due Burton for that period is $492.03.
The backpay specification alleges that during the third
quarter of 1975 through August 17, 1975. Burton had inter-
im earnings of $179.55 and expenses of $31.92 incurred in
searching for work and driving 266 miles. In its answer,
Respondent denied that Burton had driven 266 miles and
had expenses of $31.92. and asserted that Burton failed to
report all of his earnings to the Board and in fact earned
over $350 during the third quarter. Burton testified and
Respondent adduced no testimony from him that he had
interim earnings in excess of $179.55. As to the expenses
incurred in seeking work, Burton testified respecting the
trips that he made and Respondent offered into evidence a
report made by Burton to the Regional Office of the Na-
tional I abor Relations Board respecting his attempts to
find interim employment. According to Respondent's Ex-
hibit 1, Burton did travel 266 miles in seeking interim em-
ployment and I find that he thereby incurred, at a rate of
12 cents per mile, expenses of $31.92. Inasmuch as the
backpay specification alleges, and the answer of Respon-
dent does not deny, that the replacement employee, Sutton,
earned $182.65 during the third calendar quarter, I find
that Burton's net backpay for the third calendar quarter
was $35.02.
B. Dilid R. Jackson
I he backpay specification alleged, Respondent's answer
did not deny, and I find that Jackson's backpay period
began on June 6, 1975. and ended, for purposes of this
proceeding, on August 17, 1975.
T he backpay specification alleged that Jackson's gross
backpay was determined by using the earnings of replace-
ment employee Randy Pritchard. Respondent denied that
Randy Pritchard was a representative replacement employ-
ee but this denial was stricken for failure to conform with
Section 102.54(b). inasmuch as it constituted no more than
a general denial of matters within the knowledge of Re-
spondent. Accordingly. I find that Randy Pritchard was a
replacement employee and that his earnings are an appro-
priate measure of the gross backpay due Jackson.
I he backpay specification alleged that Jackson had been
unemployed during the backpay period and had no interim
earnings. In its answer, Respondent asserted that Jackson
had interim earnings of approximately $500, but adduced
no evidence in support of this assertion. Accordingly, I
find that the earnings of replacement employee Randy
Pritchard were $214 in the second quarter of 1975, and
$893 in the third quarter of 1975, and as Jackson had no
interim earnings, his net backpay is a total of such
amounts.
C. Robert E. Shreve
The backpay specification alleges that Shreve's backpay
period began June 6, 1975, and ended on June 30, 1977. In
its answer, Respondent denied that the backpay period
ended on June 30. 1977, and asserted that at a hearing
before an Administrative Law Judge on October 20, 1976,
its president made a bona fide offer of reemployment to
Shreve on two occasions and that later, after the winter of
1976 77, Respondent, by its attorney, offered employment
to Shreve prior to June 30, 1977. No evidence was adduced
by the Respondent in support of its assertion. Accordingly,
I find that the backpay period is as alleged in the backpay
specification; namely, June 6, 1975, to June 30, 1977.
The backpay specification alleged that Shreve's gross
backpay was determined by using the earnings of replace-
ment employees Charles Whicker, from June 9 through
I)ecember 1975; James Terry from February 20 through
the first quarter of 1976: and Ronald Taulbee, from the
358
PANSCAPE CORPORATION
beginning of the second quarter 1976 through June 30.
1977. In its answer, Respondent stated that Whicker was
not a replacement employee, but rather was extra help. and
when Shreve left Respondent's employment it was not nec-
essary to replace him because his production had been so
poor that he did not need a replacement. This portion of
Respondent's answer was stricken as being insufficient to
meet the requirements of Section 102.54(b) of the Board's
Rules and Regulations. Since Respondent was disputing
the basis for the computation of Shreve's gross backpay, it
was incumbent upon it to set forth in its answer the basis
upon which Shreve's backpay should be determined. Its
answer was, in effect, a general denial. Accordingly. I find
that the earnings of Whicker, Terry., and Taulbee for the
periods set forth above are an appropriate measure of the
gross backpay due Shreve.
The backpay specification set forth in paragraph Il(c)
Shreve's interim earnings and source of interim emploN-
ment. In its answer, Respondent had asserted that Shreve
had interim earnings substantially in excess of those con-
ceded by the General Counsel in paragraph Il(c): how-
ever, Respondent adduced no evidence in support of its
assertion, and therefore I find that the interim earnings of
Shreve were as conceded in paragraph Il(c) of the back-
pay specification.
III SL MMARN'
Summarizing the facts described above, I conclude that
Respondent's obligation to make whole the employees un-
der the Board Order and court judgment will be discharged
by pan ment to the employees named below of the amount
set opposite their names, plus interest accrued to the date
of payment pursuant to such order and judgment. minus
the tax withholding required by Federal and state laws:
Richard D. Burton
David R. Jackson
Robert E. Shreve
$ 527.05
$ 1,107.00
$12,106.02
On the basis of the foregoing findings and conclusions. I
recommend that the Board issue thefollowingrecommended:
ORDER
Respondent. Panscape Corporation, Muncie, Indiana,
its officers. agents, successors. and assigns, shall pay to the
employees named above as net backpay the amounts set
opposite their names less any tax withholding required by
law, plus interest in accordance with Florida Steel Corpora-
tion. 231 NLRB 651 (1977).
359