Plasticrafts, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1179 (N.L.R.B. 1980)

PLASTICRAFS, INC. 1179
Plasticrafts, Inc. and Donald W. Fox. Case 27-CA-
5273
April 16, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On February 8, 1978, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding.' The Board therein
adopted Administrative Law Judge James T. Bark-
er's finding that Respondent violated Section
8(a)(l) of the Act by withholding wage increases
which would have been granted to employees in
the injection molding department and the machine
shop but for the moratorium imposed during the
pendency of a representation proceeding and subse-
quent collective-bargaining negotiations. However,
the Board modified his backpay remedy for the
period when the wage increases were withheld,
namely, November 1976 to May 1977, by deleting
therefrom his provision for an offset of the in-
creases which were placed in effect in May 1977.
Thereafter, Respondent petitioned the United
States Court of Appeals for the Tenth Circuit to
review the Board's Order and the Board filed a
cross-application for enforcement of its Order. On
December 8, 1978, the court granted enforcement
of the Board's Order but noted that such part of
the May 1977 wage increase as in part compensat-
ed the employees in question for the periods during
which wage increases were unlawfully withheld
should be set off against the backpay award.2
Because of the controversy over the amount of
backpay due under the terms of the Board's Order,
as modified by the court, W. Bruce Gillis, Acting
Regional Director for Region 27, issued on April 6,
1979, a backpay specification and notice of hearing.
On April 23, 1979, Respondent filed its answer. On
July 27, 1979, a hearing was held before Adminis-
trative Law Judge David G. Heilbrun who, on De-
cember 18, 1979, issued a Supplemental Decision as
to backpay. Thereafter, the General Counsel filed
excpetions and a supporting brief and Respondent
filed a response to the General Counsel's excep-
tions and a supporting brief.
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 record and the at-
tached Supplemental Decision in light of the ex-
234 NLRB 762.
2 Plasticrafts, Inc. v NLR.B., 586 F.2d 185 (10th Cir. 1978).
248 NLRB No. 161
ceptions, the response thereto, the briefs and the
court's decision and judgment, and has decided to
affirm the Administrative Law Judge's rulings,
findings,3 and conclusions4 and to adopt his recom-
mended Order.
ORDER
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 Administrative Law Judge Heilbrun, and
hereby orders that the Respondent, Plasticrafts,
Inc., Denver, Colorado, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
3 The Administrative Law Judge correctly calculated employee James
Mason's backpay as $96 but inadvertently stated that it covered the
period March 19 May 14 in 1976, rather than in 1977.
4 we find it unnecessary to pass on the Administrative Law Judge's
reference in fn 5 to the Union's "tacit consent" to the raises given in
May 1977.
SUPPLEMENTAL DECISION
DAVID G. HEILBRUN, Administrative Law Judge: On
December 8, 1978, the United States Court of Appeals
for the Tenth Circuit entered judgment confirming its
earlier decision of November 7, 1978, which granted en-
forcement to the National Labor Relations Board's
Order as reported at 234 NLRB 762. This underlying
case had found unfair labor practices rooted in doctrine
of The Gates Rubber Company, 182 NLRB 95 (1970), be-
cause Respondent had withheld wage increases "which
would have been granted to employees in the injection
molding department and the machine shop but for the
moratorium imposed during the pendency of a represen-
tation proceeding and subsequent collective-bargaining
negotiations." The initiating Decision of an administra-
tive law judge had addressed the calculation of a mone-
tary remedy in the case by recommending that". .. Re-
spondent's make-whole obligation be diminished by off-
setting the amount of wage increases granted to employ-
ees entitled to benefit from the make-whole order recom-
mended herein against any wage and interest entitlement
that would otherwise result to any individual employee.
.."noting too in this regard that such actual wage in-
creases as had ultimately been made in May 1977 for 9 of
the 10 affected employees had been done "with acquies-
cence and approval of the Union." In its consideration of
this branch of the proposed remedy the Board held that
such an offset was "mistakenly" advanced and the ratio-
nale was deleted from what was otherwise largely adopt-
ed. Upon later review of the case following cross-peti-
tions, the court's holding expressly treated the offset
issue in opinion language reading:
Plasticrafts also argues that a wage increase
granted in May 1977 should form the basis of a
setoff against the back-pay award. The NLRB,
however, points out in its brief that Plasticrafts will
have the opportunity to raise at the compliance
Plasticrafts, Inc. and Donald W. Fox. Case 27-CA-
PLASTICRAFrS, INC.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stage of the proceeding items in mitigation of its
back-pay liability. While we agree that this would
be the appropriate time and place for determining
the extent of any setoff against Plasticrafts' back-
pay liability, we note that such part of the May
wage increase as in fact compensated the employees
in question for the failure to review and increase
wages during the election and negotiation periods
should be set off against the back-pay award. By
the same token, such increase should not be set off
against the award if it does not in fact constitute
compensation for the period preceding May 1977
during which wage review was suspended but
would ordinarily have resulted in wage increases.
Plasticraft's petition to set aside the NLRB's
order is denied and the NLRB's application for en-
forcement of its order is granted, except insofar as
its deletion of the Administrative Law Judge's pro-
vision for an offset based on the May 1977 increase
forecloses consideration of an offset as outlined in
the immediately preceding paragraph.
The confirming judgment of a month later reiterated this
theme by adjudging that Respondent affirmatively make
employees whole "for any loss of wages, plus interest,
they incurred by reason of the suspension of wage in-
creases during the period from November 1976 to May
1977 which was not compensated for by the wage in-
crease given employees in May of 1977."
Controversy has arisen over whether the various
hourly increases of May 1977 properly discharged the
backpay obligation.' The General Counsel contends that
for all 10 individuals named in the backpay specification
various hourly rate increases of from 63 cents to 20 cents
should have been granted on appropriate pay periods
commencing November 20, 1976 (as amended from No-
vember 17, 1976), to February 9, 1977. Respondent con-
tends that the one-time increases effectuated in May 1977
properly restored employees to the wage levels they
would have reached through typical compensation re-
views by supervision.
The matter was heard at Denver, Colorado, on July
26, 1979, as a supplemental proceeding based on a back-
pay specification issued April 6, 1979.
Upon the entire record,2 including my observation of
witneses and consideration of post-hearing briefs, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS
General context is set forth in the Administrative Law
Judge's Decision as "existence of a department policy of
periodic wages increases, and the employees did, in fact,
receive wage adjustments in 1976 at varying intervals ap-
proximating or averaging every 4 months." During the
hearing, nine of the listed discriminatees testified uni-
formly to understanding that such periodic hourly rate
increases as were granted during their employment rep-
James Mason terminated his employment (or had it terminated) as a
machinist on May 18, 1977, and did not in fact receive any pay increase
at or around that time as did the other nine employees here involved.
2 Certain errors in the transcript have been noted and are hereby cor-
rected.
resented merit raises as opposed to any fixed, known in-
crements. The actual past increases for all persons affect-
ed, and covering their entire employment history of
recent years, are contained in the record as Respondent's
Exhibit 1.
Respondent seeks to show that it had deferred wage
increase action in the affected departments for many
weeks following certification of the Union in February
1977, but when negotiations were not yielding firm re-
sults it devised catch-up pay amounts, presented such fig-
ures informally to the Union, and implemented them on
or about May 16, 1977. The hourly rate increases grant-
ed at that time for Dale Williams, Donald Fox, Doris
Rekemeyer, Duane Taylor, Victor Cook, Jerry Crow,
Robert Shafer, James Walsh, and Timothy Warwin were
63 cents, 30 cents, 25 cents, 39 cents, 40 cents, 35 cents,
46 cents, 27 cents (deferred to June 6, 1977), and 20
cents per hour, respectively. Aside from the individual
hourly rate amounts which the General Counsel has as-
sociated with each employee in appendies to its backpay
specification, an alternative theory of averaging wage in-
creases is advanced based on the total raise in pay over
any last continuous period of employment up until the
last date an increase was given prior to November 1976
divided by the number of such increases given.
While "law of the case"3 is succinctly stated in the
court's opinion and repeated in its judgment, resolution
of the matter is at best confined to the speculative pro-
cess of reasonably reconstructing what would have oc-
curred absent the unlawful moratorium. While Respon-
dent has urged that both testimony and documentation
shows wage increases at 4-month intervals of the 7-cent
to 9-cent-per-hour range for affected employees, this is
not a consistent pattern. On November 24, 1975, Duane
Taylor of the injection molding department received a
35-cent-per-hour pay increase only 6 months after his last
change, while Dale Williams of the machine shop re-
ceived a 1975 increase of 24 cents per hour and two fur-
ther ones of 16 cents per hour, each in early 1976. 4 On
the other hand, Williams did receive one pay increase of
only I cent per hour which, except for another incre-
ment based on his assumption of higher paying leadman
duties, would have been his only increase between April
26, 1976, and December 8, 1976, when the operative rep-
resentation petition was filed. Similarly, Doris Reke-
meyer of the injection molding department had in fact
received numerous 7-cent hourly increases at approxi-
mate 4-month intervals (or longer), while Victor Cook
and Robert Shafer experienced much the same pattern.
Respondent seeks to show that certain classification and
rate change documents defined or controlled this pro-
cess; however, the informality of their origin and nonuni-
formity of application diminish their significance. Over-
all, and noting that the court's determination focuses on
the November 1976-May 1977 period which may be
deemed an even half year of 6 months' duration, I be-
3 See International Union. United Automobile, Aerospace and Agricultur-
al Implement Workers of America (UAW), Amalgamated Local 55 (Don
Davis Pontiac. Inc.), 243 NLRB No. 58 (1979).
4 I disregard the first increase given any employee because testimony
establishes a policy of raising pay for a new employee promptly follow-
ing satisfactory completion of a 30-day probationary period.
PLASTICRAFTS, INC. 1181
lieve that an appropriate reconstruction of such pay in-
creases as employees would have had should key to the
average monthly increase they did in fact have over a
past representative period of employment. I shall apply
this formula to seven of the employees but will individ-
ually treat James Mason, James Walsh, and Timothy
Warwin, none of whom had a sufficiently representative
period of employment by November 1976. By this ap-
proach Dale Williams was reviewed from May 1975 to
November 1976, during which 18-month period his pay
increased (exclusive of change to leadman) 53 cents per
hour for a monthly average of 3 cents extending to 18
cents over the backpay period of November 1976 to May
1977, yet for which he received a May 1977 increase of
63 cents. Comparable data shows, respectively, Donald
Fox from January 1976 to November 1976 of 10 months
changing 41 cents per hour, averaging 4 cents totaling
backpay of 24 cents with 30 cents actually paid; Doris
Rekemeyer from April 1974 to November 1976 of 31
months changing 77 cents per hour averaging 2-1/2 cents
totaling backpay of 15 cents with 25 cents actually paid;
Duane Taylor from May 1975 to November 1976 of 18
months changing 58 cents per hour (exclusive of change
to leadman) averaging 3 cents totaling backpay of 18
cents with 39 cents actually paid; Victor Cook over
April 1974 to November 1976 of 31 months changing 63
cents per hour averaging 2 cents totaling backpay of 12
cents with 35 cents actually paid; Jerry Crow from May
1976 to November 1976 of 6 months changing 14 cents
per hour averaging cents totaling backpay of 12 cents
with 35 cents actually paid; and Robert Shafer from
April 1974 to November 1976 of 31 months changing 77
cents per hour averaging 2-1/2 cents totaling backpay of
15 cents with 46 cents actually paid.
James Walsh was hired October 13, 1976, in the ma-
chine shop at $4.62 per hour, and was increased shortly
after May 1977 to $4.89 per hour. He experienced layoff
status from March 30-May 18, 1977, the circumstances
of which are unknown, and as to which it may be noted
that a later hired employee of this department was re-
tained. In view of his limited length of actual employ-
ment prior to May 1977 and the fact that his compensa-
tory 27-cent-per-hour increase reflected well in excess of
monthly averages shown compositely for other employ-
ees, I am convinced that he has benefited from full back-
pay within the meaning of the court's decision.
James Mason was hired October 26, 1976, in the ma-
chine shop at $5.07 per hour and, as noted above, termi-
nated without receiving any backpay. I note his higher
starting rate compared to Walsh, the fact that he sur-
vived a layoff as between the two, the fact that overall
capability translating into the "merit" concept was an in-
fluencing factor in management's pay reviews, and that
machine shop leadman Dale Williams was compensated
63 cents per hour in the context of competitive pressure
for this type of skill. Considering all the circumstances I
believe that 30 cents per hour would be a reasonable esti-
mate of what Mason would be due (Respondent itself
projected 17 cents per hour for him) and find this incre-
ment to be the measure of backpay.
Timothy Warwin was hired August 16, 1976, in the in-
jection molding department at $3.01 per hour. He re-
cieved an initial raise of 14 cent per hour on October 25,
1976, and nothing thereafter until the adjustment of May
1977, which in his case was an additional 20 cents per
hour bringing him then to $3.35. In this regard I am im-
pressed that long-service injection molding department
employees Doris Rekemeyer and Victor Cook are shown
to have averaged overall pay progress only in the range
of 2-3 cents per month. I believe this is suitable measure
to apply in Warwin's case, and thus find he also has been
fully compensated as the court required.
The General Counsel's primary theory of liability as
set forth in the backpay specification seems vague and
ambiguous. While the alternate theory propounded
during the hearing is more rational, it has reduced valid-
ity by proposing that an averaging divisor be the some-
what irrelevant number of increases given rather than a
more tangible divisor based on the passage of time in em-
ployment, a factor also more germane to the court's cor-
recting view of how to implement the monetary
remedy. 5 On this basis I hold that eight employees have
been, in fact, fully compensated by the wage increase of
May 1977 because it exceeded their respective past aver-
ages, and that a ninth, James Walsh, was compensated in
full from what is known of his individual situation. In
Mason's case his backpay is 30 cents per hour times the
rounded- off 320 hours he worked from March 19-May
14, 1976, or $96. Since Respondent's records show his
address to be unknown and the General Counsel did not
call him as a witness suggesting his unavailability, I shall
recommend that should he be presently unlocatable this
amount, with interest, be held in escrow by the Regional
Director for a period of I year from date of deposit, and
if Mason is not located within said period the entire sum
shall be refunded to Respondent and its liability in this
regard discharged. See Seminole Asphalt Refining, Inc.,
225 NLRB 1202 (1976).
Disposition
Upon the foregoing findings, conclusions, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER6
Then Respondent, Plasticrafts, Inc., Denver, Colorado,
its officers, agents, successors, and assigns, shall compen-
A strong policy basis also exists to settle this controversy with
awareness of the collective-bargaining relationship between these parties
that ripened into their first labor contract in September 1977. Given the
central statutory purpose of fostering orderly practices between labor and
management, and the necessary interpretation to be given the court's
holding as referring to conceptual "negotiation periods" that must have
preceded the May 1977 event on which the opinion was then focusing. it
is useful to note the Union's tacit consent in what was done here This is
shown from earlier testimony of then-authoritative International Repre-
sentative Joseph Guerrero, who had conceded in relevant dealing with
Respondent's president, Thomas Cooper, that the blanket wage increases
of spring 1977 would be "excluded from anything that would result from
[subsequent] negotitiaons"
' In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
PLASTICRAFTS, INC.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sum of $96, less applicable withholding required by
law but together with interest thereon as provided in
Florida Steel Corporation, 231 NLRB 651 (1977). (See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962)). Further, this recommended Order shall consti-
tute a partial dismissal of the backpay specification with
respect to Dale Williams, Donald Fox, Doris Reke-
meyer, Duane Taylor, Victor Cook, Jerry Crow, Robert
Shafer, James Walsh, and Timothy Warwin to whom
Respondent owes no backpay