The A.S. Abell Co.

National Labor Relations Board - Board Decisions

Jun 28, 1979

243 N.L.R.B. 171 (N.L.R.B. 1979)

The A. S. Abell Company and Baltimore Typographi-
cal Union No. 12. Case 5 ('A 7980
June 28, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBIRS JENKINS
AND PENELI.(
On June 8, 1977. the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding. The Board found, in agreement with
Administrative Law Judge Thomas A. Ricci, that Re-
spondent violated Section 8(a)(5) and (1) of the Act
when in 1976 it bypassed the Charging Party. the col-
lective-bargaining representative of Respondent's
composing room employees, and dealt directly with
its employees by offering and paving them, in return
for their early retirement, pension and retirement
benefits exceeding those provided for in the appli-
cable collective-bargaining agreement.' In addition.
the Board adopted the Administrative Law Judge's
recommended Order which required Respondent, in-
ter alia, to offer reinstatement to those employees un-
lawfully induced to retire early and to provide back-
pay.
Thereafter, on January 9, 1979, the United States
Court of Appeals for the Fourth Circuit issued a deci-
sion in which it granted enforcement to the Board's
Order relating to the violations of Section 8(a)(5) and
(I) of the Act.2
In agreeing with the Administrative Law Judge
and the Board that Respondent's conduct violated
the Act, the court noted that in fashioning a proposed
remedy the Administrative Law Judge concluded that
the measure of interim earnings would include the
judgments made to any employee by Respondent in
the form of preferred benefits under the pension plan,
including any single or lump sum payments. How-
ever, inasmuch as the Administrative Law Judge's
proposed Order, adopted by the Board, did not "ad-
dress the issues of interim earnings and benefits in
any definitive fashion" the court remanded the case
to the Board, and directed that the Board's Order be
amended to provide: (1) specifically that payments
received by employees who retired under the unlaw-
fully altered early retirement scheme be included in
the measure of interim earnings for any of those em-
230 NLRB 17 (1977).
2 590 F.2d 554 4th Cir. 1979). Although the cases were argued separately.
the court's decision enforced in like manner the Board's Order in this case
and its Order in The Baltimore News .4American Division. The Iearr (Corpora-
tion, 230 NLRB 216 (1977). which involved the same issues.
lHE A. S ABI-.l. COMPANY
ployees returning to work pursuant to the ofler of
reinstatement required in the Board's Order and (2)
that if an employee who retired pursuant to the un-
lawfully altered early retirement plant received bene-
fits under the plan in excess of his gross hackpay he
be required to repay that excess amount to Respon-
dent as a condition of his reinstatement.
On March 9. 1979. the Associate Executive Secre-
tary of the Board advised the parties that the! might
file statements of position with respect to issues raised
by the remand. Thereafter, the General Counsel. the
Charging Party, and Respondent filed statements of
position. and Respondent filed a response to the Gen-
eral C'ounsel's statement of position.
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-memnber panel.
In view of the court's remand in this proceeding.
we shall modify our previous Order in accordance
with the court's opinion and directions.'
ORD)ER
Pursuant to Section 10(c) of the National l.abor
Relations Act, as amended. the National Labor Rela-
tions Board adopts, as modified below. the Order pre-
viously issued and hereby orders that the Respon-
dents, The A. S. Abell Complany. Baltimore,
Maryland. its officers. agents. successors, and assigns.
shall take the action set forth in the Adminiistrative
Law Judge's original recommended Order. as so
modified:
I. Add the following at the end of paragraph 2(a):
"If a retired employee received payments pursuant
to the above-mentioned early retirement plan which
exceed the amount of his gross backpay. said employ-
ees shall be required to repay that excess amount to
Respondent as a condition of his reinstatement pursu-
ant to this Order."
2. Add the following at the end of paragraph 2(h):
"Interim earnings for an employee who was unlaw-
fully induced to retire early but who desires to return
to work pursuant to this Order shall include an pay-
ments received pursuant to the early retirement
plan."
3 In their respective statements of position. Ihe parties raised numnerlous
questions concerning the manner in which compliance with the Board's Or-
der. as enforced by the court. is to he effectualed These matters should he
resolved in the backpay proceeding which evidently has not el been init-
ated b the Regional Director Sec. 102.52 of the Board's Rules anId Regula-
tions, Series 8. as amended. Accordingly, we shall defer passing on these
matters until such time as the applicable h;lckpas procedure he been
exhausted See Sec 102 52 102,59 of the Board's Rules and Regulamions
Series 8. as amended.
243 NLRB No. 41
171