The Baltimore News American Division

National Labor Relations Board - Board Decisions

Jun 28, 1979

243 N.L.R.B. 170 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Baltimore News American Division, The Hearst
Corporation and Baltimore Typographical Union
No. 12. Case 5-CA 8061
June 28, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JLNKINS
ANI PNELLO
On June 14, 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 Na-
tional Labor Relations Act, as amended, when in
1976 it bypassed the Charging Party, the collective-
bargaining representative of Respondent's composing
room employees, and dealt directly with its employ-
ees by offering and paying them, in return for their
early retirement, pension and retirement benefits ex-
ceeding those provided for in the applicable collec-
tive-bargaining agreement. In addition, the Board
adopted the Administrative Law Judge's recommend-
ed Order which required Respondent, inter alia, to
offer reinstatement to those employees unlawfully in-
duced to retire early and to provide backpay.
Thereafter, on January 9, 1979, the United States
Court of Appeals for the Fourth Circuit issued a De-
cision 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
payments 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 issue 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 specifically: (1) that payments
received by employees who retired under the unlaw-
fully altered early retirement scheme be included in
i230 NLRB 216 (1977).
1 590 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 A. S. Abell Comnpanv, 230 NLRB 17 (1977). which
involved the same issues.
the measure of interim earnings for any of those em-
ployees returning to work pursuant to the offer of
reinstatement required in the Board's Order, and (2)
that if an employee, who retired pursuant to the un-
lawfully altered early retirement plan, received bene-
fits under the plan in excess of his gross backpay, he is
to be required to repay that excess amount to Re-
spondent as a condition of his reinstatement.
On March 9, 1979, the associate executive secretary
of the Board advised the parties that they might file
statements of position with respect to issues raised by
the remand. Thereafter, the General Counsel, the
Charging Party, and Respondent filed statements ot
position, and Respondent filed a response to the Gen-
eral Counsel'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-member 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.3
ORDER
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-
dent. The Baltimore News American Division, The
Hearst Corporation, Baltimore, Maryland, its officers,
agents. successors, and assigns, shall take the action
set forth in the Administrative 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 em-
ployee shall be required to repay that excess amount
to the Respondent as a condition of' his reinstatement
pursuant to this Order."
2. Add the following at the end of paragraph 2(b):
"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 any pay-
ments received pursuant to the early retirement
plan."
' In their respective statements of position, the parties raise numerous
questions concerning the manner in which compliance with the Board's Or-
der, as enforced by the court, is to be effectuated. hese matters should be
resolved in the backpay proceeding which eidently has not yet been initi-
ated by the Regional Director. Sec. 102.52 of the Board's Rules and Regula-
tions, Series 8, as amended. Accordingly, we shall defer passing on these
matters until such time as the applicable backpay procedures have been
exhausted. See Sees. 102.52 102.59 of the Board's Rules and Regulations,
Series 8, as amended.
243 NLRB No. 40
170