Thermo-Rite Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 588 (N.L.R.B. 1970)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. D. Lowe (Trustee for Barber J. Thomas, Richard
C. Lydle and Marilyn K . Lyren ), d/b/a
Thermo-Rite Manufacturing Company and Robert
J. Reed , Stanley Bish, Helen O 'Harra , James A.
Goudy. Cases 8-CA-3771-3, 8-CA-3771-4,
8-CA-3771-6, and 8 -CA-3771-7
March 6, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 19, 1965, Trial Examiner Sidney
D. Goldberg issued a Decision and Recommended
Order in the above-entitled case, finding that
Respondent had engaged in and was engaging in
certain unfair labor practices, and directing it, inter
alia , to offer immediate reinstatement to certain
named individuals who were unlawfully discharged,
and to make these named individuals whole for any
losses sustained as a result of Respondent's unfair
labor practices. The Respondent having filed
exceptions, the National Labor Relations Board,
after due consideration, issued an Order on March
3, 1966, adopting the Recommended Order.' The
Order of the Board was enforced by the United
States Court of Appeals for the Sixth Circuit on
January 21, 1969.2
On October 7, 1969, the Regional Director for
Region 8 issued and served upon the parties a
Backpay Specification and Notice of Hearing. The
Respondent filed an Answer to the Backpay
Specification.
On October 30, 1969, Trial Examiner William J.
Brown conducted a hearing to determine the
amounts of backpay owing under the Board's Order
as enforced. On December 3, 1969, the Trial
Examiner issued his Supplemental Decision,
attached hereto, which awards backpay to four
former employees. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Supplemental
Decision and a brief in support of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Supplemental Decision, the exceptions
and the brief, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
'157 NLRB 310
'N L R B v Lowe ( Thermo-Rite Mfg Co ). 406 F 2d 1033 (C A 6)
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, I.
D. Lowe (Trustee for Barber J. Thomas, Richard C.
Lydle, and Marilyn K. Lyren), d/b/a Thermo-Rite
Manufacturing Company, its officers, agents,
successors, and assigns, shall pay to each
discriminatee as backpay the amounts, and in the
manner, set forth in the Trial Examiner's
Supplemental Decision attached hereto.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
WILLIAM J. BROWN, Trial Examiner: This supplemental
proceeding to determine amounts of backpay due in
accordance with the Board's Decision and Order, 157
NLRB 310, and the enforcement decree of the United
States Court of Appeals for the Sixth Circuit, 406 F 2d
1033, came on to be heard before the undersigned Trial
Examiner at Akron, Ohio, on October 30, 1969. The
parties appeared and participated as noted above, with full
opportunity to present evidence and argument on the
issues. Subsequent to the close of the hearing briefs were
received from the General Counsel and the Respondent
and have been fully considered.
On the entire record herein and on the basis of my
observation of the witnesses, I make the following findings
and conclusions:
1. RESPONDENT'S MOTION TO DISMISS
Respondent's posthearing brief makes no attack on the
items contained in the Backpay Specification but calls for
its blanket dismissal because, as the brief alleges, the
testimony of claimants in the instant case indicates the
existence of a conspiracy to damage the Respondent's
business. I reject this contention as irrelevant and
frivolous. United States Air Conditioning Corporation,
141 NLRB 1278.
II. THE INDIVIDUAL CLAIMS
A. Robert J Reed
Reed has been employed at all material times by the
Akron Fire Department, working for Thermo-Rite
Manufacturing Company, hereinafter referred to as the
"Company" only on his days off from the Fire
Department The parties agree that his backpay period
commenced January 29, 1965. The General Counsel
contends that the backpay period terminated on December
1, 1965, when Reed received and declined an
unconditional offer of reinstatement; the Company
contends that its liability terminated when employees of
the Company went on strike July 28, 1965. While
Company President Lydle and Plant Manager Lyren
testified that they observed Reed on the picket line, I
credit the testimony of Reed that he did no more than
stop once or twice to speak to the pickets and did not
picket himself. The commencement of the strike cannot
therefore be regarded as terminating the Company's
backpay liability. East Texas Steel Castings Co., 116
NLRB 1336; enfd. N.L R.B. v East Texas Steel Castings
181 NLRB No. 81
THERMO-RITE MFG. CO.
Co., 255 F.2d 284, (C.A. 5). I conclude that the
specification correctly states the terminal date of Reed's
backpay period . Since there is no question as to the
diligence of his search for interim employment nor as to
the accuracy of the statement of his gross backpay and
net interim earnings (Appendices A-1, 2, 3 attached to the
specification ) I conclude that Reed is entitled to backpay,
exclusive of interest , as follows-
Year Quarter Net Backpay
1965 I $ 414.00
II 75.34
III 474.87
Total exclusive of interest $ 964.21
B. Stanley Bish
Like Reed, Bish was a full-time employee of the Akron
Fire Department and worked for the Company only on his
days off from the Fire Department. The parties agree that
his backpay period commenced January 29, 1965. There is
no question as to his diligence in seeking interim earnings.
Bish testified that he did not participate in the strike and
did no picket duty and I credit his testimony as against
that of•Lydle and Lyren to the contrary I conclude that
his backpay period terminated December 1, 1965, when,
as in the case of Reed , he declined an offer of immediate
reinstatement . There appears to be no question as to the
accuracy of the specifications relating to gross backpay
and net interim earnings and I conclude that Bish is
entitled to backpay, exclusive of interest, as follows:
Year Quarter Net Backpay
1965 I S 432.54
II 100,01
III 340.23
IV 322.91
Total exclusive of interest $1,195 69
589
On the basis of the foregoing I find that her net
backpay, exclusive of interest through the third quarter of
1969 is as follows-
Year Quarter Net Backpay
1965 1 $ 575.11
II 831.22
III 402.44
IV 235.06
1966 I 0.00
11 138.87
Total exclusive of interest $2,182.70
D James A Goudy
It is admitted that Goudy's backpay period commences
January 12, 1965 and , since I credit his testimony and it is
not denied that he has not been offered reinstatement, it is
also clear that the backpay period continues to run. I
credit his testimony as to the diligence of his search for
interim employment and it appears that he secured
substantial offsetting interim earnings which exceeded his
gross backpay for the period commencing with the second
quarter of 1965 and continuing to the date of issuance of
the specification . I credit his testimony , as against that of
Lydle and Lyren that he did not participate in the 1965
strike. The Company's claim for offset of a private
indebtedness of $1,700 which has been discharged in
bankruptcy proceedings, must be disallowed. Mooney
Aircraft, Inc., 148 NLRB 1057, enfd. N.L R.B. v.
Mooney Aircraft, Inc 366 F.2d 809 (C.A. 5). There
appears to be no dispute as to the amount of Goudy's
gross backpay and net interim earnings for 1965 I,
resulting in net backpay in the amount of $989 . 84 and I
conclude that he is entitled to that amount with interest to
the date of payment, the Company liability for backpay
for the period commencing with the Fourth Quarter of
1967 and thereafter to continue to the date of a bona fide
offer of reinstatement.
Conclusions
C. Helen O'Harra
Helen O'Harra was initially employed in the
Company's office but worked in the plastics department at
the time of her discharge on January 29, 1965. Her
backpay period commences on January 5, 1965, on which
date she was discriminatorily deprived of overtime work
opportunities and continues to run since she has not been
offered reinstatement following her discharge . I credit her
testimony that she did not participate in the strike which
commenced July 28, 1965, as against that of Lydle and
Lyren to the contrary. The parties have stipulated that she
made a diligent search for offsetting earnings and I credit
her undisputed testimony as to the accuracy of the
amounts of her gross backpay and net interim earnings.
On the basis of the foregoing findings I conclude that
the claimants herein are entitled to payment by the
Company of the amounts set forth above, with interest
thereon at the rate of 6 percent per annum on each of the
quarterly sums set forth above, less lawfully required tax
withholdings, liability for backpay to O'Harra and Goudy
to continue subsequent to September 30, 1969 as above
prescribed.
RECOMMENDED ORDER
It is recommended that unless , within 20 days from
receipt of this Supplemental Decision the Company has
made payments in accordance herewith , the Board issue
an Order requiring the Company to take such action.