United States Steel Corp.

National Labor Relations Board - Board Decisions

Apr 11, 1989

293 N.L.R.B. 640 (N.L.R.B. 1989)

640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United States Steel Corporation and William Van
Swenson Case 32-CA-4835
April 11, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 13, 1988, Administrative Law Judge
David G Heilbrun issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
brief and has decided to affirm the judge's rulings,
findings,' and conclusions2 and to adopt the rec-
ommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and denies backpay for William Van Swen
son for the period of November 1, 1982, through
September 2, 1986
MEMBER CRACRAFT, dissenting
My colleagues apply a per se rule in finding that
a discriminatee while in the military service during
a backpay period is considered unavailable for
work I believe the rule is outdated and should be
modified
The facts of this case illustrate the unfairness of a
per se approach in today's world Charging Party
William Swenson was discriminatorily denied em-
ployment in May 1982 He unsuccessfully sought
employment as a mechanic and mineworker Final
ly, Swenson, a member of the army reserve since
1967, obtained employment as a recruiting officer
for the reserve by agreeing to enter active duty
from November 1982 until November 1985 ' Near
the end of the 3 years, his exploration of nonmili-
tary employment opportunities led him to extend
his active duty agreement until January 1989
On March 31, 1986, the Board ordered the Re
spondent to offer Swenson employment and make
him whole for any loss of pay he suffered as a
result of the discrimination When Swenson learned
in May 1986 that the Board had ordered the Re-
spondent to employ him, he sought his release from
active duty On August 22, 1986, Swenson was re-
leased from active duty, and on September 3, 1986,
he began work for the Respondent
The Board's compliance casehandling manual,
Section 10618 2, states that "discriminatees are to
be regarded as unavailable for work when they are
in the Armed Forces" In J D Brock, 42
NLRB 547 (1942), the Board withheld backpay
from a discnminatee after he had been inducted
into the military
The Board's per se approach, fashioned in war
time , does not reflect today's reality The Respond
ent's unlawful conduct forced Swenson's search for
employment, which eventually led him to enter
active military duty as a recruiter He, however,
was able to terminate his active duty after he
learned that the Board had ordered the Respondent
to offer him employment ' This is analogous to in-
terim employment, in which a discriminatee has a
reasonable period of time in which to accept or
reject a reinstatement offer,2 rather than the situa
tion Section 10618 2 was designed to cover
In recognition of today's reality, I would modify
the rule3 to treat military service as interim em-
ployment unless the respondent can show that the
discriminatee's service removed him from the work
force Thus, rather than a per se rule, I would
allow litigation as a decision on the merits regard
ing the issue of whether a discriminatee was avail-
able to work in this situation
' We find it unnecessary to rely on the judge s discussion of Kawasaki
Motors Corp 282 NLRB 159 (1986)
2 In voting to overrule the holding of J D Brock 42 NLRB 547
(1942) with respect to the treatment of military service in calculating
backpay our dissenting colleague contrasts today s reality of military
service with conditions prevailing during World War II when the Board
first began the practice of tolling backpay while a discnminatee was sere
ing in the Armed Forces Notwithstanding that conditions of military
service have changed since then the essential feature for our purposes
remains unchanged-once a person has enlisted he is under orders for a
fixed term and can be released early only at the discretion of his em
ployer As the judge pointed out This contrasts vividly with civilian
endeavors in which the obligation of continuing is either non existent or
contractual at best Thus a member of the Armed Services on active
duty has removed himself from availability for civilian employment
during the period of his service We also note that the Board has consist
ently applied the rule of J D Brock supra during periods of war and
peace in subsequent decades See e g Diversified Case Co 263 NLRB
873 875 fn 8 (1982 ) and cases cited therein from 1960 and 1961
' Apparently Swenson was available even during his active duty serv
ice to work for the Respondent on the night shift
2 See Miami Coca Cola Bottling Co 151 NLRB 1701 1706-1707
(1965)
8 As my colleagues do not share my view I need not decide whether I
would apply the modified rule in this case or prospectively only
Daniel F Altemus Jr, for the General Counsel
Robert E Hilton, of San Francisco California, for the
Respondent
293 NLRB No 77
UNITED STATES STEEL CORP 641
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID G HEILBRUN , Administrative Law Judge This
case concerns the character and effect of service in the
United States Army Reserve (Reserve) by a discrimina
tee, in relation to the correct amount of net backpay he
is owed to comply with the monetary remedy contained
in a Board Order
In 1967 William Van Swenson commenced Reserve
service on inactive status obligating him to the tradition
al weekend assemblies once a month and an annual 14
day span of training By 1982 his latest reenlistment into
this service was due to expire in August 1987 Under cir
cumstances to be associated below with his employment
career , Swenson applied for active duty in June 1982 and
5 months later was ordered to this status for an initial 3
year period at his sergeant first class E 7 rank with a
duty station in Provo , Utah His function was to recruit
at this location for the Reserve in a position supervised
directly by a regular Army officer , and as to which a
monthly recruitment quota applied Swenson successfully
completed an initial training period and fulfilled expecta
tions of the incumbent during the pertinent 3 year span
He extended this active duty commitment twice initially
for only 3 months into January 1986 and following this
for another 3 year period
Occupationally Swenson had first become employed
by Respondent (now USX Corporation) in 1968, and en
,toyed continuous employment at different facilities for
over 10 years thereafter, during which time he became a
journeyman machinist In June 1980 Swenson expert
enced the first of three successive layoffs from the
Geneva plant near Provo , Utah , and on the first and
second occasions was recalled to work His second recall
occurred around October 1982, lasting for only about a
month and leading to a third and final layoff after which
he never again worked at the Provo facility
Although on layoff during the year from October 1981
to about October 1982 Swenson officially applied for
transfer to Respondents Pittsburg , California facility
This application was blocked within Respondents man
agement hierarchy at Provo An ensuing unfair labor
practice charge went to the Board on the issue of wheth
er Swenson was unlawfully denied employment at Pitts
burg California , about mid May 1982 , because of his past
union or protected concerted activity while employed at
Provo The Board so found in its Decision and Order
issued on March 31 , 1986, as 279 NLRB 16
In approximately May 1986 Swenson learned of the
Board Order On this impetus he initiated paperwork for
a release from Reserve active duty , and the request was
routed through a chain of command to the Army Re
serve Personnel Center (ARPERCEN) in St Louis Mis
soup Swenson was notified by telephone around August
1, 1986, that his release from active duty had been grant
ed He had kept Respondent continually apprised during
the process, and from this groundwork Swenson began
employment at the machine shop of the Pittsburg facility
around September 2, 1986
As part of compliance steps Respondent has already
paid Swenson approximately $14 000 in net backpay with
interest for the period June 13-October 31, 1982, based
on typical quarterly calculations as prescribed by F W
Woolworth Co, 90 NLRB 289 (1950) and using the re
placement employee ' method of measuring lost income
from job discrimination By so doing Respondent is con
sidered to have fully met its backpay liability to Swenson
for that timespan The administrative law judge's deci
sion and recommended Order dated July 19 , 1983, had
noted Swenson s induction into the Armed Forces and
specifically held that the appropriate portion of net
backpay be liquidated immediately without awaiting a
final determination of the full amount of his award The
Board s modifying Decision and Order picked up on this
factor , by, at footnote 2, expressly leaving for a compli
ance stage the issue of whether Respondent 's backpay
liability was tolled as of the date Swenson entered the
armed forces
Contentions
Against this background the General Counsel contends
that additional backpay is due Swenson if his period of
active service in the Reserve may be considered to
escape the doctrine of an individual being removed from
the work force during a backpay period The General
Counsel believes that military service here and generally
should not interrupt normal backpay approaches On a
subsidiary point the General Counsel contends that if she
prevails Swenson should not be penalized by departure
from Woolworth principles for any portion of the backpay
period
Respondent contends that settled law deems Swenson
as unavailable to work for Respondent while on Reserve
active duty and alternatively that application of the
Woolworth formula to the disputed monetary portion of
the Board Order would be impermissibly punitive under
controlling law
From these respective contentions controversy has
arisen over whether and in what amount Swenson is
owed additional net backpay In May 1987 the parties
reached a stipulation whereby Respondent waived its
right to contest the propriety of the Board s Decision
and Order or the findings of fact and conclusions of law
underlying it The matter was heard as a supplemental
proceeding at Oakland California, on October 5 1987
Analysis
The essential precept to apply is found simply and di
rectly stated in 48 NLRB Annual Report 1983 Here an
introductory passage about Backpay Matters at page
99 states, The Board 's usual remedy for discrimination
against individual employees is an order that the employ
ees be made whole for any losses resulting from the dis
crimination An individual is made whole when effects
of discrimination are finally redeemed using a blend of
juridicial principles relating to mitigation of damages,' as
influenced by the Board's experience with employment
realities Plainly the law has long been that military serv
ice constitutes a timespan which is excluded from any
larger backpay period John D Brock 42 NLRB 457
' See SA Corbin Contracts § 1039 at 242-243 (1964)
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1942) Baltimore Transit Co, 47 NLRB 109 (1943),
Humble Oil Co, 48 NLRB 1118 (1943), enfd 140 F 2d
777 (5th Cir 1944) Essentially a concept of tolling is in
volved and it is unavailing to draw out implementing
verbiage in which the notion has been termed not avail
able for immediate reinstatement, '2 present when aggra
vation of loss has been willfully incurred"3 or done
without excuse, 4 the individual is generally absent
from the work force, or where the Board would decline
to speculate about how remunerative other possible earn
ings could have been and simply assume that gross back
pay would be "canceled for a same time period S
The concept is rooted in fundamental historical char
acter of military service, and not in niceties of language
or logic Although current-day images are of a liberal
ized American military apparatus in regard to pay, rote
gration of citizenry, lessened regimentation, and other
facets of uniformed life, the fact remains that the individ
ual is subject to a unique authority which transcends per
sonal decision making The General Counsel complains
that a rationale for so holding has never been explained,e
yet the purposes of a military capability, with all atten
dent ramifications of discipline, obedience, and special
military justice, are their own explanation when case by
case implementation of national labor policy is done in a
"civilized legal system allowing consideration of every
socially desirable factor Phelps Dodge, supra at 198
Nothing in Titles 10 or 32 of the United States Code and
the Code of Federal Regulations, as respectively cited by
the parties, gives any reason to vary this outlook What
is found, however, in the sweeping coverages of this
source material is the emphatic notion of remaining in le
gitimately commenced military service until completion
of the statutory obligation " This contrasts vividly with
civilian endeavors in which the obligation of continuing is
either nonexistent or contractual at best The range of
variables involved is so great as to make the General
Counsels corollary argument that the Boards policy pe
nalizes military service too speculative to be of control
ling force
Similarly it is unavailing to point at conjectural factors
in Swenson s own case such as his potential early out
from recruitment quota failure, possible freedom to
` moonlight should night shift work have been available
to him or conditional entitlement to transfer in Reserve
recruiting work from Provo to a station adjoining Pitts
burg All such prospects fail to meet the essential test
that a person must be free of active military constraints
before he can be thought of as routinely, ordinarily and
acceptably available for the typical obligations and va
2 J D Brock supra at 468
3 Phelps Dodge Corp v NLRB 313 U S 177 198 (1941)
4 NLRB v Harbison Walker Refractories Co 137 F 2d 596 (8th Cir
1943)
5 Laister Kauffmann Aircraft Corp 63 NLRB 1367 (1945) Cf Shell Oil
Co 218 NLRB 87 (1975)
6 Focused writings of an authoritative or extensive nature on the sub-
jects of the Board s remedial powers generally or the make whole phe
nomenon specifically withhold comment on the narrow point of presum
ing that military service tolls backpay McCulloch An Evaluation of the
Remedies Available to the NLRB - Is There need for Legislative or Admin
istrative Change? 15 Labor L J 755 (1964) Fuchs & Kelleher Back Pay
Remedy of the National Labor Relations Board Boston College Industrial
& Commercial L R 829 (1968)
gapes of private sector civilian employment In this very
vein it was recently popularly written that the trend of
American "defense strategy" has been to increase readi
ness of the Reserve and related forces During a hearing
in March 1987 before the U S House of Representatives
Armed Services Committee, Secretary of the Army John
0 Marsh Jr was quoted as saying, We are relying
more than ever on our National Guard and on Army Re
serves in building our total defense' Zanger Montgom
ery, New Minutemen, Common Cause Magazine, Nov -
Dec 1987 at 21
In Raderman v Kaine, 411 F 2d 1102, 1104, 1106 (2d
Cir 1969), the court set out a forceful rationale regard
ing even the situation of an inactive reservist as follows 7
[P]laintiff asks Does being in the Army curtail or
suspend certain Constitutional rights?, the answer is
unqualifiedly yes " Of necessity he is forced to
surrender many important rights He arises unwill
ingly at an unreasonable hour at the sound of a
bugle unreasonably loud From that moment on, his
freedom of choice and will cease to exist He acts at
the command of some person-not a representative
of his own choice-who gives commands to him
which he does not like to obey He is assigned to a
squad and forced to associate with companions not
of his selection and frequently the chores which he
may be ordered to perform are of a most menial
nature Yet the armed services, their officers and
their manner of discipline do serve an essential
function in safeguarding the country The need for
discipline, with the attendant impairment of certain
rights, is an important factor in fully discharging
that duty
The problem with a reservist, such as Raderman, is
that he is neither a civilian nor a full time soldier In
effect he must live in two worlds, one military and
one civilian and attempt to satisfy the requirements
of both As in this case, the demands of each may
conflict and while the result may appear harsh he
made the choice some time ago to join a reserve
unit Concomitant with that decision was the
knowledge that he would be subject to Army rules
and regulations for six years
The General Counsel concededly brings this case as a
direct test of contrary thinking yet in so doing gives in
sufficient weight to a quite recent pronouncement by the
Board In briefing the matter General Counsel observes
that in Kawasaki Motors Corp, supra, no exceptions were
filed on the point of an administrative law judge s finding
a discriminatee to have removed himself from the work
force' by virtue of a stint on active duty with the Air
Force National Guard However in that decision the
Board was constrained to modify an associated theory
used by the administrative law judge in his backpay cal
° A comparable conclusion was reached on methodical discussion of
the various components comprising the American armed forces Week
end Warrior and the Uniform Code of Military Justice Does the Military
have Jurisdiction over Week-end Reservists? 7 Cal Western L R 238
(1970)
UNITED STATES STEEL CORP
culations, expressly and unmistakably reiterating its pose
tion that such active duty military service should be ex
cluded from the backpay period " Id at fn 3
Finally it is settled that an administrative law judge is
to apply Board law, and departures however heartfelt,
are not favored 8 Thus I have no real recourse except to
write that should the General Counsels position ulti
mately come to be adopted as a major policy change by
the Board, logic would dictate that the Woolworth formu
la also attach to such change unless some countervailing
interest is present Were the Board to now declare this
instance of military service akin to interim employment,
the action would be so wrenching as to invoke principles
persuasively argued by Respondent In such a case the
unprecedented and unpredictable shift would warrant
only prospective application to avoid a punitive impact
8 Iowa Beef Packers 144 NLRB 615 (1963)
643
of what is to be essentially remedial authority Cf Car
penters Local 60 v NLRB, 365 U S 651 (1961), NLRB v
Carpenters Iron Workers Local 378, 532 F 2d 1241 (9th
Cir 1976)
Disposition
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed9
ORDER
William Van Swenson is due no additional backpay
from Respondent
aIf no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses