Webber American, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1973

202 N.L.R.B. 830 (N.L.R.B. 1973)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webber American , Inc. and International Association
of Machinists and Aerospace Workers , AFL-CIO.
Case 31-CA-2194
April 2, 1973
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 22, 1971, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
Respondent had discriminated with regard to the
tenure of employment of Robert Farrington, Robert
Wilcox, Burt Quackenbush, and Dean Saunden in
violation of Section 8(a)(3) and (1) of the National
Labor Relations Act.
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
31, a hearing was held before Administrative Law
Judge Martin L. Bennett on January 9, 1973, for the
purpose of determining the amount of backpay due
Farrington, Wilcox, Quackenbush, and Saunden.
On January 31, 1973, the Administrative Law
Judge issued the attached Supplemental Decision in
which he awarded backpay to Farrington, Wilcox,
Quackenbush, and Saunden. Thereafter, the General
Counsel filed a limited exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exception and has
decided to affirm the- rulings, findings, and conclu-
sions of the Administrative Law Judge as modified
herein.
The Administrative Law Judge awards interest on
Respondent's unpaid backpay liability only for the
period during which backpay accrued for each of the
discriminatees. The General Counsel contends that
under the Board's Order interest liability continues
until compliance with the Order is achieved. We
agree. The Board's Order in the unfair labor practice
proceeding provided that interest was to be calculat-
ed at the rate of 6 percent per annum as provided in
Isis Plumbing & Heating Co., 138 NLRB 716. Under
the formula set forth in Isis Plumbing & Heating Co.,
supra, at 720-721, such interest is to accrue com-
mencing with the last day of each quarter of the
backpay period on the amount due and owing for
each quarterly period and continuing until compli-
ance with the Order is achieved. The finding of the
Administrative Law Judge that interest was payable
only for the period during which backpay accrued
appears to be an inadvertent error. In any event, we
shall order backpay in accordance with the formula
set forth in Isis Plumbing & Heating Co., supra, as
provided in our Order in the unfair labor practice
proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Webber American Inc., Lawndale, California, its
officers, agents, successors, and assigns, shall pay to
Robert Farrington the sum of $89.17, to Robert
Wilcox the sum of $85.75, to Burt Quackenbush the
sum of $191.91, and to Dean Saunden the sum of
$131.29, and that in addition the Respondent shall
pay to each of the above interest accrued to the date
of payment in accordance with the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716, less
deductions for applicable taxes.
i 194 NLRB 692
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge' This
matter was heard at Los Angeles, California, on January 9,
1973 It stems from a backpay specification issued on
November 1, 1972, by the Regional Director for Region 31
to determine the amounts of backpay owed to Robert
Farrington, Robert Wilcox, Burt Quackenbush, and Dean
Saunden, by Respondent, Webber American, Inc., due to
their unlawful discharge The Order. of the Board is
reported at 194 NLRB No. 109 and the Judgment of the
United States Court of Appeals for the Ninth Circuit was
handed down August 24, 1972, according to the backpay
specification.'
There is no dispute as to the amounts owed the first three
complainants and the General Counsel's motion for
summary judgment, on which ruling was reserved at the
hearing, is granted as to them in the amounts set forth
below. Respondent contends that a portion of the sum
owed to Saunden was sent to him through the mails, that
this tender should be credited to it and a memorandum in
support of this claim has been submitted.
Upon the entire record in the case, and from my
observation of witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find that Respondent owes the following sums with
interest at 6 percent from December 15, 1970, until the
i The Board's Order directed that the four complainants be offered
reinstatement and made whole Reinstatement has been duly offered and
only the amount of backpay is in issue The General Counsel concedes that
some of the backpay has been remitted with appropriate interest
202 NLRB No. 129
WEBBER AMERICAN, INC 831
respective cutoff dates as specified. See Isis Plumbing &
Heating Co, Inc, 138 NLRB 716.
Cutoff
Name Amount Date
Robert Farrington $ 89.17 12/31/70
Robert Wilcox 85.75 11/11/71
Burt Quackenbush 191.91 11/11/71
check perhaps was lost in the mails is no defense. The fact
is that Saunden left a forwarding address, as he testified,
and Respondent was on notice that the check was
outstanding because it had never been cashed.
I find that Respondent owes the sum as set forth in the
specification to Saunden. Needless to say Saunden is not to
be paid twice. Respondent can readily stop payment on the
earlier check and remit the full sum due.
As for Dean Saunden , his backpay owing was $1,131.26
with interest at 6 percent from December 15, 1970 , through
January 12, 1972. The testimony of Saunden rapidly
disposes of the claim that an offset is due. The simple fact
is that he never received or cashed a check for a portion of
the total owed him. And Respondent 's records disclose
that the check had been mailed many months before and
was never cashed.
That Saunden moved during this period and that the
RECOMMENDED ORDER
On the basis of the foregoing findings and conclusions, it
is ordered that Respondent, Webber American, Inc.,
Lawndale, California, its officers, agents, successors, and
assigns, forthwith make the respective payments described
and specified above, less any taxes required to be withheld
under Federal and state law.