Webel Feed Mills & Pike Transit Co.

National Labor Relations Board - Board Decisions

Apr 21, 1977

229 N.L.R.B. 178 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Webel d/b/a Webel Feed Mills & Pike
Transit Company and Local 217, American Feder-
ation of Grain Millers, AFL-CIO. Cases 14-CA-
7884 and 14-CA-7952
April 21, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On November 22, 1976, Administrative Law Judge
Marion C. Ladwig issued the attached Supplemental
Decision in this proceeding. Thereafter, the Respon-
dent filed 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, George Webel
d/b/a Webel Feed Mills & Pike Transit Company,
Pittsfield, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This is
a supplemental proceeding to determine any backpay due
employee Earl L. Hull, who was the Union's chief contact
at the Company's mill until he was discriminatorily laid off
on May 18, 1974, and never recalled. The Board's May 7,
1975, Decision and Order, 217 NLRB 815 (1975), was
enforced by a summary judgment of the Court of Appeals
for the Seventh Circuit on April 16, 1976, ordering the
Company to offer Hull reinstatement to his former job with
backpay.
On January 15, 1975, without the knowledge or approval
of the Regional Office, the Company paid Hull $7,300 (an
amount greatly in excess of his accumulated backpay at the
time), but without reinstatement, as a settlement. The
Company contends that the settlement complies with the
court decree and extinguishes any further right to backpay.
The General Counsel refused to recognize the settlement
229 NLRB No. 28
and applied the $7,300 to the continuing backpay,
contending that there was no valid offer of reinstatement,
that the Company used its financial power to coerce the
unemployed Hull to waive reinstatement, and that the
excessive payment constituted a "bribe" to keep this key
union supporter out of the mill.
The Regional Director issued the backpay specification
on June 11, 1976, and on June 24 the Company filed an
answer (amended on July 2 and 19), raising this and other
issues. The backpay hearing was held in St. Louis,
Missouri, on July 19 and 20, 1976.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the arguments at the hearing and the General Counsel's
brief, I make the following:
FINDINGS AND CONCLUSIONS
A. Background
Earl Hull (as found by the Board, 217 NLRB 815,
adopting the Administrative Law Judge's Decision) initiat-
ed the Union's organizational campaign at the Company's
mill, testified for the Union in the representation proceed-
ing, acted as the union observer at the April 30, 1974,
election, and served as a member of the Union's negotiat-
ing committee after the Union's May 8, 1974, certification.
Meanwhile on March 23, the Company reassigned him-
over his protest-from his regular job as general millhand
on the day shift (working primarily as the pellet mill
operator) to a temporary, two-employee night shift which
was continued for 8 weeks. Then on May 18, as found by
the Board, the Company discriminatorily laid off Hull
instead of reassigning him to the day shift, in violation of
Section 8(a)(3).
As further found by the Board, Company Owner George
Webel told a job applicant on May 4 (4 days before the
Union's certification) that "the union has been voted in
here and ... we are going to fight it." (Emphasis supplied.)
Thereafter, between the May 14 and 20 bargaining
sessions, the Company unilaterally changed the drivers'
pay arrangement, and later refused to retract or negotiate
about the change, "to disparage the Union in the eyes of
the unit employees," in violation of Section 8(a)(5). The
Board also found additional 8(a)(l) violations before and
after the election.
The Union went on an economic strike on June 20, over
a month after Hull's layoff or discharge. Hull remained
unemployed during this time, despite his diligent efforts to
find employment. The Company contested his eligibility
for unemployment compensation, which he did not receive
until after he found employment in August.
The strike was unsuccessful, and about the first week in
August, the Union "called the strike off'-as credibly
testified by general millhand Jerry Cawthon, who returned
to work "a little bit" thereafter (on August 8, 1974).
Later in August, after the strike and picketing ended,
Hull obtained employment with Edgar Houchens, a
painting and sandblasting contractor, most of whose work
was done at the Company's mill. Hull was not permitted to
work at the mill because (as Hull testified without
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WEBEL FEED MILLS & PIKE TRANSIT CO.
objection) "my employer told me that [Owner] George
Webel did not want me there."
On October 11, the Union met in negotiations with the
Company, without the participation of any of the employ-
ees. As credibly testified to by International Representative
Lloyed Freilinger, the Company advised that "there was no
way they could even talk about a contract or get a
settlement with Mr. Hull and have him come back to
work." Management Consultant Charles Merideth admit-
ted that in the meeting Freilinger said "he would rather
that Mr. Hull would stay as a future employee since he was
a keypart of the union structure." (Emphasis supplied.)
On December 9, 1974, upon advice of counsel, Interna-
tional Representative Freilinger sent the Company a
formal notice, advising it that the employees "have
terminated their strike and hereby make an unconditional
offer to return to work." As Freilinger credibly testified,
the strike had terminated long before that, as was quite
obvious when the employees quit picketing.
The Company still failed to recall Hull. I find that the
Company had no intention of recalling him, and that his
"layoff" was clearly a discharge.
B. Compliance or Bribe?
The credible evidence clearly shows that the Company at
no time in January 1975 made Hull a valid offer of
reinstatement "to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,"
as required by the court judgment. Instead, in several
meetings held between January 10 and 15-without
consulting the Board's regional office-the Company
bargained directly with Hull for an amount he would
accept to waive reinstatement, while seeking "justification"
for a payment in excess of lost earnings in order that the
settlement would "go past" the Board and not be
considered a "bribe."
When Management Consultant Merideth and General
Manager John Teuscher first met with Hull near his
father's home on January 10, 1975, Merideth asked him (as
Hull credibly testified), "Earl, would you be willing to
make a settlement in lieu of returning to Webel's?"
Merideth told Hull that the mental strain and anguish
would be too much for him. Hull, who was then
unemployed, "explained to them that that wouldn't bother
me," but that he would be willing to settle without
reinstatement if "they would go ahead and negotiate a
workable contract with Mr. Freilinger." He first told them
that he would take $6,000 or more. Merideth invited Hull
to his office the next morning for further conversation.
On Saturday morning, January II11, Hull told Merideth
and Teuscher "that I had been doing some figuring and
that I had come up with a figure of $10,000." Both
Merideth and Teuscher said no. Merideth added that it
would look like a bribe if the payment were too high, and
stated that the amount had to be "justified" because the
Board required him to show exactly the basis on which
Hull was claiming the money. Merideth also "informed me
that the only alternative that he had was to give me a letter
of reinstatement, and I told him that that would be fine. I
was unemployed at the time, and I was ready to go back to
work." (Thereafter, Hull stated his willingness to return
each time Merideth mentioned the alternative of reinstate-
ment. On each occasion, Merideth would change the
subject without actually making the offer.) At one point
that morning, Merideth stated "that if I did go back, that it
would probably be on the night shift," and that "it would
be rather risky or dangerous working by myself at night,"
that "Anything could happen to anyone working at night
alone." Hull responded that "it didn't bother me, that I
could take care of myself." (Merideth admitted telling Hull
that his reinstatement would be to the night shift. Although
Hull last worked at night, that assignment was only
temporary. In the absence of the discrimination against
him, he would have been reassigned to his former job as
general millhand on the day shift.) They failed to reach an
agreement on a settlement figure, and Hull stated he
wanted to contact his attorney (meaning International
Representative Freilinger).
Before meeting again with Merideth and Teuscher on
Monday, Jaunary 13, Hull talked with Freilinger. As
Freilinger credibly testified, "I told Earl that he was the
mainstay in the organizing attempt and that he was the
contact I had with the people there, that he was on the
negotiating committee and if he was gone I would lose all
contact with the people and that the union needed him ...
and that was probably why the company wanted to tempt
him with the money offer, so he wouldn't go back to work."
(Freilinger credibly testified that without Hull, "We
wouldn't have a leader" at the mill or "anyone to handle
the situation because he was the one the people depended
on and went through and used as their leader or contact
man.") Freilinger further told Hull "I don't really think this
[settlement] is appropriate and I don't know whether the
Board would approve it. I can understand your feeling . . .
being you have been without a job. .... That's up to you,"
but "I would like to go along to the meeting," without
getting into the discussion. (Freilinger impressed me as an
honest, trustworthy witness.)
At the meeting in Merideth's office that Monday,
Merideth stated that George Webel did not want Hull
back. However, Merideth stated that the company attorney
would not let them offer Hull any more than $4,300
because any larger amount "wouldn't go past" the Board,
which would look at it as a bribe. (The Company had
found that Hull's lost earnings since May 18, based on his
earnings the previous year for that period, were $5,499. The
$4,300 offer was evidently a net figure, after deduction of
the estimated interim earnings.) In an attempt to find
"justification" for a larger settlement, Merideth and Hull
discussed various amounts for interest, insurance, travel
expenses, social security and income taxes, and future
unemployment compensation. Freilinger stated he was
there only as a witness. He advised Merideth that he did
not know whether it was appropriate or not for Merideth to
be negotiating with Hull on the settlement "and I was not
going to get involved in it." Finally, Hull stated that he
would take the (net) amount of $7,600; Merideth offered
$7,000; and Hull said he would compromise at $7,300 (net).
When Merideth offered the $7,000, he said that was as far
as the Company could go, and that the alternative was to
reinstate Hull. As Freilinger credibly testified, Hull "said
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would be ready to go back to work." Merideth never
made the reinstatement offer.
Although no agreement was reached at this meeting and
no waiver papers were signed, Company Owner Webel
signed a letter dated January 13, telling Hull that under the
terms of the Administrative Law Judge's (December 18,
1974) order, "we were directed to offer you reinstatement
to your former job or reasonable equivalent. We would be
prepared to offer you reinstatement, except that we
understand that you do not wish to come back to our
company's employ and waive your right to be reinstated
.... " (Emphasis supplied.) I discredit Merideth's testimo-
ny that on January 10 he did offer to reinstate Hull, and
the testimony by Merideth and Teuscher that Hull stated
that he would return only on the condition that the
Company agreed to a union contract. Of course Webel
would not have signed the January 13 letter (stating the
Company "would" be prepared to reinstate him) if
Merideth had already offered to reinstate Hull. Moreover,
Teuscher's did not corroborate Merideth's testimony of
such an offer. Instead, Teuscher's testimony was that
Merideth "asked Earl if he would want to be reinstated."
(Emphasis supplied.) When giving this and other testimony
(for example, their testimony that Hull first requested
$25,000), both Merideth and Teuscher appeared to be
fabricating testimony to help the Company's cause. (I note
that the Board specifically discredited some of Merideth's
testimony in the earlier hearing herein, and found that
Teuscher gave contradictory testimony.)
On January 15, the Company and Hull reached an
agreement for Hull to be paid the total of $8,068, consisting
of a check for $7,300 plus the amount of $768 deducted for
social security and income taxes. The January 15 memo-
randum incorporating these terms read:
EARL L. HULL PAYMENT IN ACCORDANCE WITH NLRB
DECISION
Back Pay $5499.25
Interest 165.00
Insurance Pay Back 567.00
Other 1068.75
$7300.00
Social Security and Income Taxes of $768.00 paid by
Webel Feed Mills.
This settlement was grossly in excess of Hull's accumu-
lated backpay. The cash payment of $7,300 included
$5,499.25 for gross backpay, without any reduction for
interim earnings. The backpay specification shows gross
backpay of $4,724.68 (from May 18 through the first 2
weeks of 1975), less gross interim earnings of $2,772.03,
leaving only $1,952.65-far less than half of the $5,499.25
figure. The so-called "Other" figure (referring to travel and
expenses) was in the amount of $1,068.75-which was
$944.75 in excess of the $124 shown in the backpay
specification. And instead of the Company deducting the
taxes, it agreed to pay them separately. Thus, even
assuming that the $165 in interest and $768 in taxes were
correctly figured and the $567 for unpaid insurance
premiums was properly added, the total agreed amount of
$8,068 was almost 4 times the actual accumulated backpay
of $2,040.65 (gross backpay $4,724.68, minus gross interim
earnings $2,772.03, plus travel and expenses $124 and
insurance $567, minus taxes $768, plus interest $165, equal
$2,040.65).
In exchange for this excessive payment, Hull executed a
company-prepared form, stating that he did not desire, and
waives, his right of reinstatement, and acknowledging
receipt of the $7,300 check in full payment of all backpay
due him.
I find it clear that the purported settlement-without the
Regional Office's participation or approval-did not
extinguish any further right to backpay, or comply with the
court judgment. In the first place, the Company failed to
offer Hull reinstatement. He "had not been put to a true
test of having to make a reinstatement decision," and "it
could not effectuate the policies of the Act to terminate"
his backpay rights as of that time. Burnup and Sims, Inc.,
157 NLRB 366, 368 (1966), enfd. 383 F.2d 987 (C.A. 5,
1967). In the second place, under all the circumstances
(including Owner Webel's postelection threat, "we are
going to fight" the Union), I find that the payment to Hull
of the excessive amount for his backpay was intended to
coerce him to sign the waiver of reinstatement, for the
purpose of keeping this union leader out of the mill.
Thirdly, the Company failed to live up to its bargain in the
settlement agreement, by reneging on its promise to pay the
$768 in payroll taxes. I therefore find that the General
Counsel properly refused to sanction the waiver, and
properly applied the amount of the payment to the
continuing backpay.
Moreover, even if the Company had in fact made a
reinstatement offer to Hull, the offer would have been to
the night shift-not an offer of reinstatement to his "former
job," which was that of a general millhand on the day shift
(to which the Board held he would have been assigned if he
had not been discriminatorily laid off). Admittedly, the
Company assigned the temporary night work as mixer
operator to a qualified employee with the least seniority.
The court judgment ordered "full reinstatement to his
former job ... without prejudice to his seniority and other
rights and privileges." Hull's seniority, dating from June
1971, was of course greater than the seniority of junior
employees and strike replacements who had been working
in the mill since Hull's discriminatory discharge.
C. Other Issues
1. Average weekly wages
In its amended answer, the Company admits that the
measure of weekly wages which Hull would have earned is
an appropriate measure of backpay, but contends that an
appropriate period for measuring average weekly wages
would be the quarter period prior to his layoff, rather than
the prior year. In view of the admitted seasonal nature of
the operation, this contention clearly lacks merit. More-
over, the Company itself used a longer period-from May
until December-when determining the higher weekly
average in support of the settlement figure paid Hull on
January 15, 1975.
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WEBEL FEED MILLS & PIKE TRANSIT CO.
I find that Hull's weekly average of $140.31 is the correct
figure for computing his backpay through February 15,
1975, as alleged in the backpay specification.
2. Tonnage basis after February 16, 1975
On February 16, 1975, the Company placed two other
general millhands, Gerald Cawthon and David Mulford,
on an incentive basis, paying them at the rate of 30 cents
per ton on the mill's production, thereby raising their
average weekly wage (during the I-year period from
February 16, 1975, through February 15, 1976) to $246.13.
The backpay specification bases Hull's backpay from
February 16, 1975, through March 31, 1976, on this
average weekly wage. (Hull's backpay after March 31,
1976, remains subject to subsequent proceedings.)
Until shortly before general millhand Hull was terminat-
ed on May 18, 1974, he was being paid at a higher hourly
rate than general millhands Cawthon and Mulford, even
though Hull had less seniority. The three general millhands
worked together on the day shift, producing the feed.
Although each of the three spent more time on certain
operations than others, they helped one another and
worked when needed on all of the machines (including the
drive, mixer, pellet mill, driers, and bagger), handled
incoming and outgoing grain, cleaned the pits and the legs,
and did other cleaning and maintenance work.
Inasmuch as Hull's regular job as general millhand was
comparable to the jobs of general millhands Cawthon and
Mulford before his termination, and his hourly pay had
been higher than theirs, I find that in the absence of his
support of the Union and this discriminatory discharge, he
would also have been placed on the same tonnage basis for
his compensation. I therefore find, contrary to the
Company's contention, that the tonnage earnings of
Cawthon and Mulford, averaging $246.13 per week
beginning February 16, 1975, constituted the most appro-
priate basis for computing Hull's backpay from that date.
(Gerald Conkright, the regular mixer operator on the day
shift, is paid on an individual tonnage basis. However, his
work is not comparable to the work of the general
millhands, and the parties stipulated that his earnings
would not afford a reasonable basis for computing Hull's
backpay.)
3. Backpay during and after strike
Finally, the Company contends that although Hull was
discriminatorily terminated prior to the strike, and was not
recalled or offered reinstatement during the time, he is not
entitled to any backpay from June 20, 1974, when the strike
began, until December 9, 1974, when the Union formally
notified the Company that the strike had terminated. The
Company belatedly raised this issue at the backpay
hearing, after having included his backpay for this entire
period when reaching its purported settlement with him on
January 15, 1975.
It is "well settled that employees who are discriminatori-
ly discharged prior to a strike are entitled to backpay for
the entire duration of the strike." Polynesian Cultural
Center, Inc., 222 NLRB 1192, 1194, fn. 12 (1976). In Winn
Dixie Stores Inc., 206 NLRB 777, 778 (1973), enfd. 502
F.2d 1151 (C.A. 4, 1974), where three discriminatees had
been "very active" in the Union, had "participated in
negotiations," and had voted to join the strike, the Board
rejected the Administrative Law Judge's ruling that "their
backpay should be tolled for the period that they
participated in this strike," reaffirming that:
The Board has consistently held, in cases involving
employees who have been unlawfully discharged before
an economic strike is called, that the entire duration of
the strike is includible in the backpay award period
because the employer's own discrimination against the
claimant makes it impossible to ascertain whether such
claimant would have gone out on strike in the absence
of the discrimination and the resulting uncertainty must
be resolved against the employer. ... To hold that an
employer who has wrongfully discharged an employee
prior to a strike may escape the consequences of his
misconduct by simple inaction in failing to offer
reinstatement to the employee would reward the
employer for his misconduct. To require the fired
employee to apply to the employer who has evinced no
retreat from his unlawful conduct appears hardly
reasonable, and also contrary to the well-established
legal principle that a condition once established-the
employer's refusal to employ the employee-is pre-
sumed to continue in the absence of evidence showing a
change has occurred.
Accordingly, the Board there found that the employer
failed to sustain its contention that the three discriminatees
were not available to work.
Here, Hull was discriminatorily discharged (although
told he was "laid off') on May 18, 1974. Being unemployed
when the strike began on June 20, he did his share of the
picketing and acted as the strike leader. However, he had
been diligently seeking employment and, after the strike
began, continued to seek employment and to register at the
Illinois unemployment office, where he was required to fill
out a card each week, explaining his efforts to find
employment. After the Union informally terminated the
strike about the first week in August 1974, Hull continued
seeking employment until he succeeded in finding work
later that month. He was again unemployed in January
1975 when he accepted a sum of money for waiving
reinstatement-despite being told by International Repre-
sentative Freilinger that the Union needed Hull in the mill
and that if he did not return to work, the Union would lose
all contact with the employees.
The company counsel argues that Hull was "a leader of
the Union . . . was the Union's contact in the shop ...
was, you might say, the leader in the strike movement,"
and it would be a "fanciful thing to assume" that Hull
"would have come back before December 9." The counsel
added that such an assumption is "consistent with what the
General Counsel has done throughout this pleading and
throughout the hearing: that is, try to soak this employer
with as many dollars and give it to this claimant as
possible." However, Hull had been unemployed for over a
month when the strike began on June 20, 1974, and he did
turn his back on the Union when he was again unemployed
in January 1975 and accepted money for waiving reinstate-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment-despite being told that the Union would no longer
have any contact in the mill without him. Under these
circumstances, I find it uncertain whether he himself would
have gone on strike, or how long he would have remained
on strike during the approximately 6 weeks of picketing, if
the Company had offered to end his unemployment by
recalling or reinstating him. I also find it unlikely that Hull
would have refused recall or reinstatement between the
time the Union informally terminated the strike early in
August and the time it gave formal notice of the strike
termination on December 9. During this 4-month period,
other union supporters were returning to work and the
Union was seeking Hull's reinstatement. I therefore find
that the evidence does not establish that Hull was
unavailable for work during the 6-week strike or thereafter.
Accordingly, I reject the Company's defenses and find
that the backpay specification accurately sets forth the
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
Company's backpay liability from May 18, 1974, through
March 31, 1976.
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER '
Respondent, George Webel d/b/a Webel Feed Mills &
Pike Transit Company, Pittsfield, Illinois, its officers,
agents, successors, and assigns, shall make Earl L. Hull
whole through March 31, 1976, by paying him the amount
of $6,350.30, plus interest at 6 percent per annum in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962), until the backpay is paid, less the tax
withholdings as required by law.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
182