W.R. Grace & Co.

National Labor Relations Board - Board Decisions

Jan 30, 1980

247 N.L.R.B. 698 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. R. Grace & Co., Construction Products Division
and General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers, Local No. 270, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind. Case
15-CA-6108
January 30, 1980
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On August 13, 1979, Administrative Law Judge
Robert C. Batson issued the attached Supplemental
Decision in this proceeding.' Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed cross-exceptions and a supporting
brief.
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 excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
1. In its original Decision and Order the Board
found, inter alia, that Respondent violated Section
8(a)(5) of the Act by failing to bargain over the effects
of its decision to discontinue its Monokote operation
and to lay off four employees. As a remedy therefor,
the Board ordered Respondent, inter alia, to bargain
over the effects of its decision and to provide backpay
to the four laid-off employees in a manner similar to
that required in Transmarine Navigation Corporation
and its subsidiary, International Terminals, Inc., 170
NLRB 389 (1968). Consequently, Respondent was
ordered to pay the four laid-off employees amounts at
the rate of their normal wages when last in Respon-
dent's employ from 5 days after the Board's decision
until the occurrence of one of four specified condi-
tions, including the subsequent failure of the Union to
bargain in good faith.2 In the instant proceeding, the
Administrative Law Judge found that the Union, in
fact, subsequently failed to bargain in good faith. In so
doing, he concluded that a Transmarine remedy
I The Board's original Decision and Order is reported at 230 NLRB 617
(1977). Thereafter. the Court of Appeals for the Fifth Circuit entered its
judgment enforcing the Board's Order in part at 571 F. 2d 279 (1978).
The four conditions as set forth in the Board's Decision were as follows:
(I) T]he date Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of discontinuation of the
Monokote operation and layoff of employees and over its changing of
work schedules:
247 NLRB No. 94
imposes a more stringent test for timely good-faith
bargaining by both parties than the test applied for
general bargaining orders.
We agree with the Administrative Law Judge that,
consistent with the provision of a Transmarine-type
remedy, which terminates an employer's backpay
liability if the union should cease to bargain in good
faith, a union's failure to respond timely to employer
proposals evidences a lack of good-faith bargaining.
We also agree that here, as of August 10, the Union's
failure to respond to Respondent's proposal contained
in its August 5 letter was untimely, that the Union's
failure to respond timely constituted a breach of its
obligation to bargain in good faith, and that, as a
consequence, Respondent's backpay liability was
tolled on August 10.
In so doing, however, we do not understand the
Administrative Law Judge to be proposing, nor would
we adopt, a per se rule that failure to respond within 5
days to a proposal is untimely. Indeed, the timeliness
of a response can be determined only by reference to
the facts and circumstances of the particular case.
Here, for example, on July 27, 1977, during a
telephone conversation with the Union, Respondent
proposed to give laid-off employees 3 weeks' backpay.
By its August 5 letter to the Union, Respondent in
substance repeated this offer. However, the Union
failed to respond either to the July 27 offer or to the
repetition of that offer in the August letter, despite the
admission of the Union's business agent that he knew
"within a couple of days" of August 5 that the
employees in fact had decided to reject the offer.
Given these circumstances, we are satisfied that by
August 10 the Union had sufficient opportunity after
receipt of the August 5 letter to consider and respond
to Respondent's proposal. Indeed, the Union failed to
initiate any contacts with Respondent after receipt of
the August 5 letter, and, when Respondent sought to
renew negotiations on various dates in late August,
September, and October, the Union neither revealed
that Respondent's offer had been rejected nor attempt-
ed to bargain over the matter by making counterpro-
posals. Accordingly, it is apparent, as found by the
Administrative Law Judge, that the Union's course of
conduct after receipt of Respondent's August 5 letter
was totally at odds with its obligation to bargain in
good faith and was intended to serve the Union's
interest in seeking to increase Respondent's backpay
liability.
(2) a bona fide impasse in bargaining;
(3) the failure of the Union to request bargaining within 5 days of this
Decision or to commence negotiations within 5 days of Respondent's
notice of its desire to bargain with the Union; or (4) the subsequent
failure of the Union to bargain in good faith . . . [230 NLRB at 619.]
698
W. R. GRACE & CO.
2. The Administrative Law Judge found that the
backpay period for three of the four discharged
employees was 5 weeks. However, he limited the
backpay period for employee Solomon James to 4
weeks, based on his finding that James obtained
substantially equivalent employment 4 weeks into the
Board-ordered negotiating period. In this connection,
the Administrative Law Judge apparently concluded
that the number of weeks of backpay liability under a
Transmarine remedy is tolled if an employee obtains
substantially equivalent employment during the nego-
tiating period. Contrary to the Administrative Law
Judge, James is entitled to backpay for the entire 5
weeks.
A Transmarine remedy establishes a set number of
weeks of backpay liability based on the period from 5
days after the Board's decision until the occurrence of
one of the four specified events, noted previously.
These weeks are then applied in full to the time period
following termination of employment, unless substan-
tially equivalent employment was found during that
period.' Here, backpay was tolled on August 10,
resulting in 5 weeks of backpay liability. Therefore,
the relevant question here is whether James obtained
substantially equivalent employment less than 5 weeks
after his layoff, not whether he found such employ-
ment during the negotiating period, which was over a
year after his layoff. Consequently, only if James had
obtained substantially equivalent employment 4 weeks
after layoff; i.e., on June 18, 1976, would the number
of weeks of backpay liability become 4 rather than 5.
Inasmuch as James obtained substantially equivalent
employment on August 2, 1976, a year before the
negotiating period, but still more than 5 weeks after
his layoff by Respondent, we find that he is entitled to
backpay for the full backpay period.'
Having found that James' backpay period is 5
rather than 4 weeks, the amount of backpay due him
must be recalculated. James earned $150.40 per week
when last in Respondent's employ. In the 5-week
backpay period he would have earned $752. His
admitted interim earnings during the 6 weeks remain-
ing in the second quarter of 1976 after his layoff was
$301, five-sixths of which is $250.83. The amount of
backpay due James is therefore $501.17. We shall
modify the Administrative Law Judge's recommended
Order accordingly.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, W. R. Grace & Co.,
Construction Products Division, Jefferson Parish,
Louisiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order, except that the amount of backpay to be paid
to Solomon James shall be $501.17, and Respondent
shall pay interest from the commencement of the
backpay period until the indebtedness has been dis-
charged in accordance with American Compress Ware-
house, Division of Frost- Whited Company, Inc., 156
NLRB 267, 276 at fn. 35 (1965), enfd. 374 F.2d 573
(5th Cir. 1967); Isis Plumbing & Heating Co., 138
NLRB 716 (1962); and Florida Steel Corporation, 231
NLRB 651 (1977).'
' In accordance with Transmarine. the remedy in the Board's original
Decision herein provided the following limitation of the amount of hackpay:
[I]n no event shall the sum paid to any of these employees exceed the
amount each would have earned as wages from the time Respondent
terminated its Monokote operation to the time each secured equivalent
employment elsewhere, or the date on which Respondent shall have
offered to bargain, whichever occurs first: provided, however. in no event
shall this sum be less than such employees would have earned for a 12-
week] period at the rate of their normal wages when last in Respondent's
employ.
The Administrative Law Judge erroneously stated that James obtained
substantially equivalent employment on August 2, 1977.
' Respondent excepts to the Administrative Law Judge's failure to deduct
the entire amount of severance pay which each employee admittedly received
from the backpay due him. The Administrative Law Judge prorated the
severance pay over the 6 weeks remaining in the second quarter of 1976 after
'the layoffs, consequently deducting only five-sixths of the entire amount of
severance pay from the backpay due. Severance pay is properly considered as
interim earnings. Southern Colorado Power Co., 13 NLRB 699, 718 (1939);
The Press Co.. 13 NLRB 630, 648 (1939). Further, it is the Board's practice,
when it is unclear in what week during a quarter an employee received interim
earnings, that such earnings be prorated over that entire quarter. East Texas
Steel Castings Co.. 116 NLRB 1336, 1346-47 (1956). Inasmuch as the record
does not clearly establish when in the second quarter of 1976 the severance
pay was paid to the employees, the Administrative Law Judge acted properly
in prorating these amounts.
' The General Counsel excepts to the Administrative Law Judge's failure to
award interest on the amount of backpay due the four employees. It is Board
policy to include interest on backpay awards (see, generally. Isis Plumbing d
Heating Co., 138 NLRB 716 (1962); Florida Steel Corporation., 231 NLRB 651
(1977)), and the Board. in fact, has done so in Transmanne-type awards. See,
e.g.. Caltrans Systems. Inc.. 245 NLRB No. 90 (1979); Globe Security Services,
Inc.. 229 NLRB 460 (1977); Summit Tooling Company. 195 NLRB 479
(1972). The Board's original Order. which did not include interest. has been
enforced by the court of appeals. However. in such circumstances the Board.
with court approval, in the exercise of its discretion has awarded interest from
the date of the administrative law judge's supplemental decision adjudicating
the amount of the total net backpay obligation as well as from the
commencement of earlier periods. Compare, e.g., Local 138. International
Union of Operating Engineers, AFL-CIO (Nassau and Suffolk Contractors'
Association. Inc.). 151 NLRB 972 (1965), enfd. in pertinent part 380 F.2d 244
(2d Cir. 1967), and Burnup and Sims. Inc.. 157 NLRB 366 (1966). enfd. 383
F.2d 987 (5th Cir. 1967). with American Compress Warehouse, Division of
Frost-Whited Company. Inc.. 156 NLRB 267, 276 at fn. 35 (1965), enfd. 374
F.2d 573 (5th Cir. 1967), and Fibreboard Paper Products Corporation. 180
NLRB 142, 147. 170 (1969), enfd. 436 F.2d 908 (D.C. Cir. 1970). We find no
circumstances here which warrant limiting the award of interest to the period
following the Administrative Law Judge's Supplemental Decision. Therefore,
we have modified the recommended Order to provide for an award of interest
on the net hackpay obligation from the commencement of the backpay period.
SUPPLEMENTAL DECISION
ROBERT C. BATSON, Administrative Law Judge: This
supplemental proceeding was initiated by the National
Labor Relations Board's Acting Regional Director for
Region 15 (New Orleans, Louisiana), pursuant to Section
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
102.52, e seq., of the Board's Rules and Regulations, as
amended, by the issuance of a backpay specification and
notice of hearing on October 4, 1978.' The backpay
specification was further amended at the hearing. Respon-
dent filed a timely answer to the Board's pleading pursuant
to Section 102.54 of the aforesaid Rules and Regulations. On
May 15, 1978, the United States Court of Appeals for the
Fifth Circuit entered judgment' enforcing in part the Board's
Decision and Order' in this matter, directing Respondent
herein to, inter alia, upon request bargain collectively with
the Union concerning the effects of the discontinuation of its
Monokote operation and the layoff of unit employees, and to
provide backpay to Solomon James, John Cunningham,
James Fox, and Louis Morgan as set forth in the Board's
Decision.
As pertinent here, the Board ordered Respondent to pay
employees James, Cunningham, Fox, and Morgan, amounts
at the rate of their normal wages when last in Respondent's
employ from 5 days after the date of its decision until the
occurrence of the earliest of the following conditions:
(I) The date Respondent bargains to agreement with
the Union on those subjects pertaining to the effects of
the discontinuation of the Monokote operation and
layoff of employees; ... (2) a bona fide impasse in
bargaining; (3) the failure of the Union to request
bargaining within 5 days of this Decision or to
commence negotiations within 5 days of Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of the Union to bargain in good faith,
but in no event shall the sum paid to any of these
employees exceed the amount each would have earned
as wages from the time Respondent terminated its
Monokote operation to the time each secured equiva-
lent employment elsewhere, or the date on which
Respondent shall have offered to bargain, whichever
occurs first; provided, however, in no event shall this
sum be less than such employees would have earned for
a 2-week period at the rate of their normal wages when
last in Respondent's employ.'
The specification alleges that the backpay periods are the
calendar quarters between May 20, 1976 (the date of
termination), and February 17, 1977 (the date by which the
four affected employees had secured substantially equivalent
employment). Respondent contends that the backpay period
commenced on July 5, 1977 (5 days after the date of the
Board's Decision), and was interrupted until July 27, 1977,
because the Union did not commence meaningful negotia-
tions until that date, and that the backpay period ended on
or about August 10, 1977, when the Union discontinued
bargaining in good faith. The issue raised with respect to the
commencement of the backpay period is more illusory than
real. The backpay period for the purpose of computing the
amount of backpay due is measured from May 20, 1976, the
' This case was heard by me on May 14, 1979, at New Orleans, Louisiana.
'571 F.2d 279 (5th Cir. 1978).
' 230 NLRB 617 (1977).
' The Board's original Order contained a typographical error which stated
"would have earned for a 20-week period .... " On motion of Respondent
for Clarification of the Decision, on August 3, 1977, the Board issued its
Order Clarifying its Decision, wherein it substituted "would have earned for a
2-week period ... "
date of termination. However, for the purpose of determin-
ing the length of the backpay period the date of July 5, 1977,
5 days after the date of the Board's Order, must be
considered the beginning date and continuing until the
occurrence of the earliest of the four conditions set forth in
the order.
The principal issue litigated is the length of the backpay
period. As heretofore noted, Respondent contends that the
backpay period was terminated not later than August 10,
1977, at which time the Union ceased bargaining in good
faith or, in the alternative, a bona fide impasse had been
reached. The General Counsel argues that the earliest of the
four conditions terminating the backpay period was the
obtaining of substantially equivalent employment.
Upon the entire record in this case, including my
observation of the testimonial demeanor of the witnesses and
upon consideration of briefs filed by the counsel for the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
The facts, by and large, are not in dispute. The Board's
Order issued on June 30, 1977.5 On July 6 the Upion's local
business agent, Robert C. Louis, hand delivered to the office
of Respondent a written request to commence negotiations
for a collective-bargaining agreement and specifically re-
quested bargaining over the effects of the discontinuation of
the Monokote operation as provided in the Board's Order.6
On July 8 Andrew Partee, Respondent's attorney, tele-
phoned Louis and, in substance, advised him that Respon-
dent was undecided as to whether to test the Board's Order
in the court of appeals and advised Louis that the Company
was filing a motion to clarify the Board's Order with respect
to the typographical error heretofore noted in footnote 3.
Partee advised Louis that the Employer desired to bargain
over the effects on its employees arising from the cessation of
the Monokote operation as provided in the Board's Order.
Louis advised Partee of his scheduled vacation and request-
ed that commencement of negotiations be deferred until his
return on or about July 25. Partee objected to such delay in
the commencement of negotiations, and Louis agreed to try
to get another representative to handle the matter.
Louis arranged for another business agent, Noland Le-
Blanc, to meet with Partee and so advised Partee, scheduling
a meeting for July 12 at Partee's office. At the July 12
meeting in Partee's office were Partee and R. Timmons,
southern products division manager for the Employer, and
LeBlanc for the Union. Partee advised LeBlanc that he was
still undecided about testing the Board's Order in the court
of appeals but stated that he wanted to bargain over the
effects of the cessation of the Monokote operation. LeBlanc
'All dates hereafter are 1977, unless otherwise indicated.
' Respondent makes no contention that the Union's request to bargain,
although not made until July 6, 6 days after the issuance of the Board's Order,
is untimely. It is noted that July 4 is a national holiday and should be
excluded from the 5-day requirement of the Order. Moreover, Respondent's
counsel stated that he did not receive a copy of the Board's Decision and
Order until July 5.
700
W. R. GRACE & CO.
stated that he wanted to negotiate a contract for all the
employees.' Partee advised LeBlanc that he was bargaining
only about the effects of the cessation of the Monokote
operation as required by the Board's Order. LeBlanc agreed
to the limited negotiations and made an offer that the four
affected employees be returned to work in order of seniority
with backpay until such offers were made and argued that
under the Board's Order each of the four employees was
entitled to a minimum of 20 weeks' backpay. Partee declined
the offer and contended that the "20 week" backpay was a
clerical error which he would move to correct.
While it is not entirely clear, it appears that Partee
countered with an offer of 2 weeks' backpay to each
employee which had already been paid as severence pay.' In
any event, LeBlanc advised Partee that he could not accept
any offer for the employees since he did not know them and
did not know how to contact them and stated that he would
have Bob Louis call Partee when Louis returned from
vacation.'
About July 19 Partee telephoned LeBlanc and inquired if
LeBlanc had contacted the employees with respect to his
offer or if LeBlanc had another offer. LeBlanc advised
Partee that he did not know how to contact the employees
and that he would relay Partee's offer to Louis when Louis
returned from vacation on July 25. By letter to LeBlanc
dated July 22 Partee set forth the substance of what had
transpired at this meeting.'0
Upon Louis' return from vacation on July 25 he tele-
phoned Partee and reaffirmed the Union's position that the
employees be placed on a preferential rehire list. Partee
declined, asserting that in the opinion of Respondent two of
the employees had made themselves unemployable by
threats made to the plant manager after their termination.
Louis promised to relay Respondent's position to the
employees. On July 27 Louis again telephoned Partee and
advised him that the employees were unwilling to accept any
offer that did not include a preferential hire to the first
available job at the plant. Partee declined, and Louis
proposed 3 weeks' additional backpay. Partee told Louis
that if a preferential hire was essential then they were at
impasse. Louis stated that this was not necessarily the
Union's final offer, and that he would like to talk to the
employees some more. Partee told Louis that if they would
forgo preferential hire the Company would be receptive on
money.
Louis did not thereafter contact Partee regarding this
matter. At the hearing Louis testified that he thought he
could get the employees to accept the 3 weeks' backpay, but
they declined it and told him that "they wanted to go all the
way with it and get as much out of it as they could." On
August 5, after trying to reach Louis by telephone, Partee
sent a letter to Louis wherein he supplied Louis with data
showing the severance pay the Company had paid the
employees, which the employees had apparently denied, and
their unemployment compensation records. Partee conclud-
ed the letter as follows:
' The Board, in its Order, certified the Union as the exclusive collective-
bargaining representative of all employees in the appropriate unit and issued
its traditional bargaining Order.
' LeBlanc testified that he construed Partee's offer to be an additional 2
weeks' pay in order to settle the case.
I attempted to reach you today and am anxious that we
bring this matter to a conclusion. As you know, we
have a basis under which we believe both James and
Cunningham have forfeited any rights to reinstatement.
We feel that their compensation already received is
already greater than that provided in most collective
bargaining agreements. Nonetheless, if a compromise
with respect to the circumstances of a preferential
hiring list can be made, we will seriously consider the
payment of an additional week or so of pay.
Louis did reply to the letter, and there was no further
effort by the Union to bargain over the effects of the
discontinuation of the Monokote operation. However, ac-
cording to Partee, on August 29 he telephoned the Union's
attorney, John Ormond, whom Louis had indicated he
would consult with respect to the Union's legal position.
Partee reviewed the negotiations with Ormond, and Ormond
stated that he "would look into the matter" and get back
with Partee. Ormond did not contact Partee. On September
7 Partee again called Ormond, and Ormond told him that he
had discussed the matter with Louis, and they had decided
to let the employees decide whether to accept the Company's
proposal. Partee told Ormond that in the unlikely event that
the Company resumed the Monokote operation he would
agree to rehire the four employees in lieu of the preferential
hire in the remaining operation. Ormend agreed to relay this
offer to the employees and advise Partee. On September 12
Partee again contacted Ormond and was advised that Louis
had recommended that the employees accept the Company's
last offer, but they had not gotten a reply-Partee heard
noting further from the Union or its attorney.
On October 14 Partee wrote another letter to Louis
wherein he, inter alia, reiterated the Company's offer of 3
weeks' additional backpay and reinstatment in the event that
the Company resumed the Monokote operation. He con-
cluded the letter with, "[i]f the above offer is not accepted
within a reasonable time, we will assume that you have
rejected it and we have reached impasse on the issue." There
were no further communications between the parties.
At the hearing the General Counsel amended the specifici-
ations with respect to John L. Cunningham by admitting an
additional $947 in interim earnings from odd jobs such as
cutting grass, laying slab, and hustling trucks. The amount
was admittedly an estimate and was spread over the entire
alleged backpay period. The counsel for General Counsel
also stated that it had come to her attention that Cunning-
ham had been offered a job on August 31, 1976, by Plywood
Panels Incorporated with a rate of pay of $3.10 per hour,
which he had declined." At the hearing the counsel for the
General Counsel declined to take a position on whether the
offered job was substantially equivalent and backpay should
be tolled from that time or whether his failure to accept the
offer, although not substantially equivalent, amounted to a
wilfull loss of earnings which should be subtracted from
gross backpay. However, in her brief she argues that the job
' The findings with respect to this meeting are based principally on the
testimony of LeBlanc.
'O At the hearing LeBlanc took issue with some of the language in the letter,
but such does not affect the above findings as to what transpired.
" According to Cunningham, he was offered only S2.80 per hour.
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not substantially equivalent, and Cunningham was not
required to accept the job to mitigate his loses.
Cunningham testified that he was offered only $2.80 per
hour, that he declined the job because he was making more
money by intermittently cutting grass, digging slabs, and
"hustling trucks," and that the job would interfere with his
search for better employment.' 2 Lowell Higdon, personnel
manager for Plywood Panels, was called by Respondent, and
he testified that while he did not recall whether he offered
Cunningham a job, if such offer had been made, as admitted
by Cunningham, it would have been for a forklift driver
position. Such position, under the wage scale of the
collective-bargaining agreement, would earn $3.10 per hour
to start and go to $3.35 per hour in 60 days. I credit
Higdon's testimony that the job offered to Cunningham
would pay $3.10 per hour to start and graduate to $3.35 per
hour in 60 days.
Analysis and Conclusions
The principal issue raised by Respondent's answer to the
backpay specification and litigated at the hearing is whether
one of the four conditions spelled out in the Board's Order
which would terminate backpay liability occurred prior to
the employees' obtaining substantially equivalent employ-
ment. The General Counsel contends that none occurred.
Respondent argues that the Union failed to bargain in good
faith not later than August 10 or, in the alternative, an
impasse was reached over the Union's insistance on prefer-
ential rehire. In support of their respective positions both the
General Counsel and Respondent cite Section 8(d) of the
Act, which defines the phrase "to bargain collectively" as
"the performance of the mutual obligation of the employer
and the representative of the employees to meet at reason-
able times and confer in good faith with respect to wages,
hours and other conditions of employment . . . but such
obligation does not compel either party to agree to a
proposal or require the making of a concession .... " The
General Counsel argues that Respondent has not established
that the Union failed to meet at reasonable times or confer in
good faith on the mandatory subjects of bargaining or
proved that an impasse had been reached on this subject
matter. On the other hand, Respondent contends that which
constitutes meeting "at reasonable times" and "conferring in
good faith" are determined by the circumstances of each
case. He further argues that "conferring in good faith"
means the exchange of meaningful information and a desire
to reach an agreement and the timely rejection or acceptance
of any proposal and the communication to the other party
proposals which would be acceptable to it.
Thus, the General Counsel urges that the same tests
should be used to determine whether a party is bargaining in
good faith in all cases whether the bargaining involves a
complete collective-bargaining agreement or, as here, a
limited subject of bargaining pursuant to a Board order
which spells out stringent time goals for the commencement
of such bargaining. Respondent contends otherwise, arguing
" The testimony of Cunningham concerning his earnings from his "odd
jobs" appears to be in conflict with the General Counsel's admitted earnings
from those jobs. However, in view of my findings and conclusions set forth
below that the backpay period terminated on August 10, 1977, I need not
that the Board's Order herein gives substantial guidance to
the proper construction of the terms "meeting at reasonable
times" and "conferring in good faith" in the circumstances
of this case.
I agree with Respondent. Neither the counsel for the
General Counsel or Respondent cites any case where the
Board has had occasion to establish the tests to be applied in
determining whether the parties bargained in good faith
pursuant to an order of this kind, which is based upon the
Board's Order in Transmarine Navigation Corporation, 170
NLRB 389 (1968), nor have I found any such case. As the
Board noted in its decision, the qualified backpay remedy is
designed to place the Union in an effective bargaining
position, since the Employer failed to bargain at a time when
bargaining might have been meaningful in easing hardships
on the terminated employees. Thus, with backpay accruing
for the affected employees from 5 days after the date of the
Board's Order, an employer is induced to immedately enter
into meaningful negotiations over the effects of its action on
the employees rather than engaging in hollow pro forma
discussion which is so often the case when the subject matter
is a fait accompli. While this remedy provides a tool for the
union not found in the traditional bargaining order which
assures meaningful bargaining by the employer, it also
imposes a more stringent duty on the union to timely request
and enter into bargaining with the employer.
It is clear from the decision in this case that the Board
intended to impose a more stringent test for timely, good-
faith bargaining on both parties in their negotiations over the
effects on employees of the discontinuation of the Monokote
operation, than the test applied in its general bargaining
Order. Here, there are, in effect, two bargaining Orders. The
Board certified the Union as the exclusive representative of
the employees in an appropriate unit and ordered Respon-
dent to "[u]pon request, bargain collectively with the
union." No arbitrarily fixed time was given the Union in
which it must request bargaining or in which it must
commence negotiations after the Employer notified it of its
desire to bargain. However, the Order to bargain over the
effects of the discontinuation of the Monokote operation
required the Union to request bargaining within 5 days of
the date of the Board's Order and to commence bargaining
within 5 days of the Employers' notification of its desire to
bargain. The penalty on the Union for the failure to comply
with either of the above is the forfeiture of the tool the
Board, with court approval, has given it to achieve meaning-
ful negotiations; i.e., the running of backpay. Thus, the
Board has defined the meaning of the term "meet at
reasonable times" as provided in Section 8(d) of Act as
applied to this kind of Order and remedy.
The "5 day" requirement imposed on a union to request
bargaining and to commence bargaining after an employer
indicates a desire to do so is not limited to the initial contacts
but constitutes'a continuing obligation on the union to
timely respond to the employer's proposals. A failure to do
so constitutes a failure to bargain in good faith within the
decide whether Cunningham's testimony as to his earnings from the odd jobs
is sufficient evidence of such additional earnings to warrant adding such
amounts to the admitted interim earnings.
702
W R. GRACE & CO.
meaning of condition (4) as set forth in the section of the
Board's decision entitled "The Remedy."
Viewing the facts of this case against the foregoing
analysis of the bargaining obligation imposed upon both
parties by the Board's Order in this case, I find and conclude
that the Union satisfied its initial duty to request bargaining
within 5 days from the date of the Board's Order by its
written request hand delivered to Respondent on July 6.
Respondent timely offered to bargain over the effects of its
discontinuation of the Monokote operation when Partee
telephoned Louis on July 8 and informed him that the
Company wanted to bargain on this matter even though it
had not decided whether to appeal the Board's Order. The
parties entered into good-faith bargaining on July 12 when
LeBlanc, in Louis' absence, met with Partee and Timmons at
Partee's office. Respondent argues that this meeting did not
constitute good-faith bargaining because LeBlanc did not
have the requisite "ability, knowledge, and authority" to
conclude an agreement. Accordingly, it contends that good-
faith bargaining did not commence until Louis returned
from vacation on July 25.
LeBlanc, while not the representative most familiar with
the case, was an experienced union representative and
negotiator. Louis had discussed the Board's Order with him
and instructed him as to the proposal that the Union wanted
to make. True, LeBlanc testified that he did not know the
effected employees or how to contact them with Respon-
dent's offer and ascertain whether they wanted to accept it,
it is clear that LeBlanc was sufficiently familiar with the case
and had sufficient authority to conduct good-faith negotia-
tions on behalf of the Union. As argued by Respondent, it is
clear that in its Order the Board envisioned "expedited
negotiations" on this subject matter. However, expedited
negotiations does not mean that the Union must accept or
reject Respondent's offer on the spot" or engage in mara-
thon negotiations until agreement is reached. As with any
other negotiations the parties are entitled to time in which to
consider offers and consult with the unit employees and
others with respect to Respondent's offers and its own
proposals. In my view, LeBlanc had the authority to, and
did, engage in meaningful negotiations with Partee on July
12 and in Partee's telephone call to him about July 19.
As heretofore noted, upon Louis' return from vacation on
July 25 he telephoned Partee and reaffirmed the position
that the employees be placed on a preferential hire. Partee
declined, and Louis agreed to advise the affected employees
and report back to Partee. On July 27 Louis again called
Partee and advised him that the employees had rejected the
offer because it did not contain a preferential hire. Louis
ultimately proposed 3 additional weeks' backpay, and Partee
appeared to agree if the employees would forego preferential
hire. Louis testified that he proposed this to the employees
and they refused to accept. However, he did not thereafter
advise the Employer that the offer had been rejected. After
more than I week had elapsed Partee wrote Louis requesting
that they bring the matter to conclusion-in effect seeking to
bargain further. Louis did not reply. In fact, the Union
initiated no further communications with the Employer and
offered no explanation for its failure to do so. Louis vaguely
It appears that LeBlanc did reject Respondent's offer of 2 weeks'
backpay, which it contended it had already paid, without reinstatement or
preferential rehire.
testified that he thought the Union's attorney was handling
the matter. However, it is clear from the testimony of Partee
that Ormond was not familiar with the case when he
contacted him on August 29. Partee had to review the
bargaining with him, and Ormond stated that he would look
into the matter."
I find and conclude that by failing to timely advise
Respondent that its last offer was rejected and failing to
timely respond to Respondent's August 5, letter which
indicated its desire to bargain on the subject, the Union
failed to bargain in good faith and did not thereafter resume
good-faith negotiations. Accordingly, the backpay period
terminated on August 10. 1 am convinced that the failure of
the Union to pursue negotiations after August 5 was not
merely negligent representation but a deliberate attempt to
build backpay. This is evidenced by Louis' testimony that
when the employees rejected the Company's July 27 offer
they told him "they wanted to go all the way with it and get
as much out of it as they could." Louis does not say what
efforts he made to get as much as he could. Clearly, he felt
that he would get more backpay by avoiding bargaining with
the Company than he would be engaging in good-faith
negotiations as required by the Board's Order.
I find no merit in the General Counsel's argument that
Partee's contacts with Ormond in late August, September,
and October precludes a finding of bad faith prior to
October. It must be remembered that the Company did not
have a response to its last offer. Moreover, the Company
should not be penalized for attempting to achieve meaning-
ful negotiations long after the Union ceased bargaining in
good faith. Nor was there a duty on the Company to attempt
to reestablish negotiations with the Union on May 15, 1978,
when the court refused to enforce that portion of the Board's
Order requiring a preferential rehire list.
THE REMEDY
For the reasons set forth above, I find that Respondent's
obligation to John L. Cunningham, James Fox, and Louis
Morgan will be discharged by the payment to them of the
sum of money they would have earned when last in
Respondent's employ for the period of time equal to that
period of time between July 5, 1977, and August 10, 1977,
and to Solomon James the sum of money he would have
earned for the period of time equal to the period of time
between July 5, 1977, and August 2, 1977, the date on which
he obtained substantially equivalent employment. For the
purpose of computing the amount of backpay due the
backpay period shall start from May 21, 1976. At paragraph
13 of the backpay specification which summarizes the
amount of backpay claimed to be due, it is alleged that such
amounts should be computed with interest thereon comput-
ed at 6 percent per annum in accordance with Isis Plumbing
& Heating Co., 138 NLRB 716 (1962) and Florida Steel
Corporation. 231 NLRB 651 (1977), "pursuant to such
Order and Judgment." In its answer Respondent enters a
general denial of paragraph 13 but cites reasons relating only
to the summary of the amounts of backpay due and does not
address the request for interest. Contrary to the assertions of
' Ormond did not testify or appear at the hearing.
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel, neither the Board's remedy or Order,
or the judgment of the court enforcing the Order in relevant
part provides for any interest to accrue on the backpay. The
failure to provide for interest in this case is obviously not an
oversight, for the Board did not order interest in Transma-
rine, supra, or Royal Plating and Polishing Co., 160 NLRB
990 (1966), both of which dealt with similar facts. Although
Respondent did not specifically deny the request for interest
here, in my opinion I have no authority to enlarge the
Board's Order by providing for interest on the backpay due
where the Board did not order such in its original Order.
As heretofore indicated, the backpay period for Cunning-
ham, Fox, and Morgan is 5 weeks. For simplification of the
backpay due James, I find it to be 4 weeks. These periods
run from May 21, 1976. According to the quarterly
computations of backpay alleged by the General Counsel,
which is not disputed, 6 weeks remained in the second
quarter of 1976. For further simplification of computing the
amount of backpay due each individual, I shall assume that
the admitted interim earnings during the quarter, which
includes the severance pay given at the time of termination,
were earned in equal amounts each week.
John Cunningham: Cunningham earned $152.40 per week
when last in Respondent's employ. In the 5-week backpay
period he would have earned $762. His admitted interim
earnings for the 6 weeks remaining in the second quarter of
1976 is $610, five-sixths of which is $508.30. The amount of
backpay due Cunningham is $253.70.
James Fox: Fox earned $148.40 per week when last in
Respondent's employ. In the 5-week backpay period he
" 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. 102.48
would have earned $742. His admitted interim earnings for
the 6 weeks remaining in the second quarter of 1976 is $297,
five-sixths of which is $247.50. The amount of backpay due
Fox is $494.50.
Louis Morgan: Morgan earned $152.40 per week when
last in Respondent's employ. In the 5-week backpay period
he would have earned $762. His admitted interim earnings
for the 6 weeks remaining in the second quarter of 1976 is
$305, five-sixths of which is $254.15. The amount of back
pay due Morgan is $507.85.
Solomon James: James earned $150.40 per week when last
in Respondent's employ. In his 4-week backpay period he
would have earned $601.60. His admitted interim earnings
during the 6 weeks remaining in the second quarter of 1976
is $301, tw-thirds of which is $200.66. The amount of
backpay due James is $400.94.
ORDER"
The Respondent, W. R. Grace & Co. Construction
Products Division, Jefferson Parish, Louisiana, its officers,
agents, successors, and assigns, shall pay to the following
named employees the amounts set opposite their names as
provided in the section of this Supplemental Decision
entitled "The Remedy."
John L. Cunningham
James Fox
Louis Morgan
Solomon James
$253.70
494.50
507.85
400.94
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.
704