Fair Mercantile Co.

National Labor Relations Board - Board Decisions

Dec 26, 1985

277 N.L.R.B. 1321 (N.L.R.B. 1985)

FAIR MERCANTILE CO. 1321
Fair Mercantile Company and Debra Hanks. Case
14-CA-16752
26 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 August 1984 the National Labor Relations
Board issued a Decision and Order ' in this pro-
ceeding in which the Board , inter alia, ordered the
Respondent to make whole certain employees for
any loss of pay suffered by reason of the Respond-
ent's discrimination against them . On 27 June 1985
the United States Court of Appeals for the Eighth
Circuit entered its judgment enforcing the Board's
Order.2 A controversey having arisen over the
amount of backpay due under the Board 's Order,
as enforced by the court, the Regional Director for
Region 14, on 19 September 1985, issued and
served on the Respondent a backpay specification
and notice of hearing , alleging the amounts of
backpay due the discriminatees under the Board's
Order and notifying the Respondent that it should
file a timely answer complying with the Board's
Rules and Regulations.
On 3 October 1985 the Respondent filed an
answer to the backpay specification . The answer
asserts that the specification failed to provide the
Respondent with credits for the amounts the discri-
minatees ' interim earnings exceeded that which
they normally would have earned in several quar-
terly periods.
On 10 October 1985 the General Counsel filed a
Motion for Summary Judgment . The motion al-
leges that the only matter raised by the Respond-
ent's answer is a legal issue, and that there is no
issue of fact warranting , a hearing . On 15 October
1985 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed no response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
1 271 NLRB 1159
2 NLRB v Fair Mercantile Co., No 84-2320, per curiam (8th Cir June
27, 1985)
Ruling on the Motion for Surumary,Judgment
The Respondent's answer does 'not dispute the
allegations of the backpay specification except for
the specification's failure to provide credits in the
quarterly periods in which the discriminatees ' inter-
im earnings exceeded that which they normally
would have earned. In F. W. Woolworth Co., 90
NLRB 289 (1950), the Board decided to compute
backpay on the basis of separate calendar quarters
or portions thereof during the period from the re-
spondent ' s discriminatory action to the date of a
proper offer of reinstatement . Thus, backpay is de-
termined by deducting a discriminatee 's net earn-
ings, if any , in other employment during the calen-
dar quarter from that which the discriminatee
would normally have earned during the quarter. As
the Board stated in Woolworth , "[e]'arnings in one
particular quarter shall have no effect upon the
back-pay liability for any other quarter." 90 NLRB
at 293. The computation of backpay in this pro-
ceeding complies with the Woolworth formula.
We find no merit in the Respondent 's contention
that the Woolworth formula rewards the discrimina-
tees and punishes the Respondent . It has long been
settled that computation of backpay under the
Woolworth formula effectuates the purposes and
policies of the Act. The Respondent does not con-
test the backpay specification in any other respect.
We find that no material issues of fact exist in this
proceeding which warrant a hearing . Accordingly,
we grant the Motion for Summary Judgment, con-
clude that the net backpay due discriminatees
Debra Hanks and Marie Stefanoni is as stated in
the backpay specification , and order that payment,
plus interest, be made by the Respondent to the
discriminatees.
ORDER
The National Labor Relations Board orders that
the Respondent , Fair Mercantile Company, St.
Louis, Missouri, its officers , agents, successors, and
assigns, shall make whole Debra Hanks and Marie
Stefanoni , by payment to them of $4046 and $8128,
respectively, plus interest, to be computed in the
manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977),3 less tax withholdings required
by Federal and state laws.
2 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
277 NLRB No. 147