Interstate Bakeries Corp.

National Labor Relations Board - Board Decisions

Jan 10, 2014

360 N.L.R.B. 112 (N.L.R.B. 2014)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 23
112
Interstate Bakeries Corp. and Kirk Rammage
Teamsters Local Union No. 523, affiliated with Inter-
national Brotherhood of Teamsters and Kirk
Rammage. Cases 17–CA–023404 and 17–CB–
006146
January 10, 2014
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On March 28, 2013, Administrative Law Judge Bruce
D. Rosenstein issued the attached supplemental decision.
The Respondent Union filed exceptions.1 The Acting
General Counsel and Charging Party each filed an an-
swering brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions2 and to adopt the recommended Order as
modified and set forth in full below.
ORDER
The National Labor Relations Board orders that Re-
spondent Interstate Bakeries Corp., Ponca City, Oklaho-
ma, its officers, agents, successors, and assigns, and Re-
spondent Teamsters Local Union No. 523, affiliated with
International Brotherhood of Teamsters, its officers,
agents, and representatives, shall jointly and severally
make Kirk Rammage whole by paying him $46,360.45,3

1 In its answer to the compliance specification, Respondent Em-
ployer asserted that it filed for bankruptcy in January 2012. It is well
established, however, that the institution of bankruptcy proceedings
does not deprive the Board of jurisdiction or authority to entertain and
process an unfair labor practice case to its final disposition. See, e.g.,
Cardinal Services, 295 NLRB 933, 933 fn. 2 (1989), and cases cited
therein. Board proceedings fall within the exception to the automatic
stay provisions for proceedings by a governmental unit to enforce its
police or regulatory powers. See id. and cases cited therein; see also
NLRB v. 15th Avenue Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir.
1992); Ahrens Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983).
2 Some of Respondent Union’s exceptions imply that the judge’s
rulings, findings, and conclusions demonstrate bias. On careful exami-
nation of the judge’s decision and the entire record, we are satisfied that
the Union’s contentions are without merit.
Respondent Union has excepted to some of the judge’s evidentiary
rulings. It is well established that the Board will affirm an evidentiary
ruling of an administrative law judge unless that ruling constitutes an
abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587
(2005), petition for review denied sub nom. Local Joint Executive
Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a
careful review of the record, we find no abuse of discretion in any of
the challenged rulings.
3 In agreement with Respondent Union, we decline the Acting Gen-
eral Counsel’s request to include in our Order the costs of the prepaid
mortgage interest ($215.75) and hazard insurance ($760.80) incurred by
Rammage in the purchase of his new home. These two items are more
properly regarded as costs of homeownership prepaid at closing than as
plus interest accrued to the date of payment as prescribed
in New Horizons, 283 NLRB 1173 (1987), and Kentucky
River Medical Center, 356 NLRB 6 (2010), minus tax
withholdings required by Federal and State laws.4
Charles T. Hoskin, Esq., for the Acting General Counsel.
Gregory D. Ballew, Esq., of Kansas City, Missouri, for the
Respondent Employer.1
John C. Scully, Esq., of Springfield, Virginia, for the Charging
Party.
Steven R. Hickman, Esq., of Tulsa, Oklahoma, for the Respond-
ent Union.
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
matter arises out of a compliance specification and notice of
hearing issued by the Regional Director for Region 17 on No-
vember 26, 2012, against Interstate Bakeries Corp. (Respondent
Employer or Interstate) and Teamsters Local Union No. 523,
affiliated with International Brotherhood of Teamsters (Re-
spondent Union or Local 523).
Pursuant to notice, I conducted a trial in Tulsa, Oklahoma,
on January 31, 2013, at which all parties were afforded full
opportunity to be heard, to examine, and cross-examine wit-
nesses, and to introduce evidence.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel (AGC), the Charging Party, and
Respondent Union,2 I find as follows.

closing costs Rammage incurred because of his relocation. Cf. 41 CFR
§ 302-11.202(c), (d) (prepaid interest and insurance excluded from
closing costs reimbursable to involuntarily transferred federal employ-
ees).
Contrary to his colleagues, Chairman Pearce would adopt the
judge’s award of these expenses to discriminatee Rammage. These
were costs assessed at closing, as part of a move that occurred only
because of the Respondent’s unfair labor practices. In the Chairman’s
view, what the federal government reimburses in cases of involuntary
transfers is markedly distinct from situations—like here—where the
move was the direct result of the Respondent's unlawful conduct.
4 We modify the judge’s recommended Order to remove the re-
quirements that the Respondents file a report with the Social Security
Administration allocating Rammage’s backpay to the appropriate cal-
endar quarters and compensate Rammage for the adverse tax conse-
quences of his backpay award. These remedies were not included in
the Board’s Order in the unfair labor practice case. See 357 NLRB 15
(2011), affd. 488 Fed. Appx. 280 (10th Cir. 2012), cert. denied 133
S.Ct. 1458 (2013). Because the Board’s Order has already been en-
forced by the Tenth Circuit, and the Supreme Court has denied certiora-
ri, we no longer possess jurisdiction to modify that Order. See Grinnell
Fire Protection Systems Co., 337 NLRB 141, 142 (2001).
1 Attorney Ballew, by statement dated January 30, 2013, notified all
parties that he would not be participating in the subject hearing on
behalf of the Respondent Employer (GC Exh. 1 F).
2 The Respondent Union argues, pursuant to Noel Canning v. NLRB,
705 F.3d 490 (D.C. Cir. 2013), that the current Board has no authority
to issue the compliance proceeding or hold the subject hearing. That
argument is rejected as a properly constituted Board in 357 NLRB 15
(2011), found that the Respondent Union had violated the Act, and the
INTERSTATE BAKERIES CORP. 113
These proceedings stem from a June 30, 2011, Decision and
Order of the National Labor Relations Board (the Board) re-
ported at 357 NLRB 15, finding that the Respondent Employer
and Respondent Union violated Section 8(a)(1) and (3) and
Section 8(b)(1)(A) and (2) of the National Labor Relations Act
(the Act), and directing Respondents to, inter alia, jointly and
severally make discriminate Kirk Rammage (Rammage) whole
for any loses suffered as a result of the discrimination against
him. Thereafter, on July 5, 2012, the United States Court of
Appeals for the Tenth Circuit entered its judgment enforcing, in
full, the provisions of the Board’s Order.3
The Board specifically ordered the Respondents to cease and
desist from its unlawful conduct and to credit Rammage with
unit seniority based on the length of his employment with the
Respondent Employer. Interstate was ordered to give
Rammage the opportunity that he did not have when the units
merged to bid on a route based on that seniority, and award
Rammage the route to which he would have been entitled by
his bid. The Respondent Union was ordered to notify
Rammage and the Respondent Employer in writing that it has
no objection to the dovetailing of Rammage’s seniority based
on the length of his employment with the Respondent Employ-
er, to allowing Rammage to bid on a route based on that senior-
ity, or to awarding Rammage the route to which he would have
been entitled by his bid. Additionally, the Order required the
Respondents to make Rammage whole for any loses suffered as
a result of the discrimination against him including backpay
and any other rights and privileges to which he would have
been entitled absent the discrimination against him. There is no
dispute that the backpay period began on January 16, 2006, and
ended on June 22, 2007.
The December 17, 2012 answer of the Respondent Employer
notes that on January 11, 2012, Interstate filed for bankruptcy
in the United States District Court for the Southern District of
New York and on November 21, 2012, the bankruptcy court
approved a motion for the orderly wind down of Interstate’s
business and the sale of assets.
Since the claimed make whole remedy is a pre-petition claim
that is subject to bankruptcy rules and procedures including
rules relating to proof of claim procedures, and particularly
noting the AGC’s admission that the Board did not file a proof
of claim with the bankruptcy court, it is highly suspect that
Rammage will be able to recover any losses suffered as a result
of the discrimination taken against him by Interstate. The AGC
asserts, however, that it will pursue all avenues against Inter-
state in an attempt to recover backpay or any other rights and
privileges that Rammage would have been entitled absent the
discrimination against him.
Legal Parameters
The applicable legal precepts are well established. The ob-
jective in compliance proceedings is “to restore, to the extent
feasible, the status quo ante by restoring the circumstances that

Regional Director who issued the subject compliance specification was
not appointed to his position by the current Board.
3 The Respondent Union’s petition for writ of certiorari to the U.S.
Supreme Court was denied. Teamsters Local 523 v NLRB, U.S., No.
12-517 (2013).
would have existed had there been no unfair labor practices.”
Alaska Pulp Corp., 326 NLRB 522, 523 (1998), citing Phelps-
Dodge Corp. v. NLRB, 313 NLRB 177, 194 (1941). In seeking
to objectively reconstruct backpay amounts as accurately as
possible the General Counsel may properly adopt elements
from the suggested formulas of the parties. Performance Fric-
tion Corp., 335 NLRB 1117 (2001), citing Hill Transportation
Co., 102 NLRB 1015, 1020 (1953).
As the Board recognized in Alaska Pulp Corp., supra at 523,
“Determining what would have happened absent a respondent’s
unfair labor practices is often problematic and inexact. Several
equally valid theories may be available, each one yielding a
somewhat different result. Accordingly, the AGC is allowed a
wide discretion in picking a formula.” See also Moran Print-
ing, 330 NLRB 376, 376377 (1999). The Region has the bur-
den of establishing only that the gross backpay amounts con-
tained in a backpay specification are a reasonable and not an
arbitrary approximation. Virginia Electric Co. v. NLRB, 219
U.S. 532, 544 (1984); Performance Friction Corp., 335 NLRB
1117 (2001); Atlantic Limousine, 328 NLRB 257, 248 (1999);
Hacienda Hotel & Casino, 279 NLRB 601, 603 (1986).
Once the AGC has arrived at such amounts, the burden shifts
to the respondent to establish affirmative defenses that would
mitigate its backpay liability. Atlantic Limousine, supra at 258;
Hacienda Hotel & Casino, supra at 603. Any uncertainties in
the amount of backpay due should be resolved in favor of the
backpay claimant rather than the respondent, who is responsible
for the underlying unfair labor practices that have led to the
uncertainties. United Aircraft Corp., 330 NLRB, 204 NLRB
1068 (1973); Alaska Pulp Corp., supra at 522. Indeed, to hold
otherwise would effectively punish backpay claimants for the
respondent’s illegal conduct against them.
Thus, the general overriding issue is whether calculations
contained in the AGC’s final backpay specification should be
deemed reasonable and therefore accepted, objections from the
Respondent Employer and the Respondent Union to certain
portions thereof notwithstanding.
Background
Interstate manufactured and distributed bakery products un-
der various names, including Dolly Madison, Hostess, and
Wonder Bread. Until late 2005, Interstate’s sales routes were
structured along product lines. Some of the route representa-
tives were assigned to sell and deliver only Dolly Madison
products, while others were assigned Hostess and Wonder
Bread products.
Rammage had been a Dolly Madison sales representative for
Respondent Employer for about 15 years before it purchased
the Wonder Bread/Hostess product lines. Rammage sales route
consisted of delivering Dolly Madison cake products until in or
around December 2005 when Interstate consolidated and re-
structured all of its routes. Prior to the restructuring of the
routes, there were four independent routes in Ponca City, three
of which delivered Wonder and Hostess products (bread) and
one route that delivered cake products. Employees Terry Tyler,
Mark Pritchard, and Ricky Maupin were assigned to the bread
routes while Rammage delivered cakes on his designated route.
Pursuant to the restructuring of the routes, Respondent Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD114
ployer and Respondent Union agreed that one of the four routes
would be eliminated.
Rammage, who previously was not included in any collec-
tive-bargaining unit and was unrepresented by any labor organ-
ization, was endtailed by a joint agreement of Local 523 and
Interstate to the bottom of the seniority list. Tyler, whose route
was to be eliminated, exercised his contractual option to bump
Rammage in accordance with his union seniority. Rammage
continued working in Ponca City until around January 13,
2006, when Interstate gave him the option of working as a sales
representative out of the Bartlesville terminal. Otherwise,
Rammage would no longer have a job with the Respondent
Employer. Rammage accepted the Bartlesville position and
reported to his newly assigned location on January 16, 2006.
Since Rammage continued to reside in Ponca City, when he
reported to his new position, it was necessary for him to com-
mute 73 miles each day for a roundtrip of 146 miles. In order
to start his route early on Monday morning, his normal routine
was to arise at 11:30 p.m. on Sunday and depart for
Bartlesville. On arriving on Monday morning at the ware-
house, it was necessary to spend 2 hours pulling stock from the
shelves and loading it on his delivery truck to commence his
assigned route between 5 and 6 a.m. From approximately Feb-
ruary–October 2006, Rammage on Monday evenings stayed at
an inexpensive motel in Bartlesville to avoid excess travel dur-
ing the week, and to ensure that he had time to adapt to his new
route. Other than staying in the motel on Monday evenings
during the 8-month period, he regularly commuted round trip to
Ponca City on Tuesday through Saturday. After 17 months of
enduring this grueling schedule, and particularly noting the
wear and tear in addition to having no free time outside of his
work schedule, Rammage and his wife decided to sell their
Ponca City residence and purchase a new home in Dewey, Ok-
lahoma (GC Exh. 7).
Compliance Computations
The AGC, in the subject compliance specification, as an ap-
propriate measure to make Rammage whole as a result of the
discrimination against him considered (a) increased mileage
costs, (b) increased commuting time, (c) lodging, (d) moving
expenses, and (e) loss of pay.
In figuring the increased mileage costs, the AGC compared
Rammage’s traditional roundtrip commute to work in his Ponca
City assignment prior to the unlawful transfer to Bartlesville.
Mileage reimbursement due Rammage was established by mul-
tiplying the difference in his roundtrip commute, 146 miles, by
the number of times he actually made the extended roundtrip
commute during each pay period in each calendar quarter dur-
ing the make-whole period. That result was then multiplied by
the relevant reimbursement rate, the mileage rate in effect at the
time to compensate Federal employees for their use of private
automobiles while on Government business to find the amount
due. In sum, the Respondents owe Rammage $19,080 in reim-
bursement for mileage costs as set forth in Appendix A of the
compliance specification. C.J.R. Transfer, Inc., 298 NLRB
579, 593 (1990).
With respect to increased commuting time, the AGC deter-
mined that Rammage’s commute increased by about 2.75 hours
per day postdiscrimination. Consequently, to make Rammage
whole, his increased travel time was multiplied by 1/40 of his
pre-discrimination weekly salary, $7.88, to establish the
amount owed for each pay period. Those calculations establish
that the Respondents owe Rammage approximately $6415 in
reimbursement for lost time as shown in Appendix A of the
compliance specification. See C.F.R Transfer, Inc., supra.
Regarding lodging, Rammage provided hotel receipts for the
majority of his Monday evening stays at the Travelers Motel
(GC Exh. 9). In sum, the Respondents owe Rammage $1260
reimbursement for lodging expenses as set forth in appendix A
of the compliance specification.
As it concerns moving expenses, the settlement documents
associated with the sale of Rammage’s Ponca City residence
and the purchase of a new home in Dewey were introduced into
the record and establish that Respondents owe Rammage $9524
for costs associated with the move as summarized in appendix
A (GC Exh. 7).
Lastly, the AGC computed the loss in earnings suffered re-
lated to Rammage’s transfer to Bartlesville. To ascertain these
amounts, a comparison was undertaken compared to what he
would have earned if he had remained on his Ponca City route
versus what he actually earned on his new route in Bartlesville.
To accomplish this, the AGC compared the earnings of Tyler
on a per day period with those of Rammage within each calen-
dar quarter as summarized in appendix A
In sum, appendix C shows Rammage’s gross backpay, inter-
im earnings, net backpay, interim expenses, and expenses for
each calendar quarter as well as the total amount of backpay
and reimbursement due Rammage is $47,337.
Discussion
A respondent may mitigate his backpay liability by showing
that a discriminatee “willfully incurred” loss by a clearly unjus-
tifiable refusal to take desirable new employment, but this is an
affirmative defense and the burden is on the respondent to
prove the necessary facts.
The Respondent Union through testimony and the Respond-
ent Employer by its answer to the compliance specification,
argue that Rammage’s declination of an open route in Ponca
City on November 6, 2006,4 should have been accepted, and
would have substantially reduced any claims for increased
mileage, increased commuting time, loss of pay, and would
have totally eliminated any claim for moving expenses that
were incurred in June 2007. To sustain this argument, Re-
spondent Union and Respondent Employer principally rely on a
November 9, 2006 email sent by Interstate District Manager
Randy Fisher to Human Resources Supervisor Susan Rada (GC
Exh. 1F, attachment A).5

4 On October 28, 2006, Pritchard accepted a non-union represented
management position thus creating an opening in Ponca City in No-
vember 2006.
5 The email states:
Susan-Through the grape vine, I heard that Kirk Rammage may
be interested in the open route in Ponca City #1535. I sent a bid
sheet to Kirk on the open route. He never faxed it to me. So I called
him Monday, 11/6/06, to ask if he would be interested. He said not
at this time, but to keep him in mind if other routes come open. He
INTERSTATE BAKERIES CORP. 115
Reliance on this document is problematic for a number of
reasons. First, Respondent Union called Fisher as a witness
who testified that independent of the email, he did not have any
memory or an independent recollection of placing a telephone
call to Rammage about an opening in Ponca City in November
2006. Second, Rammage testified that he did not have a tele-
phone conversation with Fisher in November 2006 nor does he
recall ever receiving a bid sheet for the open Ponca City posi-
tion previously held by Pritchard. Third, Fisher could not inde-
pendently remember sending a bid sheet to Rammage, and if it
was sent it was never returned to him. Fourth, the lack of clari-
ty from both witnesses persuades me that there was never a
specific, unequivocal or unconditional job offer made to
Rammage for the opening in Ponca City. Holo-Krome Co.,
302 NLRB 452, 454 (1991). Rather, Interstate was merely
gauging Rammage’s interest in the position.6 Lastly, even as-
suming that the email could be considered a job offer for
Pritchard’s former Ponca City position, it did not provide
Rammage with seniority based on the length of his employment
at Interstate nor did it permit him to bid on a route based on that
seniority. In this regard, the route set forth in the bid sheet
historically had been held by the employee with the least sen-
iority. Moreover, the route had a number of undesirable char-
acteristics including being the longest route, a substandard
truck, and did not service a Wal-Mart with large scale deliver-
ies. Pursuant to the Board’s decision in the subject case,
Rammage should have been able to bid on the route that was
assigned to Tyler in January 2006 that contained the majority of
his former customers, and even after the restructure of the
routes still had more cake deliveries than bread. Significantly,
both Rammage and former Interstate employee Jody Tapp who
bid on and received Pritchard’s open route, testified that the
route did not have the sales volume or earned compensation in
comparison to the other routes, and that Pritchard’s former
route required longer hours to complete when compared with
the other two routes.
For all of the above reasons, I find that the Respondents did
not conclusively establish that Rammage was offered the open
Ponca City route in November 2006. I further find that even if
he was offered the open Ponca City route he was not required

said he was not interested in Marks old route because he has been on
it before and it’s too many hours. He would rather haul more cake
then bread and that Marks route was more bread then cake. I men-
tioned to Kirk, that there would be a good chance the route would
change down the road to a more combo type route, at least more than
it is now, but he was still not interested.
6 The parties’ collective-bargaining agreement in effect at the time
(R. U. Exh. 5) states at art. 10 (seniority), B,2: In the event a route
becomes open, an employee may, in the order of his/her seniority bid
on such opening. Unitog Rental Services, 318 NLRB 880 (1995) (an
invitation to bid on a job is not an unconditional offer of reinstatement).
to accept the offer as it was not substantially equivalent to his
former position. Therefore, Rammage had no obligation to
mitigate damages suffered as a result of the discrimination
against him.
Throughout the course of the hearing and in its post-hearing
brief, Respondent Union challenged the underpinnings of the
Board’s decision and its finding that it had violated Section
8(b)(1)(A) and (2) of the Act by demanding that Interstate en-
tail Rammage on the unit seniority list, allowing him to be
bumped from his job at the Ponca City facility,7 and permitting
Rammage to be transferred to a job at the Bartlesville facility
based on his placement on the unit seniority list. Additionally,
Respondent Union argues that the parties’ collective-bargaining
agreements prior to and after the merger of the two units (R. U.
Exhs. 6 and 7) authorized the endtailing of Rammage in con-
junction with the parties’ side agreement of November 16, 2005
(R. U. Exh. 7). In effect, Respondent Union is attempting to
relitigate the same arguments that it presented to the Board in
the underlying unfair labor practice decision,8 a position that is
now foreclosed by the finality of that decision and its subse-
quent enforcement by the United States Court of Appeals for
the Tenth Circuit. Schorr Stern Food Corp., 248 NLRB 292
(1980).
Lastly, the Respondent Union challenged the expenses in-
curred by Rammage’s purchase of a new home in Dewey in
June 2007, and the attendant expenses being assessed to Local
523. While the settlement statement shows that the mortgage
on the new home was greater than the mortgage for the Ponca
City residence, the expenses of the move are the end product of
the Respondent Union’s unlawful conduct and must be reim-
bursed as part of the remedy in this matter.
Conclusion
For all of the above reasons, I accept the final backpay speci-
fication in all respects.
[Recommended Order omitted from publication.]

7 The Board’s decision states:
In mid-December 2005, Interstate’s Division Manager Rodney
Roberts, Rammage’s supervisor, informed him that Interstate and
the Union had decided to use “union seniority” for route bidding
and vacation scheduling. Roberts told Rammage that the route of
one of the Ponca City sales representatives, Terry Tyler, was to be
eliminated and that Tyler had exercised his contractual option to
bump Rammage in accordance with “union seniority.”
8 Respondent Union continues to assert that after the restructuring of
the routes former Dolly Madison employees could only obtain available
cake routes if they were available using their seniority. If an individual
did not have the seniority to bid on a cake route, the employee could
then use seniority for a bread route. In summary, Respondent Union
asserts that Rammage followed the work as there was nothing for him
available in Ponca City and his seniority only permitted him to accept a
cake route in Bartlesville.