Interstate Bakeries Corp.

National Labor Relations Board - Administrative Judge Opinions

Mar 28, 2013

17-CA-023404 (N.L.R.B. Mar. 28, 2013)

JD–17–13
Ponca City, OK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERSTATE BAKERIES CORP.
and Cases 17-CA-023404
17-CB-006146
TEAMSTERS LOCAL UNION NO. 523,
AFFILLATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
and
KIRK RAMMAGE
Charles T. Hoskin, Esq., of Tulsa, OK,
for the Acting General Counsel.
John C. Scully, Esq., of Springfield, VA,
for the Charging Party.
Steven R. Hickman, Esq., of Tulsa, OK,
for the Respondent Union.
Gregory D. Ballew, Esq., of Kansas City, MO,
for the Respondent Employer.1
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 November
26, 2012, against Interstate Bakeries Corp. (Respondent Employer or Interstate) and Teamsters
Local Union No. 523, affiliated with International Brotherhood of Teamsters (Respondent 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 witnesses,
and to introduce evidence.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel (AGC), the Charging Party, and

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).
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Respondent Union2, I find as follows.
These proceedings stem from a June 30, 2011, Decision and Order of the National
Labor Relations Board (Board) reported at 357 NLRB No. 4 finding that the Respondent
Employer and Respondent Union violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and
8(b)(2) of the National Labor Relations Act (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
Employer, to allowing Rammage to bid on a route based on that seniority, 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 Interstate 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 objective in compliance

2 The Respondent Union argues, pursuant to Noel Canning Division of Noel Corp. v NLRB,
194 LRRM 3089 (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 No. 4 (2011) found that the Respondent Union had violated the
Act, and the 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 (Feb. 25, 2013).
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proceedings is “to restore, to the extent feasible, the status quo ante by restoring the
circumstances that would have existed had there been no unfair labor practices.” Alaska Pulp
Corp, 326 NLRB 522 at 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 Friction Corporation, 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
Printing, 330 NLRB 376 at 376-377 (1999). The Region has the burden of establishing only that
the gross backpay amounts contained 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 under 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 representatives 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 restructured 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
Employer and Respondent Union agreed that one of the four routes would be eliminated.
Rammage, who previously was not included in any collective-bargaining unit and was
unrepresented by any labor organization, 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
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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 commute 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 evening and depart for Bartlesville. Upon arriving on Monday morning at the
warehouse, 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
February 2006 through October 2006, Rammage on Monday evenings stayed at an inexpensive
motel in Bartlesville to avoid excess travel during 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 (GC Exh. 7).
Compliance computations
The AGC, in the subject compliance specification, as an appropriate 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 multiplying 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 during 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 reimbursement 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 determined that Rammage’s
commute increased by about 2.75 hours per day post-discrimination. 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 $6,415 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
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into the record and establish that Respondents owe Rammage $9,254 for costs associated with
the move as summarized in Appendix A (GC Exh. 7).
Lastly, the AGC computed the loss in earnings suffered related 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 calendar quarter as summarized
in Appendix A
In sum, Appendix C shows Rammage’s gross backpay, interim 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 unjustifiable 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 Respondent Employer by its answer
to the compliance specification, argue that Rammage’s declination of an open route in Ponca
City on November 6, 20064, 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 Respondent Union and Respondent Employer principally rely on a November 9,
2006 e-mail sent by Interstate District Manager Randy Fisher to Human Resources Supervisor
Susan Rada (GC Exh. 1F, Attachment A). The e-mail states:5
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 e-mail, 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
telephone conversation with Fisher in November 2006 nor does he recall ever receiving a bid
sheet for the open Ponca City position previously held by Pritchard. Third, Fisher could not
independently remember sending a bid sheet to Rammage, and if it was sent it was never
returned to him. Fourth, the lack of clarity 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

4 On October 28, 2006, Pritchard accepted a non-union represented management position
thus creating an opening in Ponca City in November 2006.
5 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 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 mentioned 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.
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gauging Rammage’s interest in the position.6 Lastly, even assuming that the e-mail 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 seniority. Moreover, the route had a number of
undesirable characteristics including being the longest route, a sub-standard truck, and did not
service a Wal-Mart with large scale deliveries. 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 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 entail 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 Union Exh. 6 and 7) authorized the endtailing of
Rammage in conjunction with the parties’ side agreement of November 16, 2005 (R Union 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 decision8, a position that is now foreclosed
by the finality of that decision and its subsequent enforcement by the United States Court of
Appeals for the Tenth Circuit. Schorr Stern Food Corp., 248 NLRB 292 (1980).

6 The parties’ collective-bargaining agreement in effect at the time (R Union Exh. 5) states
at Article 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, Inc., 318 NLRB 880 (1995)
(an invitation to bid on a job is not an unconditional offer of reinstatement).
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.
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Lastly, the Respondent Union challenged the expenses incurred 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 reimbursed as part of the
remedy in this matter.
Conclusion
For all of the above reasons, I accept the final backpay specification in all respects.
On the above findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
IT IS HEREBY ORDERED that Respondent Interstate Bakeries Corp. and Respondent
Teamsters Local Union No. 523, affiliated with International Brotherhood of Teamsters, its
officers, agents, successors, and assigns, shall pay Kirk Rammage $47,337 jointly and/or
severally for the period from January 16, 2006 to June 22, 2007, as prescribed in F. W.
Woolworth Co. 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987) and Kentucky River Medical Center, 356 NLRB No. 8 (2010)
accrued to the date of payment and minus tax withholding required by Federal and State laws.
Latino Express, Inc. 359 NLRB No. 44 (2012). In this regard, a report shall be filed with the
Social Security Administration allocating backpay to the appropriate calendar quarters.
Additionally, Rammage must be compensated for the adverse consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
Dated, Washington, D.C. March 28, 2013
____________________________
Bruce D. Rosenstein
Administrative Law Judge

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.