Petition — Midwest Hanger Co. v. National Labor Relations Board
Supreme Court brief1977
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IN THE MICHAE > RU A . |
Supreme Court of the United States
OcToBER TERM, 1976
me 76471740
Mipwest Hancer Co. and Liserty ENGINEERING Corp.,
Petitioner
v.
NaTIONAL Lasor RELATIONS Boarp, Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JOHN A. McGuInN
KENNETH J. Srmon-Rose
FARMER, SHIBLEY, McGuinn & FLoop
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036
Pagss or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.
;
ion he
_—--
TABLE OF CONTENTS
Page
I SOD 53 Sak on ro 6 CuK Wed bwee Se ba nb.ce sp beies a 1
PL nc dd woes abVdabd Deck ebehihetuetaseues 2
Qumersen PRBGRWTED 22... occ cece ccccccccccccecees 2
Statutory PrRovisIoNS INVOLVED ............+e+eee8% 2
i aul seeeeeubedeccace 4
Reason FoR GRANTING THE WRIT... ..........---00055 9
The Decision Below Incorrectly Interprets The
National Labor Relations Act With Regard To
Offers Of Reinstatement And The Tolling Of Back-
pay Liability Owed Discriminatees .............. 9
re A ee 15
TABLE OF CITATIONS
CasEs: i
American Mfg. Co.,5 NLRB 443 (1938) enf. in pertinent
part, 166 F.2d 61 (2nd Cir. 1939) ................ 11
D’ Armigene, Inc., 448 NLRB 2, 15 (1964) enf. as modi-
fied, 353 F.2d 406 (2nd Cir. 1965) ................ 7
Denver Fire Reporter and Protective Co., 119 NLRB
EE TONS Gs cas ueenstdbensseheuceeve 12
Fein’s Tin Can Co., Inc., 23 NLRB 1330 (1940) ...... 11,13
Mackie-Lovejoy Mfg. Co., 130 NLRB 172, (1953)...... 11
Midwest Hanger Co. and Liberty Engineering Corp.,
193 NLRB 616 (1971)
Midwest Hanger and Liberty Engineering Corp., 221
NLRB No. 135, 91 LRRM 1218 (1975) ........... 1,5
Midwest Hanger Co. and Liberty Engineering Corp. v.
EE, GEE Wide UB AEDEED voc ccsccscrccvesseces
NLRB v. Dee’s of New Jersey, Inc., 395 F.2d 112 (3rd
A DE Scere eh ine detehatanehsiddaue oo5 6s 11
NLRB v. Garland Knitting Mills, 408 F.2d 672 (5th
EE, Cin Ghd dene ant oe nke laden wees 409.00: 11
NLRB v. Midwest Hanger and Liberty Engineering
Corp., 474 F.2d 1155 (8th Cir. 1973)
NLRB v. Midwest Hanger and Liberty
Corp., 550 F.2d 1101, 94 LRRM 2878 (8th
SOR aS Sea an
th Gis 1977) 1,6
il Table of Contents Continued
Page
NLRB v. St. Mary’s Sewer Pipe Co., 146 F.2d 995 (3rd
Che, 1906). .. oc iw nucdicnes civesectevusnsussenvuuns 12
Nolde Bros. v. Bakery Workers, —— U.S. ——, 94
LRRM 2753 (March 7, 1977) .... «2... eee eee eee 15
Reliance-Clay Products, 105 NLRB 135 (1953) ....... 7
Retail Clerks Int’l Assn., Local Unions No. 128 and 633
v. Lion Dry Goods, Inc., 369 U.S. 17 (1961) ....... 10
Ridgely Manufacturing Co. v. NLRB, 510 F.2d 185
(DOCLis, WIG) ..oscccocsscsevntessenesenonss® 11
United Aircraft Co., Inc., 192 NLRB 382, 387 (1971) .. 10
United Steelworkers of America v. American Manufac-
turing Co., 363 U.S. 564 (1960) ............24-6- 15
United Steelworkers of America v. Enterprise Wheel,
SEB UG. GEG CHBGGN noc ccsvcetekcgctucpectaveses 15
United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960) ............. 15
STATUTES AND REGULATIONS:
USC, Title 29
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Bostion TIAA) 2.0 ccceccccccdcdtccecetavesseuen 3, 10
Bestia STIG) onc cccccscccccstesecesusoseuvact 3, 10
NLEB Rules and Regulations, Series 8
Bostion WES «ccccccveccsosveccseseseesaenennee 3
Bostion MOREE... cccicdcccecceuseeesseueseenuee 4
IN TUE
Supreme Court of the United States
OctToBER TERM, 1976
No.
— -——-—
Mipwest Hancer Co. and Linerrty ENGINEERING CorpP.,
Petitioner
Vv.
NaTIONAL LaBpor RELATIONS Boarp, Respondent
-—_—- i
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioner respectfully prays that a writ of cer-
tiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Eighth Circuit
entered in this proceeding on March 31, 1977.
OPINIONS BELOW
The opinion of the Court of Appeals appears at
500 F.2d 1101, 94 LRRM 2878 (8th Cir. 1977). The
opinion of the National Labor Relations Board ap-
pears at 221 NLRB No. 135, 91 LRRM 1218 (1975).
These opinions appear in the Appendix, attached
hereto.’
* All references to the Appendix will be designated ‘‘ App.’
2
JURISDICTION
The judgment of the Court of Appeals was en-
tered on March 31, 1977 (App. 5a). This petition for
certiorari was filed within 90 days of that date.
This Court’s jurisdiction is invoked under 28 USC
§ 1254(1).
QUESTION PRESENTED
Whether a Company’s offer to reinstate discharged
employees which is made conditional upon the Union’s
promise to request the National Labor Relations
Board to withdraw an unfair labor practice charge it
filed as a result of the discharges tolls the Company’s
backpay liability where the discharges are subse-
quently found to be in violation of the National Labor
Relations Act.
STATUTORY PROVISIONS INVOLVED
United States Code, Title 29:
Section 157. Employees shail have the right to
self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from
any or all of such activities except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as
a condition of employment as authorized in sec-
tion 8(a)(3).
Section 158(a). It shall be an unfair labor prac-
tice for an employer—
3
(1) to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in
section 157;
(3) by discrimination in regard to hire or ten-
ure of employment or any term or condition of
employment to encourage or discourage member-
ship in any labor organization... .
Seetion 171 (a).... sound and stable industrial
peace and the advancement of the general welfare,
health, and safety of the Nation and of the best
interest of employers and employees can most
satisfactorily be secured by the settlement of is-
sues between employers and emplovees through
the processes of conference and collective bargain-
ing between employers and the representatives of
their employees.
Section 173(d). Final adjustment by a method
agreed upon by the parties is hereby declared to
be the desirable method for settlement of griev-
ance disputes arising over the application or in-
terpretation of an existing collective-bargaining
agreement. The Service is directed to make its
conciliation and mediation services available in
the settlement of such grievance disputes only as
a last resort and in exceptional cases.
NLRB Rules and Regulations, Series 8, as amend-
ed (29 CFR)
See. 102.9 Who may file; withdrawal and dis-
missal.—A charge that any person has engaged in
any unfair labor practice affecting commerce may
be made by any person. Any such charge may be
withdrawn, prior to the hearing, only with the
consent of the regional director with whom such
charge was filed; at the hearing and until the case
has been transferred to the Board pursuant to
section 102.45, upon motion, with the consent of
the administrative law judge designated to con-
4
duct the hearing; and after the case has been
transferred to the Board pursuant to section
102.45, upon motion, with the consent of the
Board. Upon withdrawal of any charge, any com-
plaint based thereon shall be dismissed hy the
regional director issuing the complaint, the ad-
ministrative law judge designated to conduct the
hearing, or the Board.
See. 102.52 Initiation of proceedings; issuance
of backpay specification; issuance of notice of
hearing without backpay specification.—After the
entry of a Board order directing the payment of
backpay or the entry of a court decree enforcing
such a Board order, if it appears to the regional
director that a controversy exists between the
Board and a respondent concerning the amount of
backpay due which cannot be resolved with a
formal proceeding, the regional director may issue
and serve on all parties a hackpay specification
in the name of the Board. The specification shall
contain or be accompanied by a notice of hearing
before an administrative law judge at a place
therein fixed and at a time not less than 15 days
after the service of the specification. In the alter-
native and at his discretion, the regional director
may, under the circumstances specified above, is-
sue and serve on the parties a notice of hearing
only, without the backpay specification, the hear-
ing to be held before an administrative law judge,
at a place therein fixed and at a time not less than
15 days after the service of the notice of hearing.
STATEMENT OF THE CASE
Petitioner, Midwest Hanger Co. and Liberty Engi-
neering Corporation (‘‘Company’’) operates a small
business producing machinery and laundry and dry-
cleaning paciraging products. On October 8, 1971, the
National Labo. Relations Board (‘‘Board’’) found
3)
that the Company had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, 29 US®
§§ 158(a) (1) (3), by discharging 18 employees because
of their union activity. The Board ordered the Com-
pany to offer these employees reinstatement to their
former jobs or substantially, equivalent positions and
to make them whole for any loss of earnings suffered
as a result of the discrimination against them. Mid-
west Hanger Co. and Liberty Engineering Corp., 193
NLRB 616, 628-629 (1971). The United States Court
of Appeals for the Eighth Cireuit enforced the
Board’s order as to 17 of the discriminatees. NLRB v.
Midwest Hanger Co. and Iaberty Engineering Corp.,
474 F.2d 1155 (8th Cir. 1973). This Court denied the
Company’s petition for a writ of certiorari. Midwest
Hanger Co. and Liberty Engineering Corp. v. NLRB,
414 U.S. 823 (1973).
When the Company and the Board were unable to
reach agreement on the amount of backpay due the 17
discriminatees, a supplemental backpay proceeding
was instituted pursuant to the Board’s Rules and
Regulations, Series 8, as amended, (29 C.F.R.), Sec-
tion 102.52, et seq., for the purpose of determining
such amount. The backpay proceedings consisted of
a hearing before an Administrative Law Judge
(‘‘ALJ’’) in September and November of 1974 and
summary affirmance by the Board in December, 1975,
of the ALJ’s recommendation to award backpay to
the 17 discriminatees in the aggregate sum of $112,530
plus interest at 6% per annum from the dates of the
discharges in 1970. Midwest Hanger and Liberty En-
gineering Corp., 221 NLRB No. 135, 91 LRRM 1218
(1975) (App. 16a). The United States Court of Ap-
peals for the Eighth Circuit enforced the Board’s
6
order as to 16 of the discriminatees and remanded to
the Board on the question of backpay liability owing
Elaine Peukert. NLRB v. Midwest Hanger and
Liberty Engineering Corp., 550 F.2d 1101, 94 LRRM
2878 (8th Cir. 1977) (App. 5a). On April 27, 1977, the
Board issued a Second Supplemental Decision and
Order modifying the backpay due Elaine Peukert in
accordance with the finding of the Court of Appeals.
229 NLRB No. 48 (1977) (App. la).
The principal issue in the backpay proceeding was
whether the Company had made a legally sufficient
offer of reinstatement to the discriminatees on Octo-
ber 25, 1970, tolling its backpay liability as of that date
(App. 9a, 20a). The offer in question grew out of a
strike which commenced at the Company on the eve-
ning of Thursday, October 22, 1970, and followed the
filing of unfair labor practice charges against the Com-
pany for discharging certain employees in June and
July of 1970. The Company and the striking employes
began meeting the next day. The strikers wanted
recognition for their Union, the United Steelworkers
of America (‘‘Union’’), and initially wanted the Com-
pany to reinstate twenty-six employees the Company
had discharged. The Company wished the strike
settled because the busy season of the year was ap-
proaching and it feared the strike would affect pro-
duction (App. 9a-10a, 21a-23a).
Shortly after these meetings began, the Company
learned that the Union was only pressing for rein-
statement of 13 of the original 26 dischargees. On Oc-
tober 25, Company President Jones proposed that
those 13 employees which the Union wished reinstated
be returned to their jobs without discrimination, loss
of pay or seniority. The offer was for the employees
SS
7
to return to work the following day. Jones also agreed
to recognize the Union and commence bargaining on
a contract. This seemed acceptable to the Union ne-
gotiating committee (App. 9A-10a, 22a).
Almost immediately after Mr. Jones had made his
offer, Mr. Madden, the Company’s labor attorney, re-
marked at part of the ‘‘wrap-up”’ that there were still
unfair labor practice charges pending against the
Company. Mr. Andrew, an organizer for the Union,
replied that he would withdraw them, but Mr. Madden
cautioned that as the National Labor Relations Board
was a third party to the proceedings all the Union
could do was to request withdrawal (App. 10a-1la,
23a-28a).
At that point the Company believed it had an agree-
ment, but one member of the Union negotiating com-
mittee then dropped a ‘‘bombshell’’. He demanded
backpay for the dischargees. The Union committee
asked for and obtained a recess to discuss this new
development among themselves and with the employees
picketing in the Company’s parking lot (App. 9a-
10a, 22a-23a).
When the committee returned, Mr. Andrew said to
Mr. Madden that the strikers liked the Company’s
reinstatement offer, but the discharged employees
wanted backpay. Mr. Jones interrupted and said, ‘‘I
think I can answer that question for you. The answer
is ‘no’.’* Mr. Jones then left the meeting and no
? It is undisputed, and the Court of Appeals so found, that had
the Union *‘**ted the Company’s offer of reinstatement solely
because the ..sany would not give the diseriminatees backpay,
that such ri m would have tolled backpay liability (App. 10a).
D’Armigene, «c., 148 ."RB 2, 15 (1964), enforced as modified,
353 F.2d 406 (2d Cir. 1965); Reliance-Clay Products, 105 NLRB
135 (1953).
8
further offer of reinstatement was made at that time
(App. 9a-10a, 22a-23a). The Union did not seek with-
drawal of the unfair labor practice charge and the
Board’s Regional Office proceded to litigate the dis-
charges. As previously stated, the Board, affirming the
ALJ, found against the Company® and the Eighth
Circuit enforced the Board’s order.‘ The discrimi-
natees were again offered reinstatement in late 1973
as part of the Company’s compliance with the Board’s
order in the unfair labor practice segment of this
ease (App. 32a).
The Company argued at the backpay hearing before
the ALJ that its liability for the unfair Jabor practices
ceased on October 25, 1970, upon President Jones’ un-
conditional offer of reinstatement. The ALJ rejected
this claim and found that the Company’s reinstate-
ment offer did not toll backpay because it was made
conditional, inter alia, upon the Union’s dropping the
unfair labor practice charge.’ As a result, the ALJ
concluded that the backpay period did not terminate
until ‘‘proper’’ offers of reinstatement were made in
1973 (App. 2la, 30a). The Board affirmed this result
(App. 16a) and the Court of Appeals ‘‘refuse[d] to
disturb the Board’s finding that the Company condi-
tioned its offer of reinstatement of October 25, 1970,
* Midwest Hanger Co. and Liberty Engineering Corp., 193 NLRB
616 (1971).
*NLRB vy. Midwest Hanger and Liberty Engineering Corp., 474
F.2d 1155 (8th Cir. 1973).
*The ALJ also found that the Company’s reinstatement offer of
October 25 was conditioned on the employees’ ending their strike,
improvement in absenteeism and the changing of jobs by some
employees and the taking of a physical examination by one em-
ployee (App. 12a, fn. 7)
9
upon the dropping of the unfair labor practices
charges’’. The Court found it unnecessary to deter-
mine whether the reinstatement offer was also condi-
tional upon the other factors found by the ALJ (see,
fn. 5, supra) (App. 12a).
REASON FOR GRANTING THE WRIT
The Decision Below Incorrectly Interprets The National Labor
Relations Act With Regard To Offers Of Reinstatment And The
Tolling Of Backpay Liability Owed Discrimnatees
The question presented by this petition is whether
an offer of reinstatement to employees later found to
have been discriminatorily discharged in violation of
Section 8(a)(3) of the National Labor Relations Act,
which is allegedly conditioned upon the Union’s prom-
ise to ask the National Labor Relations Board to with-
draw an unfair labor practice charge related to the
discharges, is a valid offer tolling the employer’s back-
pay liability to the discharged employees.’ This
narrow issue raises an important and substantial ques-
tion concerning the National Labor Relations Act
which requires resolution by this Court.
The Company made its offer of reinstatement in an
effort to voluntarily settle the dispute over which the
employees had struck on October 22, 1970. The Com-
pany requested that the Union ask the Board to with-
draw the unfair labor practice charge because it
wanted to wipe the slate clean before it began ne-
gotiating for a collective bargaining agreement with
*The Company made the additional factual argument before
the Court of Appeals that its offer of reinstatement was not con-
ditional upon the Union seeking withdrawal] of the unfair labor
practice charge. However, this argument was rejected by the Court
below and is not renewed in this petition.
10
the Union. This attempt to totally resolve the dispute
over the discharges and the Union’s request for recog-
nition without Government intervention was consis-
tent with Congress’ expressed preference for volun-
tary resolution of labor disputes. Therefore, the Com-
pany should have been found to have made a proper
offer of reinstatement.
In enacting the Labor-Management Relations Act
(‘““LMRA’’) of 1947, popularly known as the Taft-
Hartley Act, Congress stated:
‘*Section 201. That it is the policy of the United
States that—
(a) sound and stable industrial peace and the ad-
vancement of the general welfare, health and
safety of the Nation and of the best interest of
employers and employees can most satisfactorily
be secured by the settlement of issues between em-
ployers and employees through the processes of
conference and collective bargaining between em-
ployers and the representatives of their employ-
ees.’’? (29 USC §171(a)).
Section 203(d) of the Taft-Hartley Act further pro-
vides :
Final adjustment by a method agreed upon by
the parties is hereby declared to be the desirable
method for settlement of grievance disputes.’’ (29
USC §$173(d)).
Pursuant to these provisions of the Act, voluntary
reinstatement offers and strike settlement agreements
are encouraged by the National Labor Relations Board
and the Courts. See, Retail Clerks Int’l Assn., Local
Unions No. 128 and 633 v. Lion Dry Goods, Inc., 369
U.S. 17, 27 (1961); United Aircraft Co., Inc., 192
NLRB 382, 387 (1971). It is true, however, that the
11
Board and the Courts have long established that re-
instatement offers which require the union or the
unlawfully discharged employees to forego basic rights
under NLRA, Section 7 (29 USC §157) are invalid
and, if rejected, do not toll the Company’s backpay
liability to the discriminatees. American Mfg. Co., 5
NLRB 443, 467 (1938), enf. in pertinent part, 166
F.2d 61 (2nd Cir. 1939). Thus, for example, offers of
reinstatement conditioned upon the employee’s agree-
ing to withdraw from the union’ or refraining from
engaging in union activity * are not valid offers termi-
nating the backpay period.
The right to join a union and to engage in union
activities are basic Section 7 rights which, if sacrificed
in exchange for reinstatement, would result in a weak-
ening or elimination of the collective bargaining rela-
tionship between the Company and its employees.
Fein’s Tin Can Co., Inc., 23 NLRB 1330, 1358-1359
(1940). Consequently, an offer of reinstatement con-
ditioned upon the employees’ agreement to sacrifice
basic and substantial Section 7 rights is not an offer
to settle a labor dispute voluntarily within the confines
of a collective bargaining relationship, but rather is
a measure aimed at undermining that relationship by
weakening the union. Mackie-Lovejoy Mfg. Co., 130
NLRB 172, 173-174 (1953).
The Company believes that its reinstatement offer of
October 25, 1970, although found to have been made
conditional upon the Union’s promise to request with-
* NLRB v. Dee’s of New Jersey, Inc., 395 F.2d 112 (3rd Cir.
1968); NLRB v. Garland Knitting Milis, 408 F.2d 672 (5th Cir.
1969).
* Ridgely Manufacturing Co. v. NLRB, 510 F.2d 185 (D.C.Cir.
1975).
12
drawal of the unfair labor practice charge, has im-
properly been grouped by the Board and the Court of
Appeals in the category of offers which severly inter-
fere with Section 7 rights (App. 12a, 28a).° To date, no
effort has been made by the Board or by any court to
pvint out very important distinctions between an offer
of reinstatement conditioned on an employee’s promise
to refrain from unicn activity as opposed to an offer
conditioned on a promise by a union to seek with-
drawal of an unfair labor practice charge. This is sur-
prising since there are significant differences involved
which could bear upon the issue of termination of
backpay liability owed discriminatees.
The first basic difference is that an offer conditioned
on a union’s promise to seek withdrawal of an unfair
labor practice charge is aimed at promoting a peaceful
collective bargaining relationship with the union,
whereas an offer conditioned on the employees’ re-
fraining from union activity or resigning from union
membership can only lead to destruction of that rela-
tionship. Had the Union accepted the Company’s re-
instatement offer in exchange for its promise to seek
withdrawal of the charge, the parties would have been
left in a positive posture from which equitable and
effective contract negotiations would have proceeded.
The Union’s bargaining position would have been en-
hanced by its ability to procure the immediate rein-
statement of the discharged employees and the Com-
pany would have approached bargaining free from the
pendency of the unfair labor practice charge with its
potential for monetary liability. On the other hand,
*See, NLRB v. St. Mary’s Sewer Pipe Co., 146 F.2d 995 (3rd
Cir. 1945); Denver Fire Reporter and Protective Co., 119 NLRB
1187 (1957).
13
had the Company required that the employees resign
from the Union in order to obtain reinstatement or
sought some other condition impairing substantial
Section 7 rights, and the employees complied, then, as
previously shown, the direct result would have been
a weakening of the Union and the collective bargain-
ing relationship, and further industrial strife might
well have ensued. Fein Tin Can Co., Inc., supra.
Secondly, there is a significant difference as to how
each condition can be achieved. An agreement to re-
frain from Union activity or to withdraw from the
Union could have been unilaterally complied with by
the employees offered reinstatement and would there-
by have automatically and directly interfered with the
employees’ Section 7 rights. To the contrary, once the
unfair labor practice charge was filed with the Na-
tional Labor Relations Board’s Regional Office, the
charge fell within the exciusive jurisdiction of the
Board and the Union had no legal authority to inter-
fere with the Board’s proceedings. NLRB v. Gemalo,
130 F.Supp. 500 (SDNY 1955). The Union, at most,
could have requested the Board to withdraw the
charges it had filed. It would then have been solely
within the discretion of the Regional Director to fur-
ther proceed with the matter or agree to the Union’s
request to withdraw the charge. NLRB Rules and
Regulations, Series 8, as amended (29 CFR), Sec-
tion 102.9. In so doing, the Regional Director would
have used his own judgment, backed with the exper-
tise of his staff, to determine whether a basic purpose
of the Taft-Hartley Act, the settlement of disputes
peaceably by voluntary methods (29 USC §§171(a),
173(d), supra), suggested approval of the Union’s re-
quest to withdraw the charge, or whether the alleged
14
interference with Section 7 rights was so pervasive
that the only effective recourse would be the prosecu-
tion of a complaint. Had the strike been settled, and
withdrawal sought by the Union, the Board may
well have agreed to the withdrawal of the charge. |
However, even under those circumstances, the Re-
gional Director would have been under no obligation
to permit the charge to be withdrawn, but could have
proceeded to issue a complaint and litigate the unfair
labor practice allegations.
It is, therefore, apparent that had the Union prom-
ised to seek withdrawal of the unfair labor practice
charge, the direct impact on Section 7 rights of the em-
ployees would have been far less than had the rein-
stated employees been compelled to resign from the
Union or otherwise give up substantial Section 7
rights. That is not to deny that acceptance of such
condition by the Union would not have impacted
on the protection afforded its members by the NLRA.
Had the Union accepted the Company’s reinstatement
offer and successfully sought withdrawal of the un-
fair labor practice charge, the discriminatees would
have foregone the possibility of being awarded back-
pay for the brief (4 month) period they were Gis-
charged. However, in exchange the employees would
have received immediate full reinstatement (rather
than the reinstatement they eventually received three-
and-one-half years after their discharges) and the
negotiation of a collective bargaining agreement would
have ensued immediately (again, rather than three-
and-one-half years later). The latter result would
have been far more consistent with the Congressional
mandate for voluntary dispute resolution as set forth
in LMRA Sections 201(a) and 203(d) and with this
15
Court’s preference for keeping labor disputes outside
the courtroom.” Had the Union expected that back-
pay would have been tolled by the reinstatement offer,
it is most probable the offer would have been ac-
cepted and the parties would have settled into a peace-
ful collective bargaining posture three-and-one-half
years earlier than in fact occurred.
The facts presented by this petition do not oceur in-
frequently. It is, therefore, important that manage-
ment and labor have the benefit of this Court’s view
of whether an offer of reinstatement conditioned on
the Union’s promise to seek withdrawal of an unfair
labor practice charge is valid and tolls backpay or
is invalid, since it significantly interferes with the
employees’ Section 7 rights.
Accordingly, the Company submits that this petition
presents an important question bearing on the admin-
istration of the National Labor Relations Act and
respectfully requests that this Court grant review.
CONCLUSION
For the reasons set forth above, a writ of certiorari
should issue to review the judgment and opinion of
the Eighth Circuit.
Respectfully submitted,
JoHN A. McGuINNn
KENNETH J. Stmon-Rose
FARMER, SHIBLEY, McGuinn & FLoop
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036
* See, generally, the ‘‘Steelworker’s Trilogy’’—United Steel-
workers of America v. American Manufacturing Co., 363 U.S. 564
(1960) ; United Steelworkers of America v. Warrior & Gulf Navi-
gation Co., 363 U.S. 574 (1960) ; United Steelworkers of America
v. Enterprise Wheel, 363 U.S. 593 (1960) ; and this Court’s recent
opinion, Nolde Bros. v. Bakery Workers, —— U.S. —~—, 94 LRRM
2753 (March 7, 1977).
APPENDIX
la
229 NLRB No. 48
FJP
D—2385
Liberty, Mo.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
Case 17—CA—4331
Mipvwest Hancer Co. AND
Liperty ENGINEERING Corp.
and
Unirep Steetworkers or America, AFL-CIO
Second Supplemental Decision and Order
On October 8, 1971, the National Labor Relations Board
issued its Decision and Order directing that Respondent
make whole certain employees for their losses resulting
from Respondent’s unfair labor practices in violation of
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended.’ On February 20, 1973, the United States
Court of Appeals for the Eighth Circuit issued its judg-
ment enforcing the Board’s Order.*? Respondent’s petition
for certiorari to the United States Supreme Court was
denied on October 9, 1973.°
On June 7, 1974, the Regional Director for Region 17
issued a backpay specification and notice of hearing to
which Respondent filed an answer and an amended answer.
A hearing was held before Administrative Law Judge
Julius Cohn on September 10 through 13, and November
*193 NLRB 616.
*474 F.2d 1155.
*414 U.S. 823.
2a
11 through 15, 1974, for the purpose of determining the
amount of backpay due the discriminatees. On May 20,
1975, the Administrative Law Judge issued a Supplemental
Decision in which he found that the discriminatees were
entitled to backpay as set forth in his recommended Order.
On December 1, 1975,‘ the Board issued a Supplemental
Decision and Order which adopted as its backpay order
the recommended Order of the Administrative Law Judge.
On March 3, 1977, the United States Court of Appeals for
the Eighth Circuit issued its judgment enforcing the Board’s
Order with the exception of employee Elaine Peukert’s
backpay award which was remanded to the Board for the
purpose of excluding therefrom the period November 6,
1972, to January 22, 1973.°
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
In response to the court’s remand, we make the follow-
ing modifications in Peukert’s backpay award:
As indicated in the Appendix of the Administrative Law
Judge’s Supplemental Decision, he found, in agreement
with the General Counsel’s backpay specification, that
Peukert was entitled to gross backpay in the amount of
$1,629 for 11 of the 13 weeks in the fourth quarter of
1972.° However, as the court directed the exclusion from
that quarter of the 8 weeks from November 6 to December
31, 1972, we find that Peukert’s gross backpay amounted to
$444 for 3 weeks in the fourth quarter of 1972. Accordingly,
as her net interim earnings of $589 exceeded the gross
#221 NLRB 911.
°94 LRRM 2878, 81 LC ¥ 13,095.
* The gross backpay for the entire quarter would have been $1,926.
3a
backpay, Peukert was not entitled to any net backpay for
the quarter.
The Administrative Law Judge also found, in agree-
ment with the General Counsel’s backpay specification,
that Peukert’s gross backpay was $1,953 for the entire
13 weeks in the first quarter of 1973. However, as the
court directed the exclusion from that quarter of the
3 weeks from January 1 to 22, 1973, we find that Peukert
was entitled to gross backpay in the amount of $1,502 for
10 weeks in that quarter. Accordingly, Peukert’s net back-
pay for the quarter represents the difference between the
gross backpay of $1,502 and the net interim earnings of
$1,166, namely, $336.
In view of the revised net backpay for the two quarters
in question, we conclude that Peukert’s total net backpay
amounts to $12,557 rather than the $14,048 stated in the
Administrative Law Judge’s Appendix. We therefore so
amend our backpay order. We shall also attach hereto a
revision of that portion of the Appendix which pertains
to Peukert.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board, in accordance with the remand of the United States
Court of Appeals for the Eighth Circuit, revises its back-
pay order by reducing the net backpay for Elaine Peukert
from $14,048, to $12,557.
Dated, Washington, D.C. Apri! 27, 1977.
Joun H. Fannino, Chairman
Howarp Jenkins, Jr., Member
Joun A. Pene.tto, Member
Nationat Lasor Revations Boarp
(SEAL)
4a
REVISED APPENDIX
Net
Year and Gross Interim Interim Net
Name Quarter Backpay Earnings Expenses Earnings Backpay
Elaine Peukert 1970-3 $1,352 $ None 2 $ None $1,352
1970-4 1,354 None None 1,354
1971-1 1,440 None None 1,440
1971-2 1,665 26 26 1,639
1971-3 1,819 624 624 1,195
1971-4 2,085 618 24 594 1,491
1972-1 2,069 686 33 653 1,416
1972-2 1,713 1,033 56 977 736
1972-3 1,953 1,392 21 1,371 582
1972-4 444 603 14 589 None
1973-1 1,502 1,187 21 1,166 336
1973-2 1,953 1,505 21 1,484 469
1973-3 1,979 1,458 21 1,437 542
1973-4 667 676 14 662 5
Total $12,557
da
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 76-1261
NationaL Lasor Revations Boarp, Petitioner,
v.
Mipwest Hancer Co. ano Liperty ENGINEERING CorpP.,
Respondent.
Judgment
Before: Lay, Bricut and Steruenson, Circuit Judges.
Tuts Cause came on to be heard upon an application
of the National Labor Relations Board for enforcement
of a supplemental order issued by it against Respondent,
Midwest Hanger Co. and Liberty Engineering Corp.,
Kansas City, Missouri, its officers, agents, successors, and
assigns, on December 1, 1975. The Court heard argument
of respective counsel on November 11, 1976. and has con-
sidered the briefs and transcript of record filed in this
cause. On March 3, 1977, the Court being fully advised in
the premises, handed down its opinion granting enforce-
ment of the Board’s supplemental order, with the exception
of the Peukert back pay award. The Peukert award is re-
manded to the Board for further proceedings not incon-
sistent with the Court’s opinion. In conformity therewith,
it is hereby
ORDERED AND ApsupGep by the Court that Respondent,
Midwest Hanger Co. and Liberty Engineering Corp.,
Kansas City, Missouri, its officers, agents, successors, and
assigns, shall make the employees involved in this pro-
ceeding whole by payment to them of the following
amounts together with interest at the rate of 6 percent
per annum, in the manner set forth in the section of the
Administrative Law Judge’s Supplemental Decision en-
6a
titled ‘‘The Remedy,’’ and continuing until the amounts
are paid in full, but minus tax withholding required by
Federal and State laws:
DE Pp indescacccvcctces $13,710
Kin Bristow Woods ........... 11,302
Margaret Buckley ............. 6,846
BN GD no cerccs ctevececee 7,286
Joseph DeMent .............-. 8,731
BD TE BN KS deccnttnsdensscs 8,737
James W. Forbis ............. 6,594
Ronald Greathouse ............ 3,010
William Greathouse ........... 6,197
Marilyn Kimberlin ............ 5,118
John Charles Lankford ........ 11,844
Shirley Lauderdale Chamberlin . 1,860
PE MEE acc eyepoesecesene 1,167
PE WUE occ cntdcsdcvuces 781
Virgie Peterson McCannon .... 4,907
Se SEED Kod Views caeeadecnctes 1,392
Ir Is FurtHer OrpereD AND ApsupceED by the Court that
the Peukert award be and it is hereby remanded to the
Board for further proceedings not inconsistent with the
Court’s opinion,
Datep: Mareh 31, 1977.
Costs taxed in favor of National Labor Relations Board:
Costs of printing 5 copies of Appendix: $334.90
Costs of printing 10 copies of brief of Labor
Board: $358.98
Total costs of Labor Board for recovery from
Midwest Hanger Co. and Liberty Engineer-
ing Corp: $693.38
April 21, 1977
7a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
(Caption Omitted in Printing)
On Application for Enforcement of a Supplemental Order
of the National Labor Relations Board
Submitted: November 11, 1976
Filed: March 3, 1977
Before Lay, Bricut and StepHenson, Circuit Judges.
STEPHENSON, Circuit Judge.
The National Labor Relations Board (Board) petitions
for enforcement of its supplemental back pay order issued
against Midwest Hanger Company and Liberty Engineer-
ing Corporation’ (Company) directing the Company to
pay approximately $112,000* to 17 persons who had been
discriminatorily discharged by the Company in violation
of sections 8(a)(3) and (1) of the National Labor Rela-
tions Act. The ultimate issue raised here concerns the
appropriateness of the Board’s back pay order. We find,
that except for discriminatee Elaine Peukert’s award, the
Board’s back pay order is appropriate.
On October 8, 1971, the Board issued a decision and
order, 193 N.L.R.B. No. 85, declaring that the Company
had discriminatorily discharged 18 employees and refused
to reinstate another employee because of their union ac-
tivity. The Board ordered reinstatement with back pay
for all concerned employees and further entered a bargain-
ing order based upon its finding that the Company’s ac-
tions precluded the holding of a valid election. This court
*The two companies are operated as a single economic entity.
* This figure does not include the 6% per annum interest charge.
8a
enforced the Board’s order as to 17 of the discriminatees.
NLRB vy. Midwest Hanger Co. & Liberty Engineering
Corp., 474 F.2d 1155 (8th Cir.), cert. denied, 414 U.S. 823
(1973).
As the parties were unable to agree on the amount of
back pay due to the 17 discriminatees, the regional direc-
tor issued a back pay specification dated June 7, 1974. The
Company filed an answer and an amended answer thereto.
Thereafter, a hearing was held before an administrative
law judge to resolve the issues raised by the Company’s
answer and to establish the amount of back pay due.
Testimony was taken on the Company’s contention that
it had made a proper offer of reinstatement to certain
discriminatees on October 25, 1976, thereby ending the
back pay period on that date. Further evidence was in-
troduced concerning the propriety of the formula used
by the regional director in computing gross back pay and
the Company’s contentions that the employment of certain
discriminatees would have been terminated during the
back pay period because of economic reductions in the
work force or excessive absenteeism, and that certain dis-
criminatees had incurred willful losses of earnings by fail-
ing to make reasonable efforts to obtain suitable interim
employment.
On May 20, 1975, the administrative law judge issued his
decision, finding that the 17 discriminatees were entitled
to back pay totalling $112,530. The Company filed excep-
tions and on December 1, 1975, the Board affirmed the
rulings, findings, and conclusions of the administrative
law judge and ordered the Company to pay the discrimi-
natees the amounts set forth in the administrative law
judge’s decision. This petition by the Board for enforce-
ment of its supplemental back pay order followed.
We enforce in part and remand in part.
The first issue raised by the Company concerns an offer
of reinstatement made on October 25, 1970, by Carl Jones,
9a
the president of Midwest Hanger Company. It is undis-
puted that the back pay period for the discriminatees be-
gan when they were discharged in June or July, 1970. The
Company contends that the back pay period terminated
on October 25, 1970. The Board found, however, that the
October 25 offer of reinstatement was not unconditional,
thereby holding that the back pay period did not terminate
until proper offers of reinstatement were made in No-
vember 1973.° Our review of the record as a whole con-
vinces us there is substantial evidence to support the
Board’s findings. See Universal Camera Corp. v. NLRB,
340 U.S. 474, 491 (1951).
At the hearing held before the administrative law judge,
witnesses for the Company and the general counsel testi-
fied generally that on October 22, 1970, the Company’s
employees went on strike. The next day representatives of
the Company, including attorney Stanford Madden, met
with representatives of the union to discuss how to end
the strike. The parties spent two days reviewing the per-
sonnel records of 26 discharged employees. By the morn-
ing of October 25, it had be n tentatively agreed that 13
employees would be reinstated. Some time during the
morning of October 25, Carl Jones, the Company’s presi-
dent, who had been out of town, returned to the plant and
was informed of the negotiations. Without knowing which
13 employees were to be reinstated, Jones told the union
representatives that he would agree to their reinstate-
ment. William Greathouse, one of the discriminatees, asked
* Although the administrative law judge and the Board ruled
on the merits of this contention, it was held in the alternative that
the issue had been fully litigated in the prior unfair labor practice
proceeding. Because we decide this contention on the merits, we
find it unnecessary to consider the issue preclusion argument. It is
doubtful, however, that the issue in question was fully litigated by
the parties and passed upon by the Board at the earlier proceed-
ings. See Brown & Root, Inc., 132 N.L.R.B. 486, 492-93 (1961),
enforced as modified, 311 F.2d 447 (8th Cir. 1963).
10a
whether the reinstated employees would receive back pay.
Jones replied that he would never pay back pay and left
the meeting. The union committee refused to agree to the
Company’s proposal, but submitted it to the striking em-
ployees who, in turn, rejected it.
It is clear that had the Company’s offer of reinstate-
ment been conditioned solely on its refusal to give back
pay, as the Company strenuously argues, then the offer
of reinstatement would not have been invalidated. D’Armi-
gene, Inc, 148 N.L.R.B. 2, 15 (1964), enforced as modified,
353 F.2d 406 (2d Cir. 1965); Reliance-Clay Products, 105
N.L.R.B. 135 (1953). The administrative law judge and
the Board, however, found that the Company had placed
several other conditions on the offer of reinstatement
which did invalidate it.
The record reveals that the Company called five wit-
nesses who testified in essence that there were no condi-
tions placed on the offer of reinstatement made by Carl
Jones on October 25, 1970, or by anyone else during the
negotiations.* In direct contradiction, however, was the
testimony of two witnesses called by the general counsel.
For example, Harry Andrew, a former representative for
the United Steel Workers of America, and called as a
witness by the general counsel, testified that at the be-
ginning of the negotiations on October 23, 1970, Stanford
Madden, the Company’s attorney, stated to the union ne-
gotiating committee that something would have to be done
in regard to the pending unfair labor practice charges.
Andrew further testified that on October 25, 1970, at ap-
proximately the same time Carl Jones made the offer of
reinstatement, Madden again stated to the committee that
* Although the Company argues that only the words spoken by
Jones should be considered as the offer, under the totality of the
circumstances we conclude that any conditions previously included
by representatives of the Company were implicit in Jones’ offer of
reinstatement.
lla
something would have to be done with the pending charges.’
William Greathouse, one of the discriminatees who was
also a member of the union negotiating committee and
called as a witness by the general counsel, corroborated
Andrew’s testimony.
The administrative law judge found the testimony of
Andrew and Greathouse to be straightforward and con-
sistent. Furthermore, he found that three of the five wit-
nesses called by the Company had made prior statements
which were somewhat inconsistent with their testimony.®
As this court has stated:
The rule in this Circuit is that ‘‘the question of credi-
bility of witnesses and the weight to be given their
testimony’’ in labor cases is primarily one for deter-
mination by the trier of facts. This Court is not the
place where that question can be resolved, unless it
is shocking to our conscience.
NLRB vy. Morrison Cafeteria Co. of Little Rock, 311 F.2d
534, 538 (8th Cir. 1963) (citations omitted). Although this
court has stated in NLRB v. Payless Cashway Lumber
Store of South St. Paul, Inc., 508 F.2d 24, 28 (8th Cir.
1974), that this rule is not to be applied mechanically so
as to compel us to sustain any finding concerning con-
flicting testimonial evidence, here the record as a whole
supports the credibility findings of the administrative law
judge and the Board. Accordingly, w~ refuse to disturb
the Board’s finding that the Company conditioned its offer
5 The record further reflects that the union committee reported
to the striking employees that part of the offer included dropping
the charges pending against the Company.
*The administrative law judge noted that one Company witness
had testified at a prior hearing that an agreement had been struck
to drop the pending charges. At the current hearing the witness
recanted and stated that nothing had been said about dropping the
charges.
12a
of reinstatement of October 25, 1970, upon the dropping
of the unfair labor practice charges.’ It follows that the
back pay period did not terminate on October 25, 1970.
See NLRB v. St. Marys Sewer Pipe Co., 146 F.2d 995 (3d
Cir. 1945); Denver Fire Reporter and Protective Co., 119
N.L.R.B. 1187, 1188 (1957).
The Company secondly contends that the Board erred
in finding that certain discriminatees would not have been
terminated for economic reasons during the back pay
period.* It is a well settled principle that the burden of
proof is on the employer to show that it would not have
had work available for a discriminatee due to factors un-
related to the discriminatory discharge. NLRB v. Mastro
Plastics Corp., 354 F.2d 170, 176 (2d Cir. 1965), cert.
denied, 384 U.S. 972 (1966); Nabors v. NLRB, 323 F.2
686, 690 (5th Cir. 1963); NLRB v. Brown & Root, Inc.,
supra, 311 F.2d at 454. See NLRB v. Madison Courier,
Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972). This principle
not only allows the employer the opportunity to show that
the otherwise appropriate back pay order would work an
undue economic hardship, but also as a practical matter
places the burden of going forward on the party having
knowledge of the pertinent facts. NLRB v. Mastro Plastics
Corp., supra, 354 F.2d at 176.
Turning to the regerd before us, it is undisputed that
the Company, through a gradual process, experienced an
econvme edection from 1970 to 1973. For instance, the
* The administrative law judge found that the Company had fur-
ther conditioned its offer of reinstatement by requiring the termi-
nation of the strike, improvement in absenteeism by several] em-
ployees, the changing of jobs by other employees and the taking
of a physical examination by one discriminatee. In light of our
discussion above, we do not reach these issues.
*The discriminatees included in this contention are William
Greathouse, Ronald Greathouse, David Covey, John Ashby, James
Forbis, Joseph DeMent, and John Lankford.
i
r i
Z
4
7 1a
Company during this period reduced the number of shifts
from three to one. The Company further reduced its over-
all plant complement from 82 in June 1970 to 38 by the end
of 1973. In light of these basically undisputed facts and
the Conipany’s contention that all 17 discriminatees would
have been terminated at specific intervals in the course of
the economic reduction, our inquiry necessarily focuses on
‘the Company’s layoff policy. In that regard the Company’s
_ plant manager testified that the Company did not follow
a strict seniority plan in its layoff policy. Other factors
such as ability, work experience, work performance and
flexibility were considered. The record further reveals that
although some employees were terminated during this
period when their specific jobs were eliminated, at least
three employees were reassigned to other jobs in the plant.
We also note that the Company was advertising for job
applicants only a couple of months prior to the discharge
of the discriminatees. Thus, even though the Company
produced specific evidence concerning the possible termi-
nation of each discriminatee for economic reasons, we can-
not say that the Board’s findings on this issue are not
supported by substantial evidence on the record considered
as a whole.’
The Company finally argues that the Board incorrectly
found that certain discriminatees did not willfully incur
a loss of earnings.”® In connection with this issue, the
Supreme Court has stated:
*The Company also contends that it proved before the admin-
istrative law judge that certain discriminatees would have been
discharged by the end of 1970 because of their excessive absen-
teeism. The Board in effect found that the Company lid not carry
its burden on this issue. Having carefully reviewed the record
and considered it as a whole, we cannot say that the Board’s finding
on this issue is not supported by substantial evidence.
*°The discriminatees include James Forbis, Joseph De Ment,
Ronald Greathouse, David Covey, Marlyn Kimberlin, Elaine Peu-
l4a
Making the workers whole for losses suffered on
account of an unfair labor practice is part of the
vindication of the public policy which the Board en-
forces. Since only actual losses should be made good,
it seems fair that deductions should be made not only
for actual earnings by the worker but also for losses
which he willfully incurred.
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197-98 (1941).
The employee must therefore make a reasonable search
for interim employment. NLRB v. Arduini Mfg. Corp.,
394 F.2d 420, 423 (1st Cir. 1968); NLRB v. Miami Coca-
Cola Bottling Co., 360 F.2d 569, 575 (Sth Cir. 1966); NLRB
v. Brown & Root, Inc., supra, 311 F.2d at 452. The burden
of proof, however, is on the employer to show the em-
ployee’s failure to make a reasonable search. NLRB v.
Arduvu Mfg. Corp., supra, 394 F.2d at 423; Florence
Printing Co. v. NLRB, 376 F.2d 216, 223 (4th Cir. 1967);
NLRB v. Miami Coca-Cola Bottling Co., supra, 360 F.2d
at 575; NLRB v. Brown & Root, Inc., supra, 211 F.2d at
454.
The Board in effect found that the Company did not
meet its burden in proving that the discriminatees will-
fully incurred a loss of earnings. Although the testimony
presents very close questions concerning several of the
discriminatees, except for Elaine Peukert, we cannot say
that the Board’s findings are not supported by substantial
evidence on the record considered as a whole.”
Ms Peukert testified that from November 6, 1972, to
January 22, 1973, she was laid off from her employment
at Whitaker Cuble. She further testified that she did not
kert, June Elliott, John Ashby, Kim Woods, Virgie McCannon,
Margaret Buckley, and Sharon Meier.
We note that the administrative law judge reduced the back
pay of ten discriminatees for numerous reasons.
15a
look for work during the layoff period because she know
that she would eventually be recalled. Under these cir-
cumstances, since by her own admission she was not in
the job market from November 6, 1972, to January 22,
1973, this period must be excluded from the back pay
computation.
After carefully considering each of the Company’s con-
tentions of error, we order, with the exception of the
Peukert back pay award, enforcement of the Board’s entire
back pay order. The Peukert award is remanded to the
Board for further proceedings not inconsistent with this
opinion.
Enforced in part. Remanded in part.
A true copy.
Attest:
Cuierk, U.S. Court or Aprgats, Ercuta Cracuit.
l6a
{dated December 1, 1975]
Supplemental Decision and Order
On October 8, 1971, the National Labor Relations Board
issued its Decision and Order directing that Respondent
make whole certain employees for their losses resulting
from Respondent’s unfair labor practices in violation of
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended.’ On February 20, 1973, the United States
Court of Appeals for the Eighth Circuit issued its judg-
ment enforcing the Board’s order.? Respondent’s petition
for certiorari to the United States Supreme Court was
denied on October 9, 1973.2 On June 7, 1974, the Regional
Director for Region 17 issued a backpay specification and
notice of hearing to which Respondent filed an answer
and an amended answer. A hearing was held before Ad-
ministrative Law Judge Julius Cohn on September 10
through 13, and November 11 through 15, 1974, for the
purpose of determining the amount of backpay due the
discriminatees. On May 20, 1975, the Administrative Law
Judge issued the attached Supplemental Decision in which
he found that the discriminatees entitled to backpay as set
forth in his recommended Order. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the record and the attached
Supplemental Decision in light of the exceptions and brief
and has decided to affirm the rulings,‘ findings, and con-
*193 NLRB 616.
* 474 F.2d 1155.
*414 US. 823.
‘Respondent contends that the Administrative Law Judge’s
l7a
clusions of the Administrative Law Judge and to adopt
his recommended Supplemental Order.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations Board
adopts as its Order the recommended Supplemental Order
of the Administrative Law Judge and hereby orders that
Respondent, Midwest Hanger Co. and Liberty Engineering
Corp., Kansas City, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in said
recommended Supplemental Order.
Dated, Washington, D.C. December 1, 1975.
Joun H. Fanninc, Member
Howargp JENKINS, JR., Member
Joun A. Penetio, Member
NatTionaL Lasor Revations Boarp
(SEAL)
ee
action in quashing a subpena to compel production of the Board’s
Compliance Officer Manual deprived Respondent of due process in
its cross-examination of the Compliance Officer. We find no merit
in this contention as the Admnistrative Law Judge properly relied
on two grounds: (1) Respondent’s failure to obtain written consent
from the General Counsel for the production of the manual pur-
snant to Sec. 102.118 of the Rules and Regulations which were in
effect at the time of the hearing in the instant backpay proceeding,
and (2) the fact that the backpay formulas and rationale herein
are spelled out in the record as well as in the Board’s past Decisions.
18a
[dated May 20, 1975]
SUPPLEMENTAL DECISION
Statement of the Case
Jutivus Conn, Administrative Law Judge: On October 8,
1971, the Board issued its Decision and Order (193 NLRB
616) directing Midwest Hanger Co. and Liberty Engineer-
ing Corp., herein called Respondent, to make whole certain
employees for their losses resulting from the unfair labor
practices found to have been committed by the Respond-
ent. On March 21, 1973, the Board’s Decision and Order
was enforced by the United States of Appeals for the
Fighth Cireuit (474 F.2d 1155, 82 LRRM 2693),' Respond-
ent’s petition for certiorari to the United States Supreme
Court was denied on October 9, 1973. (84 LRRM 2421).
The parties being unable to agree on the amount of back-
pay due under the terms of the Board’s Order, the Reg-
ional Director for Region 17 issued a backpay specifica-
tion dated June 7, 1974. The Respondent filed an answer
and an amended answer thereto.
A hearing was held before me at Kansas City, Missouri,
on September 10 through 13, and November 11 through
15, 1974. Briefs, which have been carefully considered,
have been received from General Counsel and Respond-
ent. |
Upon the entire record in the case and upon my observa-
tion of the witness, I make the following:
Findings of Fact
The Board’s Order as enforced by the Court provided
for reinstatement of 17 employees and directed the Re-
*The Court of Appeals did not enforce that portion of the
Board’s Order requiring reinstatement and backpay for Betty
Johnson and Grover Speck.
19a
spondent to make them whole for any loss of earnings
they may have sustained by reason of its discrimination.’
In its answer to the backpay specification Respondent con-
tended that it had made a proper offer of reinstatement to
certain of the 17 discriminatees on October 25, 1970.° At
the opening of the hearing herein it was deemed expedient
to proceed with the evidence on this issue at the outset.
Counsel for the General Counsel then moved to prohibit
the testimony on the ground that the question had been
fully litigated in the prior unfair labor practice hearing.
In addition to his reliance on the Board’s Order as en-
forced by the Court, General Counsel submitted in sup-
port of his Motion excerpts from the transcript of the
previous hearing, briefs of the parties to the Trial Ex-
aminer, the Respondent’s exceptions to the Trial Kxam-
iner’s Decision and the cross exceptions of the General
Counsel, and, finally, excerpts from the briefs of the parties
to the Court of Appeals.* As the prior Decision contained
no specific finding with reference to the alleged offer of
reinstatement made to some terminated employees, it was
not clear that it had been finally resolved. I therefore
denied the Motion, made without prior notice, rather than
*The 17 employees are: John Ashby, Kim Bristow (Woods),
Margaret Buckley, David Covey, Joseph DeMent, June Hiliott,
James Walter Forbis, Ronald Greathouse, William Greathouse,
Marilyn Kimberlin, John Charles Lankford, Shirley Lauderdale
(Chamberlin), Sharon Meier, Michael Owens, Virgie Peterson (Mc-
Cannon), Elaine Peukert and John Sells.
* As will be seen infra, Respondent allegedly offered to reinstate
13 employees of whom 11 are discriminatees in this proceeding.
The 11 diseriminatees referred to are: John Ashby, Kim Bristow
(Woods), Margaret Buckley, David Covey, Joseph DeMent, June
Elliott, Ronald Greathouse, William Creathouse, Marilyn Kimber-
lin, Sharon Meier and Elaine Peukert.
*These materials were received in evidence as Board Exhibits
13(a) through (g).
20a
refuse Respondent an opportunity to litigate a matter
in these circumstances.
Upon reconsideration of this issue, I shall grant General
Counsel’s Motion to Strike contained in his brief. I now
find, based upon the entire record in this, and the relevant
portions of the previous proceedings, that the question of
whether Respondent made an unconditional offer to rein-
state 11 employees in October 1970 was litigated finally
in the course of the original unfair labor practice case.
The Trial Examiner’s recommended Order provided that
Respondent offer to such of the employees named in the
complaint, ‘‘who have not heretofore been fully rein-
stated,’’ their former jobs and make them whole for any
loss of earnings they may have suffered. Respondent took
specific exceptions to what it termed the Trial Examiner’s
failure to consider the Respondent’s offer to reinstate
terminated employees on October 25, 1970, in ordering
their reinstatement. Counsel for Respondent, who had
urged this issue in its brief to the Trial Examiner, reite-
rated it in a brief submitted to the Board in support of
its exceptions to his Decision. The Board, noting that it
considered the Trial Examiner’s Decision, the exceptions,
the cross exceptions, and briefs and the entire record in
the case, adopted the recommended Order of the Trial
Examiner. In view of these recitals it cannot be presumed
that the Board did not consider the issue of the alleged
unconditional offer of reinstatement in 1970 particularly
as Respondent had taken specific exception on the point.
If the 11 discriminatees, to whom the alleged offer had
been made, had refused it in 1970, they would not have
been entitled to backpay subsequent to the date of the
offer. Since the Board directed reinstatement in 1971,
which it would not have done if it had found a valid prior
offer, the backpay period continued to run under the make
whole remedy until Respondent made a valid offer. Re-
spondent urged the same issue in the Court of Appeals but
the Court enforced the Board’s Order with regard to
2la
the reinstatement and make whole remedy.’ I conclude,
therefore, that the issue had been litigated and decided.
If it should be held that the Board’s Order as enforced
by the Court in the original case is not conclusive on this
issue and there was no final determination as to whether
the Respondent had offered reinstatement to some of the
discriminatees herein, I would find, nevertheless, on the
basis of all the testimony and evidence in the hearing
herein that Respondent had not made a valid uncondi-
tional offer of reinstatement on October 25, 1970, to 11 of
the discriminatees in this matter.
On October 22, 1970, the employees on the second shift
walked out and were later joined by the employees on
the other two shifts. The following day, a Friday, repre-
sentatives of the Company and the Union and employees
met at the plant. The Company was represented by its
attorney, Stanford Madden, Gene Brown, plant manager,
and Reginal Ward, vice-president and genera] manager.
For the Union there were Harry Andrew, an International
Representative of the United Steelworkers and an em-
ployee committee including some of the discriminatees.
All of the company representatives present at the meeting
as well as Andrew and a number of employee committee
members testified at this hearing. There is a substantial
agreement that meetings were concluded over the entire
weekend in the course of which the parties devoted most
of their time to a discussion of the 26 employees who had
been terminated by the Company. After it had been estab-
lished that the Union was seeking by the strike to have
these employees reinstated, among other things, the Com-
pany resisted such demand contending that it had dis-
charged them for cause. Thereupon the parties reviewed
the Company’s reasons and inspected the personnel rec-
* Except, as previously noted, for two alleged discriminatees not
involved herein.
22a
ords of each of the terminated employees. By Sunday
morning, October 25, it was agreed that 13 of the dis-
charged employees would be taken back. There were cer-
tain reservations with respect to this agreement which in
itself was tentative as it was subject to the approval of
the Respondent’s president, Carl Jones. Admittedly David
Covey would have to submit to a physical examination be-
fore he could be reinstated. Joseph DeMent, a welder,
would have to take another job, as would John Ashby.
Elaine Peukert and Marilyn Kimberlin would have to im-
prove their absenteeism, and June Elliott, her attitude.
The Union agreed to speak to the various people who
would be returned to work to urge them to improve their
absenteeism records, attitude and general performance.
The Company contends that these considerations were
part of the discussions and not conditions attached to its
agreement to take certain people back to work.
Carl Jones, company president, had been out of town
during this time on business. He returned on Sunday
morning, October 25 while the parties were still engaged
in their discussions. He sat and listened for about half
an hour and then a recess was taken. Jones met with the
other representatives who briefed him on what had oc-
curred. He quickly decided that he would make one effort
to resolve the strike. He said that he told his people if
they had already agreed to take 13 employees back, (he
did not even know who they were) that he would tell the
Union that they would be reinstated immediately. The
meeting was then reconvened and Jones said that in order
to resolve the strike he would reinstate the 13 employees
agreed upon, he would recognize the Union and bargain
with it in an effort to reach an agreement. At this point
an employee member of the committee, presumably Bill
Greathouse, asked whether backpay was included for the
returning terminated employees. Jones refused stating
that it was out of the question. After a number of recesses
during which the union representatives went out to con-
23a
sult with the strikers, and after a later meeting with a
larger group of strikers, the offer was turned down because
the employees felt that the 13 should receive backpay.
While there is not much dispute that the above recital
constitutes an account of what occurred at the weekend
meetings, there is a sharp conflict as to one other matter
which at some point was the subject of some discussion
at the meetings. This is with respect to the pending unfair
labor practices charges. By this time, the Regional Office
of the Board had aiready issued a complaint alleging that
the Company had violated Section 8(a)(1), (3) and (5)
of the Act and, among other things, the complaint listed the
26 alleged discriminatees discussed at the meetings. The
issue is whether the Company’s offer to reinstate 13 em-
ployees was conditioned upon withdrawal of the unfair
labor practice charges. Jones who had been present only
at the final meeting on Sunday said that while he did not
discuss it, he assumed that if he put all the people back
to work the Union would withdraw their charges. Plan
Manager Brown testified that nothing was said about un-
fair labor practices at the time Jones made his offer.
Brown further said that he does not recall when or by
whom, but at some point the matter of the pending unfair
labor practices had been brought up and Attorney Madden
had pointed out that this had to be resolved by the Labor
Board. At the prior hearing, Frown had testified that he
knew about the charges but did not recall any discussions
that they be dropped.°
Vice-President Ward testified that he could only recall
the question of the unfair labor practices mentioned once
when someone brought it up to Mr. Madden who replied
that the NLRB would have to handle the whole thing. Ward
stated that nothing had been said about the dropping of
* Excerpts from the transcript of the previous unfair labor prac-
tice hearing were received and made part of the record herein.
24a
the charges. This is in contrast with Ward’s testimony at
the previous hearing where, in response to a question
about the pending unfair labor practice charges, he said,
‘*Kverything was agreed to be dropped if we took the
people back in full standing.’’ And later he reiterated,
‘*All charges were to be dropped.’’ Ward now states that
he misunderstood the question asked him in the original
hearing and his testimony now is that nothing was agreed
about dropping any charges.
Stanford Madden, the attorney, testified that upon being
informed of the strike on October 22, 1970, he called Union
Representative Andrew and made arrangements for thie
meetings commencing that Friday. Madden stated that
the pending charges were not important because the main
objective of the Company was to get the plant back to
work. Madden said that at the Sunday meeting in the
presence of Jones, he ‘‘might have raised the question of
the unfair labor practices . . .’”? and Andrew replied that
the Union could withdraw them. Madden said he told An-
drew that he could not withdraw the charges but that he
could request withdrawal of the Board. Madden stated
that this discussion occurred right after Jones made his
offer but before the matter of the backpay was brought
up. Madden did not believe that he discussed with Mr.
Jones the problem of the Board’s handling of the back-
pay situation before Jones made his offer. He does say,
however, that he generally informed Mr. Jones about the
consequences of the Board’s finding of 8(a)(3) violutions.
Finlly he averred that Jones’ offer was not conditioned
upon withdrawal of the charges. Thereafter Madden was
recalled as a rebuttal witness and he denied making a state-
ment at the outset of negotiations on Friday that the
charges would have to be taken care of. In any event he
said he did not know that they could settle the whole
matter because all the Union could do was to request with-
drawal of the charges. In this connection he said that his
25a
experience taught him that if a settlement was reached
the Board would likely honor a withdrawal request.
Jewell D. Ware who was called as a witness on behalf of
the Respondent, also testified with respect to this issue.
Ware is an employee who is presently chairman of the
Union but was then a member of the employee committee.
Ware said that after Jones made his offer that Sunday
morning he heard someone from the Company say that
they had some charges against them to which Andrew
replied that he had noticed. He testified that either Jones
or Ward said or asked if these charges could be dropped
and that Madden said that it was in the hands of the
NLRB. Ware stated that it was right after Jones made
bis offer that Ward mentioned the charges and Madden
said he did not believe that it was possible to drop them
without the NLRB and that nothing further was said on
that subject. In a written statement dated November 28,
1973, Ware had said that Jones stated that he would
bargain with the Union if the employees wouid agree to
drop their charges.’
Harry Andrew, now retired, but then the representative
of the Union, testified that Madden called him on Thursday
night and requested that he meet with the Company on
Friday in an effort to settle the strike. At the meeting
Madden asked what it would take to solve the strike and
Andrew said that 26 people were terminated unjustly and
they wanted to get them back to work. Madden replied
that the circumstances were delicate and that something
would have to be done with the pending charges to which
* Ware explains this apparent discrepancy between the affidavit
and his present testimony by saying that he gave the affidavit 3
years after the events had occurred and he was not quite sure
about it and had not been thinking about it for a long time. How-
ever, he testitved that now having sat in on the present hearing and
listened to the ‘‘discussions,’’ what actually happened came back
to him more clearly.
26a
Andrew rejoined that if something could be resolved the
charges could be dropped. Madden said that if anything
was worked out they would have to be dropped, meaning
the charges. Andrew said that the matter of dropping the
charges was again brought up on Sunday after the recess
in which Jones had been briefed and prior to the Jones’
offer. Andrew testified that the Company was offering a
package deal: reinstate 13 of the terminated employees
and leave out 13, recognize the Union, bargain for a con-
tract, no backpay for the reinstated employees, and finally
dropping the unfair labor practice charges. When the em-
ployees’ committee turned down the offer of Jones because
of his refusal to include backpay, at the request of the
company representatives, they met with the employees
on the picket line who also rejected the offer. Thereafter
a meeting was held on the parking lot attended by approxi-
mately 60 or 70 employees and again the offer was turned
down.
Andrew insisted that Madden brought up this question
of the charges, not only at the outset of the negotiations
on Friday, but also just before or just after Jones made
his offer. Andrew said that he knew that charges could
not be dropped automatically but he felt that he could
get it done by going to the Board and requesting it.
William Greathouse, one of the discriminatees, was also
a member of the employees’ committee. He testified that
at the first meeting on Friday Madden asked what their
purpose was and Andrew said that the Union wanted
recognition and reinstatement of the 26 people who had
been terminated. Madden then asked if the problem could
be resolved, would the charges pending at the NLRB be
withdrawn, and Andrew said that if they could get an
agreement he felt that he could withdraw the charges. The
matter was brought up again on Sunday when Jones made
his offer and Madden asked Andrew if he would withdraw
the charges if everything was agreed upon to which An-
27a
drew replied that he would. Greathouse said that he
thought this matter was settled and then he brought up
the question of the backpay.
Upon analysis of all the testimony with respect to this
issue of whether the Company’s offer to reinstate 13 em-
ployees was in part, conditioned upon withdrawal of the
pending unfair labor practices, I credit the testimony of
Andrew and Greathouse and find that I cannot credit the
testimony of the Respondent’s witnesses. At least Brown,
Ward, and Ware had made prior inconsistent statements.
Brown testified at this hearing that at some point Madden
pointed out that the pending charges would have to be
resolved by the Labor Board, but testified at the prior
hearing that he did not recall any discussion that they be
dropped. On the other hand, Ward had testified at the prior
hearing that everything was agreed to be dropped (refer-
ring to the pending charges). At the current hearing
Ward recanted and stated nothing had been said about
dropping the charges but that Madden merely had pointed
out that the NLRB would handle the whole thing. Ware,
who in writing said that a company representative had
stated he would bargain with the Union if the employees
would agree to drop their charges, now testified at the
hearing that this had not occurred and that his memory
was better after listening to the testimony of the Com-
pany’s witnesses who preceded him on the stand.
Madden’s testimony, in effect, relies on the technicality
of the necessity for a Regional Directer to approve with-
drawal of the charges and that therefore it was not pos-
sible to condition reinstatement or eay other agreement
reached by the parties upon withdrawal of the charges.
But Madden, a labor attorney of 30 years’ experience and
himself a former field attorney with the Kansas City
Regional Office of the Board knew better. He finally testi-
fied that his experience told him that *f a settlement was
28a
reached the Board would likely honor a withdrawal re-
quest.
On the other hand the testimony of Andrew and Great-
house was straightforward and consistent on this issue.
I find, therefore, that any offer of reinstatement made on
October 25, 1970, was conditioned upon withdrawal of the
unfair labor practice charges.
An employee who has been discriminatorily discharged
is entitled to an unconditional offer of reinstatement to
his former position. Offering to reinstate such an employee
provided that he drops pending unfair labor practices
clearly attaches a condition to the offer. The Board has
long held that attaching such a condition to a offer of re-
instatement is not valid.* Any other result appears to me
to be implausible. A factor that was crystal clear from
this record is that President Jones was adamant with
respect to the payment of backpay to these discriminatees.
Not only did he view this as a matter of principle, but
he also stated that the Company did not at that time have
the financial resources to make such payments. In these
circumstances I do not believe that a businessman of his
acuity would leave himself open to a backpay liability
which could have resulted from the continued processing
of the unfair labor practice complaint. If Respondent were
making an offer of reinstatement to curtail its backpay
liability and litigate the case, that should have been made
clear to the Union and the employees. Instead Jones told
them he would never pay backpay. If this creates an am-
biguous situation, the interpretation must be resolved
against Respondent because the offer must be clear and
specific to be valid. Finally, it is unlikely that parties agree
upon recognition and bargaining without seeking with-
drawal of charges alleging the Company’s refusal to bar-
gain in good faith.
* Denver Fire Reporter and Protective Company, Inc., 119 NLRB
1187; Interior Enterprises, Inc., 125 NLRB 1289, 1312.
29a
Moreover, there are other factors which negate a finding
that Respondent’s offer was unconditional. For example,
witnesses for the Respondent admit that discriminatee
David Covey would have had to undergo a physical before
returning to work. This is obviously a condition to his
reinstatement and as to David Covey, at the very least,
Respondent’s offer was not valid. At least two other em-
ployees, DeMent and Ashby, were to return to different
jobs, Respondent having contended that their jobs had
been eliminated. Yet there is testimony in this record to
the effect that other people were doing the work in their
place. Also Buckley, Peukert and Kimberlin had to im-
prove their absenteeism. Respondent contends that these
matters were merely the subject of the discussion in de-
termining which employees it would agree to reinstate.
But if so, the entire context was one of limitation and
condition and before agreement it was clear that these
people would have to improve either absenteeism or con-
duct or work habits, or, in the case of Ashby and DeMent,
the assumption of different positions. In these circum-
stances the discriminatees were not receiving ‘‘a specific
and unequivocal offer’’ to which they were entitled.’ Re-
spondent further argues that none of these conditions were
attached to Jones’ offer when he made it. While this
indeed true, Jones himself said that he did not even know
the names of the 13 people to whom he was offering rein-
statement. He relied on his managers who had conducted
these meetings for almost 3 days and who informed him
that they agreed with the Union to take back 13 of the
terminated employees. Having relied on these people to
fill in the names of the 13 to be reinstated, he is also
bound by any commitments they made or conditions they
may have placed upon the reinstatements during the dis-
cussions with the union representatives and the employee
committee.
* See Rea Trucking, 176 NLRB 520 (1969).
30a
Finally I find that the offer to reinstate 13 employees
was conditioned upon the termination of the strike. This
was implicit during the entire negotiation. The motivating
factor in commencing the negotiations was the desire of
company officials in getting the plant back to work. Madden
testified that the operation had been shut down and the
Company was interested in finding some way to get the
strike over with. Madden testified at one point that no
conditions were placed on Jones’ offer of reinstatement,
but immediately he interrupted and stated that he wanted
to ‘‘back up’’ on that statement and went on to say as
follows: ‘*There was a condition on that statement and
went on to say as follows: ‘‘There was a condition on that
they would all come back to work.’’ Ware, the employee
committeeman, testifying at the behest of the Company,
said ‘‘It was my understanding that he wanted the strike
settled and that he would bring these people back if it
would settle the strike. . . .’’ Jones said that he was in-
terested in getting the thing over with and accordingly re-
solved to break through and made the offer which he did
make. In these circumstances, it is not conceivable that
he would have accepted the return of 13 employees while
the strike continued.
What emerges from this entire discussion is that the
parties had agreed on a package deal. Thirteen terminated
employees would be reinstated, the Company would recog-
nize and bargain with the Union, the strike would be
concluded, certain reinstated employees would have to take
different jobs, others would have to improve their records
either with regard to absenteeism, work habits or other
conduct, and the unfair labor practice charges would be
withdrawn. This does not add up to the unconditional offer
of reinstatement to which discriminatorily discharged em-
ployees are entitled.
For all of the above reasons, I find that, even if the is-
sue had not been finally litigated, Respondent did not make
|
3la
a valid unconditional offer of reinstatement to 11 of the
discriminatees herein on October 25, 1970.
II. The Method of Computation
In computing the total gross backpay due to each of the
discriminatees, the Regional Office employed a formula
which utilizes a group of representative employees. This
method has been frequently employed in situations where
the backpay period is lengthy and it may be difficult to
determine the probable path of a particular discriminatee
during the period. A group of representative employees
were selected who worked in similar classifications and
earned similar wages at the time of the discharges. The
Compliance Office divided the representative employees in-
to three groups to match corresponding groups of discri-
minatees. He then ascertained the quarterly earnings of
each representative employee throughout the backpay pe-
riod and arrived at an average earnings figure for each
of the three representative groups. These amounts wer:
assigned as the gross quarterly earnings for every dis-
criminatee in the corresponding group. As earning figures
were used, factors such as overtime and absenteeism are
automatically reflected.”
With respect to the latter, quarters in which representa-
tive employees had excessive absences (determined at over
° days for this purpose) were excluded from the computa-
It is customary, according te Compliance Officer Rooney, to
use hours worked, rather than earnings, as a basis for the computa-
tion. However, Rooney said Respondent informed him that the
hourly records were in dead storage and not readily available. In
its brief, Respondent criticizes Rooney’s use of the quarterly earn-
ings method, implying perhaps that he should have forced Re-
spondent to produce the hourly records it failed to submit volun-
tarily. Rooney testified with great forthrightness and candor, and
I do not doubt that he asked for the hourly records. In any event,
there is nothing inherently wrong with his use of the quarterly
earnings and I reject Respondent’s contention in that regard.
32a
tion. This information was gleaned from personnel records.
In this manner, normal or average amounts of absenteeism
were built into the computation. And, similarly the factor
of overtime was included." Wage increases are, of course,
reflected by the quarterly earnings of the representative
employees.
Respondent has proposed, in lieu of the formula used
in the specification, a method of computation on an indi-
vidual basis extending the employment of each discrimi-
natee through the backpay period. This involved using the
hourly wage rate of each discriminatee, cranking in in-
creases according to the periodic changes in the Company’s
wage schedules. It was assumed that the discriminatee
worked a 40-hour week during the entire backpay period
to which is added an adjustment for overtime. For dis-
criminatees employed by Liberty Engineering,’* the total
amount of overtime hours each worked during his employ-
ment was determined. This was divided by the number of
weeks he was employed for a weekly average and multi-
plied by 13 to obtain a quarterly average. This factor was
then added to the total regular hours each discriminatee
would work in a quarter and the gross backpay is caleu-
lated by using the wage rate then in effect for the job
classification.
To ascertain overtime for the other discriminatees (Mid-
west employees) Respondent used a control group con-
sisting of all employees on the payroll in November 1973
and, working back to the discharge dates, computed the
average quarterly overtime worked by the group (in each
of the years they were employed), and assigned that
amount quarterly to each discriminatee.
™ The problems of the excessive absenteeism of discriminatees
prior to discharge or representative employees with large amounts
of overtime wil] be dealt with under separate headings.
* Lankford, DeMent, Sales, and Owens.
33a
In appendix 18 of its Amended Answer, Respondent em-
ploying its formula, has set forth a gross backpay figure
for each discriminatee on that basis. In so doing, it as-
sumed that five discriminatees '* would have been demoted
to general labor for economic reasons. Respondent’s for-
mula contains no provision for absenteeism, although it
vigorously contends that the formuia used in the specifi-
cation does not account for the excessive absenteeism of
some of the discriminatees during their employment. In
another calculation submitted in its Amended Answer,
proposed for the shorter backpay period of approximately
6 months in the event it was held that Respondent had
made a valid offer of reinstatement, Respondent built in
a factor for historical absenteeism. Except for its argu-
ment about the absenteeism of some discriminatees, ab-
sence is not otherwise considered in Respondent’s pro-
posed formula for the longer period.
A discriminatee is entitled to receive what he would have
earned had he remained in the Company’s employ less his
interim earnings. This is a broad principle not simple
in its application. There is no formula that could measure
an exact figure since the discriminatees did not actually
work during the period. Therefore ‘‘the Board is vested
with a wide discretion in devising procedures and methods
which will effectuate the purposes of the Act.’’ NLRB v.
Brown & Root, Inc., 311 F.2d 447, 452. The formula utilized
by the General Counsel, a representative group whose
earnings are averaged through the backpay has been often
approved by the Board.” I find that its employment in this
case is reasonable and proper.’* While the formula pro-
#3 'W. Greathouse, R. Greathouse, Covey, Forbis and Ashby.
**See Ambrose Distributing Co., 178 NLRB 721 (1969); J. H.
Rutter-Rex Manufacturing Co., 158 NLRB 1414 (1966).
** Most discriminatees were terminated in mid-June 1970. As
there were only approximately 2 weeks remaining in that quarter,
gross backpay for the second quarter of 1970 was computed for
34a
posed by Respondent has produced similar gross backpay
figures for many of the discriminatees, as previously noted
it makes no provision for absenteeism, normal or excessive,
and while arguing against the representative group con-
cept, Respondent actually employs the idea (calling it a
control group) in its computation of overtime for the
Midwest discriminatees.
Having approved the use of the representative group
theory of computation," I do not intend to apply it slav-
ishly without regard to inequities arising from special cir-
cumstances respecting groups or specific discriminatees.
As they have been divided into three groups, I shall ex-
amine each separately regarding the applicability of the
formula.
A. Group 1
There are eight discriminatees in this group all of
whom are in the general labor classification.” The average
earning of six representative employees all in similar clas-
sifications and having similar wage rates as the discrimi-
natees, were assigned to this group. Respondent objected
to the inclusion of Leona Munkirs as a representative
employee because she was a ‘‘Red Star’’ employee at a
rate of $2.50 per hour. Since the average hourly rate of
the representative group was $2 and the discriminatees
averaged $2.01 her higher rate did not unbalance the
each discriminatee on the basis of a 40-hour week at the hourly
rate as of the date of discharge.
®In its brief, Respondent contended it was denied due process
by reason of the quashing of a subpoena compelling production of
the ‘‘Compliance Officer Manual.’’ Respondent relied on McClain
Industries, Inc. v. N.L.R.B., 87 LRRM 2207 (E.D. Mich., 1974).
That case was reversed by the Court of Appeals for the Sixth Cir-
cuit. 88 LRRM 2071.
** Bristow, Buckley, Elliott, R Greathouse, Kimberlin, Lauder-
dale, Meier, and Peterson.
35a
group. Its elfect was just the opposite, as it served to
bring the rates of the two groups to an almost exact
balance. The application of the representative formula to
this group has achieved the desired effect, noting the
similarity of job classifications, the almost identical aver-
age wage rate, and the built in factors of wage increases,
normal overtime and absenteeism. I therefore approve and
adopt it for Group 1 employees.
B. Group 2
This group of six discriminatees * of somewhat higher
skills had an average wage rate of $2.57 per hour at the
time of discharge. The representative employee chosen for
Group 2 was Jewell Hawker, Sr., a lift truck operator who
earned $2.50 per hour at the time. For the same reasons
set forth above, generally, and also with regard to Group
1, I find that the application of the representative employee
formula used by the General Counsei to determine gross
backpay of this Group is both fair and reasonable. The
gross earning figures shall be subject, of course, to specific
defenses raised by Respondent with respect to certain
discriminatees.
C. Group 3
This group consists o fonly two discriminatees, DeMent,
a maintenance welder and Lankford, a maintenance man,
whose rates at the time of discharge were $3.25 and $3.75
respectively. The representative employee selected for this
group was Lloyd Admire, a maintenance man whose hourly
wage at the same time was $3.75 per hour. Respondent
vigorously opposes the use of the representative employee
formula with respect to this group. I find merit in its con-
tentions. Since the representative group here is not a group,
but only one employee, it is manifestly unfair to apply
Admire’s wage rate of $3.75 to DeMent who only earned
** Ashby, Covey, Forbis, W. Greathouse, Peukert, and Owens.
36a
$3.25 at the time of his discharge. Although DeMent would
have been entitled shortly to an increase to $3.50, the dif-
ference in rates over the whole lengthy period would re-
sult in a considerable windfall to him. The baiancing argu-
ment advanced by the General Counsel when it included
Munkirs as a representative in Group 1, is not available
here.
The choice of Admire was not wise for another reason,
as he was not truly representative. Apparently he was a
sort of special category employee who had been employed
over a long period of time and, while recently he had been
performing a great variety of maintenance tasks, he was
also experienced with the production end of the business at
Midwest. (All three were Liberty Engineering employees).
Thus he would frequently work at Midwest on weekends
doing production work. As a result of his utilization at
Midwest '® and his versatility as a maintenance man, Ad-
mire compiled an inordinate amount of overtime during
the backpay period. On the other hand, Respondent’s
Comptroller testified that overtime at Liberty was almost
nonexistent in 1970, 1971 and 1972. To credit Lankford
with the earnings of Admire, in these circumstances, is
clearly inequitable, even though their wage rates were the
same. Since it is clear that Admire is not really a repre-
sentative employee for this group, and no other employee
has been presented as such, I shall reject the use of the
representative employee theory for Group 3.”
The only alternative method of computation on the basis
of the record herein is that proposed by Respondent, which
I shall adopt subject to a slight modification. Using the
wage scales for Liberty employees, applicable to DeMent
*® Ile was on the Midwest payroll for a portion of the period.
2°The total gross pay, including overtime and absenteeism, of
Admire for the entire backpay period was $36,412. The specifica-
tion assigns that amount to both Lankford and DeMent.
37a
and Lankford, and extending their empivyment throughout
the backpay period on the basis of full 40-hour weeks for
each quarter, I find total gross backpay for Lankford to be
$28,834 and DeMent $26,785."
Ill. Contentions Applicable to More Than One Claimant
A. That Discriminatees would have been Discharged
for Economic Reasons
Respondent contends that had the discriminatees con-
tinued in its employ, a number of them would have been
terminated for economic reasons, such as reductions in
force or job elimination, long before the end of the back-
pay period. It is well settled that such a contention is an
affirmative defense and the burden is on Respondent to
establish that discriminatees would not have remained in
** These figures are broken down by quarters as appears in the
Appendix annexed hereto, after adjustments made infra. The evi-
dence in the record as to overtime is the Comptroller’s uncontra-
dicted testimony that, apart from Admire, Liberty employees did
not work overtime up to 1973. In its own calculation, nevertheless,
Respondent credited DeMent with 6.5 hours of overtime each month
which was the average of his overtime during the 2 months of
employment. Although the amount of overtime he would have
worked but for his discharge is speculative, I shall not deprive
DeMent of the overtime conceded to him in Respondent's com-
putation. There is no evidence concerning overtime for Lankford
save the Comptroller’s statement as to the lack of it for Liberty
employees generally, and the fact that he had no overtime during
his employment of one month. Therefore I have not credited him
with any. In its amended answer, Respondent sets forth total gross
pay frures for Lankford at $28,301 and Dement at $25,375, which
inclu ‘v overtime for DeMent but not absenteeism. These are totals
and there is no quarterly breakdown, nor are the wage rate scales
submitted for Liberty employecs precise in describing classifica-
tions. My own computation was made by quarters, In any event,
the difference is not great, and as the Court said in N.L.R.B. v.
Rice Lake Creamery Co., 365 F.2d 88, 89 (C.A.D.C.) 1966: ‘The
approximation thus reached is permissible in view of the impos-
sibility of exactitude.’’ I shall discuss absenteeism infra.
38a
its employ for such nondiscriminatory reasons.” Statistical
probability is not enough and it must be determined what
would have occurred regarding the employment of each
of the claimants based upon the policies of Respondent.
Respondent must make the showing and mere conclusions
are not sufficient.”
Plant Manager Ward testified that employment dropped
from 82 in June 1970, to 52 in January 1971, and then
leveled off followed by a gradual decline to about 38 at
tne end of 1973. Shifts have decreased from three in 1969
to one at present. These changes were attributed to new
and improved machinery and maintenance.
1. William and Ronald Greathouse
The Greathouse brothers were employed in May 1970 as
operators of a trouser guard machine, at a time when
these machines were operated for three shifts. In January
1971, two shifts on the trouser guard were eliminated, and
an employee (DeShazer), hired after the discharge of the
(ireathouse brothers to work on that machine, was termi-
nated. Respondent contends that the Greathouses would
have been terminated at that time because of the shift
cutbacks plus the fact that five other employees who op-
erated trouser guard machines were their senior. The
trouser guard was operated for several months on one
shift and then was not used for 5 or 6 months. Thereafter
operations were resumed on a one shift basis excepf for
such special occasions as receipt of a large order. The
other trouser guard operators were transferred to other
jobs in the plant.
In asserting that the Greathouses would have been termi-
nated in January 1971 Respondent apparently relies on
22 N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170 (C.A. 2, 1965).
* W. C. Nabors Company, 134 NLRB 1078, 1088 (1961).
39a
their lack of seniority. Yet Brown testified that there was
no strict policy of layoff in order of seniority; that other
factors such as ability, experience, flexibility, performance
and absenteeism were considered.** The fact that De-
Shazer, a subsequent hire, was terminated in January
1971, does not lead inescapably to the conclusion that
the Greathouses would have met tlie same fate. Five other
trouser guard operators were retained in that or other
positions. Why not the Greathouses? Most of the work
was relatively unskilled and there is no showing that they
were not adaptable. In view of all the circumstances, I
find that Respondent had not met its burden of showing
specifically that Ronald and William Greathouse would
have been terminated in January 1971.”
2. David Covey
Covey was a wire hanger adjuster on the third shift.
After his discharge, another employee, Abels was hired
to work the third shift. In January 1971, the second shift
was eliminated, but Abels continued to work the third
shift. He was terminated in July 1971 due to a reduction
in force. As Abels’ place on the third shift was taken by
a more experienced employee, Respondent argues that
Covey would have been likewise terminated. Again, Re-
spondent apparently relies on seniority despite the testi-
mony of its officials that this has not been the sole criterion.
Indeed, why was Abels retained in January 1971 when
the second shift was eliminated? I find, as with the Great-
houses, that an assumption that David Covey would have
** The same seniority argument was rejected by the Trial Ex-
aminer in the unfair labor practice case who found that President
Jones had testified to similar effect. (193 NLRB at page 625).
7° Respondent’s last ditch contention that the Greathouses would
have been reduced in any event to a lower clasification with a pay
cut, (based on testimony relevant to other employees), not only
lacks specificity, but is sheer speculation.
40a
been terminated in July 1971, or even demoted, is specula-
tive, and Respondent has not sustained its burden of
proof in that regard.
3. John Ashby and James W. Forbis
Ashby and Forbis were employed in May 1970 as ad-
justers in the strut hanger department, According to Plant
Manager Brown, these jobs were created at that time in an
effort to improve efficiency by having employees who were
capable of adjusting the machines, present full-time.
Brown said that as this result was not cbtained, the at-
tempt was a waste. Consequently + .bs were not filled
after Ashby and Forbis were disch. (ed and Brown stated
that they would have been terminated, in any event, in
a few weeks. However, contrary to the contention of Re-
spondent that they were not replaced, the then Trial Ex-
aminer Peterson at page 622 of his Decision found as
follows: ‘‘When Ashby and James Walter Forbis, another
adjuster, were discharged, the Respondent hired two new
employees to perform that work and gave them a classi-
fication of ‘general’ employees. So far as it appears, there
was no alteration in the job duties.’’ As to the alternate
contention, that Ashby and Forbis would have been de-
moted, this is speculative. I note there is testimony to the
effect that they were somewhat skilled employees and, in
addition, performed other duties. Other than the mere
conclusion, there is no specific evidence from which it can
be determined that they would have been demoted. I find
therefore, Respondent’s contentions that Ashby and Forbis
would have been terminated or demoted had they not been
discharged, to be unpersuasive.
4. Joseph DeMent and John C. Lankford
DeMent had been hired as a welder and Lankford as a
machinist. According to Brown, the Company had been
subcontracting welding and machine work even prior to
4la
their employment, and, since this activity increased, De-
Ment would have been terminated ‘‘a few weeks’’ and
Lankford ‘‘very shortly’’ after their discharges in June
1970.
Again, this contention will not wash as I find the testi-
mony of Respondent’s witnesses to be self-serving and
conclusionary.” Even taken at face value, it appears that
both discriminatees were hired at a time when allegedly
Respondent was subcontracting this work. It strains eredu-
lity that they would have been hired and terminated so
shortly thereafter because of a sudden increase in sub-
contracting their work. Just to discuss this matter involves
a degree of relitigation as the defense of lack of work was
found wanting in ‘he unfair labor practice case. Respond-
ent has not presented sufficient probative evidence, that
DeMent and Lankford would have been terminated for
economic reasons within a few weeks after their discharge.
B. Absenteeism
Respondent argues that certain discriminatees had such
records of absenteeism during their employment as would
warrent the conclusion that they would have been termi-
nated for that reason by the end of 1970.7 Respondent has
hypothetically extended their absences at the same rate
through the balance of 1970 and concludes that absence
record of each of these discriminatees would have reached
such proportions that they would have been terminated in
accordance with established company policy. Once more,
there is the question of relitigation, as the defense of
absenteeism was raised in the original case and rejected.
It is true, as Respondent contends, that the Board’s find-
ing that they were discharged for union activity rather
*® See W. C. Nabors Company, supra.
*" The discriminatees referred to are: MeCannon, Buckley, Forbis,
DeMent, Bristow, Peukert, Elliott, Kimberlin and Meier.
42a
than absenteeism does not negate the fact that the dis-
criminatees had records of absences. Nevertheless, the
policy of Respondent with regard to the subject of absence
was litigated, and it does not appear that there was any
definite policy, at least one of which employees were aware.
The only rule was that absence for 3 days without calling
in meant automatic termination. While Brown testified
that periodic reviews were made, and that some employees
were later terminated for absenteeism, no objective criteria
are set forth nor were employees told of any. The vice of
projecting prior absences into the future lies in its specu-
lative nature and involves subjective matters and vari-
ables which cannot be predicted to reoccur in precisely the
same manner. This type of guesswork is clearly insufh-
cient to sustain the burden of Respondent in proving that
these discriminatees would have been discharged in 1970,
thereby curtailing the backpay period.”
C. Turnover
Respondent contends that because of its high turnover
rate, many of the discriminatees would not have remained
for a period of 314 years but would have left, voiuntarily,
perhaps within 6 months. This is sheer conjecture which
I categorically reject. To say the least, this is another
‘‘uncertainty’’? which must be resolved against the Re-
spondent.
IV. The Individual Claims
A. Preliminary
There are a number of controlling principles applied by
the Board and the Courts in backpay cases respecting the
** See Atlantic Marine Inc., 211 NLRB No. 42 (1974), with re-
gard to overtime.
2° This discussion of absenteeism is confined to whether the dis-
crimjnatees would have been discharged for that reason. I shall dis-
cuss absenteeism as a factor in DeMent’s computation infra.
43a
efforts of an individual claimant to seek work, his interim
earnings and expenses incurred. It is well established that
willful loss of earnings is an affirmative defense, and the
burden has been described by the Court of Appeals for the
Kighth Circuit as follows:
. in a backpay proceeding the burden is upon the
General Counsel to show the gross amounts of backpay
due. When that has been done, however, the burden is
upon the employer to establish facts which would ne-
gate the existence of liability to a given employee or
which would mitigate that liability.*
It follows that the failure of a discriminatee to make a
reasonable search for employment constitutes an affirma-
tive defense." An employer must prove that losses were
‘*willfully ineurred’’ and a ‘‘clearly unjustifiable refusal to
take desirable new employment.’’** An employee must
make a diligent or reasonable search for interim work.”
In evaluating whether an employer has sustained his bur-
den ‘‘any uncertainty is resolved against the wrongdoer
whose conduct made uncertainty possible.’’** Other ap-
plicable principles will appear in connection with conten-
tions made by Respondent as to specific claimants.
Representatives of six companies in the Kansas City,
North Kansas City, and Liberty areas testified on behalf
of Respondent as to the availability of work at their plants.
In substances they stated that their companies employ
°° N.L.R.B. v. Brown & Root, Inc., supra, at 454.
** Marlene Industries Corporation v. N.L.R.B., 440 F.2d 673, 674
(C.A, 6, 1971).
*? Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. 177, 198 (1941).
** N.L.R.B. v. Arduini Mfg. Co., 394 F.2d 420, 423 (C.A. 1, 1968).
** N.L.R.B. v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (C.A.
5, 1966).
44a
people in general categories, both male and female, and
some also employed persons in skilled positions such as
welders and machinists. All testified to considerable turn-
over, particularly in general labor jobs, and they obtained
applicants through referrals from Missouri State Employ-
ment Service, newspaper advertisements, and walk-ins.
Most of the companies took written applications and hiring
was done on an as needed basis, frequently the job going te
the person who applied at the time. Many of the discrimi-
natees testified they applied for work unsuccessfully at two
of these companies, Guy’s Potato Chips and Armo Steel.
None of these witnesses testified that any of the claimants
herein refused an offer of employment, nor did they repre-
sent that if any one of them had applied they would have
aired him. Nor did the officials of Guys’ Potato Chinps and
Armco Steel state why they had not hired the discrimi-
natees who testified they had applied for work at those
companies. As stated by Judge Schneider regarding simi-
lar circumstances in a recent decision affirmed by the
Board: ‘‘In this context their testimony to the effect that
they hired X number of employees during the backpay
period is thus of no effect whatever with respect to the is-
sue of whether Milton would have secured employment had
he applied.’’ Firestone Synthetic Fiber and Textile Com-
pany, Division of the Firestone Tire and Rubber Company,
207 NLRB No. 139 (1973)).
To similar effect is Respondent’s testimony concerning
newspaper advertisements, many of which were introduced
in this record, purporting to show job availability during
the backpay period. The test, as above noted, is whether
each claimant made diligent and reasonable search for em-
ployment or whether he incurred willful losses.
B. The Claimants
1. John Sells and Michael Owens ©
The parties stipulated to the correctness of the backpay
computations respecting these two claimants as contained
45a
in the specification as modified by Joint Exhibit No. 1.
Although Respondent did not waive its defenses concern-
ing appropriateness of the formulas or other affirmative
defenses raised in its Amended Answer, I have found no
merit to any of these defenses in any application to Sells
and Owens. I find therefore that they are entitled to the
gross backpay less interim earnings and expenses as set
forth in the Appendix annexed hereto.
2. John Ashby
Ashby, who was discharged on June 16, 1970, testified
that he then went to Kansas City to look for work at truck-
ing companies, of which he could name four. He did not
own a car but was driven in by David Covey, another dis-
criminatee, or his brother-in-law. Ashby looked for dock-
work rather than truck driving at these companies as his
own drivers license had been suspended in 1969 for 5 years
because he had been driving while drunk. In the course of
these trips he filed applications at several places, going to
trucking companies and plants that he knew about. Ashby
had no telephone, did not take a newspaper, nor did he visit
the state -mployment service or any employment agency
because he had been promised work by Luman Offutt
Farms and Lowell Handley. In the summer of 1970 he
was employed by Luman Offutt Farms hauling silage
on the farm. When the picking season was over and the
hauling on the farm completed, Offutt had no work for
Ashby as he was precluded from hauling the corn over
the road to town. In the fall he obtained work with
Lowell Handley, a contractor engaged in grading work
on farms, for whom Ashby operated a bulldozer on farm
property, but he could not haul equipment over the road.
Both Offutt and Handley paid Ashby $2 per hour for
this work.
Ashby continued in this work pattern throughout the
backpay period. He said he looked for other work during
the slack intervals and would have taken any job that was
46a
steady and paid more than what he was receiving from his
employer. In reporting wage and employment information
to the Regional Office, both Offutt and Handley indicated
that there were several occasions on which Ashby failed to
show up for duty. Ashby asserted that these occurred at
times when Offutt wanted him to haul corn over the road to
town, or Handley directed him to move equipment on the
rozd from one farm site to another.
On the basis of these employers’ reports, Ashby’s failure
to register at the state employment service or other agen-
cies, and his alleged inadequate search for work, Respond-
ent contends that it should be absolved from backpay lia-
bility for all periods that Ashby was unemployed. I do not
agree. As to those occasions which Offutt or Handley have
stated that Ashby quit or did not want to work, the Com-
plianee Officer made allowances in the specification. He
determined the time Ashby would have worked, had he not
quit, and reduced it to a fraction of the particular quarter.
The fraction was then applied to a previous quarter with
that employer in which Ashby had representative earnings.
The product was used as potentialized earnings and added
to the interim earnings for that quarter in which the defec-
tion occurred or into the next quarter. These absences
could have been only for short periods, because the work
was seasonal, particularly on the farm, and Ashby testified
that he visited trucking and other companies in the Kansas
City area during the intervals seeking work. Nor was his
failure to register at the state employment service in itself
disqualifying, as urged by Respondent, absent evidence
that such registration would have produced actual or po-
tential employment.”
I find that Respondent had not adduced evidence suff-
cient to est»blish that Ashby sustained willful losses of
earnings other than as provided for as potential earnings
in the specification, and, that at other times, he made rea-
°%8 Southern Household Products Company, Inc., 203 NLRB 881
(1973).
47a
sonable efforts to seek employment. However I find that
the W-2 tax form showing earnings from Handley in 1973
in the sum of $653 is a more reliable document than the
Board’s form letter submitted by Handley which lists earn-
ings for 1973 which total $511.50. Accordingly, I shall re-
duce the net backpay in the fourth quarter of 1973 by that
amount. Total net backpay of Jolin Ashby is thus found to
be $13,710 as set forth by quarters in the Appendix.
3. Kim Bistow Woods
The backpay period for Woods begins July 1, 1970, and
ends November 26, 1973. At the hearing amendments were
made to the specification regarding additional interim
earnings and expenses so that the net backpay claimed to
be due is $12,723.
After her discharge Woods sought employment by re-
sponding to advertisements and visiting companies in the
area. She also registered at the state employment service
but received no job referrals. Eventually she obtained
employment at a series of restaurant jobs either as an at-
tendant, a waitress, or fry cook. In connection with these
jobs, she incurred additional expenses for babysitting and
travel to which Respondent has raised no objection. How-
ever Respondent does contend that it should not be charged
for time lost between jobs because Woods left two positions
alllegedly due to her own misconduct. Woods testified that
at Church’s Fried Chicken in late 1971, ‘‘the manager
thought I was after her husband,’’ and cut her schedule to
3 days a week so that Woods left shortly thereafter. She
then went to work at Western Cafe, where the manager
discharged Woods for dating her son, whom Woods later
married. The evidence with respect to either of these inci-
dents does not obviously constitute misconduct and I find
no willful loss has been proven. Similarly with regard to
her leaving a job at Overdrive in late 1972 because, as
Woods averred, the manager was ‘‘‘hassling her.’’ An
48a
employee need not remain under onerous conditions in
order to avoid a claim of willful loss, and Respondent has
adduced to the contrary.
However, as a result of the testimony of Woods, a num-
ber of adjustments are clearly in order. During her em-
ployment at the Pizza Hut in 1971, she worked 3 weeks as
a waitress before going into the kitchen. As such Woods
earned about $3 a day in tips. Accordingly, I will add $45
to the net interim earnings during the second quarter of
1971, resulting in net backpay of $944 for that quarter.
The specification does not provide backpay for Woods
during the second quarter of 1973 due to her pregnancy
but does seek backpay for the first quarter. Woods stated
that she left her job at Overdrive Inc. at the end of 1972
when she was already 444 months pregnant. Although she
said she looked for work in January 1973, she did not work
in the first quarter, and admitted that she would not have
been able to continue at Overdrive in her condition. In
these circumstances, I find she was not available for work
during the first quarter of 1973 and will strike the entire
amount of backpay requested in the specification for that
quarter. Therefore the total backpay will be reduced by
$1,376.
Woods was unavailable for work after the birth of her
child on May 25 until August 1, 1973. I do not find, as con-
tended by Respondent, that she incurred willful loss by her
refusal, at the time, of a job at Norfolk & Western on a
late night shift, at a very low rate of pay. During this
period, (third and fourth quarters of 1973), she sought
employment on a regular basis following newspaper leads
and visiting factories and restaurants.
Respondent contended that the period from October 22
to November 4, 1971, should not be included in the backpay
period because of Woods’ participation in the strike. The
Board has held to the contrary. The entire duration of the
strike is includable in the backpay period of employees
49a
unlawfully discharged before the strike, and their partici-
pation does not thereby indicate unavailability for em-
ployment.” I find, after the above noted adjustments the
total backpay due Woods to be $11,302 as appears in the
Appendix.
4. Margaret Buckley
The backpay period of Buckley commenced June 14, 1970,
and ended November 8, 1973. In September 1970 she ob-
tained employment at Mid-Continent Tool in North Kansas
City at a rate of $1.70 per hour. (She had been earning
$2.10 at the time of her discharge). Buckley quit her job
at Mid-Continent on December 23, 1970, in order to move
to Smithville, Missouri, a small town of less than 5,000
population. Buckley testified that her husband is totally
disabled and receives a pension from Social Security. She
was unable to maintain her apartment at a rental of $125
per month on her reduced earnings at Mid-Continent and
therefore moved to Smithville where she was accepted into
a Government housing project at a rental of $61 per month.
Buckley said that friends had informed her she would be
able to obtain employment at the hospital there. However,
she made no inquiry or filed any application before moving.
Indeed during the balance of the backpay period she tried
but never did succeed in getting a job at the Smithville
hospital. Buckley did actively seek employment while at
Smithville, but concededly not only were there few jobs in
the area, but she had no car, and public transportation was
not readily available.
Thus it is clear Buckley quit her job at Mid-Continent
and moved to an area where prospects for employment
were dim. In these circumstances, I find that Buckley in-
curred a willful loss. However, unlike Respondent, I do
not believe her claim should be completely cut off. The
*° Winn-Dizie Stores, Inc., 206 NLRB No. 125 (1973).
50a
Board stated in Mastro Plastics Corp., 136 NLRB 1342
(1962) at page 1350:
Finally if a claimant does willfully incur losses by
either unjustifiably quitting or refusing substantially
equivalent employment, he is not deprived of his en-
tire claim, but only so much of it as he would have
earned had he retained or obtained the interim job.”
I therefore find, as did the Board in Knickerbocker,”
that Buckley shall be deemed to have earned for the re-
mainder of the backpay period the hourly wage she was
receiving at the time she quit Mid-Continent. This will be
computed on the basis of a 40-hour week quarterly and will
be offset against her gross backpay as already deter-
mined. I shall adjust the award to Buckley in accordance
with these findings, as specified in the Appendix.“
5. David Covey
Covey’s backpay period began June 14, 1970. He was
largely unsuccessful obtaining employment except some
farm work for about a year thereafter. Respondent con-
37 In Mastro, the Board cited Knickerbocker Plastic Co. Inc., 132
NLRB 1209 (1961) relied on by Respondent in its brief. However
the discriminatee in Knickerbocker referred to by Respondent had
never obtained interim employment before moving. Respondent
also cited Mastro for disallowing Buckley’s claim in full but the
Board found that the particular discriminatee referred to by Re-
spondent had she not been discharged by Mastro would have quit
her job in order to move.
°° Supra, at page 1215.
°° The offset will be greater than the interim earnings she had in
any quarter while employed at Smithville.
*° It is interesting to note that the difference between her rate of
pay at Respondent and the lesser rate at Mid-Continent was ap-
proximately the same as the difference in rent which caused her
to move to Smithville.
5la
tends that his efforts were inadequate. However, he did
attempt to get work in trucking and construction, trades in
which he had prior experience, and also registered with the
state employment service. I find on the basis of the record,
and Respondent having not adduced evidence to the con-
trary, that Coveey made a reasonable diligent search for
work. Respondent would disqualify Covey for slight inter-
vals but the fact that he may not have looked every week
does not militate against such a finding.** Nor did Covey
incur a willful loss, as urged by Respondent in turning
down a mechanic’s job which required him to buy $500
worth of tools, a sum he did not have; or a farm job which
would necessitate moving his family a considerable dis-
tance. Finally, his strike activity in October 1970 did not
make his unavailable for work that week.**
Coveey was reinstated in November 1973 to a general
labor position at $2.70 per hour, although at the time of his
discharge in 1970 he earned $2.75 per hour as a wire
hanger adjuster, a job no longer available. He was there-
fore, reinstated to a position paying a lesser wage than he
received more than 3 years before, despite the fact that
company wage scales indicate a number of increases over
that span of time. The General Counsel contends that this
did not constitute a proper reinstatement, and I agree.
Covey clearly had the ability to perform other jobs, for
example, truck driving, and Respondent had a number of
drivers, of whom five were junior to Covey. Moreover,
Respondent was unable to show that any number of em-
ployees had their earnings reduced over the period.*
I find that Covey was not reinstated to a substantially
equivalent position and will extend his backpay period un-
* Cornwall Company, 171 NLRB 342.
*? Winn-Dizie Stores, Inc., supra.
**Respondent’s Comptroller could only recall two employees,
both under special circumstances.
52a
til April 8, 1947, when he resigned.“* I further find net
backpay due him as claimed in the specification as amended
at the hearing and as appears in the Appendix.”
6. Joseph DeMent
DeMent’s backpay period began June 15, 1970, and ended
November 8, 1973. After a short period of unemployment
he found work on farms until the end of 1970. In the spring
of 1971, DeMent entered the construction field as a laborer,
became a member of the Laborer’s Union and was there-
after seasonally employed throughout the backpay period.
Respondent contends that as a result of an on-the-job
injury for which he received workmen’s compensation, De-
Ment was unavailable for work, for a period of time. I
agree.** Accordingly, I shall deduct 2 weeks’ pay from the
gross backpay for the fourth quarter of 1971."
Respondent further contends that DeMent did not make
sufficient efforts to find work during those periods when he
was laid off from his construction jobs. During these times,
DeMent testified that he visited the state employment serv-
ice regularly and checked in at his union hall, at first, three
times a week, and later, at least once a week. After his
discharge, DeMent sought welding or other type plant
** Respondent’s reliance on Rodney Mills Inc., 160 NLRB 1419
(1966) is misplaced. In that case the Board refused to order a
company to resume an operation in order to reinstate an employee
to his former position, a quite different situation.
*® Respondent’s contention that the rental value of $50 a month
for one farmhouse and $60 for another farmhouse both o cupied
by Covey during portions of the period is not sufficient, is a mere
quibble. Moreover, the suggestion in its brief that these amounts
be raised to $100 is not based on any evidence whatsoever.
*6 Associated Transport of Texas, 194 NLRB 62, 63 (1971)
*7 DeMent testified he was out 2 or 3 weeks but also stated he
received two checks.
53a
work without suecess. He then was able to obtain construc-
tion work, became a union member and was able to gain
remunerative employment making more money than he had
ever before. I find that during his seasonal layoffs he made
reasonable and diligent efforts to seek work by checking
regularly with the union hall and the state employment
office.*®
In connection with DeMent’s ciaim, there remain the
contentions of Respondent concerning absenteeism. I have
already disposed of Respondent’s argument that DeMent
would have been terminated by the end of 1970 for exces-
sive absenteeism. Ilowever, in rejecting General Counsel’s
representative employee formula and adopting that of Re-
spondent for computing backpay, no provision was made
for absenteeism. As noted previously, [ have included a
provision for overtime on the basis, as suggested by Re-
spondent, that DeMent be credited with the average amount
of overtime he earned during his employment. Respondent
has made no recommendation with respect to the evidence
. DeMent’s previous absentee record, other than urging
the termination of the backpay period at the end of 1970.
In the use of the representative employee method, the
normal absences of the representative is built into the
computation. While it is only fair that some provision be
made, it is also unfair to project a prior absence into the
future, particularly where an employee has been employed
only a short time, a little more than 2 months in DeMent’s
case. However, the only available evidence shows that he
was absent approximately 13 percent of the time during his
employment. There is no evidence as to the reasons for this
record and whetlier it was based on an unusual experience.
The absence figures of the discriminatees whom Respond-
ent states it would have discharged show an average rate
of 11.9 percent and because these represent extreme cases,
I will not use that rate. But I do conclude on the basis of
** 7. Posner, Inc., 154 NLRB 202 (1965).
54a
the entire record as to absenteeism, and noting there are no
average rates for all employees, that an absenteeism factor
of 7 percent should be built into DeMent’s computation.”
Accordingly, I shall reduce the gross backpay of DeMent
heretofore computed at $26,785 by a rate of 7 percent on a
quarterly basis. This will appear in the Appendix annexed
hereto in addition to the diminution of 2 weeks gross back-
pay found for the fourth quarter of 1971.”
7. June Elliott
The backpay period for Elliott began June 16, 1970, and
ended November 8, 1973. After her discharge she was un-
able to obtain employment until October 1971, an interval
of more than a year during which Respondent contends
that Elliott failed to make an adequate attempt to find a
job. However she testified credibly to having visited and
applied at many plants and businesses during the time to
no avail. Respondent appears particularly upset at her
admitted failure to consult newspaper advertisement but I
know of no requirement that she do so. In addition to her
personal visits, she also registered at the state employment
office.
Respondent also urges that Elliott was not motivated by
reason of her being supported by her husband. While, of
Cf. J. HW. Rutter-Rex Manufacturing Co., supra.
‘°° I have computed the gross backpay detailed in the Appendix
as follows: The balance of the second quarter of 1970 was computed
at a straight rate of $3.25 per hour. DeMent would have received
an increase to $3.50 per hour the first week of July 1970. There-
after his gross quarterly earnings including 6.5 hours of overtime
per month were computed at $1,922, which was then reduced by
7 percent to $1,787 per quarter. On January 1, 1973, he would
have received a pay increase to $3.90 per hour. Using the same
overtime and absence factors, his quarterly earnings for 1973 were
computed as $1,972. Interim earnings were credited as appear in
the specification as were expenses such as mileage and union dyes,
not challenged by Respondent, and which I find to be reasonable.
50a
course, such support does noi discharge her of her obliga-
tion to seek and accept employment, the discriminatee’s
motivation to seek and accept employment, the discrimina-
tee’s motivation is not the issue. People may be motivated
to seek employment for a variety of reasons, some of which
may not be economic.” The issue is whether Mrs. Elliott
made a reasonable and diligent effort to obtain a job dur-
ing her period of unemployment. In view of her testimony,
which is uncontradicted and credited, Respondent lias not
fulfilled its burden of proving that she failed to do so.
I do find, however, in agreement with Respondent that
she was unavatiable for employment for 2 weeks during
the first quarter of 1972 due to the death of her father,
and I shall deduct 2 weeks’ pay from gross backpay for
that quarter.”
8. James Walter Forbis
Forbis had been employed by Respondent on May 15
and discharged on June 15, 1970. After his discharge he
was unemployed until August 18, 1970, when he obtained
a job and has been employed ever since. Respondent dis-
putes Forbis’ efforts to find work during his 2 months of
unemployment. Contrary to Respondent’s contention, I
find that Forbis did seek referral at the Arkansas State
Kmployment Office. As a resident of Arkansas prior his
job with Respondent, his return to seek employment the
day after his discharge rather than staying in the Kansas
° I adhere to my ruling, made at the hearing, which prevented
Respondent reading into the record, from the Elliotts’ joint tax
return, the income received by her husband. Not only because this
bears on motive which is irrelevant but I also believe it would be
an unwarranted invasion of Mr. Elliott’s privacy. He is not a
claimant herein.
*?T shall allow the allowances claimed for uniforms because it
is clear that these were required by her employer. The Laidlaw
Corp., 207 NLRB No. 94 (1973)
56a
City area does not disqualify him. Forbis testified he
sought work at the state employment office and at several
local plants in Arkansas. He then returned to Missouri
several days later, resumed his search, and finally obtained
work through a private employment agency in Kansas
tity." Respondent adduced no evidence that Forbis made
other than a good-faith search for employment during the
2-month interval that he was out of work, and I conclude
that Respondent should make him whole by the amount set
forth in the specification as amended.
9. Ronald Greathouse
After his discharge Ronald Greathouse immediately
sought employment. He followed newspaper leads, visited
companies, and registered at the state employment service
as well as private agencies, and I credit his testimony in
that regard. Respondent has not adduced any evidence to
indicate that he made other than a reasonable and diligent
search for a job. Its contention that Ronald Greathouse
would have had to leave his job or be discharged had he
remained with Respondent because of a conflict with his
attendance at college is without merit and based on sheer
conjecture. I conclude, therefore, that he be made whole in
the amount as provided in the amended specification.”
10. William Greathouse
William Greathouse was unemployed after his discharge
until the first quarter of 1971 and he worked steadily there-
°3T shall allow the agency fee of $249 as claimed in the speci-
fication.
** The specification deletes from gross backpay those periods when
Ronald Greathouse was unavailable because of his attendance at
college or in the military service. There is an arithmetical error in
the amended specification for the third quarter of 1970. The net
backpay should be $447 for that quarter rather than $347, The
corrected amount is shown in the Appendix annexed hereto.
57a
after. He testified credibly concerning his efforts to find
work which included registration at state and private agen-
cies, following up newspaper advertisements and visiting
plants and companies. Other than its complaint about
Greathouse’s obesity, voiced in its brief, a disqualifying
factor at some employers, Respondent could submit no pro-
bative evidence that he had not made a diligent search for
employment. I therefore find that William Greathouse
should be made whole in the amount set forth in the specifi-
cation as amended.
11. Marilyn Kimberlin
Kimberlin sought employment immediately after her dis-
charge by registration at tlhe state employment service and
other agencies and by personal application at many em-
ployers. At the end of 1970 she obtained a position as a
bank teller and was thereafter continously employed. Re-
spondent has not introduced any evidence to indicate that
her efforts were other than diligent. However, based upon
Kimberlin’s testimony that she first sought plant work,
Respondent argues that she thereby excluded office work,
at which she had prior experience. Kimberlin testified,
without contradiction, that she had been doing plant work
for several years and did not have necessary clothes for
office work at that time. This is akin to the case of claim-
ants who lower their sights, and, absent any evidence thet
the claimant has failed to make a diligent search, any
doubts should be resolved in favor of the discriminate.”
Indeed, often plant work may be more remunerative than
office work.
As to Kimberlin having voluntarily transferred to a
3-day workweek in the second quarter of 1973, her gross
backpay was therefore reduced proportrionally. Respond-
ent’s contention that she would not have been able to ac-
°’ United Aircraft Corporation, 204 NLRB No. 131 (1973)
58a
complish this had she continued to work at its plant is,
again, speculative and without merit.
I conclude and recommend that Kimberlin be made whole
in the amount set forth in the specification as amended.
12. John Charles Lankford
Lankford is one of the two discriminatees for whose
computation I rejected the representative employee formu-
la and adopted that recommended by the Respondent.
As noted, I have computed his backpay on a quarterly basis
and arrived at a total gross backpay of $28,834. This figure
is before adjustments to be made with respect to any in-
terim earnings or expenses as developed at the hearing.”
After his discharge he sought work as a maintenance
machinist in the Kansas City area. He testified credibly
that he visited plants and registered at several agencies.
He then obtained employment at Howard Johnson’s. Re-
spondent contends that there were advertisements for ma-
chinists in the area and Lankford left his field of expertise
by taking the restaurant job. This contention is without
merit absent evidence that he was offered and refused work
as a machinist. Similarly, Respondent also contends that,
in giving up the Howard Johnson job and returning to his
home in Illinois, Lankford left a good labor market. Ilow-
ever, his home is in the St. Louis area, also a good labor
market, and there is no showing that he did not actively
pursue a machinist’s job there before accepting another
restaurant position. I find that at all times Lankford made
a reasonably diligent search for employment.
°© In Lankford’s case, no overtime was included in view of testi-
mony by Respondent’s witnesses that Liberty employees had little
or no overtime during the backpay period and Lankford had worked
no overtime during his employment. Nor was any factor for ab-
senteeism included as there was no evidence regarding Lankford
on that subject.
59a
However, a number of adjustments are called for in con-
nection with his interim earnings. Lankford testified that
he received three meals a day during the almost 3 weeks he
worked at Howard Johnson’s. I shall allow $4 a day for
meals, and, as it appears he worked about 15 days, add
$30 to interim earnings received from Howard Johnson’s
in each of the secona and third quarters of 1970.
Lankford stated he was given a meal a day at Skaggs
and its successor, Christopher Enterprises, but he also said
it was just a sandwich. As no values are given I shall add
$1 per day to the interim earnings received from these two
employers. Thus interim earnings will be increased by the
following amounts:
1970 — 3rd quarter — $15
1970 — 4th quarter — 70
1971 — Ist quarter — 75
1971 — 2nd quarter — 75
1971 — 3rd quarter — 70
1971 — 4th quarter — 40
1972 — 1st quarter — 35
1972 — 2nd quarter — 20
During the second quarter of 1971, Lankford left the
Skaggs restaurant to work as a machinist at H. Mfg. Co.
However, as this was a temporary job, he left it after a
couple of weeks to return to Skaggs and seek work as a
machinist while employed at the restaurant. Backpay need
not be tolled in these circumstances.
In the first quarter of 1972, there was an interval of one
week between his leaving a Cruden Martin Manufacturing
job and starting a new job at Steuby Manufacturing when
Lankford was unable for work. I shall deduct one week
from gross backpay in that quarter.
During the second quarter of 1972, Lankford commenced
driving a taxicab for Alton City Cab, a now defunct com-
60a
pany whose records are not completely available. It is
therefore necessary to reconstruct Lankford’s earnings for
a portion of the backpay period on the basis of his testi-
mony Lankford said he began working for Alton Cab in
April 1972. Since he had already earned $259 plus $20 for
meals in that quarter from Christopher Enterprise, it will
be assumed he started at Alton in the last week of April.
With Alton, he testified he earned between $10 and $20 per
day, plus $10 a week for tips and knockdowns.” Lankford
further testified he worked 6 days a week. I shall compute
his interim earnings for periods that the Alton records are
unavailable on the basis of $90 per week plus $10 for tips
and knockdowns. In the second quarter of 1972, commenc-
ing the last week of April, that would total 9 weeks or $900,
which I shall add to interim earnings for that quarter.
His earnings at Alton for the third and fourth quarters
of 1972 are reported by Social Security and appear in the
specification. To these recorded interim earnings there must
be added for tips and knockdowns the sum of $130 in each
quarter.
There are no reports for Alton earnings in 1973. There-
fore interim earnings from Alton City Cab for the first
quarter quarter of 1973, on the same basis, would total
$1,300. He commenced work full-time for American Steel
Foundries on May 2, so interim earnings from Alton City
Cab will be charged at $400 for the second quarter of 1973.
I therefore recommend that Lankford’s gross backpay
be computed on the basis of the formula heretofore de-
scribed and reduced by the interim earnings detailed in the
specification and further adjusted above, and that he be
awarded net backpay as set forth in the Appendix hereto.
57 A ‘‘breakdown’’ consists of pocketing a fare for an unrecorded
trip.
6la
13. Shirley Lauderdale (Chamberlin)
Lauderdale’s backpay period was broken by several in-
tervals when she was unavailable. She attended school in
1971 to become a cosmeologist, worked briefly in that field,
and returned to factory work because of a skin problem.
Respondent’s contentions regarding the amended specifica-
tion filed in her behalf are mainly limited to the intervals
between jobs, alleging that she did not make immediate
efforts to secure employment.
As a result of Lauderdale’s testimony and the records
submitted by her employers, certain adjustments to the
amended specification appear necessary.
During the fourth quarter of 1971, it is claimed that she
became available for work on November 10, and obtained
a job at American Bakeries on December 5. But she testi-
fied that she did not look for work between November 10
and December 5. Therefore her gross backpay will be re-
duced by an additional 4 weeks which results in gross
backpay of $338. As her interim earnings were also $338,
I find that Lauderdale is not entitiled to any backpay for
the fourth quarter of 1971.
Lauderdale left American Bakeries on March 4, 1972, to
stay at home for a month, according to her testimony. She
was thus unavailable for the balance of the second quarter
of 1972, and net backpay of $4 for that quarter as provided
in the amended specification will thereby be reduced to
zero.
The amended specification states that Lauderdale was
unavailable for work from April 1 through May 20, 1972.
The report submitted by her next employer, Ronnie Fash-
ior Salons, shows that she commenced working there on
June 18. Lauderdale testified that jobs were always avail-
able at Ronnie’s and there is no evidence that she looked
elsewhere before June 18. I find that she was unavailable
for 11 weeks of the second quarter of 1972 thus, her gross
62a
backpay for that quarter is reduced te $210, less $160 net
interim earnings, leaving net backpay of $50.
Her next employment was at Zodiac Beauty Salon where
she began April 9, 1973, and worked until June 8, 1973.
Thereafter she obtained a job at Kitterman, Inc., on July
18, 1973. Lauderdale testified she did not look for work
before Zodiac or between Zodiac and Kitterman. In each
case, she was given the job when she applied. As her sole
employment in the second quarter of 1973 occurred between
April 9 and June 8, and she did not seek work in that quar-
ter before and after those dates, I shall credit her with
gross backpay for 9/13 of the quarter rather than the full
quarter as provided in the amended specification. Thus
gross pay is reduced to $1,067 and, less $362 interim earn-
ings, leaves net backpay of $645. Similarly, as she com-
menced working at Kitterman’s on July 18, I shall reduce
gross backpay for the third quarter of 1973 by 2 weeks
bringing it to $1,401 and adjust the net backpay for that
quarter to $573.
Finally, Kitterman, her employer, has reported that Lau-
derdale left that job on October 19, 1973, voluntarily.
Gross backpay for the fourth quarter of 1973 will be re-
duced by 2 weeks to *361 and net backpay to $154.
Except as detailed above the specification with respect
to Lauderdale as amended at the hearing is adopted and I
conclude that she be awarded backpay in the amount set
forth in the Appendix.
14. Sharon Meier
The backpay period for this claimant ran from June 15,
1970, to November 8, 1973. During this entire period she
**T credit Lauderdale’s testimony that tips were almost non-
existent at Ronnie’s, and will not estimate them as any amount
would be clearly minimal. Her low earnings, based on commissions,
attest to the dearth of customers.
63a
never obtained any job. Her only earnings were derived
from babysitting prior to Christmas of 1971 and 1972 to
enable neighbors to do some shopping.” Meier testified
that after her discharge, she registered at the Missouri
State Unemployment Office and looked for work at banks
in the Liberty area as well as plants in the North Kansas
City area. She collected unemployment benefits for a pe-
riod of approximately 3 months. The requirements to re-
main eligible for unemployment benefits have been held
to be sufficient to satisfy the requirements to remain elig-
ible under the Act. Accordingly, I have no problem find-
ing that Meier is entitled to the backpay claimed in the
specification through the third quarter of 1970. Contrary
to the specification, however, I find Meier was unavailable
for employment throughout the fourth quarter of 1970, as
she testified that she stopped looking for work in the fifth
month of her pregnancy and her child was born on Febru-
ary 1, 1971.
Except for the time deducted for two pregnancies, and
two illnesses, it is contended by General Counsel that Meier
is entitled to backpay for the entire 34% year period. This
must be based on her conducting a reasonable diligent
search for employment. Meier has testified that through-
out the period she was out looking for work 2 or 3 weeks of
every month, and 2 or 3 days in each of those weeks. She
states she visited banks, finance companies, I do not credit
Meier’s testimony. While concededly she may have sought
work at some places (after her unemployment benefits ran
out), I do not consider her seach to have been diligent.
The claimant resides in a large metropolitan area with a
great number of plants, stores, and offices. A job is not
always easy to find but in 3% years, normally one would
*° The specification credits interim earnings of $200 in the fourth
quarter of each of those years.
° J. H. Rutter-Rex Manufacturing Co., 194 NLRB 19, 24 (1971).
64a
turn up as it did for every one of the discriminatees in-
volved in this case. Meier is a high school graduate; she
was schooled, but not experienced, in office work. Her hori-
zon was not limited to plant work. She testified that in all
of her search, she only filled out one application and that
was at Guy’s Potato Chips, a plant adjacent to Respondent.
Yet she said she went to many banks and finance companies
which are normally the type of organizations that accept or
even require written applications. Meier never looked at
advertisements in the large daily papers of Kansas City,
she merely followed some tips from friends and drove her
car. She did not return to the Missouri State Employment
Agency after her benefits ran out nor did she try any
private agency.
During the backpay period Meier gave birth to two
children, born February 1, 1971, and December 15, 1972.
Of course this is not a disqualifying factor, but her testi-
mony in this regard reflects on her credibility. The speci-
fication would have us believe that she was available and
looking for work up to her eighth month of pregnancy.
Meier testified at first that she looked for work until 2 or 3
months before the second child was born in 1972. She then
changed her testimony to state that she stopped looking
for work after the fifth month of pregnancy.
Finally, Meier rejected the offer of reinstatement made
by Respondent in November of 1973. She was not working
at the time and testified that she was ill, but did not so in-
form Respondent. After the backpay period expired Meier
apparently obtained employment in April 1974, but was
not employed at the time of the hearing.
Although any one of the factors described above may not
be sufficient to disqualify a claimant for backpay, the total-
ity of the circumstances, in addition to my assessment of
the credibility, lead me to conclude that Meier did not dili-
gently pursue employment after the unemployment benefits
65a
ran out. I shall therefore limit her entitlement to the
amount claimed in her specification for the second and
third quarter of 1970 as set forth in the Appendix annexed
hereto.”
15. Virgie Peterson McCannon
After her discharge Peterson registered with the state
employment office, and actively sought work. Exeept for
some rather lengthy periods of unavailability due to illness
or pregnancy, subtracted from gross backpay, Peterson
was employed or diligently looked for work. Respondent
offered no evidence to indicate her search was unreason-
able or inadequate. For a portion of the period, Peterson
worked on a part-time basis, but appropriate credit was
allowed in the computation. Respondent’s contention that
this foreshortened the backpay period, as it would not have
permitted this had she remained employed, is speculative.
However, I do find, as contended by Respondent, that the
specification contains an overcharge for additional mileage
mmaintaining interim employment. Peterson had moved
from the place she resided when employed by Respondent.
Since the move was unrelated to her employment, the mile-
age differential is computed from the point of her new
residence.” For the fourth quarter of 1972, I find the dif-
ference in mileage to be 14 miles per day and therefore
reduce the amount charged from $65 to $21. During tlie
first quarter of 1973, the difference was 16 miles per day
and mileage charge is reduced to $56 from $62.
As Peterson testified that she employed a baby sitter
while working for Respondent, I shall strike the babysit-
*? Respondent’s Motion to Strike Meier’s testimony, made at the
hearing on the ground that she failed to produce tax returns and
other documents pursuant to subpoena, is denied. It appears that
such of those documents requested that she might have had, have
been lost.
* Gray Aircraft Corp., 210 NLRB No. 88 (1974).
66a
ting expenses charged at $75 for the fourth quarter of
1972 and $175 for the first quarter of 1973.
Finally Peterson testified she spent a total of about one
day away from her job in 1971 in connection with her
divorcee proceedings, so I shall reduce gross backpay by
one day in the third quarter of that year.
Except as modified above, I find net backpay due to
Peterson in accordance with the amended specification, and
as set forth in the Appendix annexed hereto.
16. Elaine Peukert
Upon her discharge, Peukert registered with the state
employment service and drew unemployment benefits until
December 1970. She received no referrals from the state
agency and looked for work in the usual manner by follow-
ing newspaper ads, personal visits and filing applications.
Respondent adduced no evidence tc the contrary and I find
that during the periods of her unemployment, Peukert
made a reasonable and diligent search.
However, there are a few adjustments necessary to be
made to the amended specification. Peukert testified that
she was unavailable one day during the fourth quarter of
1970 because of a court appearance. She went on to say
that this occurred 5 more days during the backpay period.
In addition she lost still another day taking her daughter
to an out of town hospital. Since Peukert could not recall
the dates, I shall deduct a total of 7 days from grass back-
pay. and lump them for the sake of convenience in the
fourth quarter of 1970.
** There is no purpose in seeking to characterize Respondent’s
contention in its brief urging that Peukert be disqualified by reason
of her refusal of a part-time job from 5 a.m. to 7 a.m. at $1 per
hour.
67a
In the fourth quarter of 1971. expenses for uniforms of
$100 will be reduced to $24 as it appears that Peukert, due
to her back condition, also required similar shoes and
hosiery while working for Respondent. I shall also reduce
the cleaning expenses claimed for the first quarter of 1972
from $66 to $33 because the former amount would be 9 per-
cent of her wages at Golden Age Lodge, a seemingly ex-
orbitant expense.
Finally, I find Peukert sustained a willful loss of earn-
ings by leaving the Golden Age Lodge job a month before
her employment began at Whitaker Cable. As she received
$1.70 per hour at Golden Age, I shall increase her interim
earnings stated as $414 for the first quarter of 1972 by 4
weeks’ salary at $68 per week making a new total of $686
less $33 expenses or $653 net interim earnings for that
quarter.
I therefore find net backpay for Peukert as requested in
the amended specification but adjusted above and fully set
forth in the Appendix hereto.
V. The Remedy
For the reasons described above, I find that Respond-
ent’s obligations to the discriminatees herein will be dis-
charged by the payment to them of the respective amounts
set forth in the Appendix annexed hereto. Such amounts
shall be payable plus interest at the rate of 6 percent per
annum to accrue commencing with the last day of each
calendar quarter of the backpay period on the amount due
and owing for each quarterly period as set forth in the
Appendix, and continuing until the date this Decision is
complied with, minus any tax withholding required by
Federal and State laws.
* As is provided for in F. W. Woolworth Company, 90 NLRB
289, and Iris Plumbing & Heating Co., 1388 NLRB 716.
68a
The gross backpay figures in the Appendix are based
upon those set forth in the specification as amended at the
hearing except where I have modified them as described
above, particularly with respect to discriminatees DeMent
and Lankford. The Appendix states the figures for each
quarter in which any backpay is found to be due. The omis-
sion of a quarter from the Appendix means that no back-
pay has been found to be due for that quarter.
Upon the basis of the foregoing findings and conclusions,
and upon the entire record in this proceeding, I hereby
issue the following recommended :®
SuPPLEMENTAL ORDER
Respondent, Mid-West Hanger Co. and Liberty FEngineer-
ing Corp., of Liberty, Missouri, its officers, agents, succes-
sors and assigns, shall make the employees involved in this
proceeding whole by payment to them of the following
amounts together with interest at the rate of 6 percent
per annum, in the manner set forth in the section of this
Decision entitled ‘The Remedy,’’ and continuing until
the amounts are paid in full, but minus tax withholding
required by Federal and State laws:
Jolin Ashby — $13,710
Kim Bristow Woods — 11,302
Margaret Buckley —- 6,846
David Covey — 7,286
Joseph DeMent — 8,731
June Elliott — 8,737
*In the event no exceptions are filed as provided by Section
102.46 of the Rules and Regulations of the National Labor Rela-
tions Board, the findings, conclusions, and recommended Order
herein shall, as provided in Section 102.48 of the Rules and Regu-
lations, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed waived
for all purposes.
69a
James W. Forbis — 5,594
Ronald Greathouse _ 3,010
William Greathouse - — 6,197
Marilyn Kimberlin -- 5,118
John Charles Lankford — 11,844
Shirley Lauderdale Chamberlin — 1,860
Sharon Meier — 1,167
Michael Owens — 781
Virgie Peterson McCannon —— 4,907
Elaine Peukert — 14,048
John Sells — 1,392
Dated at Washington, D.C.
May 20, 1975
/s/ Julius Cohn
Juutius Conn
Administrative Law Judge
70a
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