# Petition — Midwest Hanger Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1974%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 830 ## Text 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 Bastien WE oo ccvccccvsccccscedceseseaeusevsses 2 Bootie WME) oon ccccccccsvsectousseeeseteond 2,3 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 backpa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1974%3A1. Public record. Not legal advice.