Appendix — S. E. Nichols of Ohio, Inc. v. National Labor Relations Board
Supreme Court brief1983
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IN THE lasiensinidininsnnlestienitiaiieaasaeniideaiaical
Supreme Court of the United States
OCTOBER TERM, 1983
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S. E. NICHOLS OF OHIO, INC.,
Petitioner,
—Vvs.—
NATIONAL LABOR RELATIONS BOARD,
Respondent.
APPENDIX TO PETITION FOR WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
LEONARD W, WAGMAN
GOLENBOCK and BARELL
Attorneys for Petitioner
645 Fifth Avenue
New York, New York 10022
(212) 935-9800
ROBERT S. GOODMAN
TIMOTHY P, DILLON
Of Counsel
TABLE OF CONTENTS
APPENDIX
Opinion of the United States Court of Appeals Sixth Circuit
EI esc ccc cece eee cces
Supplemental Decision and Order of the National Labor Re-
lations Board [258 NLRB No. 2 (1981)] ........
Decision, dated April 7, 1981, of Administrative Law Judge
Herzel H. E. Plaine, National Labor Relations Board. .
Opinion of the United States Court of Appeals, Sixth Circuit
up ge ee 0 yy)
Decision and Order National Labor Relations Board, [195
Ne ccc ccc tcc c ccc s cc cess
PAGE
la
8a
l6a
la
Opinion of the United States Court of Appeals,
Sixth Circuit [704 F.2d 921 (1983) ]
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
cee) eo
S. E. NICHOLS OF OHIO, INC.,
Respondent.
No. 81-1756.
United States Court of Appeals,
Sixth Circuit.
Argued Feb, 22, 1983.
Decided April 15, 1983.
The National Labor Relations Board filed petition seeking en-
forcement of orders directing employer to reinstate a former em-
ployee and granted back pay awards to that employee and another
former employee. The Court of Appeals held that: (1) substan-
tial evidence in record as a whole supported finding that employee
was constructively discharged after her last reinstatement, and
(2) use of “representative employees” method, which averaged
the wages of five employees who were earning the same wages as
plaintiffs at time of their unlawful discharges in order to determine
“gross” back pay awards which were reduced by certain deduc-
tions established by employer, was a reasonable approach to cal-
culation of back pay awards.
Enforcement granted.
Elliott Moore, Deputy Associate Gen. Counsel (argued),
Frances O'Connell, N.L.R.B., Washington, D.C., for petitioner.
Leonard W. Wagman (argued), Robert S. Goodman, Golen-
bock & Barell, New York City, for respondent.
2a
Opinion of the United States Court of Appeals,
[704 F.2d 921 (1983)]
Before KEITH, MARTIN, and JONES Circuit Judges.
PER CURIAM.
The National Labor Relations Board seeks enforcement of
orders entered against S.E. Nichols of Ohio, Inc. on September
18, 1981. The Board’s orders directed Nichols to reinstate former
employee Lena Barnhardt and granted back pay awards to Barn-
hardt and Carolyn Moore, another former Nichols employee.
The present dispute is twelve years old and has been before this
court On two previous occasions. A brief history of the conflict
serves to clarify the immediate problem.
In 1970, Nichols, a self-service discount Department store,
employed Barnhardt and Moore as clerks. Barnhardt was assigned
to the mens’ wear department, Moore to the ladies’ wear depart-
ment. In 1971, Barnhardt and Moore emerged as leaders in a
union organizing campaign among Nichols employees. Both were
discharged on April 1, 1971. In a decision issued March 17,
1972, the Board ruled that the discharges violated section 8(a)
(3) and (1) of the National Labor Relations Act, and ordered
Nichols to reinstate both Barnhardt and Moore. 195 N.L.R.B.
939. A panel of this court granted enforcement of the Board’s
order. NLRB v. S.E. Nichols of Ohio, Inc., 472 F.2d 1228
(6th Cir, 1972).
In 1973, Nichols “reinstated” Barnhardt and Moore by assign-
ing them to “scrub” duty, a menial task neither had been asked
to perform during her previous tenure as a clerk. After working
briefly as “scrubbers,” both Barnhardt and Moore refused to con-
tinue under these conditions. In 1975, Nichols again offered both
women “reinstatement” on terms manifestly less attractive than
their original employment. Again, Barnhardt and Moore declined
this “demotion.”
3a
Opinion of the United States Court of Appeals,
[704 F.2d 921 (1983)]
In 1978, the Board initiated contempt proceedings against
Nichols, alleging failure to comply with the court’s 1972 order.
Judge Battisti of the Northern District of Ohio was appointed
special master and authorized to conduct an evidentiary hearing.
On the basis of the special master’s report, this court held Nichols
in civil contempt. By order dated February 8, 1979, Nichols was
directed to purge itself of contempt by offering “immediate and
full reinstatement to Lena Barnhardt and Carolyn Moore to their
former positions, or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges.”
Accordingly, Barnhardt and Moore returned to work at Nichols
on February 27, 1979. Neither, however, was reassigned to the
position she had held before her unlawful discharge. Barnhardt
was instructed to “float” between departments on an “as needed”
basis. On March 19, 1979, Barnhardt received conflicting job
assignments from different supervisors. This incident culminated
in a confrontation with the store manager, who reprimanded
Barnhardt publicly and in the presence of other Nichols’ per-
sonnel. Barnhardt clocked out and did not return to work. An
unfair labor practice charge alleging “constructive discharge”
was filed on her behalf.
Moore was also shuttled between different departments after
her reinstatement. She quit, apparently without incident, in Au-
gust, 1979. Moore’s resignation is not an issue in the present
litigation.
In mid-1979, the Board consolidated Barnhardt’s complaint of
“constructive discharge” with Moore’s and Barnhardt’s pending
actions for back pay. In November, 1979, an administrative law
judge conducted a five-day hearing on the matter. In a decision
issued April 7, 1981, the administrative law judge found, first,
4a
Opinion of the United States Court of Appeals,
[704 F.2d 921 (1983)]
that Nichols’ treatment of Barnhardt during her last “reinstate-
ment” was “designed to cause her to quit” and thus constituted a
“constructive discharge.” He recommended that the Board order
Nichols, once again, to reinstate Barnhardt. Second, he com-
puted back-pay awards for both Barnhardt and Moore. Accord-
ing to the administrative law judge, Barnhardt was entitled to
$34,121.47 plus interest for the period between April 1, 1971
and February 27, 1979. Barnhardt’s award was open-ended; her
back pay would continue to accrue until Nichols offered her bona
fide reinstatement. Moore’s back pay was fixed at $22,238.17
plus interest, beginning April 1, 1971 and ending February 27,
1979,
Nichols filed voluminous exceptions to the administrative law
judge’s report.
On September 18, 1981, the Board issued an order adopting
most of the administrative law judge’s findings and recommenda-
tions. These enforcement proceedings followed.
Nichols raises several challenges to the Board’s order. Our re-
view of the record, however, persuades us that these objections
are without merit.
[1] First, Nichols asserts that Barnhardt was not “construc-
tively discharged” after her February 27, 1979 “reinstatement.”
Nichols characterizes itself as “an employer who bent over back-
ward to avoid confrontation and to deal fairly with the reinstated
employee . . . Nothing Respondent could have done would have
forestalled Barnhardt’s walk-out.” The crux of this issue is, of
course, the proper interpretation of the testimony introduced at
the administrative hearing.
[2] It is well settled that a reviewing court must uphold the
Board’s findings of fact as long as those findings are supported
Sa
Opinion of the United States Court of Appeals,
[704 F.2d 921 (1983)]
by substantial evidence in the record as a whole. Universal
Camera Co. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
(1951); NLRB v. Ogle Protective Service, Inc., 375 F.2d 497
(6th Cir.), cert. denied, 389 U.S. 843, 88 S.Ct. 84, 19 L.Ed.2d
108 (1972). Reasonable findings of fact will be upheld and
credibility determinations will be accepted unless they lack a ra-
tional basis. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656,
660, 69 S.Ct. 1283, 1285, 93 L.Ed. 1602 (1944); NLRB v.
Mt. Vernon Telephone Co., 352 F.2d 977, 979 (6th Cir. 1965).
The court may not substitute its judgment for that of the Board
even if it might have reached different conclusions in a hearing
de novo. Universal Camera Co., 340 U.S. at 493, 71 S.Ct. at 467;
NLRB vy. Tennessee Packers, Inc., Frosty Morn Division, 339
F.2d 203 (6th Cir. 1964). In the present case, the administrative
record offers ample support for the findings of fact and credibility
determinations which underlie the conclusion that Nichols “con-
structively discharged” Barnhardt in March, 1979.
[3] Second, Nichols challenges the Board's method of com-
puting the back-pay awards. It also asserts that the Board failed
to offset Moore’s award with her entire interim earnings and con-
tends that Barnhardt’s award should be reduced because of her
alleged failure to conduct a diligent search for other employment.
[4] In challenging the back pay awards, Nichols has again
ventured into an area where the Board enjoys wide discretion.
NLRB V. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417,
24 L.Ed.2d 405 (1969). Indeed,
When the Board, “in the exercise of its informed discretion,”
makes an order of restoration by way of back pay, the order
“should stand unless it can be shown that the order is a
patent attempt to achieve ends other than those which can
fairly be said to effectuate the policies of the Act.”
6a
Opinion of the United States Court of Appeals,
[704 F.2d 921 (1983)]
Id. Furthermore, in back pay proceedings, the General Counsel’s
burden is limited to showing what the employees would have
earned had the employer not violated the Act. The employer bears
the burden of establishing deductions from gross back pay such
as interim earnings or willful failure to seek other employment.
Marlene Industries Corp. v. NLRB, 440 F.2d 673, 674 (6th Cir.
1971).
In the proceedings below, the Board used the “representative
employees” method of calculating the back pay awards. Pursuant
to this method, the Regional Director selected five Nichols sales
clerks who were earning the same wages as Barnhardt and Moore
at the time of the unlawful discharges. The earnings of these
representative employees during the relevant period were totaled,
by quarters, and the totals divided by five. The quarterly “aver-
age” wages, thus obtained were added together to yield the “gross”
back pay awards. Finally, the gross awards were reduced by
certain deductions established by Nichols, notably Barnhardt and
Moore’s interim earnings.
We believe that the “representative employees” method was,
in this instance, a reasonable approach to the calculation of back
pay awards. NLRB v. Int. Assn. of Bridge, S. & R.I. Workers,
Local 378, 532 F.2d 1241, 1242 n. 3 (9th Cir. 1976); Midwest
Hangar Co., 221 N.L.R.B. 911, 915 (1975), enforced NLRB v.
Midwest Hangar Co., 550 F.2d 1101 (8th Cir. 1977). See also
NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963).
[5] We also find that Nichols’ objections to the net back pay
awards are without merit. First, in calculating Moore’s award,
the Board took account of the fact that Moore had consistently
worked two jobs while she was originally employed at Nichols.
Accordingly, in deducting interim earnings from Moore’s gross
award, the Board considered only those wages which were, in
7a
Opinion of the United States Court of Appeals,
[704 F.2d 921 (1983)]
effect, substitutes for her wages at Nichols. The Board did not
deduct “second job” earnings from Moore’s gross award. Nichols’
arguments to the contrary notwithstanding, we find this result
eminently fair and reasonable.
Second, we decline to reverse the Board’s holding that Barn-
hardt made diligent efforts to obtain other employment. This ques-
tion, of course, turns on interpretation of the evidence presented
at the hearing and thus lies within the purview of the Board’s
discretion. Marlene Industries, 440 F.2d at 674; Golay & Co. v.
NLRB, 447 F.2d 290, 295 (7th Cir. 1971). We decline to sub-
stitute our judgment on this question for that of the Board.
Enforcement granted.
8a
Supplemental Decision and Order of the National
Labor Relations Board [258 NLRB No. 2 (1981) ]
FJZ
258 NLRB No. 2 D—7989
New Philadelphia, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
S. E. NICHOLS OF OHIO, INC.
and
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, LOCAL 698, AFL—CIO
Cases 8—CA—6414,
8—CA—7858, and
8—CA—9160
and
LENA BARNHART, an Individual
Case 8—CA—12909
Supplemental Decision and Order
On April 7, 1981, Administrative Law Judge Herzel H. E.
Plaine issued the attached Decision in this proceeding.’ There-
after, Respondent filed exceptions and a supporting brief, and the
General Counsel also filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Relations
Board has delegated its authority in this proceeding to a three-
member panel.
'The Board's original Decision and Order in Case 8—CA—6414 is re-
ported at 195 NLRB 939 (1972).
9a
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
The Board has considered the record and the attached Deci-
sion in light of the exceptions and briefs and has decided to
affirm the rulings, finding,’ and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order, as modified
herein.°
“We find no merit in Respondent's allegations of bias and partiality on
the part of the Administrative Law Judge. Furthermore, Respondent's
aspersion that the General Counsel and the Administrative Law Judge
entered into a conspiracy to deprive Respondent of a fair trial is equally
without foundation or merit.
Specifically, as to Respondent's contention that it was error for the
Administrative Law Judge to deny Respondent’s motion to sever the un-
fair labor practice case herein from the backpay proceeding on the grounds
that the introduction of evidence as to the backpay case would improperly
influence the Administrative Law Judge's decision in the unfair labor
practice case, we conclude that it was not an abuse of discretion to deny
Respondent's motion. Moreover, we note that, even if the Administra-
tive Law Judge had granted Respondent's motion to sever, evidence of
Respondent's previous unlawful conduct directed against employee Lena
Barnhart would have been admissible to establish present motivation and
to provide a complete background for the most recently alleged unfair
labor practices.
3In his recommended Order, the Administrative Law Judge provided
narrow “in any like or related manner” injunctive language. In order
to provide more effective protection of rights under the Act, we conclude,
even in the absence of exceptions, that a broad order is warranted. In
Hickmott Foods, Inc., 242 NLRB 1357 (1979), we held, inter alia, that
“repeat offenders and egregious violators of the Act would be subject
to the traditional Board remedy for conduct which requires broad in-
junctive relief.” A brief review of the history of the proceedings in the
present case clearly demonstrates Respondent's disregard for the rights
of its employees and its contempt for the National Labor Relations Act
and the decisions and orders of the National Labor Relations Board and
the U.S. Court of Appeals for the Sixth Circuit. Employees Moore and
Barnhart were unlawfully discharged over 10 years ago for lawfully en-
gaging in union activities. Respondent has consistently delayed com-
pliance, and failed to comply, with our original Decision and Order as
enforced in 1972 by the U.S. Court of Appeals for the Sixth Circuit. 472
F.2d 1228. Thereafter, Respondent's purported offers of reinstatement in
1973 and 1975 were found to be improper and insufficient, and in 1979
the court of appeals found that Respondent was guilty of civil contempt
(Footnote continued on following page)
10a
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
In his Decision, the Administrative Law Judge found, inter
alia, that employee Lena Barnhart was entitled to an award of
additional back pay as a result of the improper reinstatement on
February 27, 1979, followed by the constructive discharge on
March 19, 1979. In connection with this finding, the Adminis-
trative Law Judge, citing Pierre Pellaton Enterprises, Inc., et al.,
239 NLRB 1211 (1979), and Vanguard Oil and Service, Inc.,
and Vanco Heating, Plumbing and Welding Co., 246 NLRB
No. 22, sl. op., p. 2 (1979), ruled that the interest on the addi-
tional back pay award should be calculated at 6 percent since
(Footnote continued from previous page)
of court. 592 F.2d 326. Furthermore, as found herein, Respondent's 1979
offer of reinstatement to Barnhart in response to the court’s contempt
order was also improper and insufficient. Scrutiny of this pattern of illegal
conduct clearly indicates Respondent's bad faith in complying with the
Board's and the court's remedial orders.
Moreover, a review of Respondent's history of committing unfair labor
practices clearly demonstrates that, during the past 15 years, Respondent
has uniformly committed unlawful acts in response to attempts to or-
ganize Respondent's stores. See: §. E. Nichols Marcy Corp., 229 NLRB
75 (1977), enfd. by consent judgment No. 77—4154 (2d Cir. 1977);
S. E. Nichols Company, et al., 156 NLRB 1201 (1966), enfd. in relevant
part 380 F.2d 438 (2d Cir. 1967); §. E. Nichols-Dover, Inc., 159 NLRB
1071 (1966), enfd. 374 F.2d 115 (3d Cir, 1967); 165 NLRB 924 (1967);
167 NLRB 832 (1967), enfd. 414 F.2d 561 (3d Cir. 1969), cert. denied
397 U.S. 916 (1970); 179 NLRB 249 (1969), enfd. 73 LRRM 2816,
62 LC £10,752 (3d Cir. 1970), cert. denied 400 U.S. 831; S. E. Nichols
of Ohio, Inc., 195 NLRB 939, enfd. 472 F.2d 1228; N.L.R.B. v. S. E.
Nichols of Ohio, Inc., 100 LRRM 2840 (D.C. Ohio 1978), affd. 592
F.2d 326 (civil contempt); S. E. Nichels Shillington Corp., 195 NLRB
189 (1972), enfd. 475 F.2d 195 (3d Cir. 1973), cert. denied 414 U.S.
860. Unreported cases include: N.L.R.B. v. S. E. Nichols Shillington
Corp., Civil Action No. 75—1751 (3d Cir. 1975) (contempt); De Pros-
pero Vv. §. E. Nichols Marcy Corp., No. 76 CV 5 (D.C.N.Y. 1976) (Sec.
10(j) injunction granted); Eisenberg v. S. E. Nichols, Inc., Civil Action
No. 78—2613 (D.C.N.J. 1979) (Sec. 10(j) injunction granted).
In light of Respondent's unlawful actions in the present case, and its
history of illegal antiunion conduct, we have, sua sponte, modified the
Administrative Law Judge's recommended Order to include broad injunc-
tive language.
lla
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
the new violations herein, with respect to the improper reinstate-
ment and constructive discharge of Barnhart, were encompassed
under the original unsatisfied order for reinstatement enforced
by the U.S. Court of Appeals for the Sixth Circuit and reinforced
by the court’s contempt order against Respondent for failure to
comply. The General Counsel argues in his exceptions that the
Administrative Law Judge’s reliance on the above-cited cases to
support his interest-rate determination is misplaced, and that,
in order to fully remedy Respondent's most recent unfair labor
practices, the contemporary formula for the computation of in-
terest as set forth in Florida Steel Corporation, 231 NLRB 651
(1977), should be applied to all back pay owed Barnhart from
February 27, 1979, forward. We agree, in part, with the General
Counsel's exceptions.
The Administrative Law Judge is correct in stating that the
method of determining the appropriate interest rate as set forth
in Florida Steel is not applicable in cases in which an earlier
Order of the Board providing for a different interest rate has
been enforced by a court of appeals. However, in the present
case, Respondent's March 19, 1979, constructive discharge of
Barnhart is a separate and distinct violation of the Act, which
is subject to a separate enforcement action in a court of appeals,
absent Respondent's voluntary compliance. Accordingly, we shall
modify the Administrative Law Judge’s recommended Order to
provide that interest on Barnhart’s back pay award from the
date of her constructive discharge until such time as she is prop-
erly and fully reinstated to her former job or equivalent position,
or voluntarily declines such reinstatement, be computed in the
manner prescribed in Florida Steel, supra.*
‘In accordance with his partial dissent in Olympic Medical Corpora-
tion, 250 NLRB 146 (1980), Member Jenkins would award interest on
the portion of the backpay award due employee Barnhart from March
19, 1979, forward based on the formula set forth therein.
12a
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
Order
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board adopts as
its Order the recommended Order of the Administrative Law
Judge, as modified below, and hereby orders that the Respondent,
S. E. Nichols of Ohio, Inc., New Philadelphia, Ohio, its officers,
agents, successors, and assigns, shall take the action set forth
therein and pay to each discriminatee as net back pay the amounts
set forth in the said recommended Order, as so modified:
1. Substitute the following for paragraph 1(b):
“(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
in Section 7 of the Act.”
2. Substitute the following for paragraph 2(b):
“(b) Give back pay to employee Lena Barnhart for the period
April 1, 1971, to February 27, 1979, in the sum of $34,121.47,
with interest at 6 percent per annum computed on a quarterly
basis to the time of payment. Additionally, make Lena Barnhart
whole for any loss of earnings since her improper reinstatement
of February 27, 1979, and constructive discharge of March 19,
1979, until such time as she is properly and fully reinstated to
her former job or an equivalent position as set out in paragraph
(c) below or voluntarily declines such reinstatement. This addi-
tional back pay shall be computed on a quarterly basis, with
interest on the back pay due from February 27, 1979, to March
19, 1979, at 6 percent per annum computed on a quarterly basis.
The interest on the back pay award from March 19, 1979, until
such time as she is properly and fully reinstated, or voluntarily
declines such reinstatement, shall be computed in accordance
with the formula adopted by the Board in Florida Steel Corpora-
l3a
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
tion, 231 NLRB 651 (1977), reaffirmed in Olympic Medical
Corporation, 250 NLRB 146 (1980).”
3. Substitute the attached notice for that of the Administra-
tive Law Judge.
Dated, Washington, D.C. September 18, 1981
John H. Fanning, Member
Howard Jenkins, Jr., Member
Don A. Zimmerman, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
After a hearing at which all sides had an opportunity to present
evidence and state their positions, the National Labor Relations
Board found that we have violated the National Labor Relations
Act, as amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protection
‘The introductory language contained in the attached notice is included
to apprise Respondent's employees of their rights under the National Labor
Relations Act.
l4a
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
To refrain from the exercise of any or all such ac-
tivities,
WE WILL NOT refuse to reinstate employee Lena Barn-
hart to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and without dis-
criminating against her in regard to tenure or any term
or condition of employment because of her union activity
or testimony before the Board or courts, or because she
sought or seeks union or Board assistance in connection with
her reinstatement, tenure, or conditions of employment.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
Because the Board and the United States Court of Ap-
peals for the Sixth Circuit found in 1972 that we had un-
lawfully discharged employee Lena Barnhart and Carolyn
Moore, and because the court further found in February
1979 that we had failed to properly or promptly reinstate
both employees to their former or equivalent jobs as ordered
by the Board and Court, WE WILL pay to Barnhart and
Moore, respectively, the sums found due to each as net
back pay with interest for the period April 1, 1971, to Feb-
ruary 27, 1979,
Because the Board further found that on February 27,
1979, we did not properly reinstate employee Barnhart to
her former or equivalent job and caused her constructive
discharge on March 19, 1979, WE WILL offer Barnhart
her former job, or the equivalent if the former job does not
exist, and WE WILL give Barnhart additional back pay,
with interest, from February 27, 1979, until she is promptly
and fully reinstated or voluntarily declines proper reinstate-
ment.
lSa
Supplemental Decision and Order of the National Labor
Relations Board [258 NLRB No. 2 (1981)]
S. E. NICHOLS OF OHIO, INC.
(Employer)
eS. 6 86-0.0' PB: 0 2S. 9.5" 4- 46.8 S24 28-8 ee
(Representative ) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced, or covered
by any other material. Any questions concerning this notice or
compliance with its provisions may be directed to the Board's
Office, Anthony J. Celebrezze Federa! Building, Room 1695,
1240 E. Ninth Street, Cleveland, Ohio 44199, Telephone 216—
522-3126.
l6a
Decision, dated April 7, 1981, of Administrative
Law Judge Herzel H. E. Plaine, National Labor
Relations Board
UNITED STATES OF AMERICA
Before the National Labor Relations Board
Division of Judges
S. E. NICHOLS OF OHIO, INC.
Respondent
and
RETAIL CLERKS INTERNATIONAL ASSOCIATION,
LOCAL 698, AFL-CIO’
Charging Party
Cases 8-CA-6414 8-CA-9160
8-CA-7858 Back pay Proceeding
and
S. E. NICHOLS OF OHIO, INC,
Respondent
and
LENA BARNHART, An Individual
Charging Party
Case 8-CA-12909
William Shuzman, Esq., Leonard W, Wagman, Esq., and
Cleveland, Ohio, Robert S. Goodman, Esq.,
for the General Counsel. of Golenbock and Barell,
New York, New York
for the Respondent.
'By a merger of Retail Clerks Union and the Meatcutters Union some-
time prior to the issuance on October 15, 1979 of the complaint in Case
12909 and the order consolidating its trial with the backpay proceeding,
the name and identity of the Charging Party Union became United Food
and Commercial Workers Union, Local 698, AFL-CIO, sometimes re-
ferred to as the Food Union, see paragraph 4(b) of said complaint and
order (exhibit GC-1r, as amended November 8, 1979).
17a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
DECISION
Statement of the Case
HERZEL H. E. PLAINE, Administrative Law Judge:
The major portion of this case is the supplemental back pay
proceeding to the original unfair labor practice case, 8-CA-6414.
There the Board found on March 17, 1972, that Respondent,
owner and operator of a chain of self-service discount department
stores, had engaged in unfair labor practices, at its new Philadel-
phia, Ohio store, to discourage employee activity for, and mem-
bership in, the Charging Party (Union), including the discrimina-
tory discharge of two employees, Lena Barnhart and Carolyn
Moore, in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), 195 NLRB 939 (1972).
The Board’s decision and order in 195 NLRB 939, was
affirmed and enforced by the U.S. Circuit Court of Appeals for
the Sixth Circuit, 472 F.2d 1228 (C.A. 6, December 1972).
However, Respondent delayed compliance, and failed to comply,
with the Board and Court orders to proffer immediate reinstate-
ment to employees Barnhart and Moore to their former or sub-
stantially equivalent jobs. Respondent's purported offers of rein-
statement to the employees in 1973 and 1975, were found to
be both dilatory and insufficient and resulted in a holding and
order by the Sixth Circuit that Respondent was guilty of civil
contempt of the Court. See U.S. Court of Appeals, Sixth Circuit,
order of February 8, 1979 (exhibit GC-1f) based upon the No-
vember 3, 1978 report of U.S. District Court Judge Frank J.
Battisti of the Northern District of Ohio as special master (exhibit
GC-1ld, as amended December 27, 1978, exhibit GS-le), that
followed an evidentiary hearing and recommendations by Magis-
18a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
trate Jack B. Streepy of the same U.S. District Court (exhibit GC-
Ic).?
In 1979, to purge itself of the contempt, Respondent offered
reinstatement to employees Barnhart and Moore to which both
responded by returning to work February 27, 1979.
Thereafter on April 19, 1979, the Regional Director issued a
back pay specification (and notice of hearing) for both Barnhart
and Moore indicating that the back pay periods for both began
on April 1, 1971 and ended February 27, 1979 (exhibit GC-1g).
However, employee Barnhart stopped working for Respondent on
March 19, 1979, and, upon her charge filed June 12, 1979 (ex-
hibit GC-1p), followed by Board complaint of October 15, 1979
(exhibit GC-Ir), Respondent was accused of violating Section
8(a)(1), (3), and (4) of the Act by allegedly having failed to
properly reinstate employee Barnhart on February 27, 1979, and
by having constructively discharged her on March 19, 1979,
because of her support of the Union and because she gave testi-
mony under the Act. At the same time the Regional Director
ordered consolidation of the new unfair labor practice complaint,
Case 12909, with the back pay proceeding (exhibit GC-Ir,
supra); and, by amendment of the back pay specification (exhibit
GC-1m), made clear the contention that the back pay period for
employee Barnhart had not been ended with the purported rein-
statement of February 27, 1979, but continued unabated because
of Respondent’s alleged failure to have offered her proper rein-
statement and the constructive discharge.*
“Case numbers 7858 and 9160 which appear in the caption of this back-
pay proceeding represent case numbers assigned to charges filed by the
Union in connection with the deficient reinstatements of employees Barn-
hart and Moore in 1973 and 1975, which charges were forwarded to the
Sixth Circuit Court of Appeals and eventuated in the contempt order
against Respondent.
8No similar claim was made for employee Moore, who, following the
reinstatement of February 27, 1979, continued working until August 20,
1979, when she left Respondent’s employment of her own volition.
19a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Trial of the back pay issues, consolidated with the new unfair
labor practice issues affecting employee Barnhart, was held in
New Philadelphia, Ohio on November 8, 9, 27, 28, and 29,
1979,*
On back pay, Respondent contested the use of comparative
earnings of representative employees in computing back pay, the
sufficiency of credits given for interim earnings in employee
Moore’s case, and the entitlement of employee Barnhart to any
back pay for alleged absence of efforts on her part to secure other
employment and thereby minimize Respondent's obligation for
back pay.
On the alleged 1979 unfair labor practices against employee
Barnhart, Respondent contended that she was properly reinstated
on February 27, and voluntarily quit on March 19.
General Counsel and Respondent filed briefs. In addition, as
a matter of discretion, upon Respondent's request stating a need,
and over General Counsel's opposition, I permitted Respondent
to file a reply memorandum, with opportunity to General Counsel
to file a response.°
4I denied Respondent's motion to sever trial of the unfair labor prac-
tice complaint from trial of the backpay issues, on the grounds that there
was no prejudice to the Respondent by mingling the alleged new unfair
labor practice with the backpay issues, particularly when the later events
arose while the backpay proceeding was pending before the Board, and
had a relationship to prior events and the length of the backpay period;
and that the Board’s regulation on backpay, 29 CFR 101.16, does not
prohibit consolidation in one trial of backpay issues with issues relating
to the existence of unfair labor practices, N.L.R.B. v. International Union
of Operating Engineers, Local 925, 460 F. 2d 589, 80 LRRM 2399, 2407,
2408 (C.A. 5, 1972).
5General Counsel did not avail himself of the opportunity to respond,
but did file a motion dated February 14, 1980, to strike the reply mem-
orandum, largely because Respondent attached, as an Appendix A, and
(Footnote continued on following page)
20a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Upon the entire record, including my observation of the wit-
nesses and consideration of the briefs, I make the following:
Findings of Fact
I. Jurisdiction
Respondent is an Ohio corporation engaged in the business of
operating retail department stores in several states, with its prin-
cipal office and place of business in New York, New York. The
self-service discount department store in New Philadelphia, Ohio,
is the only facility involved in this proceeding.
Annually, Respondent receives gross revenues in excess of
$500,000 from operations at the New Philadelphia store, and
receives there goods valued in excess of $50,000 directly from
points outside Ohio.
As the parties admit, Respondent has been and is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
As the parties also admit, Retail Clerks International Associa-
(Footnote continued from previous page)
referred to, a Board-obtained affidavit of employee Lena Barnhart dated
June 18, 1979, which affidavit Respondent had use of as “R-7 for iden-
tification,” Tr. 459-460, in cross-examining Barnhart, but which docu-
ment was not offered and did not come into evidence. I agree with Gen-
eral Counsel that Respondent had no business using the reply memoran-
dum as a means of attempting to introduce evidence that is not in the
record, and Appendix A will be disregarded as well as the reference to
it on page 13 of Respondent’s reply memorandum. However, with that
material eliminated, I see no basis for not considering Respondent’s reply
memorandum as argument. Accordingly, I deny General Counsel’s mo-
tion to strike the reply memorandum in its entirety.
2la
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
tion, Local 698, AFL-CIO, now known as United Food and
Commercial Workers Union, Local 698, AFL-CIO (the Union),
has been and is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Il. Respondent’s Business Operation and Background
leading to Backpay Proceeding
The Store
As derived from the case background, including the testimony
of the current store manager Robert Ricer, who was store man-
ager from February 1975 (and testified before me, and earlier
before U.S. Magistrate Streepy in 1978), and the prior store
manager James Durda, who was manager when the unfair labor
practices were committed in 1971 and remained until February
1975 (but testified only before Magistrate Streepy), Respondent
operates a self-service discount department store in New Phil-
adelphia, Ohio, known as Nichols Discount City.
The store comprises 120,000 square feet of open merchandis-
ing or selling space, plus a stockroom. The merchandising area
is divided into approximately thirty departments with usually one
employee in charge of merchandising and ordering for that de-
partment.
Merchandising means seeing that the merchandise is properly
and favorably displayed, answering customer questions, and,
where only floor samples are displayed, assisting the customer in
obtaining a desired item from the stockroom.
Ordering means keeping an eye on stock needs and informing
the store manager of them. Most orders are requests, approved
by the store manager, from a catalog and sent to the company
22a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
buyers in the New York City headquarters office for their ap-
proval.
Typically, though the department employees are sometimes
referred to as department heads or department managers, each
works alone, without regularly scheduled helpers. The department
employees, by whatever name or title, are essentially clerks, and
are hourly paid. They do not perform supervisory or managerial
functions. Sales are consummated by the customer helping himself
and taking the merchandise to be purchased to either the “front”
cash registers operated by assigned cashiers or, if there is a “peri-
meter” register in the department, to that register operated by the
department clerk or a cashier.®
The employee with top supervisory and managerial authority,
is the store manager. He does all the hiring, firing, setting of pay
rates and granting raises (within the limits set by the company
headquarters), and approving both the major ordering of mer-
chandise through the company headquarters catalog and buyers
and the minor amount of local purchasing permitted.
As Store Manager Ricer testified, he has three salaried assistant
managers (prior to 1976 or 1977 there were four). The assistant
managers, with Ricer, comprise the total supervisory authority
in the store. According to Ricer, each of the assistant managers
has and [sic] area of the store to cover, and the duty to oversee
the departments and employees in his area and to act in Ricer’s
place during his absence.
®In special departments, such as major appliances, there are salesper-
sons operating the department. In addition, there are store employees
regularly assigned to the cash registers, the store office, and stock room.
However, these employees, from time to time, become involved in the
departmental floor work, when assigned by the store manager or assistant
managers to provide relief tor floor clerks or assistance to them in stock-
ing their departments.
23a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
The store operated with two shifts of employees covering twelve
hours, 10 a.m. to 10 p.m., Monday through Saturday, and eight
hours on Sunday from 11 a.m. to 7 p.m. (prior it was 12 noon
to 8 p.m.).’
The first shift (or day shift) covered from 10 a.m. to 5 p.m.,
five days per week (Mondays thru Thursdays plus Saturdays),
and Fridays from 10 a.m. to 10 p.m. However, because each of
the six days of the day shift included a one-hour non-paid lunch
period, and a seventh non-paid dinner hour on Fridays, the first
shift or daytime employees were scheduled and paid for forty
hours per week.
The second or night shift covered from 5 p.m. to 10 p.m.
(Mondays thru Thursdays plus Saturdays), with no lunch or
dinner periods; and eight hours on Sundays 11 a.m. to 7 p.m.,
formerly 12 noon to 8 p.m.) with a half-hour non-paid lunch
period, according to Manager Ricer.* Since the second shift was
paid time and a half for its Sunday work hours, or a total 1114
hours for the day, the second night shift employees were normally
paid for 36% hours per week. While there appeared an inclina-
tion on the part of Respondent’s counsel to view the second shift
employees as part time employees, and to attribute a meaningful
difference between them and first shift employees based upon this
slight difference in scheduled paid hours between the shifts, there
was considerable evidence discovered by the Board’s compliance
officer, Mr. James Hehnen, even among the incomplete records
produced by Respondent, that a number of the second shift em-
ployees worked additional hours over substantial periods of time
7In August 1979, Sundays hours were reduced to six hours (12 noon
to 6 p.m.).
®The six-hour Sundays, from 12 noon to 6 p.m., did not start until
August 1, 1979, according to Manager Ricer, and would have no bearing
on backpay preceding that date.
24a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
that brought their pay to and sometimes over 40 hours per week,
and some first shift representative employees who did not work
40 hours per week for some considerable periods of time. Based
upon this evidence and the testimony that showed the work of
the shifts to be the same, I find no substantial distinction between
the first and second shift employees for purposes of using both
first and second shift employees as representative employees in
arriving at back pay calculations. In this connection it should be
noted, from former Store Manager Durda’s testimony, that Re-
spondent regarded all of the employees, except the store manager
and assistant managers, as clerks for pay purposes, and that all
of the employees had general duties that cut across departments
(exhibit GC-2, transcript of testimony before Magistrate Streepy,
p. 121). Store Manager Ricer corroborated this in pointing out
that all employees put up displays, transferred merchandise, did
pricing, stored materials, answered questions of customers, and
cleaned; and that cashiers and office employees, were expected to
spend and spent some of their time on the sales floor relieving and
assisting the departmental clerks, who in turn spent time on the
cash registers and assisting other clerks.
Store Manager Ricer testified that in 1979 he had 72 hourly
employees of whom one-third, 24 employees, were on the second
or night shift. This total employment represented, he said, a ten
percent decrease in employment from 1975, with less people to
do more work, since the store size had increased in 1977. Hence,
some of the clerks, he said, had to cover more than one depart-
ment each.
Employees Barnhart and Moore
Employee Barnhart began employment with Respondent on
November 19, 1969, four days after the store in New Philadel-
phia opened on November 15, 1969. Barnhart worked in the
25a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
housewares department, second shift, for about eight months,
then requested and was granted leave by the first store manager
Barnes to care for an ill son. When Barnhart returned to work
at the beginning of October 1970, the successor store manager
James Durda put her back to work in the mens wear department
but treated her like a new employee, among other things denying
her the five cents per hour pay raise that had been given to the
other employees.® Barnhart remained in mens wear until her dis-
criminatory discharge of April 1, 1971.
Employee Carolyn Moore also started her employment with
Respondent in November 1969, on the second shift, as a clerk in
ladies wear, where she remained until her discriminatory dis-
charge of April 1, 1971.
The Board found that employees Barnhart and Moore were
the outstanding organizers for the Union among the employees,
and that Respondent discharged them, on April 1, 1971, because
of their Union leadership and to discourage Union membership
among the employees, in violation of Section 8(a)(1) and (3)
of the Act, 195 NLRB 939, 942-943 (March 1972), ordering,
among other things, that Respondent offer them immediate and
full reinstatement to their former jobs, or, if these jobs no longer
existed, to substantially equivalent positions, without prejudice
"Employee Barnhart testified before me concerning, and established
the grant of, the leave of absence by Manager Barnes, without contra-
diction by Respondent; and under the Board decision, 195 NLRB 939,
943, n. 20, was accordingly entitled to makeup pay at five cents per hour
for the last quarter of 1970 and the first quarter of 1971, preceding her
discriminatory discharge on April 1, 1971, since Manager Durda had
conceded her entitlement to the pay raise but had conditioned it upon
her abandonment of support of the Union, Accordingly the backpay speci-
fication properly included, as the first items for Barnhart, this makeup
of the denied pay raise totaling the principal sum of $41.13, see exhibit
GC-1g, App. B1 and B2.
26a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
to their seniority or other rights and privileges, and to make them
whole for any loss of earnings. The Board decision was upheld
and enforcement of the Board’s order granted by the U.S. Circuit
Court of Appeals for the Sixth Circuit, 472 F.2d 1228 (C.A. 6,
December 1972).
As later found by the Sixth Circuit, in subsequent contempt
proceedings against Respondent, it was more than six months
after the Court’s enforcement judgment that Respondent offered
employee Barnhart reinstatement, and when she reported for
work on July 16, 1973, Store Manager Durda assigned her to
scrubbing the fitting room in the mens wear department, work
she had not done before. After several hours of scrubbing she
became ill and had to leave. Her doctor told her the cleaning
product she was obliged to use in the scrubbing caused the ill-
ness, and when she told this to Manager Durda, he answered it
was store policy to use this cleaning product and if she could
not use it, there was no use in her coming in. By letter, employee
Barnhart informed Manager Durda that she was being started
out as a new employee rather than one with seniority, and that
she desired full reinstatement.
Barnhart did not receive a response until almost two years
later in March 1975, when Durda’s successor, Store Manager
Ricer, offered her “full reinstatement.” In response to this second
offer employee Barnhart reported for work on April 7, 1975.
She was reviewed as an extra person who could be switched from
one department to another as needed, and for the ensuing two
weeks her job consisted of scrubbing with soap and water and
doing cleaning in six different departments, though it was con-
trary to normal policy to have an employee clean more than one
department even in a general cleanup. When informed that her
next work would be scrubbing in the automotive department she
resigned rather than do the scrubbing.
27a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
In employee Carolyn Moore's case, she returned to Respondent
for employment (also following a dilatory offer of reinstatement
by Manager Durda) a week after Barnhart’s start, on July 23,
1973, which was shortly after the birth of her daugnter, of which
Durda was apprised. Upon reporting, Moore was informed that
her pay would be the same pay as when discharged, which was
twenty cents per hour less than contemporaries who had continued
to work between April 1971 and July 1973 were receiving; that
her prior weekly hours were reduced to 28 hours; and she (like
Barnhart) was immediately assigned to scrubbing bins in the
mens wear department. Her job before discharge had been in
ladies wear where she had never done any scrubbing or cleaning
other than dusting. On the second day, she was told to continue
scrubbing in the mens wear department, and when she com-
plained about such work, was told that after completing scrub-
bing in mens wear she would do more scrubbing in the boys wear,
ladies wear, and automotive departments. Upset by this assign-
ment she clocked out, and was later informed by Manager Durda
that she was no longer an employee because she walked off the
job. Moore informed Durda in writing that she wanted full rein-
statement as a clerk, not as a janitor, to her former hours and at
the contemporary wage scale.
Respondent did not reply to employee Moore until more than
two years later, in October 1975, when Respondent again offered
her reinstatement. The offer did not mention a department but
Stated she was subject to being assigned and moved to any de-
partment at the manager’s discretion, gave no assurance that she
would not be scrubbing in various departments, and was at an
hourly rate less than was being paid to similarly situated em-
ployees. Because of the lack of assurances and the lower pay,
employee Moore declined to return to Respondent’s employment.
Magistrate Streepy found that Respondent had deviated sub-
28a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
stantially from its obligation under the judgment of the Sixth
Circuit to offer employees Barnhart and Moore immediate and
full reinstatement to their former positions or to substantially
equivalent positions, both in 1973 and 1975, The deviation from
full reinstatement included treating each as an extra person sub-
ject to working in many departments, rather than assigning each
to a department as prior to discharge; assigning both to scrubbing
duties that they had not been assigned to prior to discharge, and
to scrubbing in more than one department; failure to offer or pay
the higher wage rates to which they would have been entitled
had they been working and not wrongfully discharged, since
April 1971; ordering Barnhart not to use the cash register con-
trary to her duties prior to discharge; and cutting Moore’s work-
week by fifteen percent. Additionally, it was found that Respon-
dent failed in its obligation to offer immediate reinstatement by
taking six months after the Court’s judgment of enforcement to
make its first offers of reinstatement in 1973, and approximately
two more years to make its second offers of reinstatement in 1975,
It was recommended that Respondent be adjudged in civil con-
tempt of the Court. (Magistrate’s Report of September 28, 1978,
exhibit GC-lc). The U.S. District Court approved the magis-
trate’s report and recommendations (exhibits GC-ld and -le),
and on February 8, 1979, the U.S. Court of Appeals for the
Sixth Circuit issued its order affirming the approved magistrate’s
report and adjudging Respondent in civil contempt for violating
the Court’s judgment of December 1972. (exhibit GC-1f).
The Court ordered Respondent to purge itself of the contempt
by, among other things, offering forthwith full reinstatement to
Barnhart and Moore to their former position, or, if the positions
no longer existed, to substantially equivalent positions, crediting
them with pay increases granted employees in comparable posi-
tions while the two were not working for Respondent, and mak-
ing them whole for lost wages to be computed in a supplemental
29a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
proceeding by the Board, subject to review of the Court. The
order also provided that upon reinstatement, Respondent would
refrain from imposing or threatening to impose any undue or
burdensome working conditions or tasks upon Barnhart and
Moore which are not regularly requested of other sales clerks.
Thereafter in February 1979, Respondent offered reinstate-
ment and, on February 27, 1979, both employees resumed em-
ployment at Respondent's store.
III. The 1979 Unfair Labor Practice
When employees Barnhart and Moore returned to work on
February 27, 1979, neither was reassigned to her former 1971
position, which for Barnhart had been second shift mens wear
clerk, and for Moore second shift ladies wear clerk. Those jobs
existed, nevertheless, Barnhart was sent to the lamps department
on the second shift, and Moore was sent to the front registers on
the second shift.
Store Manager Ricer, who had been manager since February
1975, and who participated in the improper and aborted rein-
statement of employee Barnhart in April 1975 and in the inade-
quate offer of reinstatement to employee Moore in October 1975,
did not discuss this change in positions with either employee.’’
After several months, said Moore, Respondent began to shift
her from the front registers to department after department, e.g.
sporting goods, garden shop, cameras, to fill in and relieve others
or temporarily replace others who were not there. She observed,
10What Manager Ricer did talk about, according to his own testimony,
was that he wanted what happened since 1971 to be “water under the
bridge.”
30a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
She said, that she was being passed over by more junior employees
for promotions or transfers to more stable or desirable positions,
and finally quit the job on August 29, 1979, However, while she
aired her unhappiness with other employees, she did not discuss
it with Respondent's management, and she filed no charge with
the Board,
In employee Barnhart’s case, Manager Ricer had employee
Frances Kee, who held the daytime lamps department job, show
Barnhart initially what was entailed. Barnhart testified that for
the first two weeks she rotated between the lamps department
and the cash registers (a few hours per week).
At the start of the third week, Monday, March 12, 1979,
according to employee Barnhart, Assistant Manager Dill asked
her to work for a week in the housewares department to put the
place in order, including cleaning, because, as he told her, it was
a disorganized mess and they had not been able to keep clerks
there. She started to put the housewares department in order. On
Thursday, March 15, when Barnhart came in she found another
clerk or office girl named Powers from the first shift checking in
an order of new merchandise, and, when Barnhart offered to
help, Powers declined the offer. Thereafter when Powers told
Barnhart to stock the new merchandise, Barnhart suggested that
since Powers had checked the merchandise she'd better stock the
merchandise herself. Powers was not a supervisor, and, in the
absence of finding Assistant Manager Dill or Manager Ricer,
Barnhart discussed with Assistant Manager Hathorn the matter
of a nonsupervisor giving her orders. By his own testimony,
Hathorn evaded any issue because he regarded Barnhart as a
“special situation” who had come back as a result of court ac-
tion; and, as Barnhart testified, there was no discipline or repri-
mand of her then or later by Ricer or Hathorn or any supervisor
for the course of action she had pursued, which included resum-
3la
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
ing the cleanup and reorganizing of the housewares department
that she had started.”
Friday was not a second shift workday, and on Saturday,
March 17, employee Barnhart resumed her work in the house-
wares department. Assistant Manager Dill told her she had been
doing a “marvelous” job in putting the department in order (and
conceded he had said so), and asked her if she wanted the house-
wares department on a regular basis. Barnhart replied yes, that
she regarded the work of the housewares department as a chal-
lenge and liked it better than the lamps department. Dill told her
she would stay on in housewares,**
On Sunday, March 18, employee Barnhart continued work-
ing in housewares, with some intervals on the cash registers.
However, Manager Ricer claimed that on Monday, March 19,
the day shift lamps clerk, Mrs. Frances Kee, asked Ricer for the
return of employee Barnhart to the lamps department night shift,
and he told Kee to tell Barnhart she was back in lamps. Ricer
did not himself tell Barnhart, nor did he tell Assistant Manager
Dill or ask Dill to inform Barnhart. Though employee Kee sup-
ported Ricer’s claim that she had asked Ricer for Barnhart, I
find it hard to believe, because Kee made it plain, in her testi-
mony, that she was quite wary of dealing with Barnhart and had
been warned that Barnhart was figuring out a reason to say she
‘Assistant Manager Dill, who had housewares as one of his depart-
ments, testified that he was in the store on Thursday, March 15, and
never directed employee Barnhart to assist employee Powers.
12In his testimony, Assistant Manager Dill claimed he didn’t have
authority to transfer employee Barnhart to housewares, but admitted that
he created the impression that he needed and wanted her there and that
she would stay on. He also said the whole matter was not something he
clearly remembered. I credit Barnhart’s account that she was promised
the housewares job.
32a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
had been picked on and, she (Kee) did not want to give Barn-
hart an excuse for leaving, as had happened in the 1975 rein-
statement. Since, as employee Kee testified, she had not known
or me’ employee Barnhart before Barnhart came back to the
store on February 27, 1979, and had not previously known of
the events relating to the 1975 reinstatement and constructive
discharge of Barnhart, it is obvious that Manager Ricer, who
was Respondent’s store manager and instrument in causing the
constructive discharge of Barnhart in 1975, was the source of
Kee’s views regarding Barnhart.
In any event, at the start of the 5 p.m. shift on Monday, March
19, according to Barnhart, employee Kee told Barnhart she was
to go back to the lamps department. Barnhart questioned the
order, saying it was odd that a fellow employee had more authority
than Assistant Manager Dill who had told her on Saturday, March
17, that the housewares department was now her regular assign-
ment. Kee replied that it was Manager Ricer’s order that she
was conveying. Barnhart couldn’t find Dill, and went to the
lamps department and to work, following a list of things to be
done left by day shift employee Kee, according to Assistant
Manager John Caravati, who had the lamps department under
his charge. The list was principally concerned with cleaning and
dusting of tables, lamps, shelves, mirrors, and picture frames.
Some time later in the evening, Caravati said, he was paged by
employee Barnhart, saying she had completed the work she had
to do. Caravati came by, checked to see that Barnhart had done
the work to his satisfaction, and told her that she had done a good
job.
Employee Barnhart then asked Assistant Manager Caravati
shouldn’t she go back to housewares, her regular assignment,
and Caravati replied he knew nothing about it, that she was in
Assistant Manager Dill’s jurisdiction. Caravati suggested that
33a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
this might be a good time for him to take Barnhart to, and ac-
quaint her with, the lamp portion of the stockroom and for her
to put it in order.’®
As Caravati and Barnhart were talking on the sales floor, Man-
ager Ricer came to them and, in angry tones, began addressing
Barnhart on the sales floor with Caravati present. He accused
Barnhart of taking (in his words) 14 to 20 minute breaks or 12
to 20 minute breaks, whereas she was entitled only to 10 minute
breaks; and he concluded by telling her she was to stay in the
lamps department and not leave it for any reason. When Barn-
hart attempted a reply, Ricer told her to take the chewing gum
out of her mouth. Ricer went back to his office taking Caravati
with him.
Hurt by the reprimand and rebuff, for which there had been
no prior warning, employee Barnhart went forward to the office,
clocked out and told Manager Ricer that he should not have
talked to her as he had, that she was not a dog, and that she was
going home. Ricer made no effort then to persuade her to stay
or thereafter to call her to come back.
Conclusion
If the employment of employee Barnhart had been a new
employment in 1979 there would obviously have been no ques-
tion of an unfair labor practice.
However the 1979 employment was supposedly a reinstate-
ment to a former position, ordered by the Board and Court of
13Assistant Manager Caravati was not too strong on recollection, stat-
ing in his Board affidavit that he directed Barnhart to go to the stock-
room (not that he was taking her there) and put the lamps in numerical
order for filling customer orders.
34a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Appeals, to enable Respondent to purge itself for contempt of
the Court in twice previously failing to appropriately reinstate
two employees discharged for engaging in union activity, which
employees had also testified against Respondent on that account.
The problem with the 1979 reinstatement started at the incep-
tion, when Respondent made no effort to restore the two em-
ployees to their former positions and offered no explanation for
not doing so.
In employee Barnhart’s case the former position was clerk of
the mens wear department, second shift, which was in existence,
and to which she was not assigned, without explanation. Instead
she was told she was to go to the lamps department, second shift,
and that she would get her instructions from the clerk of the
first shift.
What she was not told by Manager Ricer was that he was not
giving her a regular departmental job in a department, with a
perimeter register which would entail working there regularly and
only occasionally filling in elsewhere where needed; but that, as
he testified, she was to be unique, the only employee who would
be doing her type of job, starting in a department that had no
perimeter register and moving from place to place as shortages
of help developed. As Assistant Manager Dill explained it, Barn-
hart “was kind of a free girl [who] didn’t have any particular
place to go.” This was exactly the kind of assignment of which
the Sixth Circuit had been critical in reviewing the 1975 rein-
statement of Barnhart, except that the 1979 job did not initially
include the rapid changes and heavy scrubbing work imposed in
1975. More subtly, this time, Respondent did not show its hand
in the first two weeks.
In the third week the changes began, with assigning employee
Barnhart to a heavy cleanup job of cleaning and putting in order
35a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
the disordered housewares department, Barnhart rose to the chal-
lenge and won the praise of Assistant Manager Dill, so that at
the end of the week, on Saturday, March 17, 1979, Dill offered
her, and she accepted, the regular assignment as clerk of the
housewares department. Barnhart was pleased and if the assign-
ment had continued it might have eventuated in restoration to
the equivalent of the job from which she had been discharged."*
However, this was not what Manager Ricer had in mind. With-
out telling Barnhart directly, or having Assistant Manager Dill
tell her, Ricer yanked her back to the lamps department for an
additional cleanup job. He did it in the humiliating fashion of
having a fellow employee, rather than a supervisor, give her the
order to return and directions on what to do, just as he had done
in the previous week when he had an office girl give Barnhart
directions in housewares—in effect letting Barnhart know that
she was just a utility girl assisting other employees.
Manager Ricer added to the humiliation of Barnhart by bawl-
ing her out on the sales floor in the presence of a supervisor (and
of anyone else within earshot) on two matters of personal con-
duct that he had not previously mentioned to her before, viz.,
allegedly taking breaks longer than ten minutes and chewing gum.
Significantly, Ricer admitted that it was not his practice to dis-
cuss matters of employee conduct or discipline or reprimand on
the sales floor, rather he reserved any such discussions for the
privacy of his office or at the very least held them off the sales
floor and out of the presence of others, so as not to embarrass
the employee he was addressing. Moreover, Ricer conceded on
cross-examination that he had never disciplined an employee for
violation of the ten minute break rule or for chewing gum. And
‘It will be recalled that the second shift housewares department was
employee Barnhart’s first job assignment without Respondent in 1969-
1970.
36a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
there was testimony that employees did take longer than ten
minute breaks and did chew gum on the sales floor.
Manager Ricer claimed that his accusation of Barnhart taking
14 to 20 minute or 12 to 20 minute breaks rested upon his ex-
amination of timecards, particularly Barnhart’s card for the week
ending March 17, 1979 (exhibit R-13). General Counsel was
able to demonstrate that the card punches and cross outs on the
Monday relating to the alleged 20 minute break were ambiguous,
which, Ricer said, might have been due to someone else punching
Barnhart’s timecard, so that it was not clear whether the break
taken was for 20 minutes or for 9 minutes, Yet Ricer without
any private or other advance questioning of employee Barnhart
publicly reprimanded her for taking a 20 rninute break.
By depriving employee Barnhart, on March 19, of the right
to leave the lamps department, Manager Ricer was, among other
things, depriving Barnhart of the use of the cash registers in her
employment (lamps department had no cash register), As Magis-
trate Streepy pointed out in his findings for the Sixth Circuit
(exhibit GC-1c, p. 10) this had, in effect, been done to employee
Barnhart in the improper reinstatement of 1973 and was con-
trary to the duties and authority she enjoyed prior to discharge.
Not only from the testimony of Manager Ricer, but also from
the testimony of his assistant managers, Dill, Hathorn, and Cara-
vati, and of employee Frances Kee supra, it was obvious that
employee Barnhart was being treated differently from other em-
ployees.
From this record, it would appear that Respondent failed to
offer to reinstate, and failed to reinstate, employee Barnhart to
her former position, without prejudice to her seniority or other
rights and privileges, or to even an equivalent position, in viola-
tion of the contempt order of the United States Court of Appeals
for the Sixth Circuit. The alleged reemployment of February 28-
37a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
March 19, 1979, did not constitute the required reinstatement
following the discriminatory discharge and did not toll the back-
pay period for employee Barnhart. Padre Dodge, 189 NLRB
378, 388 (1971).
Moreover, Respondent's conduct in the period February 27-
March 19, 1979, culminating in the events of March 19th, con-
stituted a constructive discharge in violation of Section 8(a)(1),
(3) and (4) of the Act. The disparate treatment accorded Barn-
hart in 1979 largely by, or at the direction of, Respondent's Store
Manager Ricer, who participated in the improper reinstatement
and unlawful termination of Barnhart’s employment of 1975, has
underlying it the unlawful anti-union motivation for the dis-
charge of Barnhart in 1971, 1973, and 1975, including reprisal
for her testimony against Respondent. By reason of its animus,
Respondent was making icily clear that there was no way that
employee Barnhart could expect to be restored to equal treatment
with her peers among the employees, Respondent was treating
Barnhart in a manner designed to cause her to quit. Compare
similar situations and findings in, Carter of California, 250 NLRB
No. 54, slip op. pp. 6-7 (1980), companion decision 250 NLRB
No. 53, slip op. pp. 16-18 (1980); J/B Industries, 245 NLRB
No. 75, slip op. pp. 2-9 (1980); Vita Foods, 154 NLRB 1716,
1720 (1965).
By quitting the job on March 19, 1979, employee Barnhart
was not wilfully incurring any loss of pay, and did not render
herself unemployable. Hence, by reason of the constructive dis-
charge in addition to the improper reinstatement, the backpay
period for employee Barnhart was not tolled in 1979 and con-
tinues until Respondent remedies the original violation.’’
15In employee Moore's case, there was evidence of a similar failure by
Respondent to fully reinstate and of treatment designed to cause her to
quit, which she did in August 1979. However, Moore filed no charge
against Respondent, and on the assumption that hers was a voluntary
quit, the backpay period was tolled as of February 27, 1979.
38a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
VI. The Amount of Backpay
Since the backpay period for both claimants Barnhart and
Moore extended for at least an approximate eight year span from
April 1, 1971 until February 27, 1979 (and has continued for
Barnhart because of her improper reinstatement on February 27
and constructive discharge on March 19, 1979), General Counsel
used the earnings of a group of representative employees from
which to derive an average of earnings for each calendar quarter
of the backpay period.
This method was in keeping with the broad discretion vested
in the Board to devise methods for compensating the discrimina-
torily discharged employees for what they would have earned
(gross backpay) had they remained in the Company’s employ
throughout the backpay period, minus properly allocatable earn-
ings in other employment during that period to produce net back-
pay. Since it is difficult to arrive at the precise amounts of gross
backpay, the Board may use close approximations and adopt
formulas reasonably designed to produce such approximations.
The use of representative employees in computing gross back-
pay is such an approved formula, N.L.R.B. v. Brown and Root,
Inc., 311 F.2d 447, 452-453 (C.A. 8, 1963), and has been fre-
quently used in cases where the backpay period is lengthy and
where it may be difficult to determine the probable path of a
particular discriminatee during the period, Midwest Hanger Co.,
221 NLRB 911, 915 (1975). The employees who qualify as
representatives are those in similar classifications earning similar
wages at the time of the discharges. /d., at 915.
General Counsel’s compliance officer, James Hehnen, on the
basis of available records (and not all back records were avail-
able) used five representative employees, namely, Marilyn Altier,
39a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Karen Clark, Linda Johnson, Phyllis Levengood, and Kay Paris.’
All five employees were contemporaries of employees Barnhart
and Moore, similarly serving as clerks with like duties in their
respective departments and each earning $1.85 per hour and
generally similar quarterly earnings at the time of the discharges
of Moore and Barnhart."’
The method of computation employed by the compliance
officer was to take the earnings of the five representative em-
ployees in each calendar quarter year of the backpay period, add
them, and divide by five. The quotient in each quarter repre-
sented the average representative earnings for which each of the
two backpay claimants were credited in each calendar quarter
in which she was eligible for backpay, s\\btracting interim earn-
ings of the claimant applicable in the quarter.’*
16In the period from the third quarter of 1973 through the fourth
quarter of 1975, when employee Johnson, having resigned, was not in
Respondent's employ, earnings of employee Kathy Shilling were sub-
stituted to maintain the representative pattern; however, then Shilling
resigned and Johnson returned, and use of Johnson's earnings, commenc-
ing with the first quarter of 1976, was resumed. See, N.L.R.B. v. Su-
perior Roofing Co., F, 2d , 80 LRRM 2458 (C.A. 9, 1972),
Johnson was a cashier before she resigned, however all departmental
clerks worked as cashiers; and when she returned, worked in the office,
but all office workers and cashiers were expected to do some work on
the sales floor, see heading II above.
17Barnhart was actually being paid only $1,80 per hour though entitled
to, and wrongfully denied, the $1,85, see discussion above under head-
ing II noting allowance to Barnhart in the backpay for this five cents
per hour underpayment in the latter part of her 1969-1971 employment.
18Calculation of gross and net backpay, as well as interest on net back-
pay, is by calendar quarters, as established in F. W. Woolworth Company,
90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Co.
of Miami, 344 U.S. 344 (1953); Isis Plumbing and Heating Co., 138
NLRB 716 (1962); Florida Steel Corporation, 231 NLRB 651 (1977).
While Respondent seemed to complain of this practice at trial, he did
not provide any basis for altering it.
40a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Using quarterly gross earnings of the representative employees
has the value of giving the discriminatees the benefit, to which
they are entitled, of wage increases (since the gross earnings is
a factor of hours times wage rate), which was not otherwise de-
terminable under Respondent's practice of granting only discre-
tionary wage increases; and of including wage increases from
promotions, which it was reasonable to assume would occur had
employment not been discriminatorily ended, for Moore and
Barnhart, and which occurred in the cases of several of the
representative employees, compare, Golden State Bottling Co. Vv.
N.L.R.B., 414 U.S. 168, 84 LRRM 2839, 2846-2847 (1973);
Mooney Aircraft Co., 164 NLRB 1102, 1103 (1967). The pro-
motions moved the recipients to a higher paying clerical status
but not to status as supervisors, In this connection, the evidence
was that these better paying jobs were filled by employees who
started with lesser paying work and were moved up. Both Moore
and Barnhart were reportedly good workers, hence the assump-
tion that they would have moved up, if their employment had not
been unlawfully terminated, was not unreasonable,
Respondent argued that mixing employees who had been or
become first shift employees (Paris, Levengood, and Johnson),
with second shift employees (Clark and Altier), in constituting
the five representative employees made the representative earn-
ings unrepresentative, on the assertion that the first shift put in
40 hours and the second shift 37 hours (as employee Moore
claimed), or 36-% hours (as Manager Ricer claimed), or a mix
of “full time” and “part time” employees. However, as found
under heading II above, the shift hours were scheduled hours and
frequently not actual hours. For example, the only evidence re-
specting hours worked by first shift or alleged “full time” em-
ployees Levengood and Paris, showed that Levengood worked
less than 40 hours in 8 out of 13 weeks of 2d quarter 1971, in
8 out of 12 weeks of 4th quarter 1972, in 10 out of 13 weeks
4la
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
of 2d quarter 1973, in 11 out of 13 weeks of 3d quarter 1973;
and that Paris worked less than 40 hours in 4 out of 13 weeks of
2d quarter 1971, in 2 out of 11 weeks of 3d quarter 1972, in
5 out of 13 weeks in the 2d quarter of 1973, and in 3 out of 12
weeks in the 3d quarter of 1973. Moreover comparing the
quarterly earnings of second shift or alleged part time employees
Clark and Altier with the three alleged full time employees
(Levengood, Paris, and Johnson, including Shilling when sub-
stituted for Johnson), as derived from exhibit GC-3 and testi-
mony of Compliance Officer Hehnen, alleged part timer Clark's
earnings in 2d quarter 1971 exceeded the average quarterly earn-
ings based in part on the earnings of the three alleged full timers.
In 3d and 4th quarters 1971, “part timer” Clark’s earnings were
3% lower than the average earnings based in part on the earnings
of the three “full timers.” In Ist quarter 1972, “part timer”
Altier’s earnings exceeded each of the three “full timers” as well
as the average based in part on the earnings of the three “full
timers.” Also in Ist quarter 1972, “part timer” Clark’s earnings
exceeded the earnings of “full timer” Levengood and were about
1% below those of “full timer” Paris, In 2d quarter 1972, “part
timers” Clark and Altier each had earnings in excess of “full
timers” Levengood and Paris had higher earnings than the aver-
age based in part on the earnings of the three “full timers.” In
3d quarter 1972, “part timer” Altier’s earnings were 2% below
the average based in part on the earnings of the three “full timers.”
In 4th quarter 1972, “part timers” Clark and Altier each had
earnings in excess of “full timers” Levengood and Paris as well
as earnings in excess of the average based in part on the earnings
of the three “full timers.” In Ist quarter 1973, “part timers”
Altier and Clark had earnings about 5% below the average
based in part on the earnings of the three “full timers,” but each
exceeded the earnings of “full timer” Johnson, In 2d quarter
1973, “part timer” Altier had earnings about 1% below the aver-
age based in part on the earnings of three “full timers.” In 3d
42a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
quarter 1973, “part timers” Altier and Clark each had earnings
higher than “full timer” Shilling, and “part timer” Clark’s earn-
ings were 5% below the average based in part on the earnings
of the three “full timers.” In 4th quarter 1973, “part timer”
Clark’s earnings exceeded those of “full timers” Levengood and
Shilling and exceeded the average earning based in part on the
earnings of the three “full timers”; and “part timer” Altier’s earn-
ings exceeded the earnings of “full timer” Shilling. In Ist quarter
1974, the earnings of “part timers” Altier and Clark each ex-
ceeded those of “full timer” Shilling; and Altier’s earnings were
about 2% below, and Clark’s were about 7% below, the average
based in part on the earnings of the three “full timers.” In 2d
quarter 1974, “part timers” Altier and Clark had earnings each
exceeding those for “full timer” Shilling; Altier’s earnings were
about 8%, and Clark’s earnings about 6%, below the average
based in part on the earnings of the three “full timers.” In 3d
quarter 1974, “part timer” Altier’s earnings exceeded those of
“full timer” Shilling and was about 7% below the average based
in part on the earnings of the three “full timers.” In 4th quarter
1974, “part timers” Altier and Clark each had earnings higher
than “full timer” Shilling, and Clark’s earnings were 2% below
the average based in part on the earnings of the three “full
timers.” In 2d quarter 1975, “part timers” Clark and Altier had
higher earnings than “full timer” Shilling, and Altier’s earnings
were about 6% below, and Clark’s about 8% below, the average
based in part on the earnings of the three “full timers.” In 3d
and 4th quarters 1975, “part timer” Altier’s earnings were higher
in each quarter than those of “full timer” Shilling. In 1st quarter
1976, “part timer” Altier’s earnings were higher than those of
“full timer” Levengood and were about 3% below the average
based in part on the earnings of the three “full timers”. In 3d
quarter 1976, “part timers” Altier and Clark had earnings higher
than those of “full timer” Johnson, And, in Ist and 4th quarters
1977, in Ist and 2d quarters 1978, and in January 1979, “part
43a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
timers” Altier and Clark had earnings exceeding those of “full
timer” Levengood.
Thus, it appeared that often the so-called “full time” employees
of the representative group worked less hours per quarter and
earned less money per quarter than did the so-called “part-time”
employees, and in many other instances the hours spent and
dollars earned were about the same. Hence the distinction that
Respondent sought to draw between “full timers” and “part
timers” among the representative employees was not real, and
the absence of the mix of the five employees would have tended
to deprive the discriminatees of the benefit of averaging the highs
and lows, the valleys and peaks, and the unfavorable as well as
favorable, of the earnings of comparable employees, Chicago
Local No. 245 Graphic Arts Union, 217 NLRB 1112 (1975).
Therefore, using the averaged earnings of the representative
employees, I find that the amounts set down as gross backpay
for each of the quarterly periods of the backpay specification,
starting with the 2d quarter of 1971 through part of the Ist
quarter of 1979 (see exhibit GC-1g, Item 5 in each of the Ap-
pendices B3 through B34 for employee Barnhart,*’ and the same
in Appendices Cl through C32 for employee Moore), fairly and
reasonably constitute the gross backpay for each of those periods,
as summarized in column four of Appendix A, exhibit GC-1g.
For the continuing discrimination against Barnhart, growing out
of Respondent’s improper reinstatement in the Ist quarter of
1979 and constructive discharge of March 19, 1979, additional
calculations of gross backpay, similarly computed, will be needed.
Appendices Bl and B2 for Barnhart, state the makeup sums due
Barnhart at five cents an hour during her employment in the 4th quarter
1970 and Ist quarter 1971.
44a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
V. Interim Earnings
A. Barnhart
The duty of a discriminatee to minimize his loss of earnings
in a backpay case had its genesis in Phelps Dodge Corp. v.
N.L.R.B., 313 U.S. 177, 197-200 (1941). The Supreme Court
decided that since only actual losses should be made good, deduc-
tions should be made not only for actual interim earnings of the
discriminatee but also for losses of earnings which he wilfully
incurred, It was held that the respondent who was liable for the
backpay would be permitted to adduce proof of any such wilful
loss of earnings.
Over the years, the Board has given fuller meaning to the con-
cept of wilful loss of earnings, holding, among other things, that
it entails the making by the employee of at least “reasonable
efforts to find new employment which is substantially equivalent
to the position from which he was discharged and is suitable to a
person of his background and experience.” Southern Silk Mills,
116 NLRB 769, 773 (1956), cited and quoted with approval in
N.L.R.B. v. Miami Coca Cola Bottling Co., 360 F.2d 569, 575
(C.A. 5, 1966).
However, the claim, made here by Respondent, that employee
Barnhart failed to make such reasonable efforts, is an affirmative
defense and the burden of proof is on the Respondent, /d., and
see N.L.R.B. V. Mastro Plastics Corp., 354 F.2d 170, 174 (C.A.
2, 1965), cert. denied 384 U.S. 97; Florence Printing Co. v.
N.L.R.B., 376 F.2d 216, 223 (C.A. 4, 1967), cert. denied 389
U.S. 840, The fact that General Counsel called upon the dis-
criminatee to give evidence of her efforts to obtain other suitable
employment did not shift the burden of the defense from the
Respondent, New England Tank Industries, 147 NLRB 598, 601
(1964).
45a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Moreover, the backpay claimant is held only to reasonable
exertions and not to the highest standard of diligence in seeking
interim employment, N.L.R.B. v. Arduini Mfg. Corp., 394 F.2d
420, 423 (C.A. 1, 1968). Hence the Respondent does not meet
his burden to establish failure of the claimant to mitigate dam-
ages, by showing his lack of success in finding interim employ-
ment, N.L.R.B. v. Cashman Auto Co., 223 F.2d 832, 836
(C.A. 1, 1955); N.L.R.B. v. Pilot Freight Carriers, F.2d
, 102 LRRM 2579, 2580 (C.A. 5, 1979); or by showing
very low interim earnings for the claimant, in comparison to
the earnings of an employee of similar grade, N.L.R.B. v. Miami
Coca Cola Bottling Co., supra, 360 F.2d at 575-576; or by
showing absence of a job application by claimant in a particular
quarter or quarters of the backpay period, Cornwell Company,
171 NLRB 342, 343 (1968); or by showing failure to follow
certain practices such as reading and responding to newspaper
advertisements of jobs, N.L.R.B. v. Arduini Mfg Corp., supra,
394 F.2d at 422; De Lorean Cadillac, Inc., 231 NLRB 329, 331
(1977).
Lastly, the finding of the unfair labor practice and discrimina-
tory discharge “is presumptive proof that some backpay is owed,”
N.L.R.B. Vv. Mastro Plastics, supra, 354 F.2d at 178; and any
doubt in the evidence must be resolved in favor of the discrim-
inatee as the innocent person rather than the employer responsible
for the wrongdoing, N.L.R.B. v. NHE/Freeway Inc., 545 F.2d
592, 594 (C.A. 7, 1976); N.L.R.B. v. Madison Courier, Inc.,
472 F.2d 1307, 1319-1321 (C.A.D.C., 1972).
Employee Barnhart testified in detail concerning her efforts to
obtain employment, with the aid of diaries and unemployment
compensation notebooks (which were included in the evidentiary
record), plus recollection stimulated by the aids. Barnhart testi-
fied credibly and without contradiction concerning these efforts.
46a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Following her discharge on April 1, 1971, Barnhart registered
for employment with the Ohio Bureau of Employment Services,
where she applied for and received (notwithstanding contest by
Respondent) unemployment compensation for 39 weeks. As a
condition of eligibility for benefits, she reported weekly to the
Bureau to demonstrate her availability for work and her search
for «rk, which dates she recorded in her unemployment com-
pei. :.on book. She received some job counseling from the
Bureau but no referrals to jobs, and sought work on her own by
physically going to places of likely employers. When her weekly
benefits ran out, Barnhart continued to visit the Bureau on a
monthly basis looking for any posting of jobs. In 1973, 1975,
and 1979, following her brief but improper and aborted rein-
statements by Respondent, Barnhart did not apply for unemploy-
ment compensation; but in her visit to the Bureau immediately
following the 1979 constructive discharge, was sent on March
20, 1979, to test for a possible census taking job, which she did
not get. While the backpay claimant’s registration with the state
employment service was not conclusive evidence of a reasonable
search for employment, it was nevertheless evidence that the
claimant did, in fact, seek work, Madison Courier, Inc., 202
NLRB 808, 813 (1973), and prima facie evidence of a reason-
able search, Firestone Synthetic Fibers, 207 NLRB 810, 812
(1973).
Employee Barnhart’s basic method in searching for work was
to visit and apply for work at stores, shops, restaurants and fast
food shops, motels, nursing homes and hospitals, movie theatres,
plants, and offices in the area of her residence, which was the
small town of Dover, Ohio and the adjoining small town of New
Philadelphia, plus outlying communities as far away as Canton,
Ohio, which was about 26 miles from Dover. Her apparent ex-
pectation and hope was that, within her limited skills and train-
ing, she might find suitable employment.
47a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
When employee Barnhart was discharged by Respondent in
1971 she was 43 years old. She had been a high school graduate,
and before marriage (which was in 1949 at age 21) had worked
at a dry cleaners and at the telephone company office as an oper-
ator. Her marriage in 1949 was to a farmer, and she helped work
the farm with her husband, who was killed in 1953, leaving her
with two infants ages 18 months and 7 months. She stayed at
home to rear the children, and remarried in 1959. Two more
children were born of the second marriage (in 1961 and 1965).
Her second husband opposed her working, but changed his mind
when he lost his job, and Mrs. Barnhart obtained employment
as a clerk with Respondent when it opened its store in New
Philadelphia in 1969. This was her background, which did not
include any typing, stenography, bookkeeping or other office
skills, when she started seeking new employment in April 1971.
Barnhart first applied at Buehlers Bakery in Dover on April
6, 1971, and went back again in June, without success. She also
applied to Aberths Bakery in Dover in April at the suggestion
of a friend and went back to them several times in 1971 and in
succeeding years. She applied at Woolworths, W. T. Grants, A
and P, Kroger, Safeway Department Store, Sales Department
Store, J. C. Penney, Schwartz’s Clothing Store, and Montgomery
Ward, in Dover or New Philadelphia, in April and in the ensuing
months of 1971, seeking work in those places and others like
them as clerk or cashier.
Her method was to file an application, if the store or shop was
taking job applications and many did not, and in any event talk
to the store manager or other available supervisor or personnel
employee; and, as the long record of these visits indicates, almost
invariably revisited and reapplied at these and other stores, noted
in this brief summary, in the months and years that followed.
48a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Barnhart also tried for factory or laboring work in several
manufacturing plants, starting in 1971 and thereafter. Among
these were Alsco, a manufacturer of mobile homes, and Snyder
Manufacturing, local plants, and East Sparta Manufacturing, a
tile manufacturer about seven miles from Dover. In August 1971,
a friend told her of the possibility of a cleaning woman’s job in
the offices of Timken Roller Bearing Company in Canton.
Though 26 miles away, the indicated pay of $4 per hour was much
higher than the rate of pay she had been getting or that was being
paid for jobs she was seeking in her area, and she drove to Canton
only to find that the job had been filled when she arrived.
Among other types of businesses to which Barnhart applied
were drug stores, such as Gray’s and Marlowe’s in Dover, where
she sought clerk or cashier’s work; a sewing shop—Printz Bieder-
man—where her former co-worker Carolyn Moore had held a
part time or “second” job; restaurants, such as Bassette’s, Family
Smorgasbord, and L and K Restaurant, where she sought work
as waitress or cook; motels, such as Delphian Inn and L and K
Motel; nursing homes, such as South Broadway Nursing Home
and Valley Manor Rest Home, where she sought work as a nurs-
ing care helper since she had no previous training in nursing; the
General Telephone Company where she had worked as an oper-
ator more than twenty years earlier; laundries, such as, Puritan,
Dover-New Philadelphia Laundry, and Hammond Cleaners; ap-
plications at several out-of-town locations, such as at Navarre,
Ohio (Nickles Bakery), Newcomertown, Ohio (General Tire,
General Electric), and Canton (that included several places—
Clark’s Perkins, and Superior Meats—in addition to Timken) ;
and applications to a variety of other shops and businesses that
appeared to offer laboring or clerical opportunities.
Just about all of the job seeking done by Barnhart was on her
own initiative with an occasional tip on possibilities from friends.
49a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Practically all of the inquiries and applications in the Dover-New
Philadelphia area were made by her by walking (or driving and
walking if a car was available) sometimes making special trips
and sometimes in connection with shopping. This was feasible
since many of the places were nearby and clustered in or about
common areas, such as shopping centers. For applications outside
the area of her residence she had access to a car or occasionally
rode with a friend.
In the period of almost eight years from April 1971 through
February 1979, Barnhart called upon more than 150 different
employers (identified in the record), saw almost all of them more
than once and saw some many times. A few of the repeat visits
were in response to calls to come in for interviews, Following the
constructive discharge by Respondent of March 19, 1979, Barn-
hart resumed her search for employment in the seven months to
trial in November 1979, starting with the Ohio Bureau of Em-
ployment Services on March 20, 1979, and calling upon several
new employers and some of those she had called on before, such
as the bag factory, motels, and restaurants.
Going back to October 16, 1973, one of the applications for
employment made was to Quik (or Quick) Shops, a convenience
food store. There was no job opening at the time.
On January 27, 1974, Barnhart received a telephone call from
Carolyn Moore who had taken a job as manager of the Quik
Shops store about a month earlier. Moore told Barnhart that a
girl at the store had left and Barnhart could have the former
employee's job starting at $1.50 per hour. Barnhart accepted the
offer and went to work for Quik Shops.
About six months later, on July 27, 1974, Barnhart terminated
her employment with Quik Shops because she was mistakenly ac-
50a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
cused, along with two other employees, of a shortage of money
from the cash register, The mistake was found and acknowledged
and Barnhart could have stayed on, but declined to stay on the
ground that she would not work where such false accusations
had been made against her. Carolyn Moore was still there as
manager but left in the following month.
On examination by Respondent, Barnhart testified that she
seldom, almost never, used the help wanted advertisements in
the local newspaper, the Times-Reporter, in seeking work, that
when she occasionally looked at the ads they were mostly for
baby sitting, housekeeping, and door-to-door selling, which she
did not regard as suitable employment, and in other cases did
not mention pay or time of day, and that she preferred to seek
work on her own. However, she did testify that on one occasion
in 1971, after she had applied to Alsco Manufacturing Co. on
April 30, she went back on June 16 because of a newspaper ad
indicating an opening for a laborer (for which she had earlier
applied), but was not hired. She also testified that for some of
the employers, concerning whom Respondent produced help
wanted ads (for example, in 1978, Flex Products, Elby’s Res-
taurant, Dutch Kitchen), she had applied for jobs, not because
of the advertising and unaware of it then, but had not received
job offers and did not turn down any job offers.
Barnhart also testified that apart from use of the public
employment agency (the Ohio Bureau of Employment Services)
she did not consider engaging the services of any private employ-
ment agency, saying why pay for getting a job when she could
look for it herself and stating unawareness of jobs where the pro-
spective employer might pay the agency fee.
Barnhart testified that for a 21-week segment of the backpay
period—from May 24 to October 5, 1976—she temporarily
S5la
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
withdrew from the job market and did not search for employ-
ment. This was a period of time in which both her parents went
through terminal illness and died, Thereafter, in October 1976,
she resumed the search for employment, starting with Dover
Molds, one of the factories in her area where she had filed an
application at the end of the previous April. General Counsel has
provided appropriate credit to Respondent in the backpay speci-
fications by eliminating any claim for Barnhart in the 21 weeks
occurring in the 2d, 3d, and 4th quarters of 1976 (see GC-1g,
appendices B-23, 24, 25).
Conclusion
Respondent argues that employee Barnhart did not make rea-
sonable efforts to find interim employment in the whole of the
backpay period, because she did not make use of newspaper
help wanted advertisements, or hire a private employment
agency, to help find such employment; indeed, Respondent sug-
gests that her failure to take either or both courses of action was
in bad faith to avoid finding employment, and should result in
denying Barnhart any backpay.
In the light of employee Barnhart’s considerable efforts to
find interim employment oyer a long backpay period, which pe-
riod Respondent has unconscionably and unlawfully prolonged
by stalling and refusing to restore the employee to her former
position or equivalent employment, Respondent's argument
comes down to a claim that the employee could have made
greater or more efficient efforts in obtaining interim employ-
ment and should have been more successful in obtaining interim
employment. This is speculation and assumption that does not
carry the Respondent's burden of proof to show wilful failfure
of the claimant to mitigate damages.
52a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
In Airport Service Lines, 231 NLRB 1272, 1273 (1977), the
Board held that the existence of the newspaper want ads does
not establish that the jobs would be available if the claimant
applied or that she would be selected for any available position.
Accord, Firestone Synthetic Fibers, supra, 207 NLRB 810, 813-
814; Midwest Hanger Co., supra, 221 NLRB 911, 919.
In De Lorean Cadillac, Inc., supra, 231 NLRB 329, 331-
332, one of the backpay claimants was a highly qualified auto-
mobile salesman who at regular intervals in the backpay period
applied to some 30 auto dealers in the Cleveland, Ohio area but
_did not secure employment, and was equally unsuccessful in seek-
ing employment from insurance, realty, and brokerage firms. Re-
spondent introduced evidence of regular newspaper advertising
in two Cleveland newspapers by about 50 auto dealers, includ-
ing some where the claimant had applied, indicating well over
700 ads for automobile salesmen in the backpay period. Com-
bining this showing with claimant’s testimony that he did not
respond to the ads, indeed that he did not look for employment
in the newspapers at all because he felt he could do better on his
own by personal application to the dealers, Respondent con-
tended claimant had not made a reasonable effort to find other
employment, thus wilfully lost wages, and was not entitled to
any backpay.
The Board held that when the claimant applied to auto dealers,
upon his own, including some who had advertised as well as
some who had not, he was rejected; hence there was no com-
pelling reason to anticipate that if the claimant had responded
to the advertisers he would have fared better than he did on
his own; that there was no requirement that the discharged em-
ployee exhaust all possibilities in seeking interim employment;
and that what was required of him was reasonable exertion, not
the highest standard of diligence, as laid down in N.L.R.B. v.
Arduini Mfg. Corp., supra, 394 F. 2d 420, 423.
53a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
In Arduini, the Court noted that one of the backpay claim-
ants did not believe in reading help wanted ads in newspapers,
and the Court declined to attach any significance to the fact
that the claimant did not follow the want ads, 394 F, 2d at 422,
and further declined to measure the reasonableness of claimant's
efforts to find work by his success or lack of success in finding
it, citing N.L.R.B. v. Cashman Auto Co., supra, 223 F. 2d at
836,
In Sioux Falls Stock Yard Co., 236 NLRB 543, 550-551
(1978), the backpay respondent provided evidence of news-
paper ads to show that jobs existed in the backpay period and,
because the backpay claimants had not applied for these jobs
or even consulted the newspapers, contended that they had not
made a reasonable search. The Board held that the respondent
failed to meet its burden to show that any of the jobs were of-
fered to the claimants; and see Florence Printing Co., 158 NLRB
775, 793, aff'd 376 F. 2d 216 (C.A. 4, 1967), cert. denied 389
U.S. 840, holding that the Respondent, who claimed that there
had been a lack of reasonable efforts by backpay claimants in
failing to apply for “want ad” jobs, had not shown that “want
ad” jobs were offered to them. In Midwest Hanger Co., supra,
221 NLRB 911, 919, it was held pmat in seeking interim em-
ployment, backpay claimants were not bound to consult news-
paper ads.
Holdings of like import, in Miami Coca Cola Bottling Co.,
supra, 151 NLRB 1701, 1710 (1965), aff'd 360 F. 2d 569
(C.A. 5, 1966), that a backpay claimant is not required to ex-
haust every job possibility; and in Madison Courier, Inc., supra,
202 NLRB 808, 814 (1973), that a backpay claimant is not
required to apply for every possible job that might have existed
in the industry, suggest that backpay claimants are not bound
to consult private employment agencies in making reasonable
search for interim employment.
54a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Appraising Respondent's showing on the issue of employee
Barnhart’s search for interim employment, Respondent has of-
fered no contradiction of her actual efforts, not even with an
offer of a spot check of some of the employers to whom she ap-
plied (and there was time for this if Respondent chose to check
in the recess before the trial was closed).
Moreover, Respondent has not shown that any of the jobs
advertised in the newspapers were offered to Barnhart, partic-
ularly by employers who had done such advertising to whom
Barnhart applied without knowledge of their ads, Nor has Re-
spondent shown that Barnhart declined any job.
In connection with private employment agencies, Respondent
brought in the head of a Canton, Ohio agency with a New Phila-
delphia franchised office, who offered a general numerical count
of random samplings of job openings in certain parts of years
1974 through 1979 for what he classified as semi-skilled
workers.*” However he did not know employee Barnhart or if
any jobs had been offered to her.
Thus, within the meaning of the applicable law, Respondent
has not provided proof that Barnhart failed to make reasonable
efforts to find interim employment.
In evaluating Barnhart’s efforts to obtain interim employment,
while Respondent looked at and counted only the number of
days Barnhart sought employment, General Counsel looked,
rightly I believe, at the actual visits to and inquiries of individual
employers (because in a day’s trip Barnhart usually called upo=
2*°For example, he testified that in 1977, there were 19 available open-
ings for semi-skilled females as retail store clerks, cooks, nurses aides,
retail cashiers, machine operators, gas station cashiers, seamstress, and
food handlers. He did not identify specific jobs,
55a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
several potential employers in common locations or close to each
other), the repeat visits, and the visits to the state employment
service. Thus General Counsel calculated that in the approxi-
mate eight years’ backpay period dealt with at trial, from April
1971 to November 1979 (which excludes the six month interim
employment with Quik Shops in 1974 and the 21-weeks with-
drawal from the employment market in 1976), Barnhart made
about 500 tries at obtaining employment in an approximate 400
week period, Scrutinizing the entire backpay period to deter-
mine reasonable continuing effort, as the Board has said must
be done (making inconsequential a failure to search in any one
quarter, Cornwell Company, supra, 171 NLRB at 343), it ap-
pears that Barnhart averaged better than one job inquiry per
week in the entire eight year period. Her reapplications over the
months and years to places that had not accepted her previously
did not detract from the reasonableness of her effort, Nickey
Chevrolet Sales, 195 NLRB 395, 396 (1972), Sioux Falls Stock
Yards, supra, 236 NLRB at 552. And, noting her failure to re-
member to record (in the documents she kept and submitted for
the record) some of the prospective employers she visited and
applied to, and that the Board will not penalize the discriminatee
for poor record keeping, Sioux Falls Stock Yards, supra, 236
NLRB at 563, the likelihood is that the number of job inquiries
by her in the backpay period was higher than the above figures
indicate,
Affirmatively, I find that employee Barnhart did make reason-
able efforts to find interim employment, and that she is entitled
to backpay from Respondent.
Respondent argues, alternatively, that if Barnhart's search for
interim employment constituted reasonable efforts to find in-
terim employment, she should be denied any backpay after July
27, 1974, when she quit her interim job at Quik Shops.
S6a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
However, as pointed out in Mastro Plastics, supra, 136 NLRB
1342, 1349 (1962), aff'd 354 F. 2d 170 (C.A. 2, 1965), cert.
denied 384 U.S. 972, while a discriminatee who obtains interim
employment and quits without good reason may not be entitled
thereafter to backpay, if the discriminatee leaves the interim job
for a justifiable reason he is not deprived of his further claim
or backpay.
Here, employee Barnhart left her job with Quik Shops after
six months employment because she was wrongly accused of tak-
ing money from the cash register receipts.
In an almost identical situation in Ronald Hackenburger
d/b/a Ron's Trucking Service, 236 NLRB 1065, 1069, 1070
(1978), the backpay claimant quit an interim job because he
was falsely accused of pocketing money from sales. The Board
held that he quit with justifiable provocation and cause, and that
he was not deprived of his further claim for backpay.
I think the situations are parallel. I find that employee Barn-
hart left her interim employment at Quik Shops upon justifiable
cause and did not thereby impair her claim for backpay against
Respondent.
B. Moore
When employee Carolyn Moore worked for Respondent be-
fore her discharge in 1971, she held a second job as a sewing
machine operator with Printz Biederman Company. She con-
tinued this employment after her discriminatory discharge by
Respondent on April 1, 1971.
The job with Printz Biederman was essentially full time work,
usually performed between the hours of 7:30 a.m. and 3:30 p.m.,
57a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Monday through Friday (no Saturdays or Sundays), which was
the time the shop was open for work. However, she worked on
a piece rate basis rather than hourly rate, and observance of
hours was not essential, said Moore. Thus she frequently started
as late as 8 a.m. and worked until she ran out of garments or to
3:30 p.m., whichever came first. It will be recalled, that Moore’s
hours in 1969-1971 with Respondent were 5 p.m. to 10 p.m.
on 5 days per week (Monday through Thursday, and Saturday)
and 12-8 p.m. on Sundays.
Moore continued with Printz Biederman through 1971, 1972,
and early 1973 till April 15, with certain variations as indicated
hereinafter.
Thus, in March 1972 when work was partially and tempo-
rarily down at Printz Biederman, though continuing wi h them
for 3 or 4 hours a day, Moore took a job for one and a half weeks
doing telephone soliciting from noon till 8 p.m. at Snyder Sheet
Metal Co. She didn’t like the work and would have been obliged
to pay an employment agency fee if she stayed with Snyder, so
she quit the brief job with Snyder, continuing however with Printz
Biederman.
In April 1972, Moore obtained a job with City Wide Answer-
ing Service, a telephone answering service. Her hours were Mon-
day and Tuesday from 11 p.m. to 7 a.m.; and three additional
days of the week, as needed, from 5 p.m. to 11 p.m.
Moore continued with Printz Biederman till sometime in May
1972, and then started following Manager Goldman of Printz
Biederman elsewhere on a succession of brief jobs doing sewing
machine work as at Printz Biederman. She went with him first
to Hess Company for one and a half months, then to Basic Items
for two or three weeks, and then back to Printz Biederman for
58a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
the balance of 1972 and early 1973 until the end of April 1973.
She was paid at piece work rates for the sewing. Scheduled hours
were 7 a.m. to 3 p.m. for Hess and Basic Items, and 7:30 to
3:30 p.m. Monday through Friday at Printz Biederman, with, of
course, the loose observance of those hours as already indicated.
Moore also continued the City Wide Answering Service job
she started in April 1972 into 1973 up till April 15, 1973. The
late night-early morning hours, originally 11 p.m. to 7 a.m. on
Mondays and Tuesdays, became 12 midnight to 8 a.m., and the
evening hours on three additional days per week, as needed, be-
came 4 p.m. to 12 midnight.
Carolyn Moore temporarily withdrew from the employment
market and ceased all work, in particular her work for Printz
Biederman and City Wide, in the period May 1, 1973 to July
22, 1973, the last three months of a pregnancy that ended with
the birth of a daughter.
Thereafter, at the end of July 1973, her first job was with
Respondent in response to its call that she come in for the re-
instatement that proved to be improper and which aborted in a
constructive discharge after she worked a day and a half.
Following this constructive discharge, in August 1973 Moore
obtained employment again with City Wide Answering Service
and in October 1973 again with Printz Biederman, working the
same hours as when she left both employers in April 1973.
At the end of December 1973, Moore left both jobs—with
City Wide and Printz Biederman—to start a new job in Jan-
uary 1974 as manager of Quik Shops, a convenience food store,
which paid her a base salary plus 2% commission on sales. Quik
Shops store hours were 9 a.m. to 12 midnight, seven days a
week. Moore testified that while she was not there all of the
59a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
time, she was there almost the entire time, and that she ultimately
left the job in August 1974 because she had to put in too many
hours for the pay involved.
Two days after leaving Quik Shops, in August 1974 Moore
resumed work for City Wide Answering Service, with the two
days of early morning service from 12 midnight to 7 a.m., and
the three days of evening service from 5 p.m. to 11:30 p.m.
She held this job and no other for the reminder of 1974.
In 1975, Moore continued with City Wide, same hours. She
picked up about four months of additional work (mornings and
early afternoons) from May to August 1975 with Printz Bieder-
man, but that ended in August 1975 when Printz Biederman
closed the shop.
Going into 1976, Moore continued with the work for City
Wide, working Mondays and Tuesdays from 12 midnight to
8 a.m. and Wednesdays, Thursdays and Fridays from 4 p.m.
to 12 midnight.
However in March 1976, she reduced her hours at City Wide
to work no more than 32 hours per week after she enrolled in,
and began attending, Tuscco Beauty School to learn cosmotology
and to train for becoming a cosmotologist. Unfortunately, after
four months of school, her husband was injured and Moore had
to give up school in July 1976 without completing the course.
Her school hours were 9 a.m. to 3:30 p.m. or sometime 4:30
p.m., and for City Wide, during that period, the most that she
did was two days from midnight to 8 a.m., and two days from
4 p.m. to midnight.
When she resumed 40 hours per week work with City Wide
in 1976 and continued through 1977 and into 1978, Moore did
60a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
two days of midnight to 8 a.m. work and three days of 4 p.m.
to midnight work.
In May 1978, City Wide offered Moore straight midnight to
8 a.m. work, five days per week, and she shifted to that, and
stayed with it during January and February 1979, and during
the following approximate six months period of her reemploy-
ment by Respondent in 1979. Hence in those six months of 1979
she again held two full time jobs one of which was with Respon-
dent, as she had in 1971 and earlier before her discharge by Re-
spondent.
In the course of developing the concept that a discriminatee
claiming backpay for loss of earnings has a duty to minimize
the loss and not wilfully incur a loss, Phelps Dodge Corp. v.
N.L.R.B., supra, 313 U.S. 177, 197-200, the Supreme Court
approved the Board’s practice of limiting deductions from back-
pay of worker earnings following discharge to net “earnings
during the hours when the worker would have been employed
by the employer in question,” Jd. at 198, note 7.
Hence earnings from a second or supplementary job or jobs,
which the back claimant held before discharge and continued
thereafter, or from second or supplementary jobs to which the
claimant changed, where the earnings were for work performed
outside the hours the claimant would have worked for the back-
pay respondent if not discharged, are not properly classified as
deductible “interim” earnings and may not be deducted from the
claimant’s gross backpay, N.L.R.B. v. Miami Coca Cola Co.,
supra, 360 F. 569, 573-574; Henry Colder Company, 186 NLRB
1088, 1089-1090 (1970).
Accordingly, in the back pay specification General Counsel
made only limited deduction from the gross backpay due em-
6la
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
ployee Moore for earnings from the second or supplementary
jobs which she held or acquired after her discharge in April
1971. As a result, all of Moore’s earnings in the daytime hours
from the sewing companies—Printz Biederman, et al.—have not
been deducted, and properly so.
The earnings from City Wide Answering Service have been
prorated between earnings, on the one hand from work during
hours in which Moore might have worked for Respondent (5
p.m. to 10 p.m. five days of the week excluding Fridays, and
12 noon to 8 p.m. on Sundays), which earnings have been de-
ducted from Respondent’s gross backpay obligations to Moore;
and, on the other hand, earnings outside what would have been
her working hours for Respondent, which have not been de-
ducted from Respondent’s gross backpay obligation. The prora-
tion is an approximation, rather than actual hours, giving Re-
spondent credit against its gross backpay obligation to Moore
for three days out of five days per week of City Wide earnings
or three-fifths of Moore’s City Wide earnings in each quarter,
up to the 2d quarter of 1978, and not crediting Respondent for
two-fifths of the City Wide earnings constituting earnings for
two days (Monday and Tuesday) per week of the five days per
week Moore worked for City Wide in the hours 11 p.m. to 7 a.m.
or 12 midnight to 8 a.m. Actually crediting Respondent with
three-fifths of the earnings may favor Respondent because it is
quite likely that many of the days that Moore worked for City
Wide were Fridays (which would have been an unscheduled
workday for Moore with Respondent), and her City Wide hours
in the three days per week credited to Respondent’s obligation
were from 4 p.m. to 11 p.m. or midnight, which extended on
both ends beyond what would have been her schedule of 5 p.m.
to 10 p.m. with Respondent for these days. Additionally in the
period of Moore’s attendance at the cosmotology school, in
March-July 1976, when she worked no more than 32 hours (or
62a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
4 days) per week for City Wide, General Counsel still applied
the 60-40 ratio in favor of Respondent rather than a possible
50-50 ratio.
In any event, such prorating has been held by the Board and
courts to be a useful and acceptable means of giving approxi-
mate credit to both the backpay respondent and the backpay
claimant in connection with earnings from second or supple-
mentary jobs of the claimant, Lee Cylinder Division of Golay,
184 NLRB 244, 245 (1970), enfd 447 F. 2d 290 (C.A. 7,
1977), cert. denied 404 U.S. 1048.
The prorating of Moore’s City Wide earnings and three-fifths
credit to Respondent ended during the 2 quarter of 1978, when
Moore commenced an entire five day week for City Wide in the
early morning hours of 12 midnight to 8 a.m., which were of
course entirely outside the hours she would have worked for
Respondent. The job with City Wide had become, since the
closing of Printz Biederman in August 1975, Moore’s only sec-
ond or supplementary job, and it remained such in 1979 during
her reemployment of six months by Respondent.
General Counsel’s backpay specification gave Respondent
credit for Moore’s very brief employment by, and small amount
of earnings from, Snyder Sheet Metal Co. in March 1972 (exhi-
bit GC-1g, App. C4).
However, General Counsel gave no credit to Respondent for
her job with Quik Shops in the Ist, 2d, and part of the 3rd
quarter, 1974 (exhibit GC-lg, App. C12, C13, C14). General
Counsel contended that though the Quik Shops store was open
seven days a week from 9 a.m. to midnight, Moore was required
to be there only as needed, and since she was paid a salary and
commissions (rather than an hourly wage), could have main-
tained employment with Respondent if it were available to her.
ww
63a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
I disagree and believe that Respondent is correct in con-
tending that it was entitled to credit on its obligation to Moore
from her Quik Shops earnings. While it may be true that Moore
was not obligated to spend fifteen hours per day, seven days per
week, at the Quik Shops stores, she was store manager, expected
to be there a great deal of the time, and obviously on call at
times when she could not be there, on a daily basis. She testified
that she was at the store almost the entire time each week. Hence
holding another job would have been inconsistent with her Quik
Shops job if not inconceivable. Indeed she quit the job, and jus-
tifiably so, because she was obliged to spend too many hours at
it for not enough pay. In contrast to the Printz Biederman and
City Wide jobs, where Moore worked for limited hours wholly
or partly outside hours that would have conflicted with work for
Respondent, and where she was able to make adjustments of her
hours as she did, the Quik Shop job was not a second or supple-
mentary one, but her principal employment during the approxi-
mate eight month period of 1974. Moore’s interim earnings from
this source exceeded and eliminate any gross backpay due for
the Ist and 2d quarters of 1974, and reduce the net backpay due
in the 3d quarter 1974 to $8.06.
At trial (and in its briefs) Respondent sought to relitigate the
issue of whether employee Moore had justifiably declined Re-
spondent’s offer of reinstatement in October 1975. I held at trial,
and remain of the view, that the United States Court of Appeals
for the Sixth Circuit decided that issue against Respondent in
the 1978 contempt proceeding, and, accordingly, I struck por-
tions of the Respondent's answer to the backpay specification
which sought to revive the issue and to deny Moore's right to
have refused the invalid offer. (Transcript pp. 139-145). Hence
Respondent’s argument that Moore’s backpay period terminated
in October 1975, when she declined to accept the invalid offer
of reinstatement by Respondent, is without foundation or merit.
64a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
VI. The Net Backpay
Compliance Officer Hehnen testified that from the back pay
specification (exhibit GC-1g) the net backpay, after deductions
or eliminations, due employees Barnhart and Moore in each
of the calendar quarters from April 1, 1971 through February
27, 1979 appears as item 8 on the several pages of the appen-
dices, namely, App. Bl through B34 for Barnhart, App. Cl
through C32 for Moore. These items 8 total:
For employee Lena Barnhart — net backpay — $34,121.47;
For employee Carolyn Moore — net backpay — $24,846.36.
However, since in Moore’s case a further credit of interim
earnings from Quik Shops, in the Ist, 2d, and part of 3d quar-
ters 1974 should be deducted, as determined under heading V
above, the total net backpay should be corrected as follows:
For employee Carolyn Moore — to-
tal net backpay shown ........ $24,846.36
App. C12, eliminate all Ist quarter
1974, GeGeBUOR. 2.5 0c cv cve vcs $ 922.49
App. C13, eliminate all 2d quarter
a: ere rrr 1,031.20
App. C14, eliminate part 3d quarter
1974 by deduction ........... 654.50 2,608.19
revised net backpay ...... $22,238.17
For both employees there should be added the interest at 6%
(also computed quarterly) provided for in the original Board
order enforced by the Sixth Circuit Court of Appeals.
In his brief, General Counsel suggested that interest be com-
puted in accordance with the formula adopted by the Board in
65a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
Florida Steel Corporation, 231 NLRB 651 (1977), reaffirmed
in Olympic Medical Corp., 250 NLRB No. 11 (1980), which
would provide a higher rate of interest than 6%. However the
Board has held that the method for determining interest set forth .
in Florida Steel does not apply to a case in which an earlier
order of the Board provided for a different rate of interest which
has been enforced by a court of appeals, Pierre Pellaton Enter-
prises, 239 NLRB 1211 (1979); Vanguard Oil and Service, Inc.,
246 NLRB No. 22, slip op. p. 2 (1979). Hence the interest
from April 1, 1971 to February 27, 1979 should be calculated
at 6% .*"
In employee Barnhart’s case, since the backpay period was
not ended on February 27, 1979, as a result of the improper
reinstatement, followed by the constructive discharge of March
19, 1979, additional backpay is due her until she is offered, and
accepts or voluntarily declines, appropriate reinstatement. While
arguably this might seem to be a new order, it is in reality a con-
tinuation of the original unrequired order for reinstatement, en-
forced by the U.S. Court of Appeals for the Sixth Circuit and
reinforced by the Court’s contempt order against Respondent for
failure to comply. Accordingly, interest on the additional back-
pay will also be at the 6% provided in the original order.
VII.
Upon the foregoing findings of fact, conclusions of law, and
21Compliance Officer Hehnen provided a calculation of interest at 6%
for that period, if the backpay were paid by November 30, 1979, which
amounted to $8,479.34 for employee Barnhart, and $6,137.55 for em-
ployee Moore. Of course a recalculation of interest is necessary in both
cases to update the interest to the time of payment, and in Moore's case
to recalculate as well interest on the reduced principal sum.
66a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
the entire record, and pursuant to Section 10(c) of the Act, there
is hereby issued the following recommended: **
ORDER
Respondent, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to reinstate employee Lena Barnhart to her
former job, or, if it no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights and
privileges, and without discriminating against her, in regard to
tenure or any term or condition of employment, because of her
Union activity or testimony before the Board and courts, or be-
cause she sought or seeks Union or Board assistance in connec-
tion with her reinstatement, tenure, or conditions of employment.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act:
(a) Give backpay to former employee Carolyn Moore for
the period of April 1, 1971 to February 27, 1979, in the sum
of $22,238.17, with interest at 6% per annum computed on a
quarterly basis to the time of payment.
22In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Section 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
67a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
(b) Give backpay to employee Lena Barnhart for the period
April 1, 1971 to February 27, 1979 in the sum of $34,121.47
with interest at 6% per annum computed on a quarterly basis
to the time of payment. Additionally, make Lena Barnhart
whole for any loss of earnings since her improper reinstatement
of February 27, 1979 and constructive discharge of March 19,
1979, until such time as she is properly and fully reinstated to
her former job or equivalent position as set out in paragraph (c)
below, or voluntarily declines such reinstatement. This additional
backpay shall be computed on a quarterly basis, with interest
at 6% per annum also computed on a quarterly basis to the time
of payment.
(c) In keeping with the Board’s original order of March 17,
1972 (195 NLRB 939), enforced by the United States Court of
Appeals on December 27, 1972 (472 F. 2d 1228) and rein-
forced by the contempt order of the Court against Respondent
on February 8, 1979, offer said Lena Barnhart immediate and
full reinstatement to her former job, or, if the job no longer exists,
to a substantially equivalent position, without prejudice to her
seniority or other rights and privileges, among other things credit-
ing her with pay increases granted employees in comparable
positions while she was not working for Respondent, and refrain-
ing from imposing or threatening to impose any undue or burden-
some working conditions or tasks nor regularly requested of
other sales clerks.
(d) Preserve, and, upon request, make available to the Board
and its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to ascertain the back-
pay or other reimbursement due under the terms of this Order.
(e) Post in Respondent’s store in New Philadelphia, Ohio,
68a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
copies of the attached notice marked “Appendix.”** Immediately
upon receipt of said notices, on forms to be provided by the
Regional Director for Region 8 (Cleveland, Ohio), the Respon-
dent shall cause the copies to be signed by one of its authorized
representatives and posted, the posted copies to be maintained
for a period of sixty consecutive days thereafter in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 8, in writing,
within twenty days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Dated, Washington, D.C. April 7, 1981
HERZEL H. E. PLAINE
Administrative Law Judge
23In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading “POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall be changed to read “POSTED PURSUANT TO A JUDGMENT
OF THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
69a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations Board
An Agency of the United States Government
THE NATIONAL LABOR RELATIONS BOARD HAVING
FOUND, AFTER A TRIAL, THAT WE VIOLATED THE
NATIONAL LABOR RELATIONS ACT:
WE WILL NOT refuse to reinstate employee Lena Barn-
hart to her former job, or, if it no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and without discrim-
inating against her, in regard to tenure or any term or con-
dition of employment, because of her Union activity or
testimony before the Board or courts, or because she sought
or seeks Union or Board assistance in connection with her
reinstatement, tenure, or condition of employment; and
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act.
Because the Board and the United States Court of Appeals
for the Sixth Circuit found in 1972 that we had unlawfully
discharged employee Lena Barnhart and Carolyn Moore,
and because the Court further found in February 1979 that
we had failed to properly or promptly reinstate both em-
ployees to their former or equivalent jobs as ordered by the
Board and Court,
WE WILL pay to Barnhart and Moore, respectively, the
sum found due each as net backpay with interest for the
period April 1, 1971 to February 27, 1979.
Because the Board further found that on February 27, 1979,
we did not properly reinstate employee Barnhart to her
70a
Decision, dated April 7, 1981, of Administrative Law
Judge Herzel H. E. Plaine, National Labor Relations Board
former or equivalent job and caused her constructive dis-
charge on March 19, 1979,
WE WILL offer Barnhart her former job, or the equivalent
if the former job does not exist, and
WE WILL give Barnhart additional backpay with interest
from February 27, 1979 until she is promptly and fully
reinstated or voluntarily declines proper reinstatement.
S. E. NICHOLS OF OHIO, INC.
(Employer)
Date By
(Representative) (Title)
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE
DEFACED BY ANYONE
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material. Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Anthony J. Cele-
brezze Federal Building, 1240 E. 9th Street — Room 1695, Cleveland,
Ohio 44199 (Tel. No. (216) 293-3126).
Tla
Opinion of the United States Court of Appeals,
Sixth Circuit [472 F.2d 1228 (1972) ]
NATIONAL LABOR RELATIONS
BOARD, Petitioner,
V.
S. E. NICHOLS OF OHIO, INC.,
Respondent.
No, 72-1493.
UNITED STATES COURT OF APPEALS,
SIXTH CIRCUIT.
Dec. 27, 1972.
Proceeding on application for enforcement of an order of
the National Labor Relations Board directing an employer to
cease and desist from violations of the National Labor Relations
Act arising out of coercive interrogation of employees concern-
ing union activities, promises of benefits to employees, and dis-
charge of employees for union activities. The Court of Appeals
held that substantial evidence supported findings of trial exam-
iner and order of the Board.
Enforcement granted.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D.C,,.
Philip Fusco, Director, Cleveland, Ohio, Roger Hartley, Wash-
ington, D.C., for petitioner.
James L. Burke, Elmira, N.Y., for respondent.
72a
Opinion of the United States Court of Appeals,
Sixth Circuit [472 F.2d 1228 (1972)]
Before EDWARDS, CELEBREZZE and MILLER, Circuit
Judges.
PER CURIAM.
The National Labor Relations Board seeks enforcement of
its order directing respondent to cease and desist from viola-
tion of sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act.
[1] The Board had found that respondent's supervisory per-
sonnel had engaged in coercive interrogation of employees con-
cerning union activities and had made promises of benefits to
employees and had discharged certain employees for union ac-
tivities. While the record in this case indicates that much of the
evidence was in direct conflict and that the resolution of issues
of credibility was far from a simple and easy task, the record
also discloses that there clearly was substantial evidence to sup-
port the findings of the trial examiner and the decision and order
of the board.
[2,3] This court does not sit to retry disputed issues of fact
or to redetermine issues of credibility of witnesses. Our sole ques-
tion in such a proceeding as this is to determine whether or not
there was substantial evidence on the record taken as a whole to
uphold the findings of fact and the order of the National Labor
Relations Board. Universal Camera Corp. v. N.L.R.B. 340 U.S.
474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Enforcement of the Board’s order is granted.
73a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972) ]
S. E. Nichols of Ohio, Inc. and Retail Clerks International As-
sociation, Local 698, AFL-CIO. Case 8-CA-6414
March 17, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 19, 1971, Trial Examiner Benjamin B. Lipton
issued the attached Decision in this proceeding. Thereafter, Re-
spondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National
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 Trial Examiner's
Decision in lieht of the exception and brief and has decided to
affirm the 71:al Examiner's rulings, findings,‘ and conclusions
and to adopt his recommended Order, as modified herein.
1In affirming the Trial Examiner's finding that employees Lena Barn-
hart and Carolyn Moore were discharged for engaging in protected ac-
tivities in violation of Section 8(a)(1) and (3) of the Act, we rely
solely on the Trial Examiner's finding that the alleged misconduct of
Barnhart and Moore, which was Respondent's alleged reason for its ac-
tion, did not occur and that Respondent's good faith is not a defense.
Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolu-
tions were incorrect, Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record
and find no basis for reversing his findings.
In the third line of the fourth paragraph in section II, C of his Deci-
sion, the Trial Examiner inadvertently referred to a meeting as taking
place on October 30. The record shows that this meeting was held on
March 30. We hereby correct this inadvertent error.
74a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board adopts
as its Order the recommended Order of the Trial Examiner and
hereby orders that Respondent, S. E. Nichols of Ohio, Inc., New
Philadelphia, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's recom-
mended Order.
TRIAL EXAMINER’S DECISION
STATEMENT OF THE CASE
BENJAMIN B. Lipton, Trial Examiner: Hearing in this case
was held before me in New Philadelphia, Ohio, on August 27,
1971,’ upon a complaint by the General Counsel? alleging viola-
tions of Section 8(a)(1) and (3) of the Act. Briefs filed by
General Counsel and Respondent have been duly considered.
Upon the entire record in the case,* and upon my observation
of the demeanor of the witnesses on the stand, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the retail sale of general merchan-
dise, having its principal offices and place of business in New
York, New York. It operates a department store in New Phila-
1All dates are in 1971 unless otherwise noted.
2The Union's charge was filed on May 5 and served on May 7; the
complaint thereon issued on June 25.
8The transcript contains errors and omissions too numerous to specify,
but not affecting any matter of significance. No motion was received to
correct the transcript.
75a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
delphia, Ohio, which is particularly involved in this proceeding.
Annually, at this department store, Respondent sells products
valued in excess of $500,000, and has a direct inflow of goods
in interstate commerce valued in excess of $50,000.
Respondent admits, and I find, that it is engaged in commerce
and that the Union is a labor organization, within the meaning
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Issues and Positions
The complaint alleges, in substance, that Respondent unlaw-
fully—interrogated employees, singly and in a meeting at the
store; made promises of benefit to an employee; threatened an
employee with reprisal; and discriminatorily discharged em-
ployee Lena Barnhart and Carolyn Moore. Respondent denies
all alleged violations. In defense of the discharges, Respondent
affirmatively relies upon statements it obtained from certain em-
ployees that Barnhart and Moore, while soliciting authorization
for the Union, “threatened” that if they did not sign a card, they
would lose their jobs.
B. Organizational Background and Chronology
On March 23, Barnhart and Moore, sales clerks, were sep-
arately approached away from the store by union representatives
concerning the prospect of organizing Respondent’s employees.
Each indicated she would attempt to ascertain the interests of
other employees. On March 29, an evening meeting was held
at Barnhart’s home attended by employees Barnhart, Moore,
Gladys Burgess, Hazel Barthalow, Dorothy Mamula, Bonnie
Law, and Norma Milyiori. They decided to contact the Union,—
a task undertaken by Barnhart. On March 30, about 1:30 p.m.,
76a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
the same employees, plus Sheila McCue, met with two union
agents at Barnhart’s. The employees were advised of procedures
in organizing, benefits to be obtained, and were given blank
authorization cards and union buttons. Each of the employees
present signed a union card. When these employees reported for
duty that evening, they had their union buttons openly displayed
on their smocks. About 10 employees were then wearing the but-
tons. James E. Durda, the store manager, testified “a few em-
ployees” came to him that night and mentioned that they were
solicited to sign cards. He conceded that “maybe later on,” as
he was “curious,” he had asked Doris Holmes “who started the
union drive.” On March 30, March 31, and April 1, Durda held
meetings in the store with separate groups of employees relating
to the union campaign. On April 1, Barnhart and Moore were
discharged.
C. Restraint and Coercion
On March 30, about 6:30 p.m., Durda summoned certain of
the employees, including Barnhart, Moore, Lax, and Milyiori,
to a meeting. Also in attendance were James Mitchell, district
manager from New York, three assistant store managers, two
office clericals, and Linda Johnson. Durda stated he was shocked
to learn they were trying to organize the Union; he did not real-
ize the problems they had in the store, and they should be free
to talk to him if they had any problem. He asked each of the em-
ployees wearing a union button why she wanted a union.‘ The
responses included working conditions, job security, benefits, and
the manner in which Barnhart was treated by Respondent. He
said he could get the employees benefits, such as 7 days of sick
pay a year; they would be receiving their raises; he was working
on a plan for the girls to have every other Sunday off, which
would be put into effect as soon as he obtained permission; and
4He remarked to Moore that she “was union all along.”
77a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
the Company had previously tried to get hospitalization insur-
ance, but could not obtain enough names for a group policy. In
vague and cryptic testimony, Durda indicated that these benefits
were raised in questions by employees, which had “already been
brought up in the past,” had been “worked on,” and were “noth-
ing new.”®
On March 31 and April 1, further meetings in the store were
held with separate groups of employees,°® similar in nature to
the meeting on March 30.
Only Durda testified for Respondent concerning the meetings
with employees. He stated that his purpose was to let the em-
ployees know the “do’s and don'ts” relating to union organiza-
tion, according to policies which he had to follow. These policies
are reflected in an “Employee Handbook” given out to all em-
ployees, which is described in part below. He read “the whole
book”? to the employees at the March 30 meeting, and ques-
tioned them as to their “problems.” I find that Durda was shift-
ing and evasive as to what he actually said to the employees re-
garding union organization. Whether he had asked the em-
ployees individually why they wanted the Union, Durda replied,
“just Hazel Barthalow,” because he had no one to relieve her
at work to permit her attendance at the meeting on March 30.
However, on cross-examination, he ultimately admitted the es-
sence of the complaint allegation that he had interrogated the
employees individually as to their involvement with the Union.
The complaint refers only to the meeting on March 30 and
5These assertions by Durda lack the necessary specificity and probity
to justify the promises, in this context, on the basis that they were previous
commitments by Respondents to the employees.
®Some 80 to 90 employees were then employed.
7Eleven pages of closely written material.
78a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
confines the allegation to coercive interrogation of employees.
As to Durda’s discussion with Barnhart following the October 30
meeting (described below), it alleges a further interrogation and
promises of benefit. In addition, Durda admitted that he interro-
gated Barthalow in a separate conversation apart from the group
meetings. The facts supporting these allegations are amply evi-
denced. District Manager Mitchell and other supervisors were
present during the meetings, tacitly endorsing Durda’s conduct.
No legitimate purpose was shown for questioning these em-
ployees individually as to their reasons for wanting the Union.
The answers of each employee might well have disclosed the de-
gree of her involvement in the union campaign. Durda admittedly
questioned an employee to obtain the identity of the leaders. He
sought to induce the employees to abandon their efforts to union-
ize by inviting discussion of their “problems” and clearly offering
to improve their benefits. Considered in conjunction with the
other unfair labor practices herein, it is found that these interro-
gations, inclusive of Barnhart and Barthalow, were violative of
Section 8(a)(1) of the Act.*
When questioned by Durda as to why she wanted a union,
Barnhart also stated that she had a grievance. The grievance con-
cerned Barnhart’s insistence that she had been given a leave of
absence by the previous store manager, Barnes, and that when
she returned to work in October 1970, Durda deprived her of
seniority and certain benefits. Durda took the position that, as
far as he was concerned, “being the new manager,” she returned
as a new employee because when he hired her back," she never
said anything. Earlier in March he had made this decision clear
to Barnhart. Durda asked Barnhart to come to his office after
the meeting and he would make a three-way phone call to Barnes.
5E.g., Blue Flash Express Inc., 109 NLRB 591; Mitchell Plastics, Inc.,
159 NLRB 1574.
®The date of this occurre. :e is not shown.
79a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
When Barnhart reported to his office, Durda again asked her
why she wanted the Union in the store. Did she realize what she
is doing to him? Then he said that Mitchell told him to restore
her seniority, 2-weeks’ vacation, sick leave, and 5 cents an hour
dating from the past October. He inquired, “Now, is this what
you want?” She made no reply. He asked her if she would take
off her union button and she refused. As she prepared to leave,
he said, “Think this over.” Durda testified that he made these
promises to Barnhart only if Barnes confirmed that Barnhart had
been given a leave of absence. It is not indicated that Durda
spoke with Barnes concerning Barnhart at any time. In other
respects, Barnhart’s testimony was not effectively denied. Until
these events on March 30, Durda’s firm position was that Barn-
hart was not entitled to the deprived benefits which she claimed.
Barnhart is credited in her account of the conversation in Durda’s
office on March 30. She was promised a restoration of these ben-
efits upon the clearly implied understanding that she would cease
her union activities. The result would be the same even if Durda
conditioned the promise upon Barnes’ confirmation of her leave
of absence. I find, therefore, that by such conduct Respondent
violated Section 8(a)(1), as alleged.’®
Mamula testified to a conversation about April 5, with her
manager in the shoe department, Tom Able. Able asked her if
she had engaged in the union activities and she answered, yes. He
said he could not stop her if she wanted to participate. However,
he told her that if either of his two girls participated in union
activities, he would fire them. During the first week in May, Able
approached her and first asked if he had made he latter state-
10As the complaint does not allege unlawful promises of benefit made
by Durda in any of the group meetings with the employees, it is sufficient,
in my view, to consider the evidence on this subject solely for corrobora-
tive and background purposes.
80a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
ment. She replied affirmatively. Then he said, “Dorothy, if I said
that, I did not mean it that way.”
Able initially denied having any conversation with Mamula
about April 5 relating to union activity. In May, he asked Ma-
mula if she had been saying that he had made the alleged threat
to fire his two girls. She told him she did not remember that
he made such a statement. Able heard that Mamula wore a union
button.’ Unsure whether the conversation was in early April,
he conceded that he had asked her “if she was wearing one.”
There is a seeming inconsistency in Mamula’s testimony that
Able made the alleged threat and that he also said he could not
stop her from participating in union activities. Upon close study,
I would assign this result to the fragmented nature of the ques-
tioning. It appears from both versions that the conversation in
May arose from the fact that such a threat had been attributed
to Able. In all the circumstances, I credit Mamula. Accordingly,
I find that Able engaged in coercive interrogation of Mamula
and issued the threat of discharge, in violation of Section
8(a)(1).”
D. Discharge of Barnhart and Moore
On April 1, about 7 p.m., Durda called Barnhart and Moore
to his office. Also present were Mitchell, three assistant store
managers, an Office clerical and Linda Johnson. It is undisputed
that Durda read to Barnhart and Moore from a document which
he described as an affidavit from employee Paul Lehman, asked
11Jt was worn only on the night of March 30.
12Respondent contends that Able is employed by a lessee at the store
and that his statements may not be imputed to Respondent. This position
was not asserted, nor litigated, at the hearing. I find it without merit. It
is not contested that Mamula is an employee of Respondent and that
she is supervised by Able.
8la
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
them if they had anything to say, discharged them, gave them
their paychecks previously prepared, and ordered them to leave
immediately and not come back again to the store premises. The
affidavit was not shown to Barnhart and Moore. After the dis-
charges, it was posted for the employees to see. Both testified he
told them they had threatened Lehman with bodily harm. Barn-
hart had no comment, and Moore denied threatening Lehman in
any way. During the defense portion of the hearing, Respondent
advanced the position that Barnhart and Moore were terminated
because they were “part of the systematic effort to and did
threaten employees that they would be discharged if they did
not sign the union authorization cards.” Durda testified they
were discharged because “they broke the Nichols’ policy” by
threatening Lehman, Joan Hykes, Sharon Taylor and a few
others, but those are the ones he investigated. As to the “few
others” on which Respondent relies, when requested to specify,
Durda stated he only knew about Linda Johnson. In his “investi-
gation,” Durda did not attempt to obtain from Barnhart and
Moore their version of the facts. At the discharge interview, ac-
cording to Durda, he mentioned only the incidents involving
Lehman and Taylor—without relating what he actually said,
apart from reading the affidavit.'* Only Durda testified for Re-
spondent concerning this interview, and his testimony, I find,
is less than clear and forthright.
As it has been raised and is intertwined with the several issues
herein, it is necessary to consider the “Employees Handbook,”
which contains a section under the heading, “Your Employee
Rights And Legal Rights Under A Union Organization Drive.”
Pertinent passages are as follows:
18While Durda denied that he referred to a threat of physical harm,
the testimony of Barnhart and Moore is not otherwise clarified in the
record. (Cf. the Taylor incident, infra) The question is not, of itself,
significant to the issues. However, I cannot find that this rather unusual
impression voiced by both dischargees was made up of whole cloth.
82a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
. . We want you to be aware of one more benefit your
company gives you.
We will protect all our employees from being exploited
or taken advantage of by outsiders, . . . the most fre-
quent... will be various Union Organizers,
* . * * *
In some cases the union representative has told an em-
ployee she'd lose her job if she didn’t sign a union author-
ization card. If this happens to you, just don’t believe it....
Do not sign a card because you are told that now if you
sign, you will not have to pay initiation fees, and that non-
signers will be forced to pay such fees if the Union gets
certified.
The truth of the matter is if you sign a card or if you
don’t, all these persons will pay initiation fees or no one
will pay them. . . . The above reason for getting you to
sign a card is a threat and is illegal. Tell us and we shall
protect you.
* * * * *
Remember, do not sign a card because you are threat-
ened, tell us and we will protect you. It is your right to
have a Union. It is your right not to have a Union. Our
Company will try to see to it that your rights are preserved
no matter how you choose. Tell us if someone is trying to
stop your freedom of choice,
If it is an organizer, employee or store executive, con-
tact your personnel director. . . .”*
‘4The pertinence of these selected portions is to show the inducement
of employees to report to management any “threats” made in union solici-
tations. The accuracy of Respondent's legal advice to the employees is
subject to serious question. However, I do not pass upon whether the
statements in the handbook are coercive per se; no violation thereon is
alleged in the complaint.
83a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
The Lehman incident occurred at a gathering at Barnhart’s
house on March 31, commencing at 10:15 p.m. After work,
certain of the employees had decided to meet there for “pizza
and pepsi.” In attendance were Barnhart, Moore, Burgess, Barth-
alow, Milyiori, Mamula, Lax, McCue (i.e., those already shown
to have previously signed cards), Althea Korns (who arrived at
the end of the meeting), and Lehman." In the course of the eve-
ning, while sitting around a table, some of the employees en-
gaged in a conversation concerning the Union, the sequence of
which is not entirely clear from all the testimony. Barnhart,
among others, described various benefits deriving from union or-
ganization. Lehman asked if everybody had to join the Union.
Barnhart replied “if it is closed shop, yet or you will lose your
job, but if it is an open shop, no, you will not have to join the
union.” Lehman admitted that such a discussion concerning a
closed shop was “how the approach was made to me about join-
ing the union.” It does not appear in her affidavit. Moore took
a union card from her purse and asked Lehman if she would
like to read it. After reading the card, Lehman said she would
have to think it over, that she was afraid to sign as it might result
in her losing her job because she was unable to run a cash reg-
ister. During or preceding this general conversation, Lehman was
weeping while she complained of personal difficulties in the store
and at home.
15. ehman testified that she asked Barnhart if she could come over that
evening to return a dish she had borrowed, and Barnhart said it would
be fine because her husband would be away at a basketball game, It
appears that she did not bring the dish and Barnhart’s husband was at
home that evening. Her affidavit merely states she was invited by Barn-
hart. Durda testified Lehman told him she went there thinking it was a
pizza party. Barnhart testified that Lehman had asked her if she could
come over to watch television; she was in a hurry and gave no answer,
Though involving peripheral incidents, I view this evidence as tending
adversely to affect Lehman's reliability.
84a
Decision and Order National Labor Relations Board,
[195 NLRB 939 (1972)]
Lehman testified very briefly on direct. Barnhart handed her
a card and proceeded to tell her that if she did not sign, she
would lose her job. Moore “backed her up.” Cross-examination
elicited some elaboration, already described. In her affidavit,
Lehman states in substance: Upon her arrival, she “was quickly
advised that the group was meeting relative to the question of
union organization at the store.” On her refusal to sign a card
and “to participate in their efforts to organize a labor union,”
Barnhart told her that if she refused to sign she “would subse-
quently lose her job.” Moore “joined the threat and reiterated” she
would be forced out of work if she failed to sign.
Durda testified that, in his investigation, he spoke to “the ma-
jority” of “about 10 girls” who attended the meeting. The re-
ports he obtained indicated that none of these girls, except one,
heard the alleged conversation with Lehman. Burgess and Mil-
yiori testified they were never questioned by Durda. Mamula and
Barthalow, testified that he inquired after the discharges, and
they told him no such statements were made to Lehman. McCue,
called by Respondent, testified that Barnhart told Lehman, “If
you don’t sign, when the union gets in you will be fired;” and
Moore said, “That is right.” McCue did not remember the exact
words. She told Durda she never thought that Lehman was
threatened.
Le
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