Appendix — National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co.
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Supreme Court of the United States
OCTOBER TERM, 1968
No. 925
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
_—
J. H. Rutrer REX MANUFACTURING COMPANY, INC.,
ET AL.,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
INDEX
Page
Chronological List of Relevant Docket Entries - Cee 1
Supplemental Decision and Order of the National Labor Re-
lations Board, dated June 6, 1966 _ a 3
Preliminary Intermediate Report and Order of the Trial Ex-
aminer, dated January 23, 1963 _ Lelie : 18
Trial Examiner’s oe Decision in Back — Pro-
ceeding, dated June 2, 1964 - aia tai 39
Back Pay Specification and Notice of Hearing issued No-
vember 16, 1961, (pages 1 thru 6 and 213 thru 429) 316
Respondent’s Answer to Back sed nacenecheneails with Exhibit
A attached 588
Respondent’s Amended Answer to Back Dried a
with Exhibits A thru F attached _ oat pokes 601
BEI EG AEE LEIS ELL IL LOE LICL SL OMELET EME PER LBL ALY BBS EE
ii INDEX
Page
Excerpts from Transcript of Proceedings—
Witnesses :
Loren P. Jones
Direct 637
Cross 639
Re-direct 647
Philip Lampert
Direct : 648
Bessie Cooper Lee
Cross 653
J. J. Hooley
Direct 653
General Counsel’s Exhibit 7; the records of the following
employees:
Sonora Barnes (Rochon) —..... .. 660
I cs cellicalealalani 665
Gloria Delpit 668
Mathilda Delpit =». 669
Shirley Edgerson a 672
Pearl Ferguson 674
Minnie Fernandez _... 676
Gustavia Haynes (Gale) es 681
Victoria Henderson _. 685
Rose Marie Hicks _.. 689
I 55 cccdcieeatincisanenlenioo 693
I I I a eeteiliecieemabonneteenints 696
Leonard Lewis _...........---...... 698
Kathleen Lodge ____ 700
TERRI ea insecer celeeroeeeee nn psec 705
RN NINE tint depeccenccentnmaieanien 709
I a caeeiensienlictbomane 710
Mildred Proctor 712
Wilhelmina Ray (Blanchard) 713
a
INDEX
REE aR Rec ar nn ee
Rosalie Thornton
Hattie Walker es
Alma Wallace
Respondent’s Exhibit No. 6
a ee hansen auenenibaanatadsdiniden
General Counsel’s Exhibit No.
General Counsel’s Exhibit No.
General Counsel’s Exhibit No,
General Counsel’s Exhibit No.
i saleable enh
__ SERENE SEEN Ge EON ete EN
Respondent’s Exhibit No. 7
General Counsel’s Exhibit No.
Respondent’s Exhibit No. 18
Respondent’s Exhibit No. 38 .
Respondent’s Exhibit No. 48
Respondent’s Exhibit No. 51
Respondent’s Exhibit No. 52
Respondent’s Exhibit No. 50 _...
Respondent’s Exhibit No, 66A
IUD I, is i secieetemiincnmies
MU DE UO TD sce eecitecscsasissceibceminces
Respondent's Exhibit No. 80 _...............---
Respondent’s Exhibit No. 66B
Respondent’s Exhibit No. 73
Respondent’s Exhibit No. 74 __.
Respondent's Exhibit No. 76 2 SS
Respondent’s Exhibit No. 80
Respondent’s Exhibit No. 81. = ts—is—S
Respondent’s Exhibit No.
Serena: GI UN OD
iii
Page
717
722
724
728
732
733
737
739
740
742
743
744
745
746
748
749
750
751
752
753
754
755
759
760
761
763
769
771
773
774
ERE SOLEIL LLL: LLE LIT EL EREE EOL LEEIS EE ALY GNA ELGIRIDT RY
1v INDEX
Page
Respondent’s Exhibit No. 94 _..._____. PRED eer Sa 776
Respondent’s Exhibit No. 95 —..-.-__---_-_---_-_--_-------. TTT
Respondent’s Exhibit No. 96 = TB
Respondent’s Exhibit No. 97 _______-___---- So ae
Respondent’s Exhibit No. 98 87
Respondent’s Exhibit No, 113 __________-____-----_------------_ 789
Respondent’s Exhibit No. 124 —....___-_-_-____-_----_-_---------. dais 790
Respondent’s Exhibit No. 128 791
Respondent’s Exhibit No. 180 —..-----_----___-----------. 798
Respondent’s Exhibit No. 133 —....___ ; 4 ee os
Respondent’s Exhibit No. 134 98
Respondent’s Exhibit No. 137 —_...__-_-... 800
Respondent’s Exhibit No. 189 8001
Respondent’s Exhibit No. 144 ..._.. . 803
Respondent’s Exhibit No. 172 —-------- 805
Respondent’s Exhibit No. 173 _...--------------------------------- 806
Respondent’s Exhibit No. 195 —......____----. ieiecassapegummacdaleGitenis 808
Respondent’s Exhibit No. 201 ...._____-___-------------------__---- 809
Motion of J. H. Rutter-Rex Mfg. Co. for an order directing
the Regional Director to refrain from proceeding with
Back Pay hearing with the following exhibits attached: ._.. 811
8 | ace 825, 826, 827
Supplemental Exhibit II(a) — . 831
Supplemental Exhibit II(b) .._ -_- 899
Supplemental Exhibit II(c) —.-------------------------—---- 900
Appendices to brief of National Labor Relations Board on
motion to enjoin back pay proceeding:
Affidavit of John F. LeBus, dated March 2, 1962 902
Letter to J. H. Rutter-Rex Mfg. Co. from Charles M.
Paschal, Jr. dated August 21, 1957 904
Letter to J. H. Rutter-Rex ‘ntaaee Co. from John F. Snes
dated April 29, 1957 ~ ie! 906
INDEX
Brief in support of Motion to Lemus filed dion J. H. Rutter-
| ee ;
Supplemental Brief in —— of Motion to shat filed by
J. H. Rutter-Rex Mfg. Co. . ys
Excerpts from Transcript of Oral Argument before the
United States Court of Appeals for the Fifth Circuit
Opinion of the Court of Appeals, dated July 23, 1968 ___
Judgment of the Court of Appeals, dated August 26, 1968
Order denying petitions for oe en ema dated October
1, 1968
Order granting certiorari
POOLE LOAD EBLE APES (YOU BE
Cae ee Ee OO See Pee OOP
Ty eg eee S.
5. 7.57
6.10.57
8.19.57
11.16.61
12.30.61
1. 3.62
7.19.62
8.28.62
9. 4.62
ODP LEO FL ILE LICE ESA YOO KA b TS allen af LE LOOP LO OL LEA LIE LOCI GLIA. NIL PTL LLL OSE OLE
- er
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Charge filed in 15-CA-721
Charge filed in 15-CA-723
First amended charge filed in 15-CA-722
First amended charge filed in 15-CA-721
Order consolidating cases and notice of hearing,
dated
Consolidated complaint issued
Answer to complaint received
Amendment to consolidated complaint issued
Hearing opened
Hearing closed
Trial Examiner’s Decision issued
General Counsel’s Exceptions received
Board’s Decision and Order issued
Petition for enforcement filed
Certified record filed
Oral argument held
Court’s opinion issued
Decree entered
Backpay specification and notice of hearing issued
Company’s motion seeking to enjoin Board from
proceeding further dated
Court’s order on Company’s motion for stay of
proceedings
Court’s opinion denying Company’s motion for
permanent stay
Court’s order denying Company’s motion
Company’s answer to backpay specification filed
11.13.62
1.23.63
9.30.63
6. 2.64
6. 6.66
6. 8.66
7.14.66
7.15.66
9. 9.66
9.26.66
4.13.67
12. 7.67
7.23.68
8.26.68
8.26.68
10. 1.68
1. 9.68
1.16.69
3. 3.69
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Backpay hearing opened
Trial Examiner’s Preliminary Intermediate Report
and Order issued
Back pay hearing closed
Trial Examiner’s supplemental decision in backpay
proceeding, issued.
Supplemental Decision and Order of the National
Labor Relations Board issued
Petition for review filed by Company
Board’s answer and certified record mailed Court
Petition for review filed by the Union
Board’s motion to consolidate mailed Court
Court order issued granting motion to consolidate
Board’s amended certificate of record mailed Court
Oral argument held
Court’s opinion issued
Judgment entered
Board’s Petition for Rehearing filed
Court’s order entered denying Board’s and Union’s
petitions for rehearing
Board’s petition for certiorari filed
Company’s petition for certiorari filed
Orders issued by the Supreme Court of the United
States granting Board’s and denying Company’s
petitions for certiorari
ul )
SUPPLEMENTAL DECISION AND ORDER
(Title omitted—Nos. 15-CA-721
15-CA-723)
(For Release Afternoon Papers—June 9, 1966)
On February 18, 1956, the National Labor Relations
Board issued a Decision and Order ' in the above-entitled
case, ‘n which it found that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act,
as amended, by unlawfully prolonging a strike of its
employees. The Board ordered Respondent to offer, upon
application, to all those employees who went on strike
on April 21, 1954, or thereafter, immediate and full re
instatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, dismissing if necessary, all persons
hired on or after that date, and make such applicants
whole for any loss of pay suffered by reasons of the Re-
spondent’s refusal, if any, to reinstate them, from 5 days
after the date of their application te the dates of Re-
spondent’s offer of reinstatement. Thereafter, on June
10, 1957, the Court of Appeals for the Fifth Circuit is-
sued its decision granting enforcement of the Board’s
Order.’
On November 16, 1961, the Regional ‘Director for Re-
gion 15 of the National Labor Relations Board issued a
Backpay Specification and notified Respondent of its right
to file an answer to the Specification within 15 days.
After obtaining an extention of time to file its answer,
Respondent filed a motion for an injunction in the Court
of Appeals for the Fifth Circuit, seeking to enjoin the
Board from proceeding further in the matter because of
the lapse of time between the end of the strike and the
filing of the Backpay Specification. On August 28, 1962,
1J. H, Rutter-Rex Manufacturing Company, Inc., i115 NLRB 388.
2? N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, Inc., 245
F. 2d 594. The Court entered its decree of enforcement on August
19, 1957.
ee
4
the Court denied Respondent’s motion for a permanent
injunction.*
Respondent filed its answer to the Backpay Specifica-
tion on September 4, 1962. On October 3, 1962, Counsel
for the General Counsel filed a Motion to Strike Respond-
ent’s Answer to Backpay Specification and for Judgment
on the Pleadings. Respondent filed an opposition thereto.
The Trial Examiner granted the General Counsel’s motion
in substantial part but with leave to Respondent to file
an amended answer at a later date. Pursuant to notice,
a hearing was held on November 13-16, 1962, before
Trial Examiner Owsley Vose for the purpose of deter-
mining the validity of the method of computing backpay.
At the hearing, Respondent contended that it had no
obligation to reinstate any of the strikers because the
Board’s Order was wholly prospective in operation and
that all the strikers had applied for reinstatement before
the entry of the Board’s Order herein. The Respondent
also contended that the Board’s method of computation
in the Backpay Specification was unreasonable. On Janu-
ary 23, 1963, Trial Examiner Vose issued the attached
Preliminary Intermediate Report and Order in Backpay
Proceeding, in which he approved the method of comput-
ing backpay set forth in the Specification, but provided
that such computation should be subject to a 6 percent
reduction which he found necessary in order fully to re-
flect the number of absences characteristic of a typical
employee, and in which he rejected Respondent’s argu-
ment with regard to its liability to reinstate the strikers,
discussed infra. Thereafter, on various dates between
February 12, 1963, and September 30, 1963, hearings
were held on the issues raised by the Backpay Specifica-
tion and the Respondent’s amended answer.
On June 2, 1964, the Trial Examiner issued the at-
tached Supplemental Decision in Backpay Proceeding, in
which he ordered specific amounts of backpay to approxi-
ma‘ely 172 claimants and denied backpay te approxi-
mately 35 others. The Recommended Supplemental Order
also provides for payment of simple interest at 6 percent
3305 F. 2d 242 (C.A. 5), July 19, 1962; 50 LRRM 2770.
PRGNGRE LPP TENSE PEER ERROR GONE LANDERS EIS TH ETE
5
on the backpay due for each quarter commencing from
the date of his Decision. Thereafter, Respondent, Gen-
eral Counsel, and the Union filed exceptions to the Sup-
plemental Decision and supporting briefs. Subsequently,
Respondent also filed a motion requesting the Board to
reopen the record. The General Counsel and the Union
filed oppositions thereto. This motion is denied for the
reasons given in our discussion below.
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the Board has
delegated its powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the Trial
Examiner at the hearings and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the entire record in this case,
including the Preliminary Intermediate Report and the
Supplemental Decision, the parties’ exceptions and briefs,
Respondent’s Motion to Reopen the Record, and the Gen-
eral Counsel’s and the Union’s oppositions thereto, and
hereby adopts the findings,‘ conclusions, and recommen-
dations of the Trial Examiner except to the extent that
they are modified below.*
1. Respondent’s request to include in the record a copy
of its letter dated March 4, 1963, directed to the Board
and General Counsel, and giving reasons in support of
its requests for subpoenas duces tecum, is granted. How-
ever, its motion to overrule the revocation of such sub-
poenas and to reopen the record for further cross-exam-
ination upon documents to be furnished by the General
Counsel under such subpoenas is denied. In our opinion,
General Engineering, Inc. v. N.L.R.B., 341 F. 2d 367
(C.A. 9), upon which the Respondent relies in support
of its motion, is not applicable to the facts of this case.
In Gereral Engineering, the Court emphasized that the
*The Trial examiner used the term “Respondent” instead of the
term “General Counsel” in line 6, page 173, of his Supplemental
Decision. We hereby correct this inadvertent error.
’The Respondent has requested oral argument. This request is
hereby denied because the record, exceptions, and briefs adequately
present the issues and the positions of the parties
ss SEB gg ER RR aT a aa ek Se 6 Die her la ce
6
evidence sought to be adduced by the subpoenas duces
tecum was material and relevant to the issues in the case
and that the failure of the Trial Examiner and the Board
to require its production was attributable solely to ob-
servance of Section 102.118 of the Board’s Rules and
Regulations and Statements of Procedure, Series 8, as
amended, revised January 1, 1965, which forbids em-
ployees of the Board from producing records and docu-
ments of the Agency without the written consent of the
Board or the General Counsel. The Court there held that
the Board was not entitled to rely solely upon such a
provision in the Rules as justification for the withholding
of relevant material to the production of which the party
requesting it would otherwise be entitled. In the present
case, Counsel for the General Counsel in both of his peti-
tions to revoke specifically asserted the immateriality and
irrelevancy of the evidence sought to be adduced, and,
as to the items which the Trial Examiner did not require
to be produced, we are convinced that Counsel for the
General Counsel’s objections to the irrelevancy and the
immateriality of these items are well taken.
Likewise, in contrast with the General Engineering
case, here the Trial Examiner in his rulings did not rely
upon the Board Rule mentioned above. Thus, although
the General Counsel in his letter of March 8, 1963, to
the Respondent denied permission to representatives of
the Board in New Orleans to produce any of the items
listed in the subpoenas duces tecum, the Trial Examiner
did require the production of many of the items listed
in both subpoenas and they were in fact produced at the
hearing. During the hearing, the Trial Examiner ex-
hibited concern lest the Respondent be prejudiced in its
cross-examination of witnesses by the General Counsel’s
withholding of documents under a strict interpertation
of Section 102.118 of the Rules. For this reason, the
Trial Examiner required the General Counsel to produce
a material, including affidavits, from files containing in-
formation about the claimants without regard to whether
or not the claimants were called to testify. In this re
spect, the Trial Examiner expressed the view that the
Board’s general procedural rules were not designed to
~y
—
OT Rag SG od
7
cover backpay proceedings, and his conduct of the hear-
ing was consistent with this view.
We find that the Trial Examiner’s rulings with respect
to the production of material sought by Respondent in
its two requests for subpoenas duces tecum were in fact
consistent with, if indeed they did not exceed the require-
ments of, the policy underlined by the Court in the Gen-
eral Engineering case. We are convinced, however, that
insofar as the Respondent’s subpoenas sought disclosure
of analysis memoranda and similar memoranda and re-
ports prepared by various agents for the Board or Gen-
eral Counsel in the course of their investigation of the
case, the subpoenas went too far, for to have required
such production would have violated rights of privacy in
the “work product” of such agents under the doctrine of
Hickman v. Taylor, 329 U.S. 495, 507-514. The Trial
Examiner did not require the production of such mate-
rial and we affirm his ruling in this respect.
2. We adopt the Trial Examiner’s finding in his Pre-
liminary Intermediate Report that Respondent had an
obligation to reinstate all unfair labor practice strikers
upon their unconditional application to return to work.
As more fully detailed in the Preliminary Intermediate
Report, Respondent contended that the Board’s Order was
“prospective” and that no finding of a violation of that
Order can be based upon applications for reinstatement
which preceded the Order itself. Hence, Respondent ar-
gues, it was under no duty to reinstate any of the em-
ployees here involved because none of them applied for,
and were refused, reinstatement after the Board entered
its original Order on February 13, 1956.
The Board’s Order is in its usual form and is clearly
drawn and intended to include a requirement for rein-
statement and backpay for those employees who might
already have made proper application for reinstatement
at the time of the issuance of the Order. The well-estab-
lished rule of law is that stated by the Court of Appeals
for the Fifth Circuit in its decision granting enforcement
of the Board’s order, as follows: °
* Page 598 of the Court’s opinion cited at footnote 2, supra.
For once the strike is an unfair labor strike . . . or
becomes such . . . the employer is compelled under
the Act to reinstate the strikers upon application
. . . - [Emphasis supplied. ]
Accordingly, in agreement with the Trial Examiner
and for the reasons more fully set forth in his Prelimi-
nary Intermediate Report, we find that the Board Order
was retrospective in operation and required the Resopnd-
ent to reemploy those employees making proper applica-
tion for reinstatement, including those who made such
application prior to the issuance of the Board Order.
3. Respondent contended at the hearing that its good-
faith belief that some employees were guilty of serious
acts of misconduct during the strike justified Respond-
ent’s refusal to reinstate them upon application. In reply
to this contention, the Trial Examiner held that “[i]t is
the nature and seriousness of the employees’ conduct
rather than the [Respondent’s] belief in this regard which
is determinative.” In Burnup and Sims, Inc.,’ the Su-
preme Court held that an employer’s honest belief was
not a defense if it affirmatively appeared that such mis-
conduct did not in fact occur. And as more fully detailed
in the Trial Examiner’s Supplemental Decision, miscon-
j duct of certain employees was not affirmatively proved in
this case.
4. We find no merit in Respondent’s exception to the
Trial Examiner’s failure to find that certain employees
were guilty of misconduct during the strike. In support
of its defense at the hearing, Respondent sought to intro-
duce a 1954 judgment of a State Court which “tempo-
rarily restrained, prohibited and enjoined” the several
persons named therein, including some of the claimants
herein, from engaging in various and sundry acts, such
as picketing Respondent’s premises, loitering in the vicin-
ity of Respondent’s plants and strike headquarters. The
judgment also enjoined those persons named therein from,
inter alia, engaging in threats to assault or molest em-
ployees. The Trial examiner rules that the judgment was
not properly admissable as evidence because it fails to
aR iat al AY &
I ee RE
7379 US. 21.
9
indicate what specific acts of misconduct are charged to
any of the individuals named therein. We have examined
this exhibit and, in agreement with the Trial Examiner,
we find that it has no probative value because it does
not attribute any specific act of misconduct to any spe-
cific individual and thus offers no assistance to us in
assessing whether the acts of misconduct engaged in by
any of the individuals were of sufficient gravity to war-
rant denial to them of reinstatement and backay.*
5. The following corrections, additior « {1 modifica-
tions ® are made in the Trial Examiner’ ° ngs as to
individual employees.
Rose Marie Hicks
The General Counsel excepted to the Trial Examiner’s
award of backpay to Rose Marie Hicks for the second
quarter of 1956 in the amount of $36.44, As the General
Counsel notes, and we agree, the Social Security records
indicate that Hicks earned an additional $88.00 during
that quarter which is not reflected in her interim earn-
ings listed by the Trial Examiner in the Appendix. Ac-
cordingly, as Hicks’ total interim earnings during that
period exceed the wages she would have earned if re-
instated by Respondent, we shall reduce her net backpay
in the amount of $36.44. Thus, the correct amount of
net backpay due to Hicks is $3,519.31.
Noel Martin
We find merit, in part, in Respondent’s exceptions to
the Trial Examiner’s award of backpay to Martin. We
® And, in any event, assuming that the judgment was free of the
inherent defects mentioned above and was otherwise material and
competent, it could nevertheless not in itself control our deter-
mination of whether or not the named claimants are entitled to re-
instatement and backpay. Ferrell-Hicks Chevrolet, Inc., 149 NLRB
No. 130, footnote 8 of the Intermediate Report and cases therein.
*We agree with the Trial Examiner’s computation and award
of backpay to Shirley Edgerson. However, we find it unnecessary
to pass upon, and do not adopt, the Trial Examiner’s comments in
Edgerson’s case relating to computation by the projection forward
of interim earnings during a period after she had quit a job, prob-
ably without justification.
10
agree with the Trial Examiner’s finding that Martin ap-
plied for reinstatement at Respondent’s plant in Decem-
ber 1954. Contrary to the Trial Examiner, however, we
find that Martin is eligible for backpay only up to the
beginning of 1959. Martin testified that he began to work
as an apprentice bricklayer for $.75 per hour in August
1954, Four years later he completed his apprenticeship
and became a “full fledged” bricklayer and began to earn
the journeyman rate of $3.00 per hour. He considers him-
self a bricklayer since he has learned the trade, and he
intends to earn his living at that trade. In view of these
facts, we reject the Trial Examiner’s award of backpay
to Martin from 1959, when he completed his apprentice-
ship and achieved journeyman status, through the re
mainder of the backpay period covered by these proceed-
ings. Accordingly, Martin’s net backpay is reduced to
$948.47.
Dorothy B. Rubit
We agree with the Trial Examiner’s finding that
Dorothy B. Rubit was not properly reinstated and is en-
titled to backpay. However, we find merit in that part
of Respondent’s exception which relates to the award of
backpay for the second quarter of 1961. Rubit testified
that she began training as a practical nurse by going to
school from October 1959 until December 1960." Upon
completion of her training, she became a “qualified gradu-
ate practical nurse” and since January 1961 she has been
steadily employed only as a practical nurse, and desires
to continue in that line of work. Under these circum-
stances, we find that Rubit removed herself from the
sewing factory labor market upon the completion of her
training in December 1960.
Accordingly, we shall disallow her claim for backpay
10 At about this same time, which was some 4 months before
the end of the strike, Martin made application at one other sewing
factory for work. Thereafter, apart from his pursuit of the trade
of bricklaying, he made no other search for employment.
11 The General Counsel made no claim for backpay during this
training period.
ELE EI EIN LEE
1l
for the second quarter of 1961. Thus, her net backpay
award is reduced to $3,035.92.
Dorothy P. Rubit
We find merit in Respondent’s exception to the Trial
Examiner’s award of backpay to Dorothy P. Rubit.
Rubit testified at one point that she applied for work at
another sewing factory during the backpay period. How-
ever, at another point she testified that she was not sure
whether she applied at the other plant during or after
the strike. She did not look for other work, except at
Respondent’s plant. We find that her testimony, which
at best is inconsistent, is insufficient to warrant a finding
that she was dilligent in her search for work during the
backpay period. Accordingly, we find that she incurred
a willful loss of earnings and is not entitled to any back-
pay.
Mignonette Thomas
We find merit in Respondent’s exceptions to the Trial
Examiner’s award of backpay to Thomas for the first
two quarters of 1956. We affirm, however, his finding
that Thomas was entitled to backpay from August 5,
1955, to December 31, 1955.
The General Counsel concedes and the record shows
that because of an illness requiring surgery, Thomas was
not available for work and did not look for work during
the entire first quarter of 1956 and up to June 1, 1956,
of the second quarter.
We find therefore that Thomas is not entitled to back-
pay for the first and second quarters of 1956. Accord-
ingly, her backpay is reduced to $608.37.
Herbert Lotten
We find merit, in part, in Respondent’s exceptions to
the Trial Examiner’s finding with respect to Lotten. The
record shows that Lotten secured a job in a cleaning busi-
ness owned by his father-in-law sometime during the
strike and continued at this job throughout the entire
backpay period. In a conversation with Lotten, appar-
ently before the end of the strike, Batiste, a good friend
PLIES ONDE LE LIOE LEDS Ly EE AML ILLIA LEARN GG ILE LONI TE EY IRII RS LC ELIAS AME
12
and his supervisor, asked Lotten if he was interested in
returning to his old job. Lotten refused because he was
satisfied with his job. Shortly thereafter, Lotten became
dissatisfied, because he had a disagreement with his
father-in-law, and asked to be reinstated; and in No-
vember 1955, he filed an application with Respondent but
he was not reinstated. According to Lotten’s own testi-
mony, he informed Batiste, sometime after the end of
the strike, that he had patched things up with his father-
in-law and was not then interested in having his old job
back. Respondent introduced into evidence a memoran-
dum indicating that Lotten had been sent for in June
1957 but he told Batiste that he was not interested,—
that he was working for his father-in-law. In view of
Lotten’s admission that he rejected an offer of reinstate-
ment after the strike was over, a fact which is corrobo-
rated by Respondent’s memorandum, and there being no
other evidence to fix the date of such refusal, we find that
Lotten’s backpay should be terminated in June 1957. Ac-
cordingly, we find that Lotten is entitled to backpay only
for the first, second, and third quarters of 1956 and the
second quarter of 1957 in the total amount of $153.05.
Bessie Montgomery
We agree with the Trial Examiner’s finding that Mont-
gomery willfully incurred a loss of earnings by quitting
a job in the second quarter of 1959, and that this con-
tinued until she renewed her search for work in the sec-
ond quarter of 1960. However, in his conclusion, the
Trial Examiner stated that “no willful loss of earnings
has been proven.” We hereby correct this inadvertent
error.
We agree with the Trial Examiner’s finding that Mont-
gomery is entitled to backpay in the amount of $1,152.82.
Marjorie Walker
We overrule Respondent’s exception to the Trial Exam-
iner’s award of backpay to Walker for the following rea-
sons, The Specification alleged, and Respondent conceded,
that Walker applied for reinstatement on March 22, 1955.
In its amended answer, Respondent contended that it did
_
PY BLe
ee
13
not reinstate Walker because she failed to apply after the
strike, The Trial Examiner found, and we agree, that a
reinstatement application made by an unfair labor prac-
tice striker during the strike creates an obligation upon
Respondent which can be terminated only by an uncon-
ditional offer of reinstatement, The Respondent further
contended, however, that Walker had left its employ prior
to the beginning of the strike. Walker testified that be-
cause she was pregnant, her last employment with Re-
spondent was “approximately 2 or 3 weeks” before the
strike, Prior to her leaving, she discussed the possibility
of returning to work after her baby was born with the
lady who “was over” her. Her baby was born in May
1954, About 6 weeks after her baby was born, she went
on picket duty with the Union, outside of Respondent’s
plant. The record shows a general pattern among the
female employees of leaving Respondent’s employ because
of pregnancy, illness, etc., and later returning to work.
It is therefore clear, under the circumstances, that Walk-
er remained an employee of the Respondent and is en-
titled to backpay in this proceeding. Moreover, Respond-
ent’s contention, raised for the first time in its exceptions
to the Trial Examiner’s Supplemental Decision, that
Walker was not working for Respondent at the time of
the strike is without merit as it was not alleged in Re-
spondent’s amended answer as a defense. Accordingly,
we find that Walker was an employee of the Respondent
who became a striker and is entitied to reinstatement.
She is entitled to backpay in the amount of $2,639.56 as
found by the Trial Examiner,
Bessie Brown (Harris)
We agree with the Trial Examiner’s finding that Brown
is entitled to backpay. We find merit, however, in the
General Counsel’s exception to the Trial Examiner’s fail-
ure to award backpay to Brown for the third quarter of
1955 after finding that her backpay period ended on J uly
18, 1955. The General Counsel alleges that Brown is
entitled to an additional sum in the amount of $58.56,
for the period from July 1 to July 18, 1955. This ap-
pears to be an inadvertent error by the Trial Examiner
—_— i aah Shing: Ea ee : COM PE ITIL LG ED L AE OTOL COT BET TEI ELS D6 LPOG
14
and accordingly Brown’s backpay is increased by that
amount. We find that the total backpay due her is
$124.88.
Marguerite Head
Audrey Zeno
We find merit in the General Counsel’s exceptions to
the Trial Examiner’s refusal to allow amendments to the
Specification to extend the backpay period for Head and
Zeno. The Specification alleged that Head was offered
reinstatement on May 15, 1955, and that Zeno was of-
fered reinstatement on June 9, 1955. In its amended
answer, Respondent admitted that reinstatement was of-
fered on July 18, 1955, and July 12, 1955, to Head and
Zeno, respectively. The cases of these two claimants are
distinguishable from other cases discussed by the Trial
Examiner in his Supplemental Decision wherein he re-
fused to allow either party to amend, because, unlike
other motions to amend the Specification, the present mo-
tion is based upon the written admission of the Respond-
ent. We shall therefore amend their schedule to reflect
the total backpay due for the period from April 14, 1955,
to July 18, 1955, for Head and from April 14, 1955, to
July 12, 1955, for Zeno, in the following tables,
Marquerite Head’s Backpay
Gross Interim Net
Year—Period Quarter Backpay™ Earnings Backpay
1955—4/14/55 - 6/30/55 II $312.47 0 $312.47
1955 Bonus II 23.61 23.61
1955—7/1/55 - 7/18/55 Ill 66.99 0 66.99
Total 1955 $403.07
Audrey Zeno’s Backpay
1955—4/14/55 - 6/30/55 Il $312.47 $58.86 $253.61
1955—Bonus II 23.61 23.61
1955—7/1/55 - 7/12/55 III 42.55 84.86 7.69
Total 1955 $284.91
12 The 6 percent adjustment computed by the Trial Examiner
is included in our computation of gross backpay.
ELI EME LESS OL AO BAINERILLIOR EAS CBELELS. LLGEE IG ELI NEG DITL AE LIL OENB ISTE A PATE OEE
- ,
Accordingly, we find that Head and Zeno are entitled
to $403.07 and $284.91, respectively.
Genevieve Green (Hilliard)
We find merit in the General Counsel’s exception to
the Trial Examiner’s failure to award backpay to Green
for the fourth quarter of 1955. The Trial Examiner
found, and we agree, that Green made application and
was refused reinstatement on November 9, 1955, and
that her backpay period began on November 17, 1955.
The Trial Examiner also found that Green searched un-
successfully for work during the remainder of this quar-
ter but he failed to include this period in computing net
backpay. Accordingly, we shall amend her schedule to
include backpay for the fourth quarter of 1955,
The Specification indicates that if Green was rein-
stated and had continued to work for the remainder of
the quarter, her earnings would have been according to
the following computation:
Genevieve Green's (Hilliard) Backpay
Gross Interim Net
Year—Period Quarter Backpay’* Earnings Backpay
1955—11/17/55-12/31/55 IV $192.03 0 $192.03
Accordingly, we find that Green is entitled to an addi-
tional $192.03, which, added to the $79.25 for the second
quarter of 1956, amounts to $271.28 in backpay.
Marietta Newman
We find merit in the General Counsel’s exception to
the Trial Examiner’s failure to award backpay to New-
man from July 1, 1957, to July 20, 1957. The Trial Ex-
aminer found, and we agree, that Newman was employed
as a nurse from October 1955 until July 20, 1957. Dur-
ing this period, she worked 3 days per week at $6.00 a
18 The 6 percent adjustment recommended by the Tria] Examiner
is included in our recomputation of gross backpay.
16
day. The Specification indicates that had she worked for
Respondent during this 3-week period in July 1957, she
would have earned $101.70. Her interim earnings of
$54.00 deducted from what she would have earned if re-
instated by the Respondent entitled her to an additional
amount of $47.70 in backpay. Accordingly, we find that
Newman is entitled to $1,614.00 in backpay.
LE as ee gins nity v Sig te a
BF ude’
; Eunice Johnson
We find merit in the Union’s exception to the Trial
Examiner’s failure to award backpay to Johnson for the
; first quarter of 1960. We do, however, concur in the
Trial Examiner’s remaining findings with respect to John-
son.
In his brief to the Trial Examiner, the General Coun-
sel requested that backpay be eliminated for a “period
when |Johnson] was unable to work because of her moth-
er’s illness.” The Trial Examiner interpreted this as a
request to eliminate backpay for the entire first quarter
of 1960. The record shows, however, that Johnson worked
for one employer for the first 2 months of this quarter
before quitting because of illness in her family. How-
ever, the record further shows that Johnson was only
idle for one week during this quarter before starting to
work for another employer, where she remained employed
until some time in the second quarter. The Social Se-
curity records indicate that for the first quarter of 1960
she had interim earning in the amount of $172.81 while
working for both employers.
We note that several other claimants in the same cate-
gory as Johnson would have earned $470.56, including
the 6 percent adjustment, during this quarter if they had
been reinstated by Respondent (see numbers 101, 102,
116, and 149 in the Appendix to the Trial Examiner’s
Supplemental Decision). However, we find also that
Johnson incurred a willful loss of earnings for 1 week
by quitting one job during the quarter before being re
employed at another job for the remainder of the quar-
ter. The Specification indicates that had she worked for
Respondent during that week, she would have earned a
(Fl BE SELEY MODAL Cha Saar tet AB8)
WB te Secs ee set Dons
BLEAELOES
17
total of $30.47, including the 6 percent adjustment com-
puted by the Trial Examiner. Thus, we shall deduct that
amount from the $470.65, leaving $440.09. Since we have
found that her interim earnings amounted to $171.81,
her net backpay for this period is $440.09 less $172.81,
or $267.28. Accordingly, we shall add this amount to the
$5,386.11, found by the Trial Examiner, making the total
amount of backpay due $5,653.39.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, J. H. Rutter-
Rex Manufacturing Company, Inc., its officers, agents,
successors, and assigns, shall pay to the employees in-
volved in this proceeding as net backpay the amounts,
including interest from the date of the Trial Examiner’s
Supplemental Decision, but minus the tax withholding
required by Federal and State laws, set forth opposite
their names in the Appendix to the Trial Examiner’s
Supplemental Decision, except for the individuals named
below who shall be paid the following amounts, set oppo-
site their names.
Rose Marie Hicks $3,519.31 Bessie Brown (Harris)$ 124.80
Noel Martin $ 948.47 Marguerite Head $ 403.07
Dorothy B. Rubit $3,035.92 Audrey Zeno $ 284.91
a Genevieve Green
Dorothy P. Rubit None (Hilliard) $ 271.28
Mignonette Thomas $ 608.37 Marietta Newman $1,614.00
Herbert Lotten $ 153.05 Eunice Johnson $5,653.39
With respect to those employees whose backpay was
still accruing, as found by the Trial Examiner in his
Supplemental Decision, payment to them of the net amount
found to be due and accruing constitutes satisfaction of
Respondent’s obligation only up to June 24, 1961, which
is the end of the period covered by the Specification,
*
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2
Basin: Re Tee Ly RE EO
18
Dated, Washington, D. C. June 6, 1966
FRANK W. MCCULLOCH, Chairman
JOHN H. FANNING, Member
HOWARD JENKINS, JR., Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
PRELIMINARY INTERMEDIATE REPORT
AND ORDER IN BACKPAY PROCEEDING
(Title omitted—Nos. 15-CA-721 & 15-CA-723)
Before: Owsley Vose, Tria] Examiner.
Statement of the Proceedings
The National Labor Relations Board on February 13,
1956, issued its Decision and Order directing, inter-alia,
the Respondent, J. H. Rutter-Rex Manufacturing Com-
pany, Inc., upon application, to offer immediate and full
reinstatement to their former or substantially equivalent
positions to all those employees who went out on strike
on April 21, 1954, or thereafter, without prejudice to
their seniority or other rights and privileges, dismissing
if necessary all persons hired on or after that date, and
to make such applicants whole for any loss of pay suf-
fered during the period from 5 days after the date of
their applications for reinstatement, to the date of the
Respondent’s offer of reinstatement. The United States
Court of Appeals for the Fifth Circuit rendered its opin-
ion enforcing the Board’s Order on June 10, 1957 (245
F. 2d 594), and on August 19, 1957, entered its Decree
in conformity therewith.
19
Thereafter, on November 16, 1961, the Board, by its
Regional Director at New Orleans, issued a Backpay Spe-
cification setting forth the specific amounts of gross and
net backpay due each of 207 striking employees who al-
legedly had applied for reinstatement and notifying the
Respondent that a hearing was scheduled to be held on
January 29, 1962, and further notifying the Respondent
of its right to file an answer to the Specification within
15 days pursuant to Section 102.54 of the Board’s Rules
and Regulations.
After obtaining an extension of time for filing its an-
swer until January 4, 1962, the Respondent, on December
30, 1961, filed an ex parte application with the Court of
Appeals for the Fifth Circuit to enjoin the Board from
conducting this backpay proceeding because of its delays
in the matter. The Court, after issuing an order tempo-
rarily staying the proceedings, on July 19, 1962, issued
its opinion declining permanently to stay these proceed-
ings. On August 28, 1862, the Court, in conformity with
its opinion, issues its decree dissolving the temporary
stay of the proceedings previously issued by it and deny-
ing Respondent’s motion for a permanent stay.
Thereafter, on September 4, 1962, the Respondent filed
an answer to the Backpay Specification. On September
20, 1962, the Regional Director issued an order resched-
uling the hearing for November 13, 1962. On October 3,
1962, counsel for the General Counsel filed with the Re
gional Director a Motion to Strike the Respondent’s An-
swer to Backpay Specification and for Judgment on the
Pleadings. The aforesaid Motion was referred to the un-
dersigned Trial Examiner for ruling. After considering
the aforesaid Motion, the General Counsel’s Argument in
support thereof dated October 29, 1962, and the Respond-
ent’s Opposition thereto dated October 30, 1962, the Un-
dersigned Trial Examiner on November 5, 1962, issued
his opinion and order granting the General Counsel’s
Motion to Strike the Respondent’s answer in substantial
part, with leave to the Respondent to file an amended
answer at a date later to be set by the Trial Examiner,
and notifying the parties that the hearing scheduled for
November 13, 1962, would be confined to the issue of the
a
method of computation to be used in computing the
amount, if any, of backpay due in this case, and related
preliminary issues of law and fact.
The proceeding was heard in New Orleans on Novem-
ber 13-16, 1962. Evidence was received from all parties
on the issue of the method of computation to be used in
this case. At the hearing the parties were invited to sub-
mit suggestions as to the appropriate procedure to be
followed thereafter in the case in resolving the extremely
numerous factual issues involved herein. After the hear-
ing, which was participated in by all parties, the Respond-
ent on December 10, 1962, filed a memorandum in which
it opposed the method of computation adopted in the
Backpay Specification, The General Counsel filed a memo-
randum supporting the Specification on December 21,
1962, and the Amalgamated Clothing Workers of Amer-
ica, AFL-CIO, filed a memorandum on December 26, 1962.
20
I. The questions involved
The first question to be decided in this proceeding is
whether the Respondent has any obligation to reinstate
the striking employees here involved, all of them allegedly
having applied for reinstatement before the entry of the
Board’s Order herein, and none of them, so far as the
record shows, having reapplied thereafter. The Respond-
ent, asserting that the Board’s Order is wholly prospec-
tive in operation, contends that this question should be
answered in the negative.
The second question, assuming that the answer to the
first question is in the affirmative, concerns the reason-
ableness of the method of computation used in the Back-
pay Specification. It is settled that in making backpay
determinations, the Board may adopt formulas reason-
ably designed to produce an approximation of the amount
of backpay due and that such formulas should be upheld
3 unless arbitrary or unreasonable in the circumstances
F, involved. W. C. Nabors Co., 134 NLRB 1078, 1084-1085;
N.L.R.B. v. Ozark Hardwood Co., 282 F. 2d 1, 7 (C.A.
8); N.L.R.B. v. Brown & Root, Inc., 52 LRRM 2115,
2117-2118, decided January 4, 1963 (C.A. 8); N.L.R.B.
Bw
21
v. East Texas Steel Castings Co., 255 F. 2d 284 (C.A. 5).
The Respondent, while not challenging the use of a rea-
sonable formula, contends that the method contained in
the Specification is unreasonable.
The Specification, in broad terms, adopts the average
biweekly earnings of control groups of employees, selected
primarily because they worked most of the time during
the backpay period, as giving the measure of what the
employees in the various classifications would have earned
during each biweekly period in the backpay period. The
Respondent does not object to the use of the average
earnings of a control group of employees to provide the
measure of the backpay due the striking employees here
involved. As discussed more fully below, what the Re
spondent objects to is that the earnings of additional
short-term employees were not taken into consideration
in computing the average, and that the average is com-
puted in a biweekly rather than an annual or a quarterly
basis. The Respondent contends that the method of se-
lecting the control groups used in the Specification re-
sulted for the most part in the inclusion of only its better
operators which has the effect of raising the average
earnings. The Respondent asserts further that the bi-
weekly method fails to reflect the extent that the average
employee’s annual earnings were reduced by absences of
2 weeks or more and thus overstates what the employees
here involved actually would have earned in the Respond-
ent’s employ during the backpay period. The Respondent
suggests as an alternative to the biweekly method of ob-
taining the averages that earnings be averaged on an
annual basis or at least on a quarterly basis.
II. The Respondent’s obligation te reinstate the strik-
ing employees with backpay
As indicated above, the Respondent contends that it is
under to duty to reinstate any of the employees here
involved for the reason that none of them was refused
reinstatement after the entry of the Board’s Order here-
in, which the Respondent asserts is wholly prospective in
operation. As to some of the employees (an unspecified
number), the Respondent asserts that it has additional
22
grounds for claiming that it is not in disobedience of the
reinstatement and backpay provisions of the Board’s Or-
der, such as that they failed to make bona fide applica-
tions for reinstatement of that they were in fact rein-
stated within a reasonable time after jobs became avail-
able. The Respondent asserts that if its contentions that
none of the employees here involved is entitled to rein-
statement are sustained, this will obviate the need for
any further hearing to inquire into the specific amounts
of backpay due individual employees. Accordingly, the
Respondent requests that a further preliminary hearing
be held on the question of the employees’ entitlement to
reinstatement.
The principal ground upon which the Respondent relies
in support of its contention that it has fully satisfied its
reinstatement and backpay obligation under the Board’s
Order is that the reinstatement and backpay provisions
of the Board’s Order are prospective in operation only,
and that no finding of a violation of the Board’s Order
can be based upon “applications for reinstatement, which
precede the order itself.”* In other words, the Respond-
ent is contending that any application for reinstatement
made prior to the entry of the Board’s on February 13,
1956, was premature and did not create any liability on
its part to reinstate such an applicant. Since the Specifi-
cation alleges that each of the employees here involved
made application for reinstatement prior to February 13,
1956, this contention, if sustained, would eliminate all
backpay in this case.
I find no merit in this contention. It ignores the funda-
mental and long settled legal proposition that the Board,
in the exercise of its power to remedy unfair labor prac-
tices, may require the discharge of employees hired to
replace unfair labor practice strikers where necessary to
make room for the strikers who apply for reinstatement.
The Board in one of its early decisions involving, as here,
a strike caused by a refusal to bargain, stated that it
was providing for this remedy “In order to restore the
1 This is a quotation from p. 20 of the Respondent’s memorandum
to the Trial Examiner.
28
status ¢:> as it existed prior to the time the Respondent
committed the unfair labor practices and in order to en-
able the processes of collective bargaining to function.”
Black Diamond Steamship Corp., 3 NLRB 84, 93. The
Court of Appeals for the Second Circuit affirmed, stating
that “From the date of the Respondent’s first unfair
labor practice, its ordinary right to select its employees
became vulnerable. Accordingly, it was proper for the
Board to order it to discharge all engineers hired for the
first time since December 14, 1936 [the date of the first
refusal to bargain]” Black Diamond Steamship Corp. v.
N.L.R.B., 94 F. 2d 875, 879, certiorari denied, 304 U.S.
579. ;
This decision makes it clear that the duty to reinstate,
which flows from the Board’s determination that the re-
instatement of unfair labor practice strikers, upon appli-
cation, is an appropriate means of remedying the unfair
labor practice causing the strike, comes into being when
the unfair labor practice is committed and continues until
the unfair labor practice is remedied. Indeed, only by
requiring the reinstatement of unfair labor practice
strikers upon their giving up the strike and seeking to go
back to work can the Board accomplish its objective in
such situations of “restor[{ing] the status quo” and
“enabl[ing] the process of collective bargaining to func-
tion.”
Since the time of the Black Diamond decision the Board
and the courts have uniformly upheld the right of unfair
labor practice strikers to reinstatement, upon application,
whether they apply before the entry of the Board’s Order
or not. See Mastro Plastics Corp. v. N.L.R.B., 350 U.S.
270, 278 and cases cited in footnote 9 thereof. The deci-
sion of the Court of Appeals in the instant case when it
was before the court upon the Board’s petition for en-
forcement of its order gave full recognition to this basic
proposition when it stated (245 F. 2d 594), that “the
employer is compelled under the Act, to reinstate strikers
upon application even though it means discharging re-
placements hired during the strike.” It would appear
that an employer would not be under a duty to discharge
replacements unless the unfair labor practice strikers had
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24
a right to reinstatement at the time the replacements
were hired. This duty, as stated above, flows from the
employer’s duty to remedy the unfair labor practice caus-
ing the strike, and does not come into being upon the
issuance of the Board’s Order of reinstatement, as the
Respondent argues.
The Respondent asserts that all the cases of which it
is aware dealing with the reinstatement of unfair labor
practice strikers involved allegations and findings of vio-
lations of Section 8(a) (3), and suggests that a different
rule should apply in this case which involves reinstate-
ment and backpay provisions which were ordered to rem-
edy a refusal to bargain in violation of Section 8(a) (5).
The Respondent’s distinction, in my opinion, is without
merit. The underlying right to reinstatement of the
strikers involved in all those cases stemmed from the fact
that the Board has determined that the appropriate rem-
edy in situations involving strikes caused by unfair labor
practices is to require the reinstatement of the strikers,
upon application. In none of the cases to which the Re-
spondent refers were the Section 8(a) (3) violations es-
tablished in the manner in which such allegations nor-
mally are, i.e., by proving the antiunion motivation behind
each refusal to reinstate. Rather, the only questions liti-
gated were whether the strike was an unfair labor prac-
tice strike and whether the strikers had applied for, and
had been denied, reinstatement. Thus, the reinstatement
with backpay of the strikers involved in those cases were
attributable not to the fact that they had been denied
reinstatement for antiunion reasons, in violation of Sec-
tion 8(a) (3), but to the circumstance that they had been
forced out on strike by unfair labor practices and that
their reinstatement was essential to remedy these unfair
labor practices.* The fact that a violation of Section 8(a)
* For a Board decision which makes it clear in a Section 8(a) (5)
strike situation that the obligation to reinstate the strikers upon
application antedates the entry of the Board’s Order, see Washing-
ton Coca-Cola Bottling Works, 122 NLRB 7, 8-9. See also DuBois
Chemicals, Inc., 140 NLRB No. 29, decided December 13, 1962.
*I have considered Republic Steel Corp. v. N.L.R.B., 114 F. 2d
820, 821 (C.A. 3) and N.L.R.B. v. Express Publishing Co., 312 US.
25
(3) of the Act was found in these cases does not affect
the applicability of this basic principle to this case. Such
a finding was made in those cases only because the appli-
cations for reinstatement had been made prior to the
hearing and the Board had an opportunity to pass upon
the propriety of the applications. The Respondent will
have an opportunity to present its remaining contentions
concerning the validity of the employees’ applications at
the forthcoming hearing in this case. For the foregoing
reasons I conclude that the absence of Section 8(a) (3)
allegations in this case is immaterial and that the Re-
spondent’s contention that the Board’s Order operates
prospectively, only, must be rejected. The Respondent’s
request for a further preliminary hearing in this case is
therefore denied.
III. The reasonableness of the Board’s method of com-
putation
A. Introductory statement
The Backpay Specification states for each employee the
various items involved in computing the net backpay due
him, The principal item is gross backpay which is the
term used to refer to the sum of money which an em-
ployee would normally have earned had he been on the
Respondent’s payroll during the backpay period. The
backpay period is the period commencing 5 days after
the employee made an unconditional application for rein-
statement and continuing until the employee was offered
reinstatement. The Specification alleges the dates on
which each of the 207 employees here involved made an
application for reinstatement. As of July 8, 1961, the
end of the period covered by the Specification, about 137
employees had been reinstated by the Respondent, and
the rest had not. In this case gross backpay for each
employee includes not only the sum of the average bi-
weekly wage in the appropriate job classification for each
biweekly period in the entire backpay period, determined
426, upon which the Respondent also relies, and concludes that
neither of these decisions calls for a contrary result in this case.
:
}
a”
|
as described below, but also, where applicable, such addi-
tional sums as an employee would have received under
the Respondent’s vacation bonus plan. Since the Respond-
ent does not contest the method utilized by the Board
to determine such bonus payments, this aspect of the
computation will not be discussed further in this report.
Other items covered in the Specification are the em-
ployees’ interim earnings from other employers or from
self-employment during the backpay period and their un-
usual expenses incurred in obtaining and holding such
interim employment. As set forth in the Specification,
interim earnings minus the unusual expenses incurred in
obtaining and holding such employment constitute net
interim earnings,
It should be noted that although the Specification con-
tains figures as to the interim earnings of the employees
here involved, the Respondent has the burden of proof
with respect to interim earnings or any other items which
go to mitigation of the amount of backpay due. The
Board includes allegations concerning interim earnings in
Backpay Specifications as a public service because of its
belief that it is better equipped to ascertain such matters
than the average employer or other person charged with
unfair labor practices, But the Board, by including such
allegations as to interim earnings in the Specification,
does not assume any responsibility for establishing the
fact that the employees had such earnings, It merely
sets forth the results of its investigation of such matters
for the benefit of the employer, and admits that the gross
backpay due each employee may be reduced by the amount
of the net interim earnings set forth for each employee
in the Specification. See N.L.R.B. v. Brown & Root, Inc.,
52 LRRM 2115, 2120, decided January 4, 1963 (C.A, 8).
B. The Board’s method of computation *
Explanation of the method of computation adopted in
the Specification is necessarily somewhat complicated, It
* For convenience, the method of computing backpay incorporated
in the Specification is referred as the Board’s method of computa-
tion, although, in accordance with the usual procedure, the Specifica-
27
perhaps may best be understood if set out on a step-by-
step basis. The first step taken was to divide the em-
ployees into five categories according to the operations
performed by them immediately before the strike. The
first four categories consist solely of male employees who
are divided into separate groups according to their re-
spective operations, as follows: (1) cutters, spreaders and
clicking machine operators, (2) porters, (3) utility em-
ployees, and (4) truckdrivers, and warehouse utility em-
ployees. The fifth category of employees consists of fe-
male production employees which include the great bulk
of the Respondent’s employees. These are mainly sewing
machine operators, pressers, etc. In the Specification, the
same method of computation of the gross backpay was
used for the seven employees in the first four groups. A
slightly different method was used to compute the gross
backpay of the employees in the fifth group.
As to the seven employees in the first four groups, the
Board ascertained from the Respondent’s records the
average biweekly earnings of a control group of employ-
ees who were employed during the backpay period for
6 months or longer in each of the four operations or clas-
sifications involved. The :esulting average biweekly earn-
ings figure was taken as the measure of what the em-
ployees in each of these four classifications would have
earned during each biweekly period in the backpay period.
As to the employees in Group 5, the female operators,
the Specification adopted the average biweekly earnings
of another control group of employees as giving the meas-
ure of what these employees would have earned during
the same biweekly periods. The control group for this
group consisted both of older employees who worked for
the Respondent, before, during, and after the ctrike (al-
though not necessarily without interruption), called the
incumbent group, and a second group consisting of em-
ployees who for the most part had not been on the Re-
spondent’s payroll before, called the replacement group.
Included in the incumbent group were all employees who
tion was prepared by employees under the supervision of the General
Counsel in the New Orleans Office of the Board.
28
were employed by the Respondent during the first quarter
of 1954 (before the strike), the third quarter of 1954
(during the strike), and the first quarter of 1961 (long
after the strike). Included in the replacement group were
all those hired by the Respondent between the time the
strike began (April 21, 1954) and the end of 1955 and
who were also working for the Respondent in the first
quarter of 1961. The total control group which was used
to ascertain the measure of backpay of the employees in
Group 5 consisted of 95 incumbents and 64 replacements.
The Specification sets forth the wages received by each
of the 159 employees in the control group during each
of the biweekly pay periods in the backpay period. If
any of these 159 employees did not work at all during a
biweekly period they were excluded in determining the
average weekly wage in that period. However, if any
one of the 159 employees worked as much as an hour
within the 2-week period, their wages were included in
computing the average biweekly wage for that period.
The total gross backpay for each of the employees in
Group 5, as stated in the Specification, was the arith-
metical total of the average biweekly wages for each bi-
weekly period in the backpay period.
C. The Respondent’s objections to the Board’s method
of computation ; its alternate proposals; conclusions
The Respondent raises various objections to the Board’s
method of computation, some of which are common to
the employees in all five groups. The Respondent makes
other objections which are applicable only to specific
groups. Since Group 5 (the female operators) contains
all but seven of the employees with whom we are here
concerned, these objections, together with the objections
which are common to all groups, will be considered first.
1. The Group 5 employees
As noted above, the Respondent contends that the
Board’s method of selecting the control group of employ-
ees to furnish the measure of what the Group 5 employ-
ees would have earned resulted in including only the most
al iz
experienced and productive operators, and therefore the
operators with the best earnings. As stated above, the
Board included among the incumbents only those who
were on the Respondent’s payrolls during the first and
third quar‘ers of 1954 and the first quarter of 1961. The
replacement portion of the control group included those
who were hired between April 21, 1954, and December
31, 1955, and who were also on the payroll during the
first quarter of 1961. While this method of selection re-
sulted in long-term employees largely used to give the
measure of gross backpay of the employees here involved,
such a method was dictated by the law of the case. The
Board, with court approval, has held that the striking
employees are entitled to backpay commencing within 5
days after any refusal of their unconditional application
for reinstatement and ending when they are offered re-
instatement. According to the allegations of the Specifi-
cation, the applications of some 70 of the employees here
involved have never been granted. Under the law, it is
presumed as to all employees whose applications for re-
instatement were turned down that they would have re-
mained on the payroll for the entire backpay period since
it was the Respondent’s failure to remedy the unfair labor
practices causing the strike which made it impossible to
determine how long these employees would have remained
on the Respondent’s payroll. To furnish the fair measure
of the earnings such employees would have had during
the long backpay period it was therefore necessary to take
the earnings of long-term employees into consideration.
Recognizing that among the employees here involved
were a comparative few, about 20, who were learnes and
who only had a short period of employment with the Re-
spondent before the strike, the Board included among the
control group for the operators, the replacements—em-
ployees who, generally speaking, were new to the Re-
spondent’s employ—and whose earnings could be expected
to lower the average of the entire control group. That
this is in fact true is demonstrated by General Counsel’s
Exhibit 2 which is a graphic presentation of what the
figures in the Specification show with respect to the aver-
age quarterly earnings of all the replacement and incum-
29
oe oe eaacmnesien ee:
eet Pg en Q
Siti See Sista RB
=
30
bent employees. This exhibit shows that the replacements
consistently earned less than the incumbents throughout
the backpay period, but that the gap in their earnings,
which amounted to almost $100 per quarter at the start
of the backpay period, steadily narrowed during the back-
pay period until at the end of the backpay period, the
gap was between $20 and $25.
It is true, as the Respondent points out, that some of
the operators included among the replacements were ex-
perienced employees who were not on the prestrike payroll
and who were rehired during the strike. However, as
Compliance Officer Jones credibly testified, his examina-
tion of the Respondent’s records showed that there were
many more learners among the replacement group than
there were among the striking employees here involved.
In my opinion, the Specification adequately takes into
account the fact that a small number of the employees
here involved were relatively new employees at the time
of the strike.
The Respondent’s other principal objection to the
Board’s method of computation for the Group 5 operators
is to the averaging of earnings on a biweekly basis. The
Respondent asserts that this method of averaging earn-
ings fails to reflect the extent to which a typical employ-
ee’s annual earnings are reduced by absences of more
than 2 weeks at a time. The Board’s method takes into
account absences of up to 2 weeks, for an employee is
counted in computing the average if he had any earnings
at all in a 2-week period. The low biweekly earnings set
forth in the Specification for many employees, including
one as low as 73 cents, shows that the Board’s method
fully takes into consideration absences of up to 2 weeks.
, With regard to absences of 2 weeks or longer, Eugene
J. Rutter, the president of the Respondent, testified that
it would be the exceptional case where an employee worked
for 5 or 6 years without interruptions, He testified fur-
ther that it was common for the employment of the oper-
ators to be interrupted because of pregnancy, operations,
illness, either their own or that of someone in their fam-
ily, or because of business problems, such as leaving town
to settle an estate, Examination of Appendix E-1 of the
31
Specification which sets forth the earnings of the incum-
bents and replacements in each of the biweekly periods
in the backpay period shows sufficient blanks for 1 or
more biweekly periods (a blank reflects no earnings and
therefore an absence) to confirm President Rutter’s tes-
timony that such absences are not uncommon.
The Genera] Counsel points out that in Part III of the
Specification dealing with net backpay, allowance has
been made for absences longer than 2 weeks by excepting
from the period for which backpay is claimed various
periods of time during which the employee was unavail-
able for employment for various reasons, such as “at-
tending school,” “pregnant,” “illness,: and “vacation.”
Part III shows numerous excepted periods for reasons of
pregnancy and illness. The General Counsel urges that
these excepted periods adequately compensate for the fail-
ure of the biweekly method to take into consideration ab-
sences of more than 2 weeks at a time. This contention
will be disposed of later, after the discussion of the Re
spondent’s proposals as to a fair method of computing
backpay in this case.
As an alternative to the biweekly method of computa-
tion adopted in the Specification, the Respondent in its
memorandum proposes first that the earnings of all em-
ployees who worked for it any time during a year in the
classifications included in Groups 1-5 should be averaged
by classifications on an annual basis. The resulting figure
for any given year would be taken as representing what
the employees here involved in that particular classifica-
tion would have earned during that year’s portion of the
backpay period. Alternatively, the Respondent proposes
that the earnings of all the employees in the particular
classification involved be averaged on a quarterly basis.
The Respondent shows that checks of its record disclose
considerable disparity between the figures reached using
the Board’s method of computation and those veached
under its annual or quarterly methods of computation.
One check made for the year 1956, revealed annual aver-
age earnings of $1,491.47 as compared with $1,788.36
under the Board’s biweekly basis, including sums for
the vacation bonus, The Respondent checked the average
warn ie ain Bas
Sead
32
earnings of all its operators by quarters and found with
respect to the 3rd quarter of 1955, an average of $340.31
as compared with the figure of $410 which was reached
by the Board using its biweekly method of computation.
For the 3rd quarter of 1957, the Respondent’s figure
reached by averaging the quarterly earnings of all the
employees who did any work during the quarter was
$391.63. The Board’s comparable figure was $449.21.
It thus appears that there is a considerable difference
in the results between the figures reached using the
Board’s biweekly method and the figures obtained by
using the Respondent’s annual or quarterly methods. How-
ever, in view of the facts set forth below I do not believe
that either of the Respondent’s proposed methods give
the fair measure of the gross backpay due the employees
here involved. As President Rutter testified, because of
“turnover, discharges, quits, leaves of absence” it is nec-
essary for the Respondent regularly to hire new employ-
ees and rehire former employees. Otherwise according to
Rutter, “your factory will dwindle; you just won’t make
the »roduction you are supposed to make for the number
of machines you have.” To solve this problem, the Re-
spondent operates a training program continuously, and
all employees hired, except those having previous experi-
ence in its factory, are put through this training pro-
gram. In the training period, the Respondent culls out
a number of newly hired employees who are unable to
make satisfactory progress in the training program. Un-
der the Respondent’s proposed annual method of compu-
tation the annual earnings of these culled out employees,
and also of those who quit the Respondent’s employ after
working only a short time, are included in computing the
annual average earnings. In addition, although the Re-
spondent because of turnover may have to hire as many
as three or even more employees in the course of a year
to keep one sewing machine regularly in operation, the
part-year earnings of all three employees are included as
full year earnings of each employee under the Respond-
ent’s proposed annual average formula.
Since the problem in this proceeding is to ascertain
the measure of earnings of employees who presumably
33
worked as steadily as the Respondent’s regular employees
customarily worked during the various years of the back-
pay period, there is no reason whatever to take into con-
sideration the part-year earnings of the numerous em-
ployees who are culled out or quit during the training
period or who quit for any other reason during the year.
Nor is there logical basis to include in computing the an-
nual average the part-year earnings of all those hired to
replace the employees who are discharged or quit during
the year, The inclusion in the average of the part-year
earnings of all those hired to replace the employees who
are discharged or quit during the year. The inclusion in
the average of the part-year earnings of all such employ-
ees, some of whom worked only a few weeks during the
year, greatly reduces the annual average, and the result
is not at all representative of what the employees here
involved would have earned each year during the backpay
period. For these reasons I conclude that the annual
basis of computation proposed by the Respondent does not
give a fair measure of what the employees here involved
would have earned during the backpay period. Accord-
ingly, this proposal is rejected.
The Respondent’s proposed quarterly earnings method
of computation is subject to the same defects as its an-
nual earnings proposal except to a much lesser degree.
However, in my opinion, these defects result in a suffi-
ciently serious understatement of the earnings of the
employees here involved to preclude the acceptance of this
method of computation. As indicated above, it is not an
infrequent occurrence for employees to leave the Respond-
ent’s employ after working a week or two. As President
Rutter testified, in a plant the size of Respondent’s it is
impossible to hire a sufficient number of experienced em-
ployees to make up for normal turnover. Consequently, it
regularly has to hire persons without experience who may
or may not develop into experienced operators in its
training program. The inclusion in the quarterly average
of the earnings of employees who are culled out or quit
after working but a week or two in a quarter is bound
to pull down the average to an extent where it cannot
be said to be fairly representative of the earnings of a
Voce Sa ala ad er ashe cat “|
DINMONT BAT Bie eae
Baw pas sacha di tS te a
os
x
é
,
&
group who are presumed to work throughout the quarter.
For this reason, I am impelled to reject the Respondent’s
quarterly earnings proposal.
However, I am not satisfied that the Board’s biweekly
method of computation, although it reflects absences of
less than 2 weeks and also longer absences because of
pregnancy etc., fully takes into consideration all of the
absences that a typical employee has during a normal
year. The Respondent points out in its memorandum, and
the General Counsel does not challenge this assertion,
that 80 percent of the 159 of the incumbent and replace-
ment employees used as the control group for the oper-
ators in Group 5 earned less in the backpay period than
the sum which is the total of the biweekly figures for
each of the 2-week periods covered in the Specification.
Since the Specification itself shows that absences of 3 or
4 weeks are not uncommon,’ it appears that the failure
of the earnings of this high percentage of the employees
in the control group for the operators to comeup to the
total indicated in the Specification may be due to the
failure of the biweekly formula used by the Board fully
to reflect the normal incidence of absences longer than
2 weeks.
While the General Counsel in the course of his investi-
gation has endeavored to uncover all periods of unavail-
ability for employment for all of the employees here in-
volved, where the investigation is carried on 5 or 6 years
after the event, employees are very likely to be unable
to recall all of the periods during which they were un-
available for employment. No excepted periods of em-
* While the Specification also shows that certain employees did not
appear on the payroll for periods ranging from 2 weeks to well
over a year, on the present record I cannot assume as to employees
who did not appear on the payroll for periods longer than 3 months
that they were on a leave of absence. It is more likely that the
failure of such employees to appear on the payroll was the result of
their quitting the Respondent’s employ, and that their reappearance
on the payroll was due to the Respondent’s rehiring of them. The
3 months; dividing line is based upon my conclusion that 3 months
is the maximum period that employees of the economic level of
the Respondent’s operators are likely to take off from work due to
pregnancy.
35
ployment appear in the Specification for slightly over
half of the employees who allegedly have never been of-
fered reinstatement. The further fact that, with a very
few exceptions, pregnancies and illness were the only rea-
sons given in the Specification for excepted periods of
employment also tends to confirm my conclusion that the
General Counsel, despite his best efforts, probably has
been unable to uncover all of the periods of unavailability
which should have been excepted.
Another factor which causes me to question whether
the Board’s biweekly formula fully takes into account ab-
sences of more than 2 weeks is the testimony of Compli-
ance Officer Jones concerning the results of a comparison
which he made for the last two quarters of 1955 between
the average actual quarterly earnings of strikers after
they had returned to work and the figure given in the
Specification as the measure of backpay for strikers dur-
ing these periods. The comparison was made for the
operators in Group 5 only, and for the purpose of making
the comparison the General Counsel included the earnings
of the employees who worked throughout the respective
quarters. These comparisons showed that for the 3rd
quarter of 1955 the average earnings of 48 returned strik-
ers was $375.68. The comparable figure given in the
Specification for the gross backpay during that quarter
was $410. Thus it appears that the figure for the gross
backpay given in the Specification overstates the actual
earnings of the 48 returned strikers who worked through-
out the quarter by about 9 percent. In the 4th quarter
of 1955, 79 returned strikers worked throughout the quar-
ter. Their average earnings during this quarter were
$323.71. The gross backpay stated in the Specification
for that quarter is $355.05. According to my arithmetic,
the gross backpay figure contained in the Specification
overstates the actual earnings of these 79 returned strik-
ers by 3.5 percent.
Under all the circumstances I am convinced that some
adjustment in the Backpay Specification is necessary to
compensate for the fact that the biweekly method of com-
putation used in the Specification, although it takes into
consideration some absences, does not fully reflect the ex-
Ee ne ee
Seth SBE Oda LS eeey
Pdiabaceeisrsnterirmiriicr bo.
36
tent of absences longer than 2 weeks. The question re-
mains as to the extent of an adjustment which would be
fair to all concerned.
The comparisons made by Compliance Officer Jones in-
dicate that for the last two quarters of 1955 the Board’s
biweekly method of computation overstates actual earn-
ings of 9 percent and 3.5 percent, respectively. The Re-
spondent’s comparisons between the total quarterly earn-
ings of the employees in the control group for the oper-
ators (the incumbents and the replacements) computed on
the biweekly basis adopted in the Specification and the
average quarterly earnings of all the employees who did
any work during the quarter show a large variation.°
The figures stated on page 9 with respect to the earnings
for the 3rd quarters of 1955 and 1957 show, according
to my calculations, that the Board’s biweekly method re-
sults in a figure 20 percent higher for the 3rd quarter
of 1955, and about 10 percent higher for the 3rd quarter
of 1957, than when the Respondent’s quarterly method is
used.
However, I have found that the Respondent’s quarterly
method does not give the fair measure of the backpay to
which the employees here involved are entitled to because
it understates the earnings of employees who worked with
normal regularity during the backpay period. In view of
this fact and the further fact that the Specification takes
into account longer absences because of pregnancy and
illness, etc., I cannot accept the Respondent’s suggestion
that the Board’s biweekly method of computation is high
by about 20 percent.
The comparisons made by Compliance Officer Jones in-
dicate that for the last two quarters of 1955 the Board’s
biweekly method of computation overstates actual earn-
ings by 9 percent and 3.5 percent, respectively, in these
quarters. President Rutter testified that normal absen-
teeism in the plant averaged approximately 1 day per
employee per month. Assuming that there are 22 working
®*The Respondent in its memorandum offers other comparisons
based upon facts not of record in this proceeding. I have limited
my consideration to the facts which are in the record in this case.
awa
37
days per month, this would suggest that employees were
absent 4.5 percnet of the time each month on an average.
Upon consideration of all the evidence adduced in this
case, I conclude that an adjustment factor of 6 percent
fairly reflects the extent to which the Board’s method of
computation overstates the gross backpay due because it
fails fully to reflect the absences which a typical employee
has in a normal year. Accordingly, it will be directed
that i computing the net backpay of each of the em-
ployee: in Group 5 (operators), the figures appearing in
the total gross column shall each be reduced by 6 percent.’
2. The employees in Groups 1-4
The Respondent asserts that by including in the control
groups for the employees in Groups 1-4 only employees
who had worked for the Respondent 6 months or longer
the Board computed its average on the basis of the most
experienced and capable employees in the four groups,
thus raising the average. However, six out of the seven
employees in Groups 1-4 had more than 6 months’ expe-
rience, and, in view of the length of the backpay period,
any overstatement of the seventh employee’s earnings
would be very slight, indeed.
With respect to the four employees in Group 1, the
Respondent contends that the Board improperly lumped
cutters, clicking machine operators, and spreaders in one
group. It appears, however, that this grouping worked
to the Respondent’s advantage. Three of the four em-
ployees in this group. Breaud, Cerf, and Lewis. were in
‘This determination, in effect, settles the question of the extent
to which the employees here involved would have been absent during
the backpay period (in addition to the extent taken into consider-
ation in the Specification). Accordingly, it will not be pertinent
hereinafter to inquire into actual additional periods of unavailability
for employment on the part of the employees here involved. By not
objecting to the use of some formula, the Respondent is in effect
agreeing that proof of unavailability with respect to specific em-
Ployees is inadmissible. Such unavailability in individual cases is
necessarily subsumed in the use of the formula. The only alter-
native would be to abandon the formula and put the Respondent
to its proof in each case. See N.L.R.B. v. Brown & Root, Inc., 52
LRRM 2115, 2120, decided January 4, 1963 (C.A. 8).
a high pay category, each being paid at the rate of $1.45
per hour the last week before the strike, and the fourth,
Lotten, was being paid at the rate of $1.23 per hour.
Since more than one-third of the employees in the con-
trol group for the cutters and clicking machine operators
were lower paid employees, the inclusion of their wages
in the average would tend to lower the biweekly average
/ used as the measure of the biweekly earnings of the three
; high-pay employees,
g The Respondent argues with respect to the one employee
3 in Group 4, Freddie Harris, that it is inequitable to take
4 as the measure of his gross backpay the average earnings
; of those in both the truckdrivers and warehouse utility
4 employees categories for the reason that the pay of the
former is considerably higher than that of the latter.
Since there does appear to be more than a 25-percent
differential between the rates of the lower paid employees
i and the two higher paid employees who make up the con-
; trol group for Freddie Harris, the Respondent’s point is
=
A well taken, assuming, of course, that the Respondent es-
4 tablishes at the forthcoming hearing that Freddie Harris
f at the time of the strike was in the warehouse utility
employee category rather than that of truckdriver. If
this is properly established, the earnings of Ernest Cooley
appearing on Appendix D-1 of the Specification will be
taken as the measure of Harris’ gross backpay, rather
than the combined earnings of Cooley, Bayard and Wood-
ard (see p. 58 of the Specification).
3. Conclusions
For the reasons stated above, I conclude that the method
of computation used in the Board’s Backpay Specification
herein is a reasonable one under all the circumstances of
the case, subject to the modification stated in the Order
below. ;
ORDER
1. The method of computation adopted in the Backpay
Specification heretofore issued herein is hereby approved
subject to the modification that as to each of employees in
POOME BoE”
—_
39
Group 5, the figures in the total gross column shall each
be reduced by 6 percent.
2. As previously notified, the Respondent, within 5
days from the receipt of this Preliminary Intermediate
Report and Order, shall file an answer to the Backpay
Specification, as provided in Sec. 102.54 of the Board’s
Rules and Regulations, Series 8 as amended.
Dated at Washington, D. C. January 23, 1963
/s/ OWSLEY VOSE
OWSLEY VOSE
Trial Examiner
* * * *
TRIAL EXAMINER’S SUPPLEMENTAL
DECISION IN BACKPAY PROCEEDING '
(Title omitted—Cases Nos, 15-CA-721
15-CA-723)
Before: Owsley Vose, Trial Examiner.
Statement of the Proceedings
This Decision supplements and is to be considered to-
gether with the Preliminary Intermediate Report and
Order in Backpay Proceeding issued herein by the Trial
Examiner on January 23, 1963, after a hearing in No-
vember 1962. In his Preliminary Intermediate Report the
Examiner considered the method of computation of back-
pay adopted by the General Counsel in the Specification
and concluded that it was an appropriate method of com-
putation, subject to certain minor modifications.? The
1 The Board’s original decision herein is reported at 115 NLRB
388.
? On line 36 of page 11 of this Report the figure should be $335.05
instead of $355.05.
aE ei eat UE ott nag
TES Jer Dake ae
Pree a oh ears ee
SND Rees Ny
40
Backpay Specification, it will be recalled, raised issues
growing out of the Company’s alleged delay in reinstating
137 employees and its failure, in the period covered by
the Specification, to reinstate 70 additional strikers. It
covers the backpay accruing up to the end of the second
quarter of 1961 and the evidence received in this proceed-
ing in 1963 covers only the backpay accrued up to this
date. Any backpay accruing after June 30, 1961, is sub-
ject to a later determination.
In the course of the proceedings in November 1962, the
Examiner granted in part and denied in part the Gen-
eral Counsel’s motion to strike the Company’s answer in
its entirety because of its alleged lack of specificity and
noncompliance with Section 102.54(b) of the Board’s
Rules and Regulations, and granted the Company leave
to file an amended answer. In his opinion issued at that
time, the Examiner stated that the Company’s amended
answer, should conform to the Board’s Rules and Regu-
lations, At the hearing in November 1962, the Examiner
emphasized his view that Section 102.54(b) of the Board’s
Rules and Regulations requires the filing of a meaningful
answer, apprising the Examiner and the Board of the
Company’s position with respect to each of the employees
named in the Specification. On January 29, 1963, the
Company filed an amended answer to the Backpay Specifi-
cation. Thereafter, on various dates between February
12, 1963, and September 30, 1963, a hearing was held on
the issues raised by the Backpay Specification and the
Company’s amended answer thereto.’
1 The following corrections are hereby made in the typewritten
transcript of testimony given in this case at the hearing:
Page Line Correction
1511 17 Insert “except” between “answer” and “with”
1913 19 Add “Marie G. Lockett, recalled”
1940 6 Insert “Doris Earline Bowles, recalled”
2121 1 Change “awards” to “warning”
2121 3 Change first “it” to “I”
2554 10 Change “litigate” to “mitigate”
5213 1 Change “injuries” to “increases”
6376 21 et seq. Change “Desederia” to “Daisy Ray”
The foregoing is not intended to be a comprehensive list of cor-
rections.
. a
41
During the hearing motions were made by the General
Counsel and the Amalgamated (hereinafter referred to
as the Union) to amend the Specification, and by the
Company to amend its amended answer. Where the effect
of granting such motions when made by the General Coun-
sel was to increase the liability of the Company, such
motions, were denied, absent excusable error, newly avail-
able evidence, and like considerations. When motions to
amend the Company’s amended answer were made, and
the effect of granting such motion was to open up new
defenses to litigation, defenses of which the Company had
knowledge or reasonably should have had knowledge at
the time its amended answer was prepared, these motions
were denied, absent special considerations. Other motions
to amend the Specification and the amended answer, were
granted.’
Repeatedly during the hearing the Company sought to
cross-examine witnesses concerning the nature of the in-
*In the opinion of the Examiner, he was obliged to require strict
observance of Section 102.54(b) of the Board’s Rules and Regula-
tions which deals with the contents of answers to Backpay Speci-
fications. This Section requires specific and detailed answers to all
allegations of the Specification and specifically states, as to matters
within the knowledge of the Respondent, that “a general denial
shall not suffice.” In the Examiner’s view, one of the primary pur-
poses of the Board in adopting the specialized procedure for
handling backpay cases was to narrow the issues to be litigated and
to simplify the decisional process. This objective would be largely
frustrated if the Company were to be permitted to adduce evidence
concerning every possible defense which occurred to it in the course
of a long trial. See W. C. Nabors Co., 134 NLRB 1078, 182 and n. 6,
enforced, 323 F. 2d 686 (C.A. 5), cert. denied, February 17, 1964.
Cf. United States Air Conditioning Corp. 141 NLRB 1278, 1281-
1282; Liquid Carbonic Co., 116 NLRB 795. The same considerations
which render it essential that the Company file specific and mean-
ingful answers require that the General Counsel also be bound by
his Specification. Particularly in the circumstances of this case,
with the General Counsel having had access to the Company’s
records for years, the Examiner can see no reason to permit the
General Counsel to enlarge the issues to be litigated in this pro-
ceeding, while at the same time holding the Company to be bound
by its amended answer. Accordingly, the Examiner has attempted
throughout this proceeding to hold the parties to their pleadings,
-—_ in the case of excusable error, newly available evidence, and
the like.
=
ae
Ee Sel
oe aT Ra Ae ea AS ce
6o SRNRAIES s
SAR AGAR GGA
42
vestigation conducted by the General Counsel in preparing
the Specification, to adduce evidence concerning the Gen-
eral Counsel’s alleged failure to cooperate with the Com-
pany in resolving its reinstatement and backpay prob-
lems, and the reasons for the delay in issuing the Specifi-
cation, Evidence was received at the heaiing concerning
the fact of the delay in issuing the Specification, but
evidence as to the reasons for the delay was for the most
part excluded. The Examiner did offer to receive evidence
of any wrongdoing or unlawful conduct upon the part of
representatives of the General Counsel which may have
contributed to the delay, but no such evidence was prof-
fered. Evidence as to the General Counsel’s alleged lack
of objectiveness in investigating the matter and his al-
leged failure to cooperate with the Company in resolving
the differences between them was also excluded in the
absence of any offer to prove that wrongdoing or unlawful
conduct on the part of representatives of the General
Counsel was involved.
On December 9, 1963, the General Counsel and the
Amalgamated filed briefs dealing with both the broad is-
sues here involved and the specific cases of the 207 em-
ployees named in the Specification. The Company on the
same day filed a memorandum covering its general con-
tentions regarding its backpay obligation and not treating
any of the individual cases, These documents have been
carefully considered,
Upon consideration of the Specification, the pleadings
as amended, the Examiner’s observation of the witnesses,
his review of the testimony and the exhibits, and the
entire record in the case, the Examiner makes the follow-
ing:
Findings and Conclusions
I. Preliminary statement; conclusions concerning the
Company’s reinstatement and backpay obligations
flowing from its unfair labor practices during the
strike
As found in the Board’s original decision in this case
(115 NLRB 388), on April 21, 1954, the Company’s em-
-
43
ployees went out on a strike called by the Union, their
duly certified bargaining representative. As the Exam-
iner construes the Board’s original decision, the Board
determined that although the differences between the par-
ties during the negotiations preceding the strike which
caused the Union to decide on strike action may have
been economic in nature, because of the Company’s con-
duct “[{f]rom the moment of the strike,” which evidenced
a “rejection of the very principle of collective bargain-
ing,” the strike was to be deemed an unfair labor prac-
tice strike from its inception.
Accordingly, the Board in its original decision provided
for the conventional remedy usually entered in unfair
labor practice strike situations, as follows:
(b) Upon application, offer immediate and full re-
instatement to their former or substantially equiva-
lent positions to all those employees who went on
strike on April 21, 1954, or thereafter, without preju-
udice to their seniority or other rights and privileges,
dismissing if necessary all persons hired on or after
that date, and make such applicants whole for any
loss of pay suffered by reason of the Respondent’s
refusal, if any, to reinstate them, in the manner set
forth in the section of the Intermediate Report en-
titled “The Remedy.”
The “Remedy” section of the Intermediate Report, in-
sofar as it is pertinent here, omitting footnotes, is as
follows:
... The Company shall also make whole such strikers
for any loss of pay they may have suffered by reason
of the Company’s refusal, if any, to reinstate them,
by payment to each of them of a sum of money equal
to that which he would normally have earned, less
his net earnings, during the period from 5 days after
the date on which he applies for reinstatement to
the date of the Company’s offer of reinstatement.
Loss of pay shall be computed on a quarterly basis.’
*In the Specification gross backpay is computed, not on a strict
calendar quarterly basis, but on the basis used by the Company in
44
II. The applications of the strikers for reinstatement
On April 5, 1955, the Union mailed a registered letter
to the Company which was admittedly received by it on
April 6, 1955, The letter stated that the employees had
voted to terminate the strike and continued as follows:
Please be advised that each of the employees whose
names are listed on the attached sheets hereby offers
to return to work for your company unconditionally
and immediately. Kindly inform us when and where
these employees should return to work.
Attached to the letter was a list containing the names of
113 striking employees. The Union supplemented its
April 5 letter with another letter, mailed on April 8,
1955, on behalf of 25 additional employees who, as the
letter stated, were offering “to return to work for your
company unconditionally and immediately.” This letter
was received by the Company on April 11, 1955,
Following the receipt of the Union’s April 5 letter the
Company telephoned Phillip Lampert, regional counsel for
the Union, and told him to send the employees to the plant.
Employees started coming in to the plant “in droves” at
this time, as Eugene Rutter, the Company’s president,
testified, and consequently the Company called Lampert
back and requested him to send the employees in at the
rate of 20 a day. Lampert agreed to do so.
On April 11 the Company replied to the Union’s letter
of April 5 and April 8, as follows:
We acknowledge receipt of your recent letters of
April 4th and 8th, advising us that the strike has
been officially terminated and that certain persons
its records. Under the Company’s biweekly payroll system, the
quarters consist of an even number of weeks, ranging from 10
weeks in some quarters to 16 weeks in other quarters. In view of
the fact that the Board’s Order requires that backpay shall be com-
puted on a quarterly basis and the further fact that the Social
Security records give interim earnings by calendar quarters, it has
been found necessary to recompute gross backpay on a strict cal-
endar quarterly basis. This accounts for the differences in the
amounts of gross backpay given in the Specification and those
appearing in the Appendix below.
. . a aoe parte ce MERRIE a iad “i
AE RE INE A SNR NS RUIN TIERED cee II GEO MENT LS
45
who participated in the strike are desirous of re-
turning to their former employment,
We suggest that such persons as desire to return
to work with us file application with our Personnel
Office as soon as possible,
Since we cannot process all applications at one
time, we would suggest that you have the applicants
come in at the rate of no more than 20 per day.
Commencing on April 14, 1955, the Union started no-
tifying employees named in its April 5 and 8 letters to
make personal applications for reinstatement. The Union
gave these employees a form letter to give to the Com-
pany, the text of which is as follows:
In reference to our correspondence of recent date,
ek applying for employment, She
would prefer the job she had prior to the strike.
However, she is willing to accept any available em-
ployment if her former position is available.
The Union, in compliance with the Company’s request to
send the employees in at the rate of 20 a day, notified the
employees to go to the plant at intervals. A number of
employees testified that they did not attempt to make a
personal application for reinstatement until] they were
notified by the Union to do so. The Examiner finds that
the experience of these employees is typical of that of
the strikers as a whole who made personal applications
for reinstatement shortly after the strike ended.
Thereafter, on April 22 and May 13, 1955, the Union
1In making this finding, the Examiner is relying not only upon
the testimony of the above-mentioned employees to this effect, but
also has considered offers of proof, made in question and answer
form through various witnesses, such as Veoila Gibson Hamilton
and Zearlee Franklin. The Examiner has reconsidered his rulings
excluding testimony on this point, and hereby reverses it, concluding
that the testimony of these witnesses that the Union had told them
to go to the plant and file a personal application for reinstatement
was relevant and material to the question whether the Union had
acquiesced in the abandonment of its original requests for rein-
statement on behalf of the employees named in its April 5 and
April 8 letters.
. = ——— . vane ALE RETIRE, OPEL MR ER? RRO URE: OL de tanemme RS
a PAPE, SIO AIO ARNE Le ODE IT PLE DEN RINT BR * .
46
sent the Company the names and addresses of certain
additional employees who were offering to return to work
for the Company “unconditionally and immediately.”
These letters were received by the Company on April 25
and May 14, respectively. In the Union’s three letters, it
requested immediate reinstatement on behalf of a total
of 153 employees. Of these 147 are named in the Specifi-
cation, the General Counsel having satisfied himself after
his investigation that the Company had either reinstated
the others or that they were not entitled to any relief
herein. In its April 22 letter, the Union stated as fol-
lows:
q In response to your letter of April 11, 1955, we wish
: to point out that although we have sent your em-
j ployees, who participated in the strike, to your Per-
; sonnel Office in groups of 20 per day, as you re-
quested, we consider those employees as having un-
conditionally applied for employment on the date you
received our registered letters along with lists of
names attached thereto.
In addition to the striking employees in whose behalf
the Union submitted applications for reinstatement in one
or more of the Union’s letters of application, a total of
11 more striking employees made personal applications
for reinstatement during the strike. In the period be-
; tween the end of the strike on April 5, 1955 and March
§ 9, 1956, an additional 52 strikers not named in any of
: the Union’s letters of applications also personally applied
4 for veinstatement at the plant. As appears more fully
below, of the total of 207 strikers named in the Specifi-
cation, the Examiner has found that 199 made valid time-
ly applications for reinstatement, either personally or
through the Union. The specific dates on which the vari-
ous strikers applied for reinstatement and whether the
General Counsel is relying on a Union letter or a per-
sonal application at the plant are set forth below in the
discussion of the individual cases.
The Company contends that the Union agreed, in effect,
not to rely on its original applications upon behalf of
the 153 strikers named in its letters, but rather to rely
ae MEL EERE NOEL ECP EMCEE LI SLY NG OLI SE TGS EIN SEND RIT REE ANI
47
solely upon the personal applications thereafter made.’ In
support of this contention the Company relies on various
facts, including the exchange of letters between the Com-
pany and the Union, the Union’s compliance with the
Company’s request that it send the strikers to the plant
at the rate of 20 a day, and the testimony of some of
the employees that they did not personally apply at the
plant until the Union told them to. In the opinion of
the Examiner, this contention is not meritorious.
The Company’s letter of April 11, 1955, as stated above,
contained the following paragraph:
We suggest that such persons as desire to return to
work with us file applications with our Personnel
Office as soon as possible, {Underlining added. ]
The underlined portion of the above quotation, by indi-
cating that only those employees who personally applied
at the plant would be given consideration, treats the
Union’s blanket applications for reinstatement on behalf
of the employees named in its two letters in being in-
effectual insofar as creating any reinstatement obligation
is concerned. As Eugene Rutter, the president of the
Company, admitted, it was in fact the Company’s posi-
tion after the strike, that it would consider only the em-
ployees filing personal applications, Indeed, this is still
the Company’s position, as its amended answer is premised
upon the assumption that the Union letters of applica-
tion were not valid applications for reinstatement on be
half of the employees named therein.
By insisting in its April 11 letter upol. a personal ap-
plication by the striking employees named in the Union’s
*The Company apparently no longer contends that the Union,
unless it had been individually authorized to do so by each of the
individual strikers named in its letters of application, lacked the
authority to make applications for reinstatement on behalf of these
strikers. It has long been settled that the statutory bargaining
representative has the authority to apply for reinstatement on
behalf of employees whom it represents regardless of whether
individually authorized to do so or not. Brown & Root, Inc., 99
NLRB 1081, 1041-1043, enforced, 203 F. ed 139, 147 (C.A. 8); Efco
Mfg. Co., 108 NLRB 245, 256, enforced without contest by Efco
on this point, 227 F. 2d 675 (C.A. 1);
48
first two letters of application, the Company was exceed-
ing its rights in the situation in which its unfair labor
practices had placed it. In effect the Company was re-
jecting the Union’s applications for reinstatement for the
employees named in the letters. In such circumstances it
appears unlikely that the Union would voluntarily waive
the rights created by its letters of application, and clear
proof of such a waiver would be required before the
Examiner could sustain the Company’s contention in this
regard. The record in this case is lacking in such proof.
Indeed, the Union’s letter of April 22, 1955, makes it
explicit that the Union was not abandoning its earlier
blanket applications for reinstatement made on behalf of
the employees.
The facts upon which the Company relies in support of
its contention in this regard—the fact that the Union
complied with the Company’s request that it send strikers
into the plant at the rate of 20 a day, that it notified the
employees to go to the plant and make personal applica-
tions, and that it gave the employees the mimeographed
letters of application to give to the Company when they
personally applied—are not inconsistent with reliance on
the Union’s original blanket letters of application. These
facts are just as consistent with the inference that the
Union desired to be helpful in assisting the Company in
handling the problem of restoring a large number of .
strikers to work in a short period of time. Particularly
since the Union was under no legal obligation to facili-
tate the Company’s reinstatement task, its efforts to co-
operate should not be construed as indicating an aban-
donment of its earlier blanket applications, absent clear
proof of a meeting of the minds in this regard. Such
proof, the Examiner concludes, is lacking in this case.
Under all the circumstances the Examiner rejects the
Company’s contention that the Union in effect withdrew
its original applications for reinstatement set forth in its
April letters to the Company. Compare N.L.R.B. vy.
Brown & Root, 203 F. 2d 139, 147 (C.A. 8), enforcing
99 NLRB 1031, 1087, which involved a similar response
from an employer to a union’s blanket letter of applica-
LEE BIE AED IO DILL ELE I IT LET TIO MELE GLON LE AP eS IGE
49
tion. The Examiner concludes that the employees named
in the three Union letters of application made valid ap-
plications for reinstatement on the day that these letters
were received by the Company. In view of this conclusion,
in the cases of the employees named in any of the Union’s
letters of application, the Examiner has not included any
discussion of the application other than to indicate in the
heading of the individual case discussions that the em-
ployee is covered by a Union letter of application. This
is done by the insertion of a “U” in parenthesis follow-
ing the date of application relied upon by the General
Counsel.
III. The Company’s reinstatement of strikers and its
retention of replacement employees in the months
after the strike was called off
During the strike the Company hired back a number
of strikers who filed ‘written applications for reinstate-
ment with it. It also hired a number of additional em-
ployees who were not working for it at the time the strike
was called. As a result of its hiring and rehiring during
the strike, the Company had on its payrolls at the time
the strike ended 241 reinstated strikers and about 145
replacements, including 135 female replacements.? As
1The Examiner concedes, as the Company points out, that a
union may “agree to modify an unconditional group request so
as to require individual applications” (Efco M/g. Co., 108 NLRB
245, cited in the Company’s memorandum.) However, as indicated
above, the record fails to establish that such a modification was
agreed upon by the Union in this case.
*This figure and the subsequent figures given concerning the
number of female replacements are not represented to be exact.
The information concerning the number of replacements on the
Company’s payroll at various times has been obtained from the
Specification and from GC-47. (This is a reference to General
Counsel’s Exhibit No. 47). The Specification states the earnings of
a control group of replacements for female operators for each 2
weeks in the backpay period. There has been no challenge in this
proceeding of the accuracy of these figures, which were obtained
from the Company’s records. GC-47 is an exhibit compiled by the
General Counsel from the Company’s records, consisting of lists of
all employees hired by the Company from the beginning of the
a PRO PIES TLE IS SALE CL EEE OO LEA ELIE ELIA REIL IEPA PENG! MOL
50
used in this Decision, the term replacement is used to
refer to an employee hired during the strike and who
was not on the Company’s payroll when the strike began.
These replacements were vulnerable to discharge to make
room for returning strikers under the remedial provisions
customarily entered by the Board in unfair labor practice
strike situations. As shown in the table below, after the
strike was called off, the Company gradually reinstated
additional strikers who had personally applied for rein-
statement.* During the months following the strike, re
placements became separated from the payroll at a much
slower rate. With few exceptions, the reason for the
separation of a replacement from the payroll does not
strike to the end of the period covered by the Specification, giving
the periods of their employment. These lists exclude all those
used as replacements in the Specification and all employees appear-
ing on the Company’s prestrike payroll. As the General Counsel
concedes, there are certain deficiencies in this exhibit. It includes
all employees, i.e., supervisors, office clericals, and others who may
not be in the appropriate unit. It excludes others who do not appear
on the Company’s April 17, 1954 payroll, the last payroll before the
beginning of the strike on April 21, 1954), who conceivably may
nevertheless be entitled to employee status, for example, because
of being on a leave of absence due to pregnancy. In view of the fact
that nonunit employees constitute a very small percentage of the
percentage of the Respondent’s employees as a whole and that a
relatively small percentage of the Respondent’s employees were
likely to have been on a formal leave of absence at the time the
strike was called, the overstatement of the number of female re-
placements at any time necessarily is relatively small. Such over-
statement, in the opinion of the Examiner, does not destroy the
usefulness of the exhibit. The Company did not challenge the re-
liability of the information contained upon the exhibit, but objected
on the grouds that the admitted deficiencies in the exhibit impaired
its usefulness,
1 At the time the strike terminated, the hearing had already been
held before a Trial Examiner of the Board of charges that the
Company had by its unfair labor practices caused or prolonged the
strike, and the Company was therefore apprised that its treatment
of the returning strikers would be closely scrutinized by the Board.
2In general, the Company did not reinstate any striker solely on
the basis of a union letter of application. As Rutter testified, unless
a striker personally applied at the plant the Company had no
knowledge of her availability.
PME PEEL LE LE EEC LIC AIOE LESS POMEL
I A Sa
- 1 fod
1 as ete a GREE
51
appear on the record. Consequently, in most cases it
cannot be assumed that the replacements separated rep-
resented dismissals to make room for returning strikers.
Such separation may have resulted from voluntary quits,
discharges for cause, or for other reasons,
The figures given in the tables below show the cumula-
tive total numbers of strikers reinstated in each of the
first, second and third months after the strike was called
off, and at the end of 1955. The table also shows the
cumulative total number of separations of replacements
occurring during the same periods.’
Total number
strikers having Total number Total number Total number
applied for strikers rein- replacements replacements
reinstatement 4 stated 4 separated retained
By
May 5 180(13) 30( 5) 11 128
June 5 189 (17) 57 (10) 25 113
July 5 193 (18) 62(11) 32 104
Dec. 24 222 (28) 132 (12) 59 86
During the first 3 months after the end of the strike
the Company hired nine female employees who were not
on the payroll when the strike began. Between April 6,
1955, and the Company hired a total of 27 new female
employees.’
° The figures given are for female replacements only. It is only
as to the female operators that the Company pleads a lack of a
vacancy in their classification as a defense. Other defenses are
pleaded as a defense in the case of the seven male strikers here in-
volved.
*This figure includes both strikers named in the Specification
and those not named. The number of the latter are given in
parenthesis.
? These figures are ascertained from the Specification and from
GC-47.
Se SEL P LON LIS AL EEN LAN MEAL, BILE, TILT ID BS HE
52
IV. The Company’s general contentions regarding its
fulfillment of its reinstatement and backpay obli-
gations
A. The Company’s burden of proof contentions
First, the Company objects to the Examiner’s holding,
in cases where the General Counsel has established a
prima facie case of an application for reinstatement and
a refusal of the application by the Company, that the
Company has the burden of showing the nonavailability
of a comparable job at the time of the application or
other similar matters of defense. The cases, however,
support the Examiner’s ruling in this regard. Mastro
Plastics Corp., 136 NLRB 1342, 1357-1358. N.L.R.B. v.
Cambria Clay Products Co., 215 F. 2d 48, 56 (C.A. 6);
Snow v. N.L.R.B., 308 F. 2d 687, 695 (C.A. 9).
Secondly, the Company strenuously challenges the Ex-
aminer’s ruling that it has the burden of establishing
matters in diminution of damages, such as proving the
amounts of interim earnings of employees and developing
the facts regarding the efforts of the employees to miti-
gate damages. As to the broad principle that the burden
in this regard is the employer’s, the authorities sustain
the Examiner. Phelps Dodge Corp. v. N.L.R.B., 313 U.S.
177, 199-200; Nabors v. N.L.R.B., 323 F. 2d 686, 692
(C.A. 5); N.L.R.B. v. Brown & Root, Inc., 311 F. 2d 447,
454 (C.A. 8); Fisher Construction Co. v. Lerche, 232 F.
2d 508, 509 (C.A. 9); Mastro Plastics Corp., 136 NLRB
1342, 1346; Williston on Contracts, Sec. 1360.
The Examiner recognizes that the law’s imposing the
burden of proof regarding such matters upon the em-
ployer places him in a very difficult position. In the na-
ture of things, evidence concerning an employee’s search
for work is something peculiarly within the knowledge of
the employee. It would be a rare case indeed, where an
employer would have an independent means of ascertain-
ing the facts concerning an employee’s search for work
years before.’ And to develop the facts the employer has
? Even in the cases which are handled most expeditiously (assum-
ing that the case is litigated in the courts), several years elapse
between the events in controversy and the holding of a backpay
hearing.
LOL L ELE AVE LE LLIN LIL ALLL GE LEE ODOR EON EMD DOE IM LLG AE SIRE NII GE NE SETS
a
53
to rely on the employee whose interests are wholly adverse
to those of the employer. Even if the employee exhibits
the utmost good faith, memories dim with the passage of
time, and if the employee is simply unable to recall the
facts as to his search for work during his periods of un-
employment, as some of the employees whose cases dis-
cussed below were unable to do, the employer has no real
opportunity
On the other hand, however, it should be borne in mind
that the law obliges employers to reinstate unfair labor
practice strikers, upon appplication, dismissing replace-
ments, if necessary. In over half of the cases here in-
volved the Company defended its delay or its refusal to
reinstate upon the grounds that it had no vacancy for
the particular striker in her former operation, As found
hereinafter, excepting in a very few cases, the Company
did not even attempt to offer proof supporting this de-
fense. In many of these cases, such proof as was adduced
refuted the very contention being made. In other words,
it established that a replacement was still working on
the operation which the striker had done before the strike
at the time of the striker’s application for reinstatement.
Thus the problems of proof concerning which the Com-
pany complains in this case were largely of its own mak-
ing. As found above, the Company simply refused to dis-
miss replacements to make a place for the returning
strikers.
To illustrate how the Company’s failure to comply with
its obligation under the Act compounded its problems, it
may be helpful to consider the case of one of the employ-
ees, Dorothy B. Rubit, a trim-and-turn collar operator.
The Company’s records indicate that she applied for re-
instatement during the strike, on February 2, 1955, but
was not hired. Rubit was also named in the Union’s
letter of application dated April 5, 1955. Rubit was not
reinstated to her old job until August 1956, However,
Rubit was discharged 1 week later under circumstances
indicating that her production was low. A replacement
in Rubit’s operation—trim-and-turn collar—worked al-
most continuously throughout the backpay period. Had
the Company fulfilled its statutory duty in February or
perms eres cemmeerareny ones ;
54
April 1955, which it readily could have done, not only
would it not have been confronted with the problem of
Rubit’s loss of memory concerning her search for work,
but also it probably would not have been faced with such
a serious problem of Rubit’s loss of skill during her long
period away from the plant.
Thus, while the law works a hardship on the Company
in imposing upon it the burden of proof with respect to
matters in diminution of damages, also to be considered
is the hardship upon an employee such as Rubit, who as
a result of the Company’s unlawful conduct in refusing
her application for reinstatement, has lost not only her
steady job, but also her skill in the operation which she
had performed for many years before the strike. As be
tween the Company, whose unlawful conduct gave rise
to the problem in the first instance, and the employee vic-
tim of this wrongdoing, it seems to the Examiner not
unreasonable that the Company rather than the innocent
employee should bear the consequences of its own unlaw-
ful conduct.
B. The Company’s contention based upon the General
Counsel’s delay in issuing the Specification, the na-
ture of the General Counsel’s investigation, and
the General Counsel’s alleged failure to cooperate
with the Company in the course of the investiga-
tion
The Company contends that the General Counsel un-
duly delayed in completing his investigation of the mat-
ters here involved, that he failed to be objective in his
investigation of the facts concerning the Company’s obli-
gations flowing from its unfair labor practices during
the strike, and that he failed to fulfill his obligation to
cooperate with the Company in an effort informally to
dispose of the differences between the parties. The Gen-
eral Counsel’s alleged derelictions in this regard, the
Company contends, all contributed to a denial of a fair
hearing in this case.
These contentions must be rejected because the record
is without the factual basis upon which such contentions
a
of necessity must be predicated, the Examiner having ul-
timately ruled (albeit not without first receiving some
evidence bearing upon these issues) that none of these
issues were properly before him for disposition and, in
accordance with this ruling having refused, absent the
proffer of evidence of wrongful or unlawful conduct on
the part of the Genera] Counsel which was not forthcom-
ing, to permit the parties fully to develop the facts con-
cerning these issues. The propriety of the Examiner’s
ruling in this regard is indicated by the decision of the
Fifth Circuit in Nabors v. N.L.R.B., 323 F. 2d 686, 688-
689 (C.A. 5) certiorari denied, February 17, 1964, dis-
cussed more fully below.
It cannot be denied that there was a considerable lapse
of time between the decision of the Court of Appeals for
the Fifth Circuit enforcing the Board’s Order herein in-
volved and the issuance of the Specification herein. The
opinion of the Court was handed down on June 10, 1957.
The Court’s decree, which, like the Board’s Order, di-
rected the reinstatement upon application of the striking
employees, was entered on August 19, 1957. The Specifi-
cation was issued on November 16, 1961. The Examiner,
for convenience, refers to this lapse of time as a delay,
without intending to suggest one way or another that
the General Counsel is subject to criticism for the lapse
of time involved.
To complete the factual picture on this point it should
be stated that on November 7, 1957, the Mr. Henry J.
Read, Company’s attorney, mailed a letter to the Board
stating in part as follows:
55
As you know, we are handling the matter of com-
plying with the decree of the United States Court
of Appeals for the Fifth Circuit enforcing the order
of the National Labor Relations Board in the subject
cases, Our client has already complied with some of
the provisions of the decree, and is presently engaged
in bargaining with the representatives of the Amal-
gamated Clothing Workers of America. If any in-
stance of a failure to fully comply with the order is
brought to your attention, we would appreciate your
EIR es PIEIEE BEBE VLA INEM ROWE IE POEL IEA YE ISL SLE IG Sy ORAL LSE
A aCaedds oda Reuse tas tans ess pe eae
MPLA TOE INR IY 20 A DUO OMIA REET NOS ITI IEE IIE IOI BE ION MN CEN a aS
56
contacting us promptly so that such corrective meas-
ures as may be necessary can be immediately taken
in order to assure full compliance with the decree.
Between November 7, 1957, and March 22, 1960, when
the General Counsel’s representative requested that the
Company make available to him records for analysis in
connection with the compliance investigation in this case,
there were no communications betweeen the General Coun-
sel and the Company either orally or in writing. The
General Counsel never replied to the Company’s letter of
November 7, 1957, apart from the letter of March 22,
1960, which the Examiner does not regard as responsive
to the Company’s letter of November 7, 1957.
The Nabors case clearly holds that the mere fact of
delay alone does not defeat backpay claims, As the Court
stated (323 F. 2d, at 689), “the claims set forth in the
backpay specifications are not barred by limitations or
laches, and . . . the evidence offered by the petitioner to
show irreparable injury caused by the delay was irrele-
vant.” The General Counsel’s investigation in the Nabors
case, in which the delay was almost 4 years, involved
only 21 employees, whereas the General Counsel’s inves-
tigation in the present case involved well over 400 em-
ployees.
The Company’s assertions that the General Counsel
failed to be objective in his investigation of the case and
sought to build up a case of liability on the part of the
Company is not documented in the Company’s memoran-
dum and is wholly without foundation in the record, since,
as stated above, this issue also was not litigated at the
hearing. The contention is apparently based upon the
Company’s suspicions growing out of the General Coun-
sel’s refusal in advance to turn over to the Company its
? From the facts set out in the text above it may not be assumed, ©
however, that the General Counsel had not investigated in the mean-
time the Company’s reinstatement and backpay obligations. The
General Counsel’s letter to the Company’s attorney, Mr. Read, which
is attached as Exhibit F to the Company’s amended answer, indicates
the General Counsel had ascertained by this time that there were
some 470 individuals as to whom there were reinstatement and
backpay questions pending.
aa
complete investigative files on the case. The Examiner,
while declining to require any such sweeping disclosures,
did require the General Counsel to produce, with respect
to all employees named in the Specification regardless of
whether they were called as witnesses by the General
Counsel or the Company, all statements and other mate-
rial falling within the scope of the Jencks rule, as applied
to Labor Board cases.’ As a result of the Examiner’s
refusal to permit an inquiry into the nature of the Gen-
eral Counsel’s investigation, the record does not afford
a factual basis for the critical comments about the Gen-
eral Counsel’s investigation which are contained in the
Company’s memorandum.
As to the General Counsel’s alleged failure to cooperate
with the Company in resolving the reinstatement and back-
pay problems with which it was faced, this contention is
based almost entirely upon the absence of communications
between the Company and the General Counsel between
November 1957 and March 1961. As indicated above, the
Examiner cannot rule on this contention because it was
not fully litigated at the hearing. It may be noted in
passing that, contrary to the assertion in the Company’s
memorandum (p. 22), that Compliance Officer Loren
Jones did not admit the General Counsel’s lack of cooper-
ation at all times prior to the filing of the Specification.
Jones testified that after sending a letter about October
1961 requesting a statement of the Company’s position
with respect to the employees as to whom there remained
reinstatement or backpay problems and receiving a reply
from the Company, he did not attempt to discuss these
problems with the Company or its representatives before
the Specification was issued. In this same portion of his
testimony Compliance Officer Jones testified that normally
an employer gives some indication that he desires assist-
ance about such problems and that no such indication
was forthcoming from the Company.’
57
1 Jencks v. United States, 353 U.S. 657; Ra-Rich Mfg. Corp., 121
NLRB 700.
*Jones testified that in 1961 he no longer regarded the Com-
pany’s November 1957 letter as presenting a current request for
assistance.
: y
Furthermore it may be observed that the great bulk
of the Company’s asserted reinstatement problems arose
in the period after the strike was called off in 1955, long
before the Company was in contact with the Regional
Office, and most of the questions which the Company
stresses in its memorandum came up, as found herein,
because the Company failed to recognize the Union’s let-
ters of application as constituting valid applications on
behalf of the strikers named therein, and because the
Company for the most part refused promptly to dismiss
replacements to make room for strikers, As found below,
there were only a relative handful of operators who pre-
sented reinstatement problems. Out of the 129 strikers
as to whom the Company raised the “no vacancy” de-
fense, the Company could have reinstated 113 of them
at least by the time they personally applied at the plant
by simply putting them back on their old operations, dis-
missing the replacements who were performing their
former operations at that time. But the Company failed
to do so, and much of the hearing was devoted to taking
up the cases of such strikers. In view of the Company’s
widespread failure to fulfill its statutory obligation to
the returning strikers it comes with ill grace from the
Company to charge the General Counsel with a failure
to cooperate in the investigation phase of the case.
In sum, the Examiner rejects the procedural bars which
the Company seeks to raise as a barrier to consideration
of the merits of the General Counsel’s claim for backpay.
He concludes that it is inconsistent with the effectuation
of the broad public policies of the Act to permit a hearing
for the purpose of determining the extent of the Com-
pany’s fulfillment of its reinstatement and backpay obli-
gations to be converted into a trial of the General Coun-
sel’s conduct of the investigation leading up to the issu-
ance of the Specification.
C. The Company’s contention that it attempted in
good faith to reinstate the strikers
The Company contends that it attempted in good faith
to fulfill its reinstatement and backpay obligations in
ae
59
the period after the strike was called off. The Company
points out that it reinstated a substantial number of
strikers during the strike and urges that its progress in
putting the strikers back to work after the strike was
called off demonstrates that it made a good-faith effort
to fulfill its reinstatement and backpay obligations. For
this reason, the Company argues, it should be relieved of
all further reinstatement and backpay liability.
In considering this contention it should be borne in
mind the Company was in need of experienced workers
after the strike was called off. The fact that well over
100 replacements were retained in the first few months
after the strike was called off attests to the Company’s
need for workers, And, as Rutter testified concerning
the Company’s recurring need for workers, “. . . whether
there has been a strike or not .... You can never get
enough experienced operators to maintain the normal
turnover that you experienced in running a plant the
size of the Company’s.” The Company had over 600 em-
ployees when the strike began. Trained operators, ac-
cording to Rutter, were one of the Company’s valuable
assets, the Company having an investment of between
$500 and $600 in each operator by the time she attains
the desired speed of operation. For this reason, Rutter
testified, the Company was eager to have its experienced
operators return to work after the strike.’
During the strike, with the exception of the period from
May 11, 1954, to July 14, 1954, the Company was oper-
ating under a learner’s certificate issued by the Wage
and Hour and Public Contracts Division of the U.S. De-
partment of Labor. To obtain a learner’s certificate, which
entitles an employer facing a shortage of experienced
help to hire learners for a 480-hour training period of
subminimum wage rates, the employer must certify that
experienced workers are not available for employment.
1 Other circumstances evidence the Company’s need for workers
in this period after the strike. Commencing in July 1955, the Com-
pany placed advertisements for workers in the New Orleans papers.
In October 1955, the Company ran an ad seven times in the Times-
Picayune for “Experienced Power Sewing Machine Operators on
Shirts and Pants.”
60
The learner’s certificate became ineffective on April 7,
1955, a few days after the strike was called off. On No-
vember 7, 1955, the Company filed an application for a
learner’s certificate with the Department of Labor in
which it stated in answer to a question concerning its
efforts to obtain experienced workers, as follows: “We
have standing requests with all our employees to bring
in experienced acquaintances. We now have difficulty
finding experienced persons who are now ready to work
again.” On the basis of this application a learner’s cer-
tificate was issued to the Company on December 6, 1955,
which was to remain effective until December 7, 1956.’
Despite the Company’s need for workers after the strike
was called off, the Company made relatively slow prog-
ress in reinstating strikers. It made even less progress
in getting rid of replacements who were filling the strik-
ers’ jobs, As the figures in the table in part III above
show, although there were about 135 female replacements
on the payroll when the strike ended, and the Company
thus had numerous positions which could be vacated to
make room for returning strikers, in the first 3 months
after the strike was over, the Company reinstated but
62 strikers.’ There were 65 workdays in this period. Not-
withstanding all the available vacancies, the Company
restored strikers to their jobs at the rate of less than
one a workday. Only 32 replacements left the payroll
during this 3-month period.
By the end of 1955, 132 strikers had been reinstated,
including 12 for whom no claim is made in this case. By
this time 64 female strikers still had not been reinstated.
Approximately 86 female replacements still remained on
1 Rutter’s testimony when originally examined about this sub-
ject matter was that the Company definitely had no learner’s
certificate between May 1954, and December 1957. However, when
confronted with records obtained from the U.S. Department of
Labor, Rutter admitted that he had been in error in his original
testimony. Rutter explained his error by saying that he had been
basing his testimony upon information in a certain file, and that
through a filing error pertinent material had been placed in another
file which he had not seen.
1This figure includes not only the strikers here involved, but
also others as to whom no claim is made in this case.
—
the P@Snly 59 female replacements had left the
payroll
1e end of the strike. Thus more than half
of the ‘
stellen gents who were on the payroll when the
As of ore Still on the payroll at the end of 1955.
the Sper 1961, the end of the period covered by
roll. 0, 53 replacements were still on the pay-
The , ; ,
its faillyS slowness in reinstating strikers and
in ordeiptly to dismiss the numerous replacements
Examire room for the returning strikers, in the
seekingW, evidence that the Company was not
Anot faith to restore the strikers to their jobs.
in the amstance indicating a lack of good faith
failurey’s treatment of returning strikers is its
to the antiate its principal defense. With respect
(h) of loyees listed on Schedules 6(d), (e), and
fended pany’s amended answer, the Company de-
these e; in reinstating or its failure to reinstate
in thei) on the grounds that it had no vacancies
Rutter -ations when they applied for their jobs.
port Ofag to the stand to give testimony in sup-
cases Yense. Rutter was questioned about these
seven btical order and, after covering the first
1 The habet, this line of examination was dis-
a manag
who was has considered the testimony of Karl Striegle,
efforts tineer specializing in the neddle trades industry,
called oflhe Company to give his opinion of the Company’s
betweene reinstatement problem after the strike was
were puidying the Company’s records giving the time lag
connectens and reinstatement for the employees who
the plamork, Striegle concluded, in view of the problems
coping Vv maintaining a balanced flow of work through
the end Company had done an “above average” job of
considernstatement problem with which it was faced at
make Tce. Striegle’s opinion, however, did not take into
considerCompany’s failure to displace replacements to
volved “urning strikers. Nor did Striegle’s conclusion
61
both of . 9
which S of the approximately 70 employees here in
‘ver reinstated. In the opinion of the Examiner
the Exa
pany’s r
ctors which go to the heart of the matter about
asked to give his judgment. For these reasons
not regard Striegle’s opinion about the Com-
t efforts after the strike as being too persuasive.
a.
continued. In each of the seven cases, it was brought out
either on direct or cross-examination that at least one
replacement was working at the particular operation of
the particular striker involved up until the date the
striker was reinstated, if not longer. As to the 20 em-
ployees in all, concerning whom the Company pleaded no
vacancy as a full or partial defense, Rutter’s own testi-
mony established the availability of a vacancy at the time
of the employees’ application for reinstatement. Evidence
tending to support the allegations of the amended answer
was adduced as to only 16 of the 129 employees named
in Schedules 6(d) (e), and (h). No evidence whatever
was offered in support of this defense in the case of the
93 other employees as to whom this defense was pleaded.
Since it was the Company’s burden to establish the lack
of vacancies it must be assumed that vacancies were avail-
able in the case of these 93 other returning strikers in
this category.’
As to a number of other strikers the Company has
offered no valid excuse for its failure to comply with
their requests for reinstatement. This applies to 26 out
of the 34 strikers listed in Schedule 6(b) of the amended
answer as to whom the Company claimed that they had
not made applications “at anytime after the strike termi-
nated” either because of their having applied during the
strike or because they were covered only by a Union letter
of application after the strike was called off, which the
Company refused to recognize as a valid application. In
the same category as the latter group are all those listed
in Schedule 6(c). Schedule 6(c) also proceeds on the er-
roneous premise that Union applications were invalid.
The procedure adopted by the Company for restaffing
its plant after the strike was called off further evidences
the failure of the Company to recognize its special obli-
gations to the returning strikers. After consulting the
62
1In view of Rutter’s testimony establishing the existence of
vacancies in a majority of the cases which were specifically dis-
cussed by him, the Examiner cannot give Rutter’s general testimony
as to the lack of vacancies any great weight. This point is more
fully treated hereinafter in the discussion of the Schedule 6(d)
defense.
——
63
Company’s attorney, it was decided to contact the em-
ployees as they had done in the past. Even where certain
operators were badly needed to fill gaps in its production
lines, the Company, consistent with its practice before the
strike, in some cases merely sought to reach them by tele-
phone. In some instances, as will appear in the discus-
sion of the individual cases below, the Company upon
failing to reach the striker personally on the telephone,
let the matter drop there. In other instances the Com-
pany merely left messages for employees and did not
follow up with registered or certified letters. The Com-
pany’s records of these telephone calls were handwritten
notes on scraps of paper which were undated and un-
signed in most instances.
In July the Company sent post cards and mimeographed
letters to certain strikers inquiring about their availa-
bility for work and requesting them to call at the plant,
but the Company kept no copies of these post cards or
letters. Admittedly, at no time prior to the hearing did
the Company seek to contact strikers by registered or
certified mail. Nor did the Company ever request the
Union to assist it in locating a needed employee. All
these circumstances indicate to the Examiner that the
Company did not recognize its special obligations to the
strikers growing out of its unfair labor practices during
the strike.
Under all the circumstances, including the Company’s
slowness in reinstating strikers and its failure to dismiss
replacements to make room for strikers, the Company’s
failure in a large majority of the cases to substantiate
its principal defense of “no vacancy,” its failure to recog-
nize the Union’s letters as constituting valid applications
for reinstatement, and the circumstances indicating a
lack of recognition on the Company’s part of any special
obligation to returning strikers, the Examiner concludes
that the Company did not attempt in good faith to rein-
state the strikers after the strike was called off.
64
V. The specific defenses pleaded in the Company’s
amended answer regarding individual strikers
A. General discussion of the willful losses question
Before discussing the cases of the individual strikers
it may be helpful to treat the “willful losses” question
which is involved in the case of each of the individual
strikers. The question concerns the extent of the duty
of an employee, whom the employer because of his unfair
labor practices is obligated to reinstate, to seek interim
employment in order to minimize his wage loss.
The scope of the employee’s duty to attempt to mini-
mize his wage loss was first authoritatively defined in
Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. 177, 197-198,
in which the Court spoke in terms of having deductions
from gross backpay made “not only for actual [interim]
earnings by the worker and also for losses which he will-
fully incurred.” The Court in this same opinion went on
to say that the Board, in passing upon employer conten-
tions regarding employee failure to mitigate damages,
should consider “a clearly unjustifiable refusal to take
desirable new employment” (313 U.S. at 199-200).
The Board, construing the Phelps-Dodge decision, has
held that the employee must make a good-faith effort to
obtain interim employment to minimize his wage loss.
However, this does not mean that the employee’s search
for work must meet with “success: it only requires an
honest good-faith effort.” N.L.R.B. v. Cashman Auto Co.,
223 F. 2d 823, 836 (C.A. 1). What constitutes a good-
faith effort necessarily depends upon the facts and cir-
cumstances in each case. However, the following general
guides are available. As stated in the Examiner’s Report
which was adopted by the Board in Mastro Plastics Corp.,
136 NLRB 1342, 1359:
. it can be said that in broad terms a good-faith
effort requires conduct consistent with an inclination
to work and to be self-supporting and that such in-
clination is best evidenced not by a purely mechanical
examination of the number or kind of applications
for work which have been made, but rather by the
_
65
sincerity and reasonableness of the efforts made by
an individual in his circumstances to relieve his un-
employment. Circumstances include the economic cli-
mate in which the individual operates, his skill and
qualifications, his age and his personal limitations.
With these considerations in mind the Examiner dis-
cusses some of recurring questions which have arisen in
passing upon the “willful losses” issue. Several of the
employees here involved instead of attempting to find out-
side jobs, became self-employed, such as operating home
laundries, beauty parlors, or furnishing a home sewing
service. The Board has consistently held that such self-
employment does not terminate an employer’s backpay li-
ability. Harvest Queel Mill and Elevator Company, 90
NLRB 320, 323; L. B. Hosiery Co., 99 NLRB 630; Mas-
tro Plastics Corp., 1836 NLRB 1342, 1350. The Courts
have agreed that self-employment does not terminate an
employer’s backpay liability. N.L.R.B. v. Armstrong
Tire and Rubber Company, 263 F. 2d 680, 683 (C.A. 5);
N.L.R.B. v. Efco Manufacturing, Inc., 227 F. 2d 675, 676
(C.A. 1); N.L.R.B. v. Cashman Auto Co., 233 F. 2d 835,
836 (C.A. 1).
Other employees found employment during the backpay
period as maids in private homes and did not seek work
in sewing factories or other like establishments. Their
earnings as maids were less than they would have earned
working for the Company. Such situations, the Exam-
iner concludes, do not warrant a finding of a willful loss
of earnings on the part of the employees simply because
they have not looked for factory work. It should be
borne in mind that the employees here involved, with two
exceptions, are all Negroes. All but seven were women.
Their educational advantages were limited. It was the
exceptional employee who had finished high school. They
were presumably not trained in job seeking. A consider-
ably greater number of job opportunities were presum-
ably open to these Negro women as maids than as factory
workers, if the normal ratio prevailed. To judge by the
work histories of the employees here involved during and
after the strike, housework was the kind of work to which
PESO LEI EY RPELY ANGLE ji oP La pay 4
66
many of the employees here involved automatically turned
when they lost their jobs in factories. In the opinion of
the Examiner, this cannot be explained by the inherent
attractiveness of domestic work. So it is reasonable to
attribute the employees’ choice of such work to the feeling
that it was the best solution they could find for their
joblessness. Under all the circumstances, failure to seek
factory work, in the opinion of the Examiner does not
constitute willfully incurring a loss in earnings. Cf. East
Texas Steel Castings Co., 116 NLRB 1836, 1344-1345, en-
forced 225 F. 2d 284 (C.A. 5) (welder’s acceptance of
lower paying job as a cabdriver).
A few of the strikers, upon obtaining 1 to 3 days’ work
a week as a maid, did not seek additional work, either as
a maid or otherwise. These employees were not complete-
ly idle; yet they were not doing their utmost to minimize
their losses, Should the Company be relieved of all its
obligation to these women because they apparently were
content to work less than a full week? The Examiner
concludes that a reasonable solution to this problem is to
hold that these employees were incurring a partial willful
loss of earnings and to measure their gross wages by the
ratio of the number of the days they were working to
the number of days in a full workweek (the Company
worked 5 days a week). For example, for a woman work-
ing 2 days a week as a maid in any quarter, her gross
wages would be two fifths of the full gross wages of an
employee working full time or seeking full-time work in
that quarter.
Another question relates to the obligation of the em-
ployee who obtains interim employment in another sew-
ing factory or similar establishment but who only works
a short workweek. Must this employee seek other full-
time employment on her days off or must she seek some
sort of day’s work on her days off. In the opinion of the
Examiner, both of these questions should be answered in
the negative. It does not seem reasonable to expect an
employee who has worked fairly steadily 3 or 4 days a
week to look for a 5-days a week job in which either the
employee may not work out satisfactorily or the job may
turn out to be of short duration.
PF a
-—
67
A more difficult problem concerns the situation of an
employee who obtains interim employment in a sewing
factory which works steadily some weeks, but which may
regularly have periodic layoffs of weeks, or occasionally
months, in duration. Regarding layoffs of a few weeks
duration, and it is not shown that the employee has no
reasonable expectation of returning to work for this em-
ployer, the Examiner concludes that a failure to seek
other work during this period does not constitute willful
idleness. As to the layoffs of a month or more, even
though the employee may anticipate being called back to
work momentarily, it would appear incumbent upon her
to seek other employment and, upon a showing that the
employee had not looked for other work during such a
layoff, the Examiner would find a willfully incurred loss
of earnings.
However, in case it appeared that the employee was
regularly registering for unemployment compensation
benefits, a different result would be reached. The record
in this case shows that under the Louisiana Employment
Security Act in order to be eligible to receive unemploy-
ment compensation the individual must register for work
and continue an active application for work. The Record
also shows that registering for employment was one of
the procedural steps taken each week when the employees
reported to the office of the State Employment Service in
connection with drawing their unemployment compensa-
tion. In these circumstances, absent a showing that the
employee failed to accept a referral to a job, where it
appears that an employee was registering for or drawing
unemployment compensation, the Examiner would not. be
warranted in concluding that the employee by not making
other efforts to obtain work was willfully incurring a loss
in earnings during such periods.’ This latter comment
1 This is the Examiner’s general conclusion in this regard. As
stated below, there are one or two cases which the Examiner has
found employees to have willfully incurred a loss in earnings during
periods they were drawing unemployment compensation. In these
cases, the Examiner concluded upon the facts of their cases, despite
the fact that the employees were receiving unemployment compen-
sation, that they were not genuinely interested in finding work.
68
applies only to employees having regular jobs who are
temporarily laid off. ;
The Louisiana Employment Security Act contains a pro-
vision for employees drawing partial unemployment com-
pensation where their employers can only offer them short
workweeks or irregular employment. To draw partial un-
employment compensation the employee registers, not at
the office of the State Employment Service, but at his
employer’s establishment, The employee is not considered
for referral to a job by the State Employment Service as
the employee is regarded as bound to his part-time em-
ployer, and under the law it is regarded as desirable that
this relationship be fostered. Even though the employee
is not considered for referral by the State Employment
Service while drawing partial unemployment compensa-
tion, in view of the policy embodied in the State law, the
Examiner finds it inappropriate to hold such employees
to be willfully incurring a loss of earnings while thus
temporarily idle.
B. The misconduct defense (applicable to the employ-
ees listed in Schedule 6(a)), of the Company’s
amended answer
1. General discussion
For misconduct of strikers to constitute a defense to
their reinstatement it must be “so flagrant or violent as
to render him unfit for further service.” Trumbull As-
phalt Co., 139 NLRB 1221, 1222. In such situations the
Board normally withholds its normal reinstatement rem-
edy, deeming such relief in such circumstances to be in-
consistent with the effectuation of the policies of the Act.
In determining during a strike whether alleged miscon-
duct is of such a serious character as to warrant with-
holding the conventional remedy, consideration must be
given not only to the provocation inherent in the Com-
pany’s unfair labor practices which caused the continua-
tion of the strike, but also to the realities of strike situa-
tions. See Local 833, UAW v. N.L.R.B. (Kohler Co.),
300 F. 2d 699, 702 (C.A.D.C.), and cases therein cited.
It is with these principles in mind that the Examiner has
r
considered the incidents of alleged misconduct which are
apparently relied upon as disqualifying from reinstate-
ment the employees listed in Schedule 6(a) of the Com-
pany’s amended answer.’
The Company asserts in its memorandum that it be
lieved in good faith that the employees listed in Schedule
6(a) were guilty of serious acts of misconduct during
the strike and, relying on Rubin Bros. Footwear, Inc. v.
N.L.R.B., 203 F. 2d 486 (C.A. 5), argues that although
it may have failed in part to prove that the employees
listed in Schedule 6(a) actually engaged in serious mis-
conduct, since the record shows it believed in good faith
that they had engaged in such misconduct, this is suffi-
cient basis for denying reinstatement. While the Board
has not acquiesced in the principle of the Rubin decision
on the Fifth Circuit and the question is now pending be-
fore the Supreme Court in N.L.R.B. v. Burnup & Sims,
Inc., certiorari granted, 375 U.S. 983, even if the Supreme
Court should ultimately sustain the Rubin principle upon
which the Company relies, it would not be applicable in
the present situation, which involves purely a question of
remedy, and not the question whether an unfair labor
practice has been committed.
Reinstatement of the strikers, upon application, was
ordered in this case to remedy the Company’s refusal to
bargain collectively in violation of Section 8(a) (5), which
the Board found prolonged the strike. In the Rubin case,
unlike this case, the Board was considering the employer’s
refusal to reinstate economic strikers which was alleged
to violate Section 8(a) (3) and (1) of the Act. In such
situations, the employer’s motivation for refusing rein-
statement is in issue and the employer’s belief as to mis-
conduct may throw light on this issue. In the instant
case, which involves the reinstatement of unfair labor
practice strikers, upon application, the only question, as
indicated above, is whether the employee has so seriously
misconducted himself to render him unfit for further em-
ployment. In a case like the present the employer’s mo-
69
1In view of the Company’s failure to treat the employees’ cases
individually in its memorandum, the Examiner cannot ascertain pre-
cisely what conduct the Company is relying upon in each of the
individual cases in which the misconduct defense is raised.
OD Te He
70
tivation at the time he refuses reinstatement is immate-
rial. Misconduct of a striker which is unknown to the
employer at the time he refuses reinstatement might be
the basis of the Board’s withholding the reinstatement
remedy. It is the nature and seriousness of the employee's
conduct rather than the employer’s belief in this regard
which is determinative. It would be highly illogical and
contrary to common sense to have the remedy for an em-
ployer’s antecedent unfair practices to return on the em-
ployer’s belief, no matter how mistaken he may be in
fact, as to employees’ subsequent conduct during a strike.
Before coming to the specific incidents of alleged mis-
conduct which are apparently relied upon as disqualify-
ing from reinstatement the employees listed in Schedule
6(a) of the Company’s amended answer, it should be
noted, in accordance with Rutter’s testimony, that the
Company during the strike adopted the policy of not re-
instating the strikers who, in Rutter’s words “were
judged in our opinion to be the hard core that had re-
peated acts of violence.” These strikers, Company wit-
nesses testified, were informed when they personally ap-
plied for reinstatement of the reason for the Company’s
refusal.
Since 8 of the 15 striking employees listed in Schedule
6(a) of the Company’s amended answer are implicated
by the testimony to a greater or a lesser degree in a dis-
turbance occurring outside the Company’s plant on Octo-
ber 21, 1954, it may be helpful if the Examiner sets forth
at the outset the salient facts concerning this incident.
2. The October 21, 1954, incident
Piecing together the testimony of the various witnesses
concerning this incident, the Examiner finds as follows:
A group of workers in the plant, tired of the harassments
they had received at the hands of the strikers going to
and from work, decided to do something about it on Octo-
ber 21, 1954. Among the group of about 12 who planned
to take action that day was Hazel Tate, who was still
employed by the Company at the time of the hearing.
Tate, called as a witness by the Union, testified that this
group decided to provoke a fight with the pickets during
the lunch hour. It appears that, pursuant to the plans of
—
the group, empty coke bottles were lines up along the
walls just inside the front door of the plant.
On this occasion two strikers were walking as usual,
with their umbrellas. On the Pauline Street side of the
plant, Lorraine Lyons was patrolling and Louella Johnson
was walking in front of the building on Dauphine Street.
At the strike headquarters, which was in the rear of a
store at the corner of Dauphine and Independence Streets,
across Independence from some houses which were then
adjacent to the factory, about eight or more strikers were
hanging around waiting to take their turn doing picket
duty. A large number of workers were eating their
lunches in front of the Company’s warehouse (then being
built) across Dauphine Street from the main plant.
Between 11:50 and 12 noon that day (the lunch hour
ended at noon), Tate and others in the doorway of the
plant started taunting the pickets with epithets, and
“droves” of workers started coming out of the plant. One
of these pushed Louise Gordon (also a worker) into Lou-
ella Johnson, who was walking with a picket umbrella in
front of the plant. Louella called to Lula Mae Washing-
ton, a picket captain, who was preparing to commence
picket duty. Lula Mae approached running, with other
strikers following her. Tate challenged Washington to
fight. About this time bottles started flying from the
plant. Mary Fland ran from the large group of workers
eating their lunch across the street to see what was hap-
pening to Louise Gordon, her niece. Fland was carrying
a tree branch about 18 inches long. Fland got into an
argument with Washington. While this was going on
bottles and brickbats were flying back and forth thick
and fast. A number of windows in the plant were broken,
as was the door glass, In the melee Marion Randall was
out on the head with a broken bottle. When Fland re-
treated inside the plant, she discovered that she had been
cut on the back, Fland and Janie Kirk testified that they
saw Washington with a penknife in her hand. It is un-
disputed that thereafter Fland and Washington “tangled,”
and then Fland discovered that she had been cut. Wash-
ington denied having a knife on any occasion during the
strike. Washington’s denial is not credited. In the Exam-
_ iner’s opinion, Washington was too sweeping in her de
71
72
nials of strike harassment of workers during the strike
to be believed. The Examiner finds that Washington was
guilty of the stabbing. After the Fland-Washington al-
tercation, the workers were ordered back into the fac-
tory. The whole incident lasted about 5 minutes. Work
began on schedule when the second bell rang.
Tate, who was one of the ringleaders in the action
against the strikers on October 21, 1954, was not dis-
charged or laid off because of her participation in this
affair, as the Specification shows. Fland also remained
on the payroll despite her aggressive acts on this occa-
sion. The record does not reveal what discipline, if any,
was given to the workers who engaged in the bottle-throw-
ing during this incident.
In view o
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