# Appendix — National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0136%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 396 U.S. 258 ## Text 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, * " a he 3 ot a ao 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 & 3 % 4 4 =A é ” 4 3 B 4 & +3 5 Ny fre hte ee Piitsoowe sce 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, ref [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0136%3A01. Public record. Not legal advice.