Ambrose Distributing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1969

178 N.L.R.B. 721 (N.L.R.B. 1969)

AMBROSE DISTRIBUTING CO.
Ambrose Distributing Company and General
Teamsters, Warehousemen , Chauffeurs & Helpers
Union Local No. 483 , affiliated with the
international Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America
(Independent ). Case 19-CA-2825
September 30, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MI-MBERS FANNING, BROWN, ANi)ZAGORiA
On November 13, 1964, Trial Examiner Wallace
E. Royster issued a Decision and Recommended
Order in the above-entitled case, finding that
Respondent had engaged in and was engaging in
certain unfair labor practices. and directing it, inter
alia, to offer immediate reinstatement to certain
employees who were unlawfully discharged to
discourage membership in or activities on behalf of
the Union, and to make these employees whole for
any losses sustained as a result of any denial of
reinstatement The Respondent having filed
exceptions, the National Labor Relations Board,
after due consideration, issued an Order on
February 9. 1965, adopting the Recommended
Order. The Order of the Board was enforced by the
United States Court of Appeals for the Ninth
Circuit on March 9, 1966, and on July 26, 1967, the
same court adjudged the Respondent in civil
contempt in certain respects.
On October 22, 1968, the Regional Director for
Region 19 issued and served upon the parties a
Backpay Specification and Notice of Hearing The
Respondent filed an Answer to the Backpay
Specification on December 19, 1968.
On February 4, 1969, Trial Examiner Robert
Cohn conducted a hearing to determine the
sufficiency of Respondent's conduct in respect to
reinstatement and to ascertain the amounts of
backpay owing under the Board's Order as enforced.
On April 17, 1969, the Trial Examiner issued his
Supplemental Decision, 'attached hereto, which
awards backpay to one employee, the parties having
reached a settlement with respect to the backpay
due the other employee. Thereafter, the Respondent
and the General Counsel filed exceptions to the
Trial Examiner's Supplemental Decision and briefs
in support of their exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing 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 Trial
721
Examiner's Supplemental Decision. the exceptions
and the briefs, and hereby adopts the findings,
conclusions. and recommendations of the Trial
Examiner. With the following modification and
comment.
The Trial Examiner inadvertently concluded that
the revised computations of the General Counsel,
which set forth gross backpay without eliminating
those employees' earnings under 60 percent of the
average, also included in the principal amount the
amount of interest to April 15, 1968 We find merit
in the General Counsel's exception to this, and
therefore direct that interest be computed on the
General Counsel's revised computations, and that
the backpay he adjusted accordingly.
The Respondent excepts to the payment of the
travel expenses claimed. We find no merit in this
exception. The Respondent contends that, during his
prior employment by the Respondent, employee
Byrd travelled to work a distance of' approximately
35 miles, and that he travelled approximately the
same distance to his interim employment. However,
the round-trip to his interim employment was made
on a daily basis, whereas the round-trip to his
employment by the Respondent was made only once
per week. The General Counsel therefore deducted
the cost of 13 round trips per quarter from Byrd's
interim travel expense in computing the backpay due
him The Respondent contends that since the
distances between his home and his places of
employment were the same, and, since he was not
paid for this travel by the Respondent. the
Respondent should not be required to pay for his
travel to his interim employment.
The evidence does not support the Respondent's
argument The record shows that, while working for
the Respondent, Byrd operated on long hauls with
another driver, and that he was assigned to this
work on a trip-by-trip basis. As a result, Byrd made
only one round trip per week to his employment
with Respondent. During his interim employment.
however, according to the General Counsel's
backpay specification, Byrd was required to make
considerably more round trips to continue working.
While the Respondent points out that the distances
Byrd travelled to his interim work were
approximately the same, it failed to show that the
greater number of trips made by Byrd was
unnecessary. The undenied testimony of Byrd was
that his interim employment involved both short and
long trips, thereby justifying the additional travel
expenses to and from his interim employment.
ORDER
On the basis of the foregoing Supplemental
Decision and the entire record in this case, the
National Labor Relations Board hereby orders that
the Respondent, Ambrose Distributing Company, its
officers. agents. successors, and assigns, shall pay
Richard F. Byrd as net backpay the amount of
178NLRBNo 114
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S12,466. with interest at the rate of 6 percent per
annum computed on the basis of the quarterly
amounts of net hackpay due, less any tax
withholding required by law.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATI MLNT OF THE CASF
ROBERT COIIN,'I rial Examiner: On February 9, 1965,
the National Labor Relations Board (herein the Board)
issued its Decision and Order finding, inter alia, that
Ambrose Distributing Company (herein the Respondent
or Company) discriminated against Richard F Byrd and
Thomas L Smith, in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended (herein
the Act), and ordered that they be reinstated and made
whole for any loss of earnings suffered by reason of the
discrimination ' On March 9. 1966, the Court of Appeals
for the Ninth Circuit enforced in full the Board's Order,2
and on July 26, 1967, the same court adjudged the
Respondent in civil contempt in certain respects.' The
court decreed that the Respondent, in order to purge
himself of contempt, inter alia, do each of the following:
(a) Forthwith and in good faith offer to Richard
Byrd and Thomas Smith immediate and full
reinstatement each to his former or substantially
equivalent position without prejudice to seniority or
other rights or privileges.
(c) Make Richard Byrd and Thomas Smith each
whole for all loss of pay due to the discrimination
against him, the amount to be fixed by the Board, and
approved by further order of the court.
The parties having been unable to agree upon the
amount of backpay due the discriminatees, the, case is
before me on a hackpay specification and notice of
hearing issued by the Acting Regional Director for Region
19 of the Board on October 22, 1968 Following the
granting of several requests for extension of time within
which to file answer, the Respondent, on December 19.
1968, duly filed his answer to the hackpay specification,
and hearing was held before me in Twin Falls, Idaho, on
February 4, 1969.
At the hearing, counsel for the General Counsel moved
to amend the specification as respects amounts due
thereunder because of an error in computation, which
motion was granted. Also at the hearing the parties
announced that a settlement had been reached with
respect to the backpay due the discriminatee Thomas L.
Smith. and the latter testified that the settlement was
satisfactory to him in every respect. Under these
eiicuinstances, I indicated approval of the settlement' and
the case proceeded solely as respects the backpay due
Richard Byrd.
Both parties were represented by counsel and afforded
all rights of due process. Oral argument was waived, but
posthearing briefs have been filed by counsel for the
General Counsel and counsel for the Respondent, which
have been carefully considered Upon the entire record in
'Ambrose Dtstrtbuttng Company. 150 NLRB 1642
'358 F 2d 319
'382 F 2d 92
'The amount paid in settlement , as the Trial Examiner was advised
subsequent to the hearing, was $3,500
the case and from my observation of the witnesses, I
make the following-
FINDINGS AND CONCLUSIONS
1. STATFMIE \1 OF TiiL ISSUES
The principal issue in this case is whether the formula
utilized by the General Counsel for the computation of
gross backpay is sustainable under law Secondary issues
are (1) whether the proper cutoff date for the
computation of hackpay should be January 12, 1967. as
proposed by Respondent. or August 20. 1967, as
contended by the General Counsel: (2) whether Byrd is
entitled to claim certain travel expenses during the
backpay period: (3) whether Byrd's backpay should be
diminished by his alleged failure to seek or accept other
employment within the first month or two following his
discharge by the Respondent
A. The Cutoff Date
The record shows that on January 10. 1967,
Respondent's counsel sent the following letter to each of
the discriminatees
Under the terms of the Order issued by the Board in
the above entitled case, Ambrose Distributing Company
is required to offer you re-instatement in your job with
the Company. We suggest that you contact the Butte,
Montana, office pertaining to re-employment.
The Respondent contends that the language of the
foregoing letter constitutes compliance with the Order of
the Board, as enforced by the court, that he should offer
the discriminatees "immediate and full reinstatement each
to his former of substantially equivalent position without
prejudice to seniority or other rights and privileges ......
The court, in its opinion on the contempt petition,
stated in plain and unambiguous language-
We find that the January 10 letters to Byrd and
Smith do not comply with the requirements of
paragraph 2(a) of our decree.'
The record further shows that on July 26, 1967,
Respondent sent each of the discriminatecs the following
letter.
In order to remove any question of the intent and
purpose of our letter addressed to you dated January
10, 1967, pertaining to your reinstatement with the
Ambrose Distributing Company, we hereby
unconditionally offer you reinstatement to your former
job without prejudice.
We suggest you contact either the main office at
Butte, Montana, or the sub-office at Wendell, Idaho, as
soon as conveniently possible, which we assume will not
exceed ten days.`
The Respondent. at the hearing and in his brief,
contends that he had the right to have the issue of the
cutoff date "decided on its own merits," and not merely
as part of an ancillary (contempt) proceeding. It is
contended that the above-quoted finding of the court was
obiter dictum
I disagree The issue before the court was whether the
Respondent had complied with the affirmative provisions
of the court decree which were set forth in its opinion.
'65 LRRM 3057, 3059
'Appendix 9 attached to Respondent 's Answer The record (Appendix
D-15 attached to the specification ) further shows that Byrd was reinstated
en August 21, 1967
AMBROSE DISTRIBUTING CO. 723
The court made 13 findings of fact, one of which
respected the issue of the validity of the offer of
reinstatement. Thus, this issue was squarely before the
court, evidence was adduced thereon, and the finding was
made I deem myself bound by this finding, and conclude
that by the January 10 letter to Byrd, the Respondent did
not comply with the order of the Board, as enforced by
the court Additionally, I find that the Respondent's otter
by its July 26 letter, above quoted, did constitute a valid.
unconditional offer of reinstatement in compliance with
the court decree.'
B. The Claimed Travel Expenses
Respondent objects to the inclusion in the specification
of certain "transportation expenses" incurred by Byrd
during the backpay period , which expenses were deducted
from interim earnings . It is well established that
reasonable expenses which are incurred by claimants in
seeking new employment are properly deductible from
their interim earnings .' Respondent here argues. however,
that during Byrd ' s period of employment with Respondent
no payment was made for mileage traveling to or from
work and that now Byrd is commuting to Twin Falls from
his home near Wendell . Idaho. and incurring unnecessary
traveling expense However, in the specification , there is
deducted from claimed traveling expenses the estimated
cost incurred by Byrd in traveling from his home to
Wendell , Idaho. where he worked for Respondent.' While
it is not altogether clear on the record the reason for
commuting from his home to Twin Falls during the
backpay period while he made only one round trip per
week from his home to Wendell during his period of
employment with Respondent . I do not deem this an
unreasonable expense incurred as a necessity of Byrd's
seeking and securing new employment , particularly when
it is recalled that Byrd was placed in this position as a
result of the Respondent ' s unlawful conduct 10
Accordingly , the Respondent 's contention in this regard is
denied.
'Even were I to accept , arguendo , the Respondent's contention and
consider the issue ub inmo. 1 would reach the same conclusion as the
court Upon scrutiny, the January 10 letter, in fact, does not offer the
discriminatees anything The first sentence thereof merely recites the fact
that the Respondent has been required to offer reinstatement , and then
suggests that the discriminatees contact the Respondent "pertaining to
reemployment " Anyone slightly versed in labor relations parlance is aware
of the distinction between those two terms Moreover, the court found that
Respondent's counsel on April 13, 1967, suggested to his client that "either
you or I write an unequivocal firm offer to reinstate the two employees in
question . " That Respondent knew how to write such an unconditional
offer, if he so desired, is confirmed by his letter of July 26
'Harvest Queen Mill & Elevator Company, 90 NLRB 320, 323
'This mileage is computed at one round trip per week
"See, e g, Crossett Lumber Company, 8 NLRB 440, 497-498, where it
is stated
It is to be noted in this connection that many of the employees against
whom the respondent discriminated found it necessary, in view of the
limited employment opportunities at Crossett and its immediate vicinity,
to seek work in Caldornia, Arizona, Louisiana, or other places Some of
the employees maintained homes in Crossett or its immediate vicinity,
where they lived with their families, and in going to other places to
work, they incurred expenses such as for transportation, room, and
board, which they would not have incurred had they continued to work
for the respondent and not been forced, by virtue of the respondent's
unfair labor practices, to leave their homes.
The foregoing language was approved by the Supreme Court in Phelps
Dodge Corp v '5' L R.B , 313 US 177 at fn 7. See also Herman
Brothers Pet Supply, Inc , 150 NLRB 1419, 1422, and cases cited.
C. Diligence in Seeking New Employment
Respondent contends that Byrd should be denied
backpay during the first several months of the backpay
period because he was not diligent in seeking new
employment.
The record shows that following his discharge by the
Respondent on March 11, 1964, Byrd thereafter sought
employment with several trucking firms in the area as well
as registering for employment with the state
unemployment office." He also testified that he had been
registered with the Teamsters Union, but that he had been
unable to secure employment as a truckdriver from any of
these sources until early May 1964. when he finally
secured empNyment from Winn & Company in Buhl,
Idaho." With the single exception of the first quarter of
1967, the record show's that Byrd worked rather steadily,
albeit for different employers, during the remainder of the
backpay period
Respondent argues that there were possible job
openings on nearby farms which were available and which
Byrd did not seek and would not accept. Byrd testified
that these were known as "farm hand jobs" which
required that one move on to the farm and work there
earning approximately 250 to 300 dollars per month.
Under all circumstances, 1 do not deem this kind of job
to be substantially equivalent to the position from which
he was discharged or suitable for a person of his
background and experience." Accordingly, I conclude that
Byrd was not required to "lower his sights" and accept
such employment, and therefore find that Respondent did
not sustain his burden of proving that Byrd did not make
a reasonably diligent effort to find desirable employment
during the first part of the backpay period. I will therefore
recommend that there be no deduction from gross
backpay on this account "
D. The Validity of the Backpay Formula
The Respondent contends that the formula advanced by
the General Counsel for the purpose of computing Byrd's
gross backpay during the backpay period is improper and
reflects a gross distortion of the amount which Byrd
would have earned had he remained in Respondent's
employ. General Counsel's formula was arrived at in the
following manner:
A representative group of drivers was chosen, such
representative group consisting of all drivers (with five
exceptions including the two discriminatees) who received
earnings in each pay period of the fourth quarter of 1963,
such quarter being the last full quarter which the
dtscrimtnatees worked prior to being discharged in March
1964." This representative group, consisting of 23 drivers,
"He registered with the unemployment service on April 21, 1964, after
he had exhausted the other employment possibilities.
"The foregoing findings are based upon the uncontradicted testimony of
Byrd, which I credit
"Southern Silk Mills, Inc.. 116 NLRB 769. 773 1 am aware that the
Board's Order in this case was denied enforcement by the Court of
Appeals for the Sixth Circuit (242 F 2d 697, cert denied 355 U.S 821)
However, it seems that the reason for the court's action was because of the
failure of the two dtscrimtnatees in that case "to seek or take other
suitable, available employment, although at a lower rate of pay, over a
period of approximately three years, constitute[d] to some extent at least
loss of earnings 'willfully incurred " The instant case is thus clearly
distinguishable on its facts
"Mastro Plastics Corp, 136 NLRB 1342, enfg 354 F 2d 170 (C A. 2),
cert. denied 384 U.S 972 (1966), see also Cornwell Companv, Inc. 171
NLRB No 43
"While Byrd was employed by Respondent during the third quarter of
724 DECISIONS ON NATIONAL LABOR RELATIONS BOARD
was thereafter utilised throughout the backpay period for
the purpose of computing gross backpay. That is to say,
whenever any individual in the group earned wages during
any quarter involved m the computation, such earnings
were averaged with the earnings of all other individuals in
the representative group who worked during that quarter
However, from the average earnings of the entire group
were excluded the earnings of those drivers whose earnings
were below 60 percent of the group's average. Such
exclusions were justified, according to the General
Counsel, to eliminate those employees who worked only a
very short period of time during the quarter, and, as a
result, whose earnings would tend to distort the average "
General Counsel relies on, inter alia, the following cases
in support of his contention that this formula has received
Board sanction in the past Venetian Blind Workers'
Union Local No 2565 (Ambassador Venetian Blind Co ).
110 NLRB 780, 786; Tennessee Packers, Inc , Frosty
Morn Division, 158 NLRB 1316, 1322-23; Herman
Brothers Pet Supply, Inc , 150 NLRB 1419, 1421
Respondent vigorously opposes such lormula
contending that it greatly distorts the true picture of what
Byrd would have earned had he remained in Respondent's
employ. Thus the Respondent argues that Byrd was not
generally a steady worker, pointing to the irregular
pattern of his employment with Respondent since 1959."
Nevertheless, Respondent, in its brief, acknowledges that
Byrd "did work the third and fourth quarters of 1963
quite steadily."" Secondly. the Respondent objects to the
group utilized by the General Counsel on the ground it
was unrepresentative in that the size of the group steadily
decreased during the backpay period so that during the
latter quarters thereof the average consisted only of some
half dozen employees, whereas, in tact, the Respondent's
payroll numbered over 40 The Respondent contends that
gross backpay should more properly be based upon the
average earnings of all the truckdrivers employed by the
Respondent during the backpay period."
Respondent further contends that the General Counsel's
elimination of the lower 60 percent from the average
resulted in the gross backpay figure reflecting the earnings
that only the very top driver would earn, and is thus
clearly erroneous. This particularly when, according to
Respondent's figures, Byrd's earnings were only
approximately 77.84 percent of the average earnings of the
truckdrivers during the third and fourth quarters of 1963.
1963, he did not work the lull quarter, having been hired on July 10, 1963,
and missing 2 weeks because of an injury
'OTruckdrivers are paid on a tip and mileage basis rather than an hourly
basis
"The company records ( Resp Exh 3 ) show that from 1960 through
1963 Byrd worked [or the Respondent several months of each year in an
irregular pattern , quitting on each occasion The last continuous period of
employment with Respondent commenced July 10, 1963, and continued
until his discharge in March 1964
"General Counsel counters that it is improper to consider the past
employment history of Byrd with the Respondent as a basis of concluding
whether or not he was a steady worker since the periods of employment
involved were not long enough upon which to adequately base such a
conclusion , and that he should not be penalved for quitting a job in order
to secure a better one
"The General Counsel counters this argument by pointing out that many
of the employees employed by the Respondent during the backpay period
were unskilled and untrained truckdrivers who only worked sporadically
for Respondent and perhaps had earnings in only one quarter of the whole
backpay period which extended from the first quarter of 1964 until the
third quarter of 1967 To include such workers in the average , argues the
General Counsel, would grossly distort the same.
(Resp. Exh. 2.)
Finally the Respondent argues that the General
Counsel's formula was wrong because "it is actually
computed on a pay period (bimonthly) basis and the pay
periods added together to get quarterly earnings. The
Board should have added all the pay periods in the
quarter together before making their computation."
(Resp. Br , p. 7 )
Analysis and Concluding Findings
In considering the relevant legal principles applicable to
a resolution of' the present issue , I cannot improve upon
the following statement of my colleague, Trial Examiner
Rosanna A. Blake, in International Trailer C'onipanv,
Ins.
The proposition that an employer is required to
make discriminatees whole only for actual losses is
easier to state than to apply If uncertainty exists, as it
frequently does, it results from the employer's illegal
conduct and should he resolved against the company
rather than against the victims of the discrimination.
N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862. 872
(C.A 2); N L.R B v. Spitzer Motor Sales, Inc , 211
F.2d 235 (C.A. 2), enfg. 102 NLRB 437. 453, Ozark
Hardwood Company, 119 NLRB 1130, 1133 As the
Supreme Court pointed out in Story Parchment Paper
Co v Paterson Paper Co., 282 U.S. 555, 562, "There
is a clear distinction between the measure of prool
necessary to establish the fact that [a party] sustained
some damage and the measure of proof necessary to
enable [a tribunal] to fix the amount." See also
Palmer v. Connecticut Ry & Lighting Co , 311 U S.
544, 561, in which the Court said that "Certainty in
the fact of damage is essential Certainty as to the
amount of damage goes no further than to require a
basis for a reasoned conclusion." See also N L R.B. v.
Kartarik, Inc , 227 F.2d 190, 192-193 (C.A 8). in
which the court concluded that the principles set forth
in the above cases are equally applicable to baekpay
proceedings and are intended to "permit a solution of
the problem of amount to he made upon any range of
facts. circumstances, or reasonable inferences, which
afford a rational basis for a conclusion.
Broadly speaking, a discriminatorily discharged
employee is entitled to receive what he would have
earned had he remained in the company's employ
throughout the backpay period (gross backpay) less
what he actually earned in other employment during
that period. [Fn. omitted.] The determination of gross
backpay, for example, is not always a matter of
arithmetic for, as in this case, questions can arise
concerning how much the claimant would have earned
had he not been discharged. In cases in which such
questions exist, the Board "may use as close
approximations as possible, and may adopt formulas
reasonably designed to produce such approximations "
In other words, "In solving the problems which arise in
backpay cases the Board is vested with a wide
discretion in devising procedures and methods which
will effectuate the purposes of the Act " N L R B v.
Brown & Root, Inc.. etc . 311 F.2d 447, 452 (C A. 8)."
It follows, therefore, that the Board is not required to
use one formula only but may use a combination of
10150 NLRB 1205, at 1207 See also, to the same effect, statement of
trial Examiner George Downmg in Local 1566, Intl Longshoremen's
Assn (Marvin Gould ) 145 NLRB 1417, 1420
AMBROSE DISTRIBUTING CO. 725
methods in arriving at the amount or amounts due if it
appears that such-is necessary to effectuate, as nearly
as Dossible, the policies of the Act.
•the court also stated when reviewing the formulas used by the Board,
its inquiry was ordinarily limited to satisfying itself that the method
selected was not "arbitrary or unreasonable in the circumstances
involved " 311 F 2d 447. 453
As previously noted, the formula utilized by the
General Counsel, i.e.. a representative group whose
earnings were averaged through the backpay period, has
been sanctioned by the Board in the past, and, while it is
subject in the infirmity that the number of the employees
utilized diminished in,time,21the alternative theory posed
by the Respondent, i.e., utilizing an average earnings of
all truckdrivers employed by Respondent during the
backpay period, distorts the average by including many
new and inexperienced drivers who worked perhaps only
in one quarter of the backpay period and then left
Respondent's employ. While it is true that Byrd had
worked for Respondent on several occasions in the past,
quitting on each such occasion presumable for the purpose
of securing more desirable employment, the fact remains
that, admittedly, he worked regularly and steadily during
the last period of employment which extended 8 'months.
It is only reasonable to assume such a state of affairs
would have continued had it not been interrupted by the
discharge. Thus it was the Respondent's unlawful conduct
which prevents us from knowing what actually would have
occurred, and therefore any doubts must be held against
him (Ambrose) in the absence of any substantial evidence
to the contrary.
In this connection, Respondent contends in its brief that
"the Board should take into consideration Byrd's poor
work record and unavailability." However, there is a
decided lack of evidence in this record to substantiate this
argument. Preliminarily, I note an absence of such
contention in the original decision of Trial Examiner
Royster in this case. Indeed, it was there found that
"Byrd was not discharged because of any shortcoming in
the performance of his work " (150 NLRB at 1645.)
In this record. there is lacking any direct testimony that
Byrd refused to accept employment opportunities (trips)
offered him while in Respondent's employment, and I
deem the evidence that Byrd was not a steady employee
when he worked for Respondent several times in the past
insufficient to prove that he was not a willing and reliable
employee on those occasions, since the period of
employment was not long enough to make a reasoned
judgment. This is particularly so here where there is no
evidence of other factors which might bear on the issue,22
Moreover, Respondent concedes that during the last
period of his employment which extended for 8 months -
Byrd did work "quite steadily."
But Respondent argues that Byrd's earnings during the
last two quarters of 1963 were only 77.84 percent of the
total (Resp. Exh. 2). However, as General Counsel points
out, Byrd's earnings were diminished during the third
quarter of 1963 because he was not hired until July 10,
and thereafter was absent from work 2 weeks because of
an injury.
Under all circumstances, 1 am not prepared to hold
that the formula proposed by the General Counsel thus
far is so distorted and exaggerated as to declare it invalid
However, for reasons hereinafter set forth, I am not
inclined to agree with General Counsel to eliminate the
lower 60 percent of the average.
Thus, the reason for excluding a minority of the
employees in a group for purposes of ascertaining a fair
average is because "It is reasonable to assume that they
did so for reasons not applicable to the group as a whole
such as illness or because they were hired or fired in the
middle of the week."2J I am in agreement that it is proper
for the purpose of computing average earnings of the
group to eliminate the minority who worked infrequently
or sporadically in a given period, since it tends to distort
the average. However, in this case the General Counsel
seemingly rectified that problem initially by choosing a
representative group prior to the backpay period and
utilizing their earnings during the period. That the use of
that method eliminates the sporadic and "floating"
employees in advance is reflected by the record here which
shows a diminished complement of employees-- indeed a
minority of employees in the'classification -utilized for the
purpose of computing average earnings. It is true that one
or more of this group may have sub-par earnings during
any given pay period, but that is offset by including an
abnormally higher earner.2' In short, it would seem that to
further eliminate the earnings of the lower 60 percent of
this already select group would unduly weight the average
earnings upward. Accordingly, I accept the revised
computations attached to the General Counsel's brief
which sets forth gross backpay without eliminating those
employees' earning under 60 percent. Under those figures
the resulting net backpay amounts to $12,466.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions, it is ordered that the Respondent, Ambrose
Distributing Company, its officers, agents. successors, and
assigns, shall pay Richard F. Byrd as net backpay the
amount of S12,466, with interest at the rate of 6 percent
annum computed on the basis of the quarterly amounts of
net backpay due.2` less any tax withholding required by
law
"General Counsel in his brie) (p 8) acknowledges that of the original 23
employees utilized in the representative group, "only 9 drivers of this
group remained employed by the Respondent as of July 31, 1964 , and the
number never exceeded 9 in any subsequent quarter of the backpay
period."
"These would include considerations such as amount of business,
weather, his position on the seniority roster (if any), etc
"International Trailer Company. Inc. 150 NLRB 1205, 1211
"Cl Local 1566, Intl Longshoremen 's Assn (Marvin Gould), 145
NLRB at 1422.
"It appears that interest to April 15, 1968, has already been included in
the principal amount see Appendix E attached to the original specification
G C Exh 1(a))