American Casting Service, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 585 (N.L.R.B. 1970)

AMERICAN CASTING SERVICE 585
American Casting Service , Inc. and International
Molders' and Allied Workers' Union of North
America, AFL-CIO. Cases 25-CA-1877 and
25-CA-1878
the findings, conclusion, and recommendation of the
Trial Examiner.
ORDER
March 6, 1970
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On February 18, 1965, the National Labor
Relations Board issued a Decision, Order, and
Direction of Second Elections, finding, inter alia,
that Respondent had discriminated against Thomas
Mason, Jewell Stafford, George W. Bryant, Jr., Joe
Jackson, Wayne Johnson, Ralph Nelson, Theron
Carter, Isaiah Young, and Joe McGarrah, in
violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, and directing
Respondent to make whole these individuals for any
pay losses they may have suffered thereby.'
Thereafter, on August 8, 1966, the Board's Order
was enforced by the United States Court of Appeals
for the Seventh Circuit.' Following a hearing, the
Trial Examiner on March 18, 1969, issued his
Supplemental Decision in which he found the
discriminatees herein to be entitled to backpay in
the amounts specified. Thereafter, on May 29, 1969,
the Board ordered the record reopened and
remanded the case for the limited purpose of
introducing into evidence certain documents and
testimony from William White d/b/a White
Construction Company, concerning the interim
earnings of Joseph H. McGarrah. On June 26, 1969,
the Board issued a Supplemental Decision and
Order3 adopting the findings, conclusions, and
recommendations of the Trial Examiner, with
respect to all discriminatees except McGarrah. On
August 12, 1969, a further hearing was held before
Trial Examiner Benjamin B. Lipton who issued his
Second Supplemental Decision on October 1, 1969,
finding McGarrah entitled to backpay in the amount
of $874.47. Respondent filed exceptions to that
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, 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 second supplemental hearing
and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has
considered the Trial Examiner's Second
Supplemental Decision, the exceptions and brief,
and the entire record in this case, and hereby adopts
'151 NLRB 172
'N L R B v A merican Casting Service, Inc, 365 F 2d 168
'177 NLRB No 5
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, American ,Casting
Service, Inc., its officers, agents, successors, and
assigns, shall pay Joseph H. McGarrah the amount
set forth therein.
TRIAL EXAMINER'S SECOND
SUPPLEMENTAL DECISION
BENJAMIN B. LIPTON, Trial Examiner: On March 18,
1969, I issued in the instant backpay proceeding a
Supplemental Decision in which it was recommended that
specific amounts of backpay be awarded to eight named
employees, including Joseph H. McGarrah, theretofore
held by the Board and Court to have been discriminatorily
discharged by Respondent. On May 29, 1969, the Board
ordered the record reopened and remanded the case for
the purpose of taking further evidence relating solely to
the interim earnings of McGarrah, as described below. On
June 26, 1969, the Board issued its Supplemental Decision
and Order' adopting the findings, conclusions and
recommendations of the Trial Examiner, while reserving
decision as to the amount of backpay due McGarrah. On
August 12, 1969, pursuant to the remand, further hearing
was held before me in Princeton, Indiana. Thereafter,
Respondent filed a brief, which has been given due
consideration.
On the entire record, and from my observation of the
demeanor of the witnesses on the stand, I make the
following supplemental findings and conclusions:
At the previous hearing, McGarrah testified that he
helped William White, d/b/a White Construction
Company, on two projects for which he received no wages
but was given salvage materials: (1) In the fourth quarter
of 1963, on the Ohio Street bridge job, he received salvage
lumber, which White told him was worth $200. He
subsequently sold most of the lumber in small quantities
and obtained an estimated total of $200. (2) Between
February 18 and March 18, 1964, on the Gibson County
Bank job, he was compensated by White only in the form
of salvage, some of which he sold for "a very small
amount."' On the social security records in evidence,
White had apparently reported that, from November 15,
1963, to June 1, 1964, McGarrah received salvage valued
at $300.
White did not appear at the original hearing, although
he had been served by Respondent with a subpoena to
testify and produce his payroll records. Respondent's
motion for continuance, made to the Trial Examiner at
the hearing, for the purpose of allowing Respondent to
seek to produce White at a future date, was denied. On
the basis of that record, it was found by the Trial
Examiner (a) that McGarrah's testimony was "at best
' 177 NLRB No 5
'McGarrah also gave testunony, inter alia, that he received no
remuneration for assisting John Vickers in repairing White 's truck, and for
helping White level certain farm land owned by Churchman.
181 NLRB No. 82
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vague and less than persuasive" concerning the value of
the salvage materials; (b) that the unsold salvage as well
as the small quantity McGarrah sold from the Gibson job
represented valid interim earnings, despite the absence of
an indicated value; and (c) that, in the circumstances, the
amount of $300, reflected in White's social security
report, was accepted as deductible interim earnings to
effect an accommodation "covering all of the disputed
items."
In its Order of May 29, 1969, the Board in essence (a)
described certain exceptions filed by Respondent which
challenged the credibility of McGarrah and which
contended that the motion for continuance for the purpose
of examining White and his records should have been
granted; (b) concluded that, "since White failed to answer
the subpoena, the record is insufficient to determine
McGarrah's backpay;" and (c) remanded the proceeding
"for the limited purpose" of adducing testimony from
White concerning the interim earnings of McGarrah and
receiving documentary evidence relating thereto.
At the reopened hearing, White appeared pursuant to
subpoena and testified for Respondent As the only
documents he possessed, White produced eleven cancelled
checks which he had issued to McGarrah during the
backpay period from November 11, 1963, to November
20, 1964. He explained that his payroll records for this
period and at least one additional check were lost,
describing the circumstances. White testified with respect
to each of the eleven checks, in evidence, and in general to
the work done for him by McGarrah and remuneration
therefor during the pertinent period. A wide latitude (e.g.,
in leading questions) was allowed Respondent in its
examination of White. McGarrah also testified briefly on
rebuttal
In its brief, Respondent states the position that neither
White nor McGarrah can be credited, and that the finding
should be made that McGarrah worked for White full
time during the fourth quarter of 1963 and the first
quarter of 1964, and the amounts for these two quarters
be deducted from McGarrah's gross backpay. This
argument is rejected as without supporting evidence.
Alternatively, if White is credited, Respondent contends
that the following items, representing interim earnings of
McGarrah, should be deducted: (1) $300 for salvage
material; (2) $60 paid to McGarrah for cutting trees at
the Gibson job; (3) $35 for two days' work on the Ohio
Street job; (4) $15 realized by McGarrah for trees taken
from the Churchman land-leveling job; and (5) $250 in
loans which were canceled when McGarrah performed
work on White's home furnace
In the Trial Examiner's Supplemental Decision,
affirmed by the Board, supra, the applicable law in a
backpay proceeding is set forth at some length, with
citations. In brief, as pertinent hereto, Respondent has the
burden of proving facts which would negative or mitigate
its liability to a given employee who was discriminated
against, after General Counsel has shown the gross
amounts of backpay due It is insufficient for Respondent
to rely upon vague or indeterminate evidence, or upon
testimony concerning interim earnings which it asserts as
lacking in credibility. As it is in the nature of an
affirmative defense, positive evidence, or such that clear
and reasonable inferences can be drawn, on the
performance and value of interim work needs to be
adduced by Respondent, absent which allegations for
deductions from gross backpay must fail.
A Value of the Salvage
As noted, the Trial Examiner had recommended that
$300, shown by White in the social security report, be
deducted as covering all disputed items involving
McGarrah This was found in the Board's Order as
lacking support in the record without further opportunity
afforded for White to answer the subpoena White has
now given the following testimony: At the Ohio Street
job, McGarrah requested and was given some plywood
forms which White had used for shoring purposes White's
cost for all such lumber, when new, was about $300.
However, he "would not know" its value as salvage. At
the Gibson job, he had no knowledge of the amount of
salvage material taken out by McGarrah, and had no idea
of its value All the salvage given to McGarrah was not
worth anything to White. The figure of $300, which was
submitted to the Social Security Agency,' covering the
Ohio Street and Gibson salvage was "just a rough
estimate;" it "could have been way more, it could have
been way less." He was not questioned concerning
McGarrah's testimony that he was told by White that the
salvage he received was worth $200.
McGarrah testified that he used some of the Ohio
Street salvage plywood to shore up a barn where he then
lived as a tenant, although the landlord wanted to have
the barn torn down. Additionally, he gave Adolph
Partenheimer, who helped him, some of the salvage from
the Gibson job.
Finding as to the value of the salvage can be based on
the more complete remand record, albeit the evidence is
still not entirely clear and specific on the issue. Among
other things, White was not even aware of the amount of
salvage taken by McGarrah. Therefore, he could not fairly
estimate its value nor, more especially, the money for
which McGarrah could sell the salvage. In light of the
new evidence, the $300 valuation in the social security
report appears unfounded ° Consequently, I am led to
conclude that McGarrah received, as he testified, $200 for
the lumber which he sold from the Ohio Street job' There
remains the "very small amount" which he realized from
the Gibson job, plus the salvage which was unsold in the
five years which have elapsed. Bearing in mind that the
burden of evidence rests with Respondent, I assign such
additional salvage the value of $25, which I believe is
reasonable in the context of this record - thus arriving at
the sum total of $225 to be deducted.
B Additional Compensation
Of the eleven checks he produced, White identified two
checks as wages paid to McGarrah for cutting trees
behind the Cozy Cafe in connection with the Gibson
wrecking job - one for $20 on March 6, 1964, and one
for $40 on March 18, 1964. White also testified that he
knows he paid McGarrah $35 on the Ohio Street job in
November 1963, for about two days' work in building
forms and pouring concrete at $2 an hour, but that the
'White testified that the handwriting on the social security report was
not his
'Although hearsay, such social security data in backpay proceedings are
ordinarily entitled to weight , particularly when they reflect actual salary
payments reported by the employer Here, however, the report merely
purported to estimate the highly uncertain value of salvage given as
compensation to an employee, and any inference as to its accuracy is
overcome by countervailing evidence
'No effort was made to ascertain expenses, e g , transportation and
storage, if any, in selling the salvage
AMERICAN CASTING SERVICE 587
canceled check therefor had been lost. McGarrah had no
memory of any of these payments, although he recalled
that he performed tree-cutting for White behind the Cozy
Cafe. I find that these wages of $60 and $35 were paid, as
testified by White, and are properly deductible
At the Churchman farm, White gave McGarrah a
cottonwood tree, and told him he could cut it and haul it
off. White thought "it only brought maybe ten or fifteen
dollars, something." He indicated that such information
was related to him by McGarrah, who said he couldn't
make any money that way and did not want any more of
the trees. McGarrah testified that such wood at the time
was unsaleable, that he could not sell the tree, and that he
received no money for it Particularly as White had no
direct knowledge and was frankly uncertain of the
amount, if any, that McGarrah received, I am disposed to
accept McGarrah's testimony
C. The Loans
White testified that nine of the eleven checks he
produced at the hearing were personal loans made to
McGarrah These checks are in small amounts and bear
dates from December 9, 1963, to January 12, 1964 White
stated that the Ohio Street job was finished in
mid-November 1963, that these checks were drawn at a
time when he was not engaged on any job, and that they
were given in response to McGarrah's requests, as he was
"having a lot of difficulties," and were not in payment for
any work done The nine checks totaled $250: there were
a few other loans in cash White related that, "right after"
he had completed the Ohio Street job, McGarrah came to
him seeking work and also asked to borrow money for
groceries, upon which White let him have $30. At about
this time, McGarrah helped White repair a stoker on the
furnace at White's home. White was uncertain whether he
canceled a loan when the work was performed on his
furnace. He testified: "It seemed to me like I asked him
what I owed him, and he said nothing . I believe I
said - well, I don't know, it was probably a little amount
that he owed me, I said, `Well, just forget that, too, then.'
I'm almost sure it was that way, but I might have
been wrong on it." Thereafter, White made further loans
to McGarrah, and he was repaid in cash McGarrah's
account was that he repaired White's furnace on two
occasions, and did this work entirely as a gratuity. While
he stated that there were no loans which were canceled
"to his knowledge," on cross-examination he admitted
that "it could have happened," that White could have
deducted some of the indebtedness without telling him.
About December 1963, he reset the old stoker, which
entailed about three hours' work. At a much later date,
some time before June 1964, he installed a new stoker,
which took about 4 1/2 hours of work After he obtained
regular employment with Tobe A. Field & Co., in June
1964, he started repaying the loans in cash and has paid
them back in full
It is not reasonable or conceivable to me that, for the
amount of work done on his furnace, White canceled
loans in the amount of $250, as contended by Respondent.
The evidence is unclear as to the dates such work was
initially done White more specifically indicated a time
after mid-November, and McGarrah fixed the date in
December The first check, in evidence, was written on
December 9 for $45 And White testified that a loan of
$30 was made shortly before McGarrah commenced work
on the furnace 6 I accept McGarrah's version that he
performed such furnace work on two different dates
widely separated in time, and relate the conversation
described by White to the first occasion, in November or
early December Since it appears that the loan forgiveness
was directly connected with the work on the furnace by
McGarrah, it may be considered as interim earnings.
Absent evidence of specific borrowings prior to the $30
loan, and attaching some limitation of reasonability on the
value of such work, I find that the sum of $30 should be
deducted from McGarrah's gross backpay
Consistent with the foregoing, the revised backpay
computations affecting McGarrah are as follows:
Calendar Net Interim Net
Quarters Backpay Employed By Earnings Backpay
1963-IV $289.41 White Construction Co
White Construction Co.
$200.00 (salvage)
35.00 (wages)
30 00 (loan
l dcance e )
$265.00 $ 24 41
1964-I $571 86 White Construction Co.
White Construction Co.
$ 25.00 (salvage)
60 00 (wages)
$ 85.00 $486.86
1964- II $717 93 Tobe A. Field & Co, $354 73 $363 20
1964-III $688 12 Tobe A. Field & Co $823 87 None
1964- IV $426 48 Tobe A. Field & Co. $645.84 None
Total Net Backpay $874 47
quarter ,' less the tax withholding required by Federal and
CONCLUSION AND RECOMMENDATION State laws I recommend that the Board adopt these
Upon the basis of the above findings, and the entire
record in the cases, I conclude that Joseph H McGarrah
is entitled to backpay in the amount of $874.47, with
interest at 6 percent per annum on each of the quarterly
sums found due herein from the end of each calendar
findings and conclusions, and order that the Respondent,
its officers, agents, successors, and assigns, pay the sum
indicated.
'McGarrah was not questioned on rebuttal concerning this loan
'Isis Plumbing & Heating Co, 138 NLRB 716