American Manufacturing Co. of Texas

National Labor Relations Board - Board Decisions

Sep 22, 1967

167 N.L.R.B. 520 (N.L.R.B. 1967)

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Manufacturing Company of Texas and
Local 47 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America.
Case 16-CA-1386
September 22, 1967
SECOND SUPPLEMENTAL DECISION AND
ORDER
On November 8, 1962, the National Labor Rela-
tions Board issued a Decision and Order' in the
above-entitled case, which was amended February
2,1966 2 in which it found that Respondent violated
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, by discontinuing its
truckdriving operations and discharging the dis-
criminatees. The Board's Order, as amended,
directed the Respondent, inter alia, to offer all
discharged drivers reinstatement to their former or
substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and
to make them whole for loss of earnings suffered
because of its discrimination against them with such
loss of pay computed on the basis there specified. ,
On May 13, 1966, the Regional Director for Re-
gion 16 issued and served on the parties an
amended backpay specification and notice of hear-
ing. The Respondent filed an answer thereto on
May 31, 1966. On various days between
November 8 and December 9, 1966, Trial Ex-
aminer Lowell Goerlich conducted a hearing
thereon, the purpose of which was to ascertain the
amounts of backpay owing under the Board's Order
as enforced and modified. During the hearing the
General Counsel prepared a revised computation
of alleged net backpay due the discriminatees which
was allowed as an amendment to the backpay
specification. On April 3, 1967, the Trial Examiner
issued his Decision in backpay proceedings, at-
tached hereto, in which he awarded backpay to em-
ployees in the amounts set forth therein, and made
certain findings and recommendations. Thereafter,
the Respondent filed exceptions to the Decision in
backpay proceedings and a supporting brief.
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 en-
tire record in this case, including the Trial Ex-
aminer's Decision, the exceptions, and briefs, and
finds merit in certain of the Respondent's excep-
tions. Accordingly, the Board hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the exceptions and modifica-
tions set forth below:
1. The 12 employees involved herein were over-
the-road drivers who were unlawfully discharged
American Manufacturing Company of Texas, 139 NLRB 815, 819,
enfd. in part and remanded in part 351 F.2d 74 (C.A. 5)
2 Supplemental Decision and Order upon reconsideration , pursuant to
when the Respondent terminated its transportation
department for reasons proscribed by Section
8(a)(3) of the Act. As more fully set forth by the
Trial Examiner, these drivers were paid basically a
mileage rate for the miles driven and the hourly rate
for time worked in the yard. Subsequent to June 18,
1960, the date of termination of the department, the
Respondent's business declined and less miles were
driven by commercial carriers than had previously
been driven by the Respondent's own employees in
the delivery of its product.
In computing the backpay due the discriminatees,
the General Counsel adopted a formula by which he
determined the average number of hours worked by
each driver during the year preceding his discharge
from the Respondent's record, and then used this
average as the basis for computing the gross
backpay due each man. The Trial Examiner stated
that he was not faced with the issue of whether
other formulae ought to be considered, and that his
sole duty was to determine whether the formula
utilized by the General Counsel is fair and reasona-
ble. The Respondent contends that the formula
used is erroneous and'is based on the completely
unwarranted and arbitrary assumption that the men
would have continued to earn the same amount
despite certain changes that had occurred in its
operations. Thus, the hauling of shells from the
Respondent's plant in Fort Worth to the Frankford
Arsenal in Pennsylvania was discontinued approxi-
mately 2 months before the unlawful discon-
tinuance of the department and was not itself found
to have occurred for discriminatory reasons. Ac-
cordingly, the Respondent argues, it cannot be as-
sumed that such hauling would have been continued
in projecting the employees'probable earnings dur-
ing the backpay period. Furthermore, the Respond-
ent supplied information as to the total number of '
miles it claims were actually driven in making all
deliveries of Respondent's pumping units during the
backpay period, broken down into calendar quar-
ters. Respondent contends that although there were
12 discriminatees, there was a total of 15 drivers
prior to discontinuation of the department, and
therefore, it argues, the actual miles driven should
be allocated among the 15 drivers, but it would
deduct certain distances as set forth below.
We find merit in certain of the Respondent's con-
tentions . Contrary to the Trial Examiner's view, it
is for the Trial Examiner to consider whether the
General Counsel's formula is the proper one in
view of all the facts adduced by the parties and to
make recommendations to the Board as to the most
accurate method of determining the amounts due.
On the basis of the evidence adduced by the
Respondent, it appears that the total number of
miles that would have been driven by the em=
remand , of the original order insofar as it required resumption of the
truckdriving operations . 156 NLRB 1225.
167 NLRB No. 71
AMERICAN MFG. CO. OF TEXAS 521
ployees absent the Respondent's unfair labor prac-
tices would have decreased for nondiscriminatory
reasons and would have been less than those in the
prior year. Accordingly, an appropriate backpay
formula should make due allowance for such
economic factors. However, we do not agree with
the Respondent that the compensable mileage
should be less than the total distance driven in mak-
ing deliveries for the Respondent during the
backpay period.
The Respondent asserts that the mileages sup-
plied by it include the total number actually driven
in making all deliveries for Respondent. If this is so
and if these figures include all distances driven by
carriers designated by customers3 as well as these
selected by the Respondent, we are of the opinion
that the Respondent is correct in contending that
coitipensable mileages should be allocated among
the 12 discriminatees with due allowance for the 3
additional drivers who were employed and with
proper consideration of the possibility of layoffs for
economic reasons during the backpay period as well
as allowance for those periods when particular
drivers were unavailable and not entitled to
backpay. As noted above, since the discriminatory
discharge, the Respondent has not employed
truckdrivers. However, its products have been
delivered by truckdrivers who are employees of
other employers. As there was no classification
comparable to truckdrivers employed by the
Respondent during the backpay period, compensa-
tion is to be computed at any higher wage rates than
would have been, or which became, effective during
said period, or alternatively, at the wage rate paid to
the truckdrivers who hauled Respondent's
products.
In addition, however, some payment is due the 12
discriminatees for the time they would probably
have spent in yard work, as well as for back-haul
detour mileage and the $5 scrap loading allowance..
It is unlikely that a precise record has been main-
tained of the amount of such work available during
the backpay period. However, the Respondent in
its exceptions states that these amounts are
established by the undisputed record. It thus ap-
pears that the Respondent accepts the General
Counsel's computations in these respects and these
amounts are not in issue.
As the amount due, -each of the claimants will vary
Regional Director with directions to recompute the
backpay of the claimants in accordance with the
above findings and with those specific determina-
tions set forth hereinafter.
2. The Respondent offered reinstatement to the
12 discriminatees by letter dated December 16,
1965. The Respondent claims that the backpay
period was tolled on December 16, 1965, rather
than on December 26, 1965, as contended by the
General Counsel and found by the Trial Examiner.
While we cannot agree that the Respondent's liabili-
ty terminated on the date which appears on its rein-
statement offers, neither can we find that the
backpay period ended for all the employees on
December 26.4 It is settled that the backpay period
is tolled on the date of actual reinstatement; 5 on the
date of rejection of the offer; or in the case of dis-
criminatees who did not reply, on the date of the
last opportunity to accept the offer of reinstate-
ment.6 Thus, in the instant case, the cutoff date for
backpay is the date of reinstatement, the date of re-
jection of the offer, or December 26, whichever is
the earliest. Accordingly, the cts as to each in-
dividual must be considered t determine the ap-
propriate cutoff date as to him.
3. The Trial Examiner concluded that Ben Bar-
nett, who the Board found had been demoted from
foreman to a job as truckdrive and was then unlaw-
fully discharged, had been a supervisor during the
base period used for computing backpay, that he
was unlawfully demoted, and that therefore he was
entitled to reimbursement for loss of earnings based
on what he had earned as a foreman. We do not
agree. The Decision herein made no finding con-
cerning the validity or invalidity of his demotion,
but specifically held that Barnett was unlawfully
discharged, in violation of Section 8(a)(3), at a time
he was working as a truckdriver. Accordingly, he is
entitled to reimbursement for loss of earnings he
would have had in the latter position.7 Since the
amount due will be based on actual mils driven for
Respondent during the backpay period, it is un-
necessary to speculate about his possible prior
earnings.
4. In connection with the backpay due Wayne
H. Moore, the Trial Examiner concluded that
Moore had not had any willful loss of earnings. We
agree. Although, as the Respondent contends, he
did not register with the Texas employment service
from the sums set forth in the General Counsel 's ,^^ until 3 weeks after his discharge, it is clear that he
backpay specification and those found by the Trial began immediately to seek other employment by
Examiner, we shall remand this proceeding to the applying to various firms.
3 It appears that after the Respondent began using commercial carriers,
many of its customers specified the carriers to be used to deliver the units
to them. We find no merit in the Respondent 's contention that the
distances driven by carriers designated by customers should not be in-
cluded in the backpay computation
4 The offer of December 16, 1965, stated that if Respondent did not
hear from the individual within 10 days it would assume the offer had been
declined.
5 Laabs, Inc., 128 NLRB 374.
6 Eastern Die Company , 142 NLRB 601, enfd 340 F .2d 607 (C.A. 1).
9 Contrary to the Respondent 's contention, income in the amount of
$255 from Garden Fresh was included in the computation of Barnett's in-
terim earnings . We also reject the Respondent 's assertion that Barnett
removed himself from the labor market early in 1961; not only did Barnett
not testify unequivocally that he did not wish reinstatement , but it would
be immaterial if he had , and we note in any event that he accepted it when
offered. Heinrich Motors , Inc., 166 NLRB 783, 790-791.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, we find merit in the Respondent's
further contention that in computing Moore's
earnings during 1961, his income from operation of
his tavern was allocable to the entire year rather
than only to the first and second quarters. There is
no doubt that he continued to run the tavern from
the fall of 1960 until the end of 1962, and there is no
basis for concluding that his income from the tavern
during 1961 was confined only to the first half of the
year.
5. The Respondent contends that backpay was
improperly allowed to C. R. Wallace for a period of
about a month in 1963 when he was unable to work
because of an industrial accident. The Trial Ex-
aminer reasoned that because Wallace's unavaila-
bility was not caused by illness but by an accident
incident to interim employment, there would have
been no loss except for the unlawful discrimination
against him. Accordingly, the Trial Examiner
granted backpay for the period of disability but he
did not include the workmen's compensation award
in interim earnings, stating this to be Board policy
under the cases cited in his Decision. We adopt the
Trial Examiner's Decision insofar as it allows
backpay for the full period, but do not agree that the
portion of the workmen's compensation award
which is a partial payment for earnings because of
the industrial accident should not be included in in-
terim earnings.
The Board has in some cases computed backpay
due to discriminatees without tolling payment for a
period of incapacity because of illnesses which
were incurred as a result of an accident on an in-
terim job,8 although as a general rule claimants
have not been allowed backpay during any periods
of disability regardless of the cause.9 However, in
none of the latter cases applying the standard rule
has the Board set forth a rationale explaining its
identical treatment of all periods of illness without
reference to the nature or cause thereof. In view of
the holding of the Trial Examiner in the instant case
and the contention'of the Respondent with respect
thereto, we have now fully considered our prior
'decisions in this respect and are of the view that
some modification is required to take into account
the cause of a claimant's incapacity.
The origins and causes of infections and organic
infirmities, such as influenza and heart attacks, for
example, are usually not known and cannot be
determined or assumed. It is ordinarily reasonable
to assume, however, that absences from work
because of such illnesses would probably have oc-
curred even if the employee had not been
discharged. As the claimant's loss therefore cannot
be said to have a likely relationship to the unlawful
discrimination, disallowance of backpay for all
periods of unavailability because of such illnesses
is proper. Not only does this approach appear
equitable in view of the impossibility of reconstruct-
ing a possible cause, but it also affords simplicity of
administration in an area which would otherwise be
confused and difficult.
The same underlying reasoning does not, how-
ever, apply to periods of illness which occur
because of industrial accidents suffered during the
course of interim employment or are otherwise at-
tributable to the unlawful conduct of the
Respondent.10 The causes of such ailments are
known and attributable to events which would not
have taken place, or to environmental factors which
would not have been present, had the employee not
been unlawfully removed from his employment in
the Respondent's plant. Although other extended
disabilities might have occurred absent discharge,
this is not a normal expectancy, and hence a dis-
criminatee would not reasonably have been ex-
pected to suffer the industrially caused ailment and
the consequent pay loss if he had retained his
former employment.
It is thus apparent that the practice of disallowing
backpay without inquiry as to the nature of the
physical disability, the cause thereof, the probabili-
ty of similar illness in the Respondent's employ,
etc., may be convenient but is not always equitable.
Rather, we think that equity and reason require that
periods of unavailability for work because of illness
or accident must be considered on a case-by-case
basis. Where an interim disability is closely related
to the nature of the interim employment or arises
from the unlawful discharge and is not a usual in-
cident of the hazards of living generally, the period
of disability will not be excluded from backpay.
Consonant with its obligation to establish deduc-
tions from backpay,tt the Respondent continues to
have the burden of demonstrating that an excluda-
ble period of absence from work because of illness
had taken place, and the General Counsel may
rebut this by showing the unusual nature of the disa-
bility, its causes, probable relation to the unlawful
discharge because of the hazards of interim employ-
ment, search for work, etc.
As a corollary of the general rule disallowing
backpay for all periods of disability regardless of
cause, the Board has uniformly held that any work-
8 Moss Planing Mill, Co 110 NLRB 933, enfd as modified in other
respects 256 F 2d 653 (C.A. 4), Charles T Reynolds, Sr, d/bla Charles
T. Reynolds Box Company, 155 NLRB 384 Cf . Industrial Cotton Mills
(Division off.P. Stevens Company), 102 NLRB 1265, 1281, enforcement
denied in relevant part 208 F.2d 87 (C A 4), cert. denied 347 U.S. 935.
9 E.g., Melrose Processing Company, 151 NLRB 1352, 1354-55, enfd.
351 F.2d 693 (C.A. 8), where the court upheld the exclusion from interim
earnings of a workmen's compensation award for an industrial accident
and noted specifically that backpay had not been granted for the period of
disability
10 E.g., assault by respondent on a discriminatee , as in Moss Planing
Mill, supra
11 Heinrich Motors, Inc., supra: Mastro Plastics Corporation,
136 NLRB 1342 and 145 NLRB 1710 , enfd . in relevant part 354 F.2d
170 (C.A . 2); United States Air Conditioning Corporation, 141 NLRB
1278, 1280 , and fn . 4 thereof.
AMERICAN MFG. CO. OF TEXAS
men's compensation payments received because of
any such illness are not to be considered as interim
earnings deductible from gross backpay.12
However, in view of our holding above, a change in
the rule concerning the deductability of such com-
pensation payments insofar as they constitute pay-
ment for wages lost is in order. Thus, awards of
workmen's compensation consist of two com-
ponents, one being a payment for lost wages and the
other being reparation for physical damage suf-
fered. The entire payment, including the wage com-
ponent, has been regarded as a collateral benefit
where backpay was tolled. But where backpay is
awarded for the same period for which wages have
already been replaced in part, to continue to hold
the wage portion of the award to be nondeductible
would result in double payment to the employee for
that period, and hence this part is more accurately
regarded as deductible interim earnings. However,
the portion of the award which is reparation for
physical damage suffered is unrelated to wages
earned, does not result in double wage payment to
the discriminatee, and continues to be excludable
from interim earnings. 13
As we have modified our general rules concern-
ing the tolling of a backpay period during periods of
illness attributable or connected with interim em-
ployment and the deductibility of workmen's com-
pensation payments which reimburse a claimant for
wages lost because of such an illness, we hereby
overrule our Decision in Melrose Processing Co.,
151 NLRB 1352, and similar cases to the extent
they are inconsistent herewith.
Applying this approach to the facts of the instant
case, it is apparent that the Trial Examiner cor-
rectly concluded that Wallace's injury was the
result of an accident incident to his interim employ-
ment and probably would not have occurred but for
the Respondent 's unlawful discrimination against
him. Wallace had been a truckdriver in Respond-
ent's employ hauling pumping equipment, pipe,
military shells, scrap metal, bentonite "mud," and
billet steel. In the interim job as a truckdriver, he
was required to haul and unload pipe by spilling it
to the ground.14 While Wallace was on top of the
load trying to dislodge a single piece, the pipe gave
way and Wallace had to jump for safety, thus factor-
ing his foot. As a result he was unable to work for a
month . Jumping off 'collapsing loads is not an
everyday occurrence and it is questionable, at best,
that Wallace would have been required to do so ab-
sent his discharge . It is not probable, even though
I2 E.g., Melrose Processing Co., supra.
18 See the discussion of the court concerning the deductibility of work-
men's compensation payments in N.L.R.B. v. Melrose Processing Co.,
supra. Death or total disability resulting from industrial accidents are spe-
cial cases , and we do not consider at the present time whether different
treatment should be given to insurance and other forms of recovery in
those circumstances
14 While it appears from the record that Wallace also unloaded his truck
when he drove for the Respondent , we conclude that the possible hazards
523
it was possible, that he could have been in that posi-
tion in any event, and as this particular injury is
closely related to the nature of the interim employ-
ment, we shall not exclude this period of Wallace's
disability from backpay. However, since we are not
tolling his backpay for that period, that portion of
the workmen's compensation payments to Wallace
which were in replacement of lost wages shall be in-
cluded in his interim earnings and be deducted from
the gross backpay.
We find no merit, however, in the Respondent's
further allegation that there should be a further
deduction from backpay because Wallace testified
that, over the entire backpay period, he probably
lost a little over a week of work for short periods of
illness . Such sporadic short illnesses cannot be
combined and allocated to any one quarter, since
any such allocation would be arbitrary and specula-
tive. Moreover, since the drivers were paid only for
the miles actually driven, it is speculative whether
any such sporadic illnesses would have occurred at
a time which would have interfered with his availa-
bility for work in any event.
6. The General Counsel claimed, and the Trial
Examiner allowed, the total distance traveled by
Loran D. Carlile to and from his interim employ-
ment . The Respondent contends that the allowance
is excessive, pointing out that while employed by
Respondent, Carlile traveled 10 miles each way
between his home and Respondent's plant. Since
reimbursement is appropriate only for expenses in-
curred by reason of expenses resulting from
additional travel in connection with the interim
employment,15 the backpay specification is incor-
rect in including Carlile's total mileage. Ac-
cordingly, in recomputing the backpay due Carlile
in accord with our other findings herein, due al-
lowance shall be made for the 10 miles he would
have traveled to and from Respondent's plant had
he not been unlawfully discharged.
7. We find no merit in the Respondent's other
exceptions to the Trial Examiner's Decision on
backpay.
ORDER
It is hereby ordered that this proceeding be,
and it hereby is, remanded to the Regionalbirector
for Region 16 for the purpose of recomputing the
backpay due the discriminatees in accordance with
our findings herein.
at Respondent 's plant were of a considerably different nature than that in-
volved in "spilling" pipe . Thus, the record indicates that he hauled
primarily heavy equipment and mud and only occasionally pipe and scrap.
As the machinery weighed 7,000 pounds or more, quite obviously Wallace
could not unload the equipment without mechanical aid, and other materi-
als would similarly not be handled or treated in the same way as the pipe
involved in Wallace's interim employment.
Is East Texas Steel Castings Company, Inc, 116 NLRB 1336,
1341-42, enfd 255 F 2d 284 and 281 F.2d 686 (C.A 5).
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION IN BACKPAY
PROCEEDINGS
HISTORY OF PROCEEDINGS'
LOWELL GOERLICH, Trial Examiner: On February 6,
1961, Trial Examiner Robert E. Mullin issued his Inter-
mediate Report in the above-entitled proceeding finding
that the Respondent, American Manufacturing Company
of Texas, had violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, herein called the Act. Upon
exceptions filed to the Intermediate Report the Board on
November 8, 1962, contrary to the Trial Examiner, held
that the Respondent's termination of certain trucking
operations2 and the employment of certain over-the-road
drivers was motivated by antiunion considerations and
therefore was in violation of Section 8(a)(3) and (1) of the
Act.3
To remedy the unlawful conduct of Respondent the
Board directed that the Respondent resume its trucking
operations and offer all discharged drivers reinstatement
to their former or substantially equivalent positions
without prejudice to their seniority or other rights and
privileges. The Respondent was also ordered to make
such persons whole for loss of earnings suffered because
of its discrimination against them with such loss of pay
computed on the basis of separate calendar quarters in ac-
cordance with the policy enunciated in F.W. Woolworth
Co., 90 NLRB 289, and to include allowance for interest
at 6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Jieating Co., 138 NLRB 716.'
On September 14, 1965, the United States Court of
Appeals for the Fifth Circuit granted enforcement of
"The Cease and Desist Order and the portions requiring
immediate reinstatement of the employees with backpay
(plus interest) computed in the manner prescribed by the
Board's Order." The court, however, remanded to the
Board "that phase of the Order requiring resumption of
operations for further consistent proceedings."5
Pursuant to the court's remand, the Board reconsidered
its Decision and Order of November 8, 1962, and
amended its order on February 2, 1966, by the issuance
of a Supplemental Decision and Order. The Order was
modified as follows: "Offer to the employees listed in the
attached Appendix immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered by
them in the manner set forth in the section above entitled
`The Remedy."' The Board also deleted from its prior
notice the following language: -"We will resume trucking
services with our own employee drivers. 116
The discriminatees listed were Robert O. Meador, B.
J. Lewis, G. W. Edmonds, H. R. Narramore, C. R. Wal-
l The Charging Party was not represented The following dis-
cnminatees appeared at the hearing B. J. Lewis, Don Weeks , H R Nar-
ramore, Charles R Wallace, Ben Barnett, Gene W Edmonds, Wayne H
Moore, L D Carlile, J D Jordan, Robert O Meador, William C Taylor,
and L H Bell, Jr. Mrs. James C Floyd, wife of discrimmatee J C Floyd,
deceased, appeared at the hearing
2 Prior to June 18 , 1960, the Respondent maintained a transportation
department through which it operated a fleet of trucks with its own
drivers The trucks were used to haul the Respondent's manufactured
products and other items related to the Respondent's business On June
18, 1960, the transportation department was abolished and such hauling
was contracted to commercial carriers
3 American Manufacturing Company of Texas, 139 NLRB 815, 819
4 The Board stated in 139 NLRB 815, at in 7, "In accordance with the
lace, Ben Barnett , Don Weeks , William C. Taylor,
Wayne H. Moore , L. H. Bell , Jr., L. D. Carlile, J. C.
Floyd, and J . D. Jordan.
Pursuant to Section 102.59 of the Board 's Rules and
Regulations , Series 8, as amended , these proceedings
came on for hearing before me in Fort Worth, Texas, on
November 8, 9, and 10 , and December 5, 6, 7, and 9,
1966, upon the amended backpay specification and notice
of hearing issued by the Regional Director for Region 16
on May 13 , 1966, and upon the Respondent 's answer to
amended backpay specifications filed May 31, 1966.
During the hearing , the General Counsel prepared a
revised computation of alleged net backpay due the
above-mentioned discriminatees which was allowed as an
amendment to the backpay specification.
Upon consideration of the backpay specification, the
amendments thereto , the Respondent ' s answer, the
evidence adduced at the hearing , the record as a whole?
and-the posthearing briefs of the parties , and in view my
observation of the demeanor of the witnesses, I make the
following findings of fact and conclusions of law.
1. THE BACKPAY CLAIM OF BEN BARNETT e
Shortly prior to his discharge on June 18 , 1960, Ben
Barnett occupied the position as transportation foreman
and dispatcher." In this capacity he assigned hauling runs
to the over-the-road drivers attached to the department
and otherwise supervised the department . There is no
evidence that he did not perform these functions satisfac-
torily.
When the Respondent learned of union activity among
its over-the-road drivers it replaced Barnett in April 1960
with Lum Phifer who had been performing "duties as a
scrap steel buyer."9 The Board said in its Decision (supra
at 818):
We believe the real reason for Phifer 's transfer to the
foreman position was to defeat the drivers ' efforts to
obtain union representation . Thus, the record shows
that Phifer 's predecessor was told by Respondent's
plant superintendent that Phifer was being given the
transportation foreman's job because Respondent's
president thought Phifer could break the Union's
hold.
The court of appeals 10 commented , "Plant Superin-
tendent Emmons , explaining to Barnett why he was
being replaced by Phifer , made the reason plain:
I said , "Well, Frank is there anything I have did?
What have I did wrong?" He said, "Ben, [Barnett]
did you know the Union had signed up all the
drivers?" and I said , "No, sir , I sure didn 't." And he
said , "Well, they have , They are signed up, lock
stock , and barrel , ..." And he said, "Lum [Phifer]
policy recently adopted by the Board, there shall be no tolling of backpay
for the period between the issuance of the Intermediate Report and the
Order herein A P W Products Co , Inc , 137 NLRB 25 "
5 N L R B v American Manufacturing Company of Texas , 351 F 2d
74 (C A. 5)
6 156 NLRB 1225.
' The counsel for the General Counsel and the Respondent moved to
correct the record in certain particulars There being no opposition filed
thereto, the motions are granted and the record is corrected accordingly.
8 Barnett commenced the duties of transportation foreman and
dispatcher on June 15, 1959 His wage was $500 a month
B Supra , 139 NLRB at 828.
10 Supra at 76
AMERICAN MFG. CO. OF TEXAS 525
is coming back up there taking over .... Evidently
the old man thinks he can break the union hold, or
something to that effect."
This was more than enough to reject the Em-
ployer's claim that he was put thereto straighten out
the ICC problem.
Hence the law of this case, which is binding upon the
Trial Examiner, establishes conclusively that Barnett
would not have been deposed had it not been that the
Respondent had embarked on a drive to "break the
union hold." The record is barren of any evidence to sup-
port a finding that Barnett would not have continued as
foreman and dispatcher had the Respondent refrained
from the commission of unfair labor practices. There is no
proof that Phifer's assignment as transportation foreman
and dispatcher was other than an expedient to "break the
Union hold" or that it was intended to be a permanent as-
signment . Had the transportation department been con-
tinued, the employment of a foreman and dispatcher
would have been essential to its operation. Thus it is only
reasonable to conclude that under the circumstances Bar-
nett would have continued as the foreman and dispatcher
but for the Respondent's discrimination against him. In
its Remedy the Board said, "We shall, also order that
Respondent make them whole for loss of earnings suf-
fered because of its discrimination against them." 139
NLRB 818, 819. Barnett's loss of earnings suffered
because of the Respondent's discrimination against him
was that of a foreman and dispatcher. Thus his backpay,
must be computed as if he had continued in such position.
Since the General Counsel has used a period during
which Barnett received foreman's and dispatcher's wages
as the base period for computing Barnett's gross
backpayii (a formula which is fair and reasonable under
the circumstances, see infra ), I find Barnett's gross
backpay to be as set out in the amended specification.
During the backpay period Barnett engaged in several
business enterprises which were less than sucessful ven-
tures. The financial aspects of these businesses were
thoroughly explored by the Respondent's counsel.
Respondent does not claim that Barnett concealed any in-
come or that he did not make a full disclosure of his finan-
cial affairs. The Respondent's complaint in essence is that
Barnett did not, by his efforts, produce enough income
and should have engaged in more lucrative endeavors.
Having caused the discriminatee's predicament, the
Respondent's complaint in this respect appears frivolous.
The discriminatee's obligation to mitigate an employer's
backpay liability does not extend beyond requiring him to
accept substantially equivalent employment.
In Southern Silk Mills, Inc., 116 NLRB 769, 773, the
Board said:
. the obligation of a discriminatee to minimize his
loss of earnings is satisfied if he makes reasonable ef-
forts to find new employment which is substantially
equivalent to the position from which he was
discharged and is suitable to a person of his
background and experience.
There is no proof that Barnett during the backpay
period refused or was offered substantially equivalent
employment. The fact that discriminatee Barnett engaged
in less than successful business ventures without proof of
a deliberate design to circumvent his responsibility to
mitigate the Respondent's backpay liability, does not
foreclose Barnett from the allowance of net backpay dur-
ing the backpay period. Cashman Auto Company, 109
NLRB 720. Barnett "could properly choose to go into
business on his own, without being considered as having
withdrawn from the labor market." Arduini Manufactur-
ing Corp., 162 NLRB 972. In Cashman Auto Company,
supra, 722, the Board said:
The Board has further held that is "reasonable to as-
sume, absent special circumstances, that a person
who leaves a job for self-employment expects to im-
prove his financial position" rather than incur a will-
ful loss.
The Respondent, on whom the burden lies,12 has not
shown that the claimant willfully incurred loss of earnings
during the backpay period. I confirm the General Coun-
sel's specification as to Barnett and find that as of
November 1, 1965, backpay due Barnett is $17,383.57
with interest in the amount of $2,995.05.
II. THE BACKPAY CLAIMS OF ROBERT O. MEADOR, B. J.
LEWIS, G. W. EDMONDS , H. R. NARRAMORE , C. R. WAL-
LACE , DON WEEKS , WILLIAM C. TAYLOR, WAYNE H.
MOORE , L. H. BELL, JR., L. D . CARLILE, J. C. FLOYD, AND J.
D. JORDAN
A. The Alleged Mitigation of the Respondent's Backpay
Liability as it Relates to Interim Earnings13
1. The Respondent at the hearing raised no issue as to
the "neglect or failure" of claimants, J. C. Floyd, G. W.
Edmonds, J. D. Jordan, B. J. Lewis, and William C.
Taylor "to adequately search for work." Since the burden
of proof on this issue was with the Respondent as to these
employees, I find that each made a diligent and reasona-
ble search for other employment during the backpay
period.
2. L. H. bell, Jr. : Bell at the time of the hearing was 47
years old. At the time Bell was discharged he was ill and
remained incapacitated until July 1, 1960. Gross backpay
has not been computed for this period nor for other
periods of his unavailability for employment. Immediate-
ly upon his recovery Bell went to work for Ben Hamrick
Trucking Co. Thereafter he worked for a number of
employers14 and became unavailable for employment on
December 13, 1963, due to a heart attack. There is no
evidence that Bell did not make a reasonable and diligent
search for other employment or that any loss of earnings
was caused by his own willfulness. Bell's net interim
earnings as computed in the amended specification are
confirmed.
3. Loran D. Carile : Carlile, after his discharge on
June 18, 1959, went to work for Texas Industries, Inc.,
11 "Gross backpay" as used herein means the amount of wages which
a discnmmatee would have earned in the position to which he would have
been entitled under the Board's Order for such periods as he would have
been available for employment during the entire backpay period Such
definition substantially conforms with the meaning of "gross backpay" as
used in the amended specification
12 Arduint Manufacturing Corp, supra
13 The parties stipulated that the amounts set out in the specification as'
interim earnings "were earned" by each of the respective claimants.
' He quit the Smith Trucking Company because the truck which he
was driving was unsafe. He also quit,Armour Truck Lines because he
"wasn't making enough money to be off from home all the time." I find
these to be justifiable reasons for quitting the jobs since Bell's obligation
to mitigate the Respondent's backpay liability did not extend to continuing
in unsafe employment or in employment at which his wages were insuffi-
cient to support him while on the road.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midlothian , Texas, on September 24, 1960 , where he
presently works. Prior to obtaining work with Texas In-
dustries, Inc., he registered at the State employment of-
fice and reported thereafter until he became employed.
He also inquired for work at the union hall two or three
times a week and applied for work with a number of em-
ployers in the Fort Worth area.
At the time Carlile was discharged he lived in Fort
Worth , Texas, about 10 miles round trip from the
Respondent 's plant . His new job in Midlothian , Texas,
was 75 miles round trip from his home . He commuted 6
days a week . On August 24, 1964 , Carlile moved his re-
sidence to Mansfield , Texas, from which he journeyed a
24-mile round trip to and from his work in Midlothian,
Texas.
The Respondent does not claim that Carlile did not
make a reasonable and diligent search for other employ-
ment ; however , the Respondent objects to any reim-
bursement for the miles traveled by Carile back and forth
to work between Fort Worth , Texas, and Midlothian,
Texas, and Mansfield , Texas, respectively , but cites no
authority for its position . The transportation expenses are
allowable . Crossett Lumber Co ., 8 NLRB 440: Burnup
and Sims, Inc., 157 NLRB 336 . Carlile ' s net interim
earnings as computed in the amended specification are
confirmed.
4. Robert O . Meador : Meador, after his discharge,
immediately commenced search for work . He registered
with the Texas employment service.
Respondent makes no claim that Meador did not make
a reasonable and diligent search for work nor is there any
evidence which would support such a claim. Meador's net
interim earnings as computed in the amended specifica-
tion are confirmed.
5. Wayne H. Moore : Moore is 52 years old. Three
weeks after he was discharged Moore registered with the
Texas employment service . He was referred to no em-
ployers. However , in the meantime and thereafter he did
contact a number of employers in search of work and
became employed by Ned B . Hoffman sometime in July
1960 . He was laid off by Hoffman whereupon he unsuc-
cessfully searched for work for 5 weeks and then entered
into self-employment which he continued until the end of
1962. He operated a tavern , Mary Creek 's Inn . While he
was self-employed he also worked for several employers.
His father tended the tavern business during the periods
Moore worked elsewhere.15
The Respondent has advanced no persuasive reason
for not confirming Moore 's net interim earnings as com-
puted in the amended specification . I find that Moore
made a reasonable and diligent search for other employ-
ment and that loss of earnings , if any, was not caused by
his own willfulness . I confirm Moore 's net interim
earnings as computed in the amended specification.
6. H. R. Narramore : Narramore was 58 years old.
Upon his dismissal by the Respondent he registered with
the Texas employment service and searched for work
when unemployed during the backpay period. From
March 1961 until April 1963 he operated a tavern, The
Bent Elbow . While the business was in Narramore's
name , his wife spent full time running it . Narramore
helped only "while some of them went to lunch ." During
a substantial part of this period , Narramore was em-
ployed elsewhere and from the second quarter in 1962
was employed continuously by Ft . Worth Pipe & Supply.
During 1961 Narramore reported for income tax pur-
poses a loss of $165 for The Bent Elbow . For the years
1962 and 1963 he reported profits of $2,447.58 and
$495.95 , respectively . The General Counsel has not in-
cluded such amounts as interim earnings of which the
Respondent complains . Under the circumstances it ap-
pears that such income should not be treated as Nar-
ramore ' s interim earnings . Cf. Miami Coca-Cola Bottling
Co., 151 NLRB 1701, 1710, General Engineering, Inc.,
147 NLRB 936 . Such income , derived principally from
Narramore ' s wife 's efforts during a time in which he was
employed elsewhere , was not such income as he would
have been required to earn in order to mitigate the
Respondent 's backpay liability and was not chargeable to
his interim earnings. I further find that Narramore made
a reasonable and diligent search for other employment
and loss of earnings , if any , was not caused by his own
willfulness . I confirm Narramore 's net interim earnings
as set forth in the amended specification.
7. C. R. Wallace : Shortly after Wallace was
discharged, he registered with the Texas employment ser-
vice. He contacted a number of employers in the search
for work and commenced working in the third quarter of
1960.
The Respondent refers to Wallace 's quitting Armour
Truck Lines . He quit Armour Truck Lines because he
was exposed to drivers who consumed intoxicants while
driving double . I find Wallace 's reason for quitting to be
justifiable . Moreover , he was paid 4 cents a mile by Ar-
mour which was less than he had been receiving from the
Respondent . Since the Armour job was not substantially
equivalent he was not obligated to remain employed by it
in any event . Each time Wallace was out of work he
checked with the Texas employment service.
The Respondent also refers to Wallace ' s quitting at
Trans-Texas Trucking Company located at Cleburne,
Texas . Wallace quit Trans-Texas when his car "broke
down ." He had been driving 56 miles round trip. He was
paid $ 1.25 an hour. I find Wallace 's quitting was justified
under the circumstances.
Wallace was injured in 1963 while working for the Ft.
Worth Pipe & Supply Co . and was unable to work for
about a month . Respondent complains that the General
Counsel should have taken this into account in his com-
putations, but cites no authority to support its contention.
General Counsel asserts that Wallace 's unavailability for
work was not caused by an illness but by an industrial ac-
cident incident to interim employment; hence the em-
ployee should not be required to bear the loss where there
would have been no loss except for the Respondent's dis-
crimination . Such reasoning seems sensible to me and in
accordance with the remedial purposes of backpay or-
ders. Moreover , the Board has held that workmen's com-
pensation awards are not includable as interim earnings.
Moss Planing Mill Co., 110 NLRB 933, 934 ; Melrose
Processing Company, 151 NLRB 1352 , 1355, 1356;
Rice Lake Creamery Company , 151 NLRB 1113, 1115.
I find that Wallace was not disqualified for backpay dur-
ing the period he was unavailable for work by reason of
an industrial injury . I further find that Wallace fulfilled his
obligations to mitigate the Respondent 's backpay liability
15 The amended specification includes as interim earnings his tavern in-
come for these periods
AMERICAN MFG. CO. OF TEXAS
in every detail . I confirm Wallace ' s net interim earnings
as set forth in the amended specification , including travel
expenses claimed for Wallace which were necessary in-
cident to his interim employment.
8. Don R . Weeks : Weeks, immediately after his
discharge , commenced a search for employment. He
found work around July 1, 1960 . Thereafter he worked
for several employers , one of whom was the Braswell
Freight Lines where he worked until the fourth quarter of
1964 at which time he became self-employed as a dirt
contractor . He left Braswell Freight Lines because his
place of work was constantly being moved . Weeks had
been moved from Fort Worth to Dallas, Texas; Dallas,
Texas, to Shreveport , Louisiana; Shreveport , Louisiana,
to Fort Worth, Texas; Fort Worth, Texas, to Oklahoma
City, Oklahoma, and Oklahoma City, Oklahoma, to Dal-
las, Texas.
While working for Braswell , Weeks had set up plans to
go into the dirt contracting business at Bonham , Texas,
his "parental home ." When Braswell gave him 3 weeks'
notice to move from Oklahoma City to Dallas he
resigned . In October 1965 Weeks discontinued the dirt-
hauling business because he was "broke ." He went back
to work for Braswell.
The Respondent complains that the " Respondent is not
required to make them [Weeks' losses ] good when they
would not have been incurred had Weeks kept and pur-
sued the gainful employment that was his simply for keep-
ing." The answer to this contention is that Weeks was not
obligated to continue work with Braswell in order to
mitigate the Respondent ' s backpay liability since the
work performed for Braswell was not substantially
equivalent employment to that performed for the Re-
spondent . Cf. Southern Silk Mills, Inc., 116 NLRB 769.
Moreover, Weeks "could properly choose to go into busi-
ness of his own without being considered as having
withdrawn from the labor market ." Arduini Manufactur-
ing Corp., supra . There is no evidence that Weeks in-
curred a willful loss of earnings . Weeks' net interim
earnings as set forth in the amended specification are con-
firmed.
B. The General Counsel 's Gross Backpay Claims
for Over- The-Road Drivers , Meador , Lewis, Edmonds,
Narramore , Wallace, Weeks, Taylor, Moore, Bell, Jr.,
Carhle, Floyd, and Jordan
First: The Respondent Company is and has been en-
gaged in manufacturing operations conducted in two divi-
sions, namely, commercial and ordnance . The ordnance
division produces under contracts with branches of the
armed services various components of bombs, projec-
tiles, missiles, and rockets. The commercial division
manufactures products for the oil industry, primarily a
line of pumping units of various sizes. These units are
used in lifting fluid to the surface from oil-producing wells
and are sold to various oil producers in the United States
and Canada . Prior to June 18, 1966 , these units were
delivered by the Respondent 's employees in their own
over-the-road fleet of trucks.
The over-the-road fleet was composed of 17 single-axle
truck tractor units, 7 of which were diesel powered; the
527
remaining 10 had gasoline engines . The six newest trac-
tors ( 1959) were gasoline driven . Of the next newest
(1956), five were diesels and two were gas powered.
There were 20 trailers of the standard, flat-bed float),
self-loading type with tandem axles. There were no "low
boys."
The gasoline-driven tractors were under-powered for
use on hauls to Canada and the Rocky Mountain States
where the diesel units had to be used. The single-axle
tractor units were limited in respect to the weight of the
load that could be transported on them.
It was the Respondent's practice to assign a tractor unit
and trailer to a particular driver and to confine their use
to that driver as nearly as practicable.
The Respondent operated no regular schedules. Men
were assigned to the various trips with the idea of equally
distributing the work available at the time although some
consideration was given to the type of equipment neces-
sary for the particular load or route.
Over-the-road drivers were paid at the rate of 6 cents
per mile beginning in January 1959. On May 17, 1960,
this rate was increased 6-1/2 cents when two drivers were
dispatched on the same assignment (double), they divided
the mileage rate equally.
Respondent's over-the-road trucking operations were
subject to the Interstate Commerce Commission's hours-
of-service limitations and safety regulations and to load
limits imposed by the several States in which deliveries
were made. There is evidence that prior to June 18, 1960,
the Respondent had violated the ho'urs-of-service limita-
tions. Under these regulations drivers were limited to a
maximum of 10 hours "op, duty" time after which they
were required to have at'least 8 hours of undisturbed rest
before going on duty again. Further, drivers' on-duty time
could not exceed 60 hours in a 7-day-period or 70 hours
in an 8 -day period. ``--
At times prior to January 1., 1959, some of the trucks
and drivers had been used in transporting cattle , feed, and
other items in connection with the company president's
ranching operations in New Mexico. Some of the drivers
performed work on the ranch. None of this occurred after
1958.
For a time shell cases produced for the armed services
were hauled to the Frankfort Arsenal in Pennsylvania.
This operation was discontinued on April 20, 1960.'1,
Excepting for the shell haul, the truck movements from
the plant were limited to the delivery of pumping units
and components and occasional small lots of "pup" joints
used in the installation of the units.
On return trips to the plant after making delivery of the
pumping unit or units there were some backhauls of scrap
iron and bentonite for the foundry and of steel used in the
production of shells and units. The backhauls of billet
steel for shell production, were discontinued along with
the discontinuance of the shell haul. Occasionally drivers
were required to detour on return trips to accomodate
backhaul for distances of as much as 100 miles.
In addition to over-the-road operations a pickup truck
was operated in the Fort Worth area, scrap iron for the
foundry was picked up in that area from time to time and
yard work was performed which included the moving and
loading of units and the operations of yard equipment.
Over-the-road drivers who performed yard work were
paid $1.69 an hour.
18 Shell case hauling was discontinued because the "Wage and Hour
Division of the Department of Labor had jumped [ the Respondent] about
not paying daily overtime."
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The drivers had no minimum guarantee . They were
paid nothing for availability. They were only paid the
mileage rate for miles driven and the hourly rate for time
worked in the yard. They were not required to load their
trucks ordinarily, but they did unload them at location for
which they received no additional pay. They were given
$5 for loading scrap on a backhaul. They were not reim-
bursed for road or away-from-home expenses and
received no allowance on that account.
Subsequent to June 18, 1960, the date on which the
Respondent terminated its transportation department, the
records of the Respondent disclose that its business
declined and less miles were driven by commercial car-
riers thereafter retained than were driven by the Re-
spondent's own employees in the delivery of its products.
The trend in the pumping industry had been to larger units
Prior to 1960 the largest units produced by Respondent
had a stroke of 84 to 86 inches. In the latter part of 1960
(November), Respondent introduced the first of its larger
units which had a stroke of 100 inches. Following that
time , still larger units were produced which had a stroke
of up to 144 inches with samson posts over 25 feet in
height and weighing some 50,000 pounds with counter-
balances.
The size of the units with a stroke of 120 inches or 144
inches is such that a "low boy" is required to transport
them by truck, and the latter units, i.e., 144 inch stroke,
requires two trucks. The units with a stroke of 100 inches
require either a "low boy" or a special permit covering
their movement. Permit loads are restricted as to routes
and highways that may be used and to daylight opera-
tions.
After the Respondent began using commercial carriers
in 1961, many of its customers commenced specifying the
carriers which were to be used for the units they bought.
The purpose of this policy was to give business to those
carriers who used the customers' petroleum products.
On June 18, 1960, in addition to the 13 discriminatees,
the following employees were also assigned to the trans-
portation department: G. L Burgess, Doyle Brush, Alvie
Wilkerson, P. L. Turner; J. A. Sumpter, F. C. Woodward,
and L. L. Patton. " Wilkerson and Turner were working
in the yard. Burgess and Brush delivered units, but not
regularly.
17Alvie Wilkerson and P L Turner, who had previously worked in
other departments of the Respondent , elected to be transferred to these
departments when the transportation department was terminated. G W.
Edmonds declined to exercise his right to be transferred These three were
the only employees who possessed transfer rights
18 Bell was ill for a protracted period during the backpay period.
19 156NLRB 1225
20 The General Counsel claims no backpay accruing after December
26, 1965, in that the Respondent addressed a letter to the discnmmatees
dated December 16, 1965, offering employees " immediate and full rein-
statement to a position in the employ of the Company at a rate of pay sub-
stantially equivalent to that of [their] former position , without prejudice
to [their] seniority and other rights and privileges " C. Woodrow Green
(Green had been compliance officer, Region 16, until a few days before
December 5, 1966) explained that in addition to the letter there were
other considerations
One was a basic agreement between the Regional Office and the
parties that this would constitute, that this action by Respondent
would constitute compliance with the reinstatement requirements of
the Board Order, and secondly, that the Union had indicated to us its
view that it would have been futile to continue with its efforts to get
the department reestablished in collective bargaining or, to say it
another way, they were not interested in continuing with the efforts
to bargain on this point
Actual earnings of each discriminatee for the backpay
period are as follows:
Barnett $16,140.63
Bell 11,598.2518
Carlile 24,026.63
Edmonds 36,279.63
Floyd 26,044.64
Jordan 54,985.69
Lewis 31,562.15
Meador 24,818.07
Moore 24,759.05
Narramore 28,042.79
Taylor 28,300.24
Wallace 20,233.15
Weeks 27,469.10
Second: The Board's Supplemental Decision and
Order'`' provided that the Respondent offer to the above-
named claimants "immediate and full reinstatement to
their former or substantially equivalent positions'20
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suf-
fered by them" because of "its discrimination against
them" computed "on the basis of separate calendar quar-
ters in accordance with the policy enunciated in F.W.
Woolworth Company, 90 NLRB 289, and_shall include
an allowance for interest at 6 percent per annum to be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716." The General Counsel has
submitted an amended specification which he maintains
conforms with the Board's Order .21 The figures used by
the General Counsel are not basically in dispute. The
Respondent contests the formula chosen in reaching
gross backpay.
To arrive at a gross backpay formula the General
Counsel adopted the period between July 1, 1959, and
June 18, 1960 (the date of discharge), as the base period.
The earnings during the base period were divided by the
number of weeks each respective claimant worked during
the base period to compute he average weekly earnings
of each claimant, for such period.22 The claimant's gross
backpay was then reached by multiplying the number of
weeks in the backpay period during which the claimant
was available for employment by the claimant's average
weekly earnings during the base period. The General
Counsel has proposed this formula as a fair and
reasonable23 formula in that actual earnings of each clai-
My findings are confined to a determination of the amount of net
backpay due each discnminatee which accrued between the dates of June
18, 1960, and December 26, 1965
21 See G C Exh 9 In the amended specification interest has been com-
puted to November 1, 1965
22 For example, Don R Weeks, during the period from July 1, 1959, to
June 18, 1960, earned $5,394 during 51 weeks His average weekly
earnings are $105 76. ($5,394 divided by 51 equals $105 76 )
23 C Woodrow Green, who was presented as an expert "qualified in ef-
fectuating and determining reasonable formulas in backpay matters"
(Green had been handling compliance matters for the Board since 1952),
testified that the formula proposed by the General Counsel was the
"only" reasonable formula " . because of the fact that there was no
comparable group of employees, or no comparable period during the
period of discrimination that could be used as a base for measuring what
the discrimmatees would possibly have earned during the period of dis-
cnmmation " _
Green further said
The Board's Order reveals that the Department was terminated
All truck drivers simply were terminated and there was no actual
earnings record of other employees to be utilized as a basis for
reaching a gross possible backpay figure
I was impres3ed with the experience of Green and the considerations
and care with which he worked out the formula
AMERICAN MFG. CO. OF TEXAS
mant during the backpay period can not be computed
since none of the Respondent's other employees per-
formed the tasks which would have been assigned to the
claimant-discriminatees had not the employer unlawfully
terminated the transportation department. Since there is
no dispute in the record as to the amount each claimant
earned between July 1, 1959, and June 18, 1960, the
number of weeks each claimant worked during such
period, the average weekly earnings of each claimant dur-
ing such period or the length of the backpay period'24 the
General Counsel has concedely adduced evidence which
established a prima facie case for the recovery of the
amounts sought in the amended specification if the formu-
la may be accepted as fair and reasonable under the
evidence adduced in support thereof. Exactitude is not
required in calculating backpay; any reasonable formula
is sufficient. Cone Brothers Contracting Company, 158
NLRB 186. ". . . approximation of the loss to such in-
dividuals [discriminatees ] by reasonable methods is suf-
ficient...... Flora and Argus Construction Company,
149 NLRB 583, 586. The use of prediscrimination
earnings as a measure of what employees would have
earned during the period of discrimination has been
deemed by the Board to be "logical and fair." Trinity Val-
ley Iron and Steel Company, 158 NLRB 890.
Third: The purpose for the imposition of backpay is to
"deter unfair labor practices." W. C. Nabors v. N.L.R.B.,
323 F.2d 686, 691 (C.A. 5), cert. denied 376 U.S. 911,
and "to discourage discharges of employees contrary to
the Act." Waterman Steamship Corporation v.
N.L.R.B., 119 F.2d 760, 763 (C.A. 5). "In computing
backpay awards the NLRB should seek to restore the
employee to the status quo he would have enjoyed if the
discriminatory discharge had not taken place." United
States Air Conditioning Corp. v. N.L.R.B., 336 F.2d 275,
277 (C.A. 6). (Emphasis supplied.) If the status quo is not
restorative and uncertainty exists as to the precise
backpay recovery for a discriminatee by reason of the
Employer' s illegal conduct the uncertainty must be
resolved against the Employer rather than against the vic-
tims of the Employer's discrimination. Ozark Hardwood
Company, 119 NLRB 1130, 1133. The degree of certain-
ty required to fix the amount of backpay in a backpay
proceeding is no greater than that "applicable to contract
on statutory breaches generally."
That degree of certainty may appropriately be re-
called. "There is a clear distinction between the mea-
sure of proof necessary to establish that [a party]
sustained some damage and the measure of proof
necessary to enable [a tribunal] to fix the amount."
Story Parchment Paper Co. v. Patterson Parchment
Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 250, 75
L.Ed. 544. ". . . Certainty as to the amount goes no
further than to require a basis for a reasoned conclu-
sion." Palmer v. Connecticut Railway & Lighting
Co., 311 U.S. 544, 561, 61 S.Ct. 379, 385, 85 L.Ed.
336. These principles, are, of course, intended to per-
mit a solution of the problem of amount to be made
upon any range of facts, circumstances or reasonable
24 However, it should be noted in this respect that the Respondent
claims that the backpay period ended on December 16, 1965, the date on
which its offer of employment was dated rather than on December 26,
1965, the date used by the General Counsel 1 n the Respondent's offer the
discnmmatees were given 10 days in which to report, which accounts for
the General Counsel's choice of December 26, 1965 It seems reasonable
that the discrimmatees should have been allowed some time in which to
have adjusted their affairs for reentry in the Respondent's employment, a
529
inferences, which afford a rational basis for conclu-
sion.
N.L.R.B. v. Kartarik, Inc., 227 F.2d 190, 192, 193 (C.A.
8).
In Marlin-Rockwell Corporation v. N.L.R.B., 133
F.2d 258, 260 (C.A. 2), the court said:
. some times the unfair labor practices of the em-
ployer makes it impossible within reason to make
such precise [backpay] determinations . when
that is the situation the Board may use as close ap-
proximations as the circumstances permit in fixing
awards of back pay, when it has determined that such
awards in connection with offers of reinstatement
will aid in creating conditions the Act was designed
to bring about.
In N.L.R B. v. Brown & Root, Inc., 311 F.2d 447,452
(C.A. 8), the court said:
In solving the problems which arise in backpay
cases, the Board is vested with a wide discretion in
devising procedures and methods which will effectu-
ate the purposes of the Act....
Obviously, in many cases it is difficult for the
Board to determine precisely the amount of back pay
which shall be awarded to an employee. In such cir-
cumstances the Board may use as close approxima-
tions as possible and may adopt formulas reasonably
designed to produce such approximations.
An approximation based upon a prior period of earnings
is not for that reason rendered untentable. Cone Brothers
Contracting Company, 158 NLRB 186, Palmer V.
Connecticut Railway & Lighting Co., 311 U.S. 544. In
the latter case the Supreme Court said at 561:
Satisfactory evidence was presented for the three
years of actual operation of the properties covered
by this lease. We think that prior earnings of the
same property over fourteen years was a fair base to
use to project the estimate of the earnings for the
eight years of future operation.
Moreover, if a backpay formula is not arbitrary and bears
an appropriate relation to the policies of the Act, its use
is within the discretionary power of the Board. N.L.R.B.
v. East Texas Steel Castings Company, Inc., 255 F.2d
284 (C.A. 5).
In N.L.R.B. v. Ozark Hardwood Company, 282 F.2d
1, 7 (C. A. 8), the court opined:
As to the formula for arriving at back-pay rates or
amounts, which the Board may deem it necessary to
devise in a particular situation, our inquiry may or-
dinarily go no further than to be satisfied that the
method selected cannot be declared to be arbitrary
or unreasonable in the circumstances involved.
The Board observes, "In determining the amount of
backpay due the discriminatees, it is the position of the
Board that approximation of the loss to such individuals
by reasonable methods is sufficient...." Flora and
Argus Construction Company, 149 NLRB 583, 586.
I conclude, in view of the evidence adduced by the
General Counsel and the authorites reviewed'25 that the
method of computing backpay proposed by the General
circumstance which was made necessary by the Respondent 's discrimina-
tory discharge of them in the first instance Moreover, as to those who did
not return to work, the Respondent is allowed credit for their interim
earnings during such period and, in view of the Respondent's suggestion
that 10 days be allowed for reporting, the date of December 26, 1965,
seems appropriate
25 No authorities were cited by the Respondent
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel is reasonable and that a fair base was employed
for arriving at the gross backpay due each discriminatee.
The General Counsel's formula is neither arbitrary nor
unreasonable. Thus had the Respondent rested without
the submission of any evidence upon its behalf at the
close of the General Counsel's case the finding must have
been in favor of the claims presented in the amended
specification.
"As long as the General Counsel establishes, as he had
done here, that work remained to be done in the classifi-
cations to which the discriminatees had been assigned, he
has established prima facie that but for the discrimination
the terminated individuals would have been retained."
Flora and Argus Construction Company, 149 NLRB
583,586.
When the General Counsel showed the gross amount
of backpay due the burden passed to the Respondent "to
establish facts which would negative the existence of lia-
bility to [the Respondent] or which would mitigate that
liability." United States Air Conditioning Corporation,
141 NLRB 1278, 1280, enfd. 336 F.2d 275 (C.A. 6).
In the case of N.L.R.B. v. Mooney Aircraft Corp., 366
F.2d 807 (C.A. 5), the court commented:
While the General Counsel has the burden of proving
unlawful discrimination on the part of the employer,
and hints that backpay is due, the employer usually
has the burden of establishing affirmative defenses
which would mitigate his liability. N.L.R.B. v. Miami
Coca-Cola Bottling Co., supra. [360 F.2d 569],
N.L.R.B. v. Brown & Root, Inc., 8 Cir. 1963, 311
F.2d 447. Among these affirmative defenses are the
unavailability of jobs because of nondiscriminatory
factors, the employees' wilful loss of earnings, and
employees' interim earnings to be deducted from the
backpay award ...
The cases are unanimous that the Employer must
establish these defenses by a preponderance of the
evidence. N.L.R.B. v. Miami Coca-Cola- Bottling
Co., supra; N.L.R.B. v. Mastro Plastics Corp., 2
Cir. 1965, 354 F.2d 170; N.L.R.B. v.Brown & Root,
Inc., supra.
The Respondent claims, as an affirmative defense, the
unavailability of work for the discriminatees because of
nondiscri minatory factors. These factors concern a
decrease in the production of haulable items, less mileage
logged by the commercial carriers than during the base
period, limitations of Respondent's fleet, the hours-of-
service limitations of the ICC, and the fact that
purchasers of the Respondent's products selected and
designated the carriers to be used in delivering their units
after 1960.
Fourth The affirmative defense of the Respondent
raises the question whether the Respondent has sustained
its burden of proving that each of the discriminatees'
gross backpay during the backpay period, had he
remained in the employment of the Respondent, would
have been less than the gross backpay based upon his
average weekly earnings during the base period, July 1,
1959, to June 18, 1960. Proof that all the employees, as
a group, would not have received as much does not
satisfy this burden since the burden of the Respondent is
to "negative the existence of liability to a given em-
ployee."
26 Jordan , in the employment of Montgomery Ward & Co , earned
$54,985 69, Edmonds earned $36,279 63 All but two discnminatees
earned more than $19,449 13 elsewhere
In United States Air Conditioning Corporation, supra,
1280, the Board said:
We have heretofore held, with court approval, that in
a backpay proceeding the burden is on the General
Counsel to show only the gross amounts of backpay
due. When that had been done, the burden is upon
the Respondent to establish facts which would nega-
tive the existence of liability to a given employee or
which would mitigate that liability. [Emphasis
supplied.]
The Respondent has presented no credible specific
proof as to how much less gross backpay, if any, any one
of the discriminatees would have earned by reason of (1)
the decrease in mileage logged by the commercial carriers
during the backpay period, (2) the limitations of the fleet,
(3) the hours-of-service limitations of the ICC, and (4)
the fact that purchasers selected and designated the car-
riers to be used in delivering their units after 1960 than
any one of the discriminatees would have earned under
the General Counsel's formula.
Indeed the record is barren of any credible evidence
that subsequent to June 18, 1960, the Respondent would
not have added "low boys" or other equipment to handle
units which required for transportation such type of con-
veyance or that the hours-of-service limitations would
have affected the income of any particular discriminatee.
In the latter respect there is no competent evidence from
which there can be drawn a finding of the maximum
amount which a discriminatee could have earned under
the limitations set by the ICC, nor does the Respondent
suggest such an amount in its brief. Furthermore, there is
no credible evidence to support a finding that, had the
Respondent continued its own transportation department,
its customers would have insisted that their purchases be
transported by commercial cat riers. Such a finding would
be wholly based upon conjecture. Such a speculation
clearly has no probative value.
While the Respondent has presented no actual proof,
it, nevertheless, argues in essence that the General Coun-
sel's claim should be denied because the over-the-road
drivers in the Respondent's employment on June 30,
1960, would have driven, in delivering the Respondent's
products, exactly the number of miles driven by the com-
mercial carriers during the backpay period, and no more;
that such mileage would have been divided equally among
15 other drivers; and that each discriminatee during the
backpay period would have earned $19,449.13, and; no
more. It seems obvious that this contention, without
proof, is based upon speculation and conjecture andis un-
sound; moreover, uncertainties caused by/dn employer's
discrimination must be-resolvedagainst the employer. Cf.
East Texas Steel Castings Company, Inc., 116 NLRB
1336, 1340.
The Respondent's argument begs the question because
it assumes that each of the 15 employees would have
remained in the employment of the Respondent for the
entire backpay period, although their earnings would
have been limited to $19,449.13 and they could have
earned substantially more elsewhere;26 it assumes that
each discriminatee would have chosen to have remained
with the Respondent at a substantially reduced income (in
1961 the discriminatees' income would have fallen to
$49.9727 a week) and in partial idleness rather than to
27 During the base period the lowest average weekly earnings of any
claimant was $97 54, the highest $125 76.
AMERICAN MFG. CO. OF TEXAS
have sought apparent available work elsewhere; 28 it as-
sumes that the Respondent, who followed a policy of
seniority in layoffs in its plant, would have laid off none
of the over-the-road drivers although the mileage
decreased from 1,173,728 miles traveled during the base
period to 599,638 miles traveled in 1961, a drop in mile-
age of around 50 percent; it assumes that the miles
traveled in backhauling would have been exactly the
same as traveled in out-going hauling, although there is
evidence that sometimes employees drove as much as
100 miles off route to complete backhauling; it assumes
that during the backpay period the discriminatees would
have received no income from backhaul fees, yard work,
or vacation benefits although during the last two quarters
of 1959 and the first quarter of 1960, in all instances save
one, the discriminatees' earnings exceeded by not incon-
siderable amounts the number of miles driven multiplied
by the rate of 6 cents a mile; it assumes that upon the fall
off of product-hauling the discriminatees would not have
been utilized in other hauling or yard work as sometimes
had been the case in the past; it assumes that the carriers
employed by the Respondent during the backpay period
used equipment which accomodated loads which, if con-
veyed by the Respondent's equipment, would have
required the exact number of miles for hauling, although
the Respondent asserts that the commercial carriers had
greater capacity; it assumes that none of the 15 over-the-
road drivers would have quit or died29 during the backpay
period; it assumes that there would have been no wage in-
creases granted to the discriminatees during the backpay
period although wage increases were granted in the
Respondent's plant;30 it assumes that during the period
of discrimination, the discriminatees, who would have
been represented by a union, would have been wholly in-
effective in obtaining any changes in wages, hours, or
other conditions of employment; and it assumes that none
of the decrease in the Respondent's business, for which
prompt delivery was a necessity, was due to the change
in method of delivery.31
These assumptions are implausible, unreasonable, and
unsound and conflict with the realities of the industrial
world. Moreover, " [t ]here must be correct individual set-
tlements." Waterman Steamship Corporation v.
N.L.R.B., 119 F.2d 760, 762 (C.A. 5). The Respondent
has not shown with any degree of probability how its
decreased mileage would have affected any one of the
discriminatees' earnings. Thus neither by proof or valid
inference has the Respondent met its burden of proving
its affirmative defense. In that the General Counsel has
established a prima facie case for the recovery of the
claims set out in the amended specification, I find in favor
of the General Counsel on the issues raised. Whether for-
mulas for the computation of backpay other than those
proposed ought to be considered are issues which are not
before me. My holding is confined to a finding that the
formula proposed by the General Counsel is fair and
reasonable when considered in the light of the evidence
28 In this connection it is significant to note that minimum wages were
set by the 1961 amendments to the Fair Labor Standards Act of 1938,29
U S.C 201, et seq , at $46 for a 40-hour week for the first 2 years after the
effective date of the amendments and at $50 for a 40-hour week
thereafter Thus it seems unreasonable to assume that qualified
truckdnvers would have continued in the employment of the Respondent
for little more than minimum wages
29 Discriminatee J C Floyd died before the hearing
30 During the period of discrimination, the Respondent gave to other of
531
adduced to support it and that the Respondent has not
sustained its burden of proving an affirmative defense to
the prima facie case presented by the General Counsel.
In N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862,
872 (C.A. 2), the court said, ". . . it rested upon the tort-
feasor to disentangle the consequences for which it was
chargeable from those from which it was immune."
An employer risks a backpay order as part of the con-
sequences of his unfair labor practices. He cannot escape
by selling his business or voluntarily abolishing the par-
ticular job occupied by the discriminatee. Cf. Waterman
Steamship Corporation v. N.L.R.B., 119 F.2d 760, 763
(C.A. 5). Furthermore, an employer who gambles on
evading the Act may not be heard to complain if his gam-
ble fails and his liability is construed in favor of the vic-
tims of his discrimination for such a construction is an aid
in the enforcement of the Act.
I confirm the General Counsel's specification as
amended in its entirety and recommend that backpay be
allowed as follows:
Backpay
Due Interest Total
Ben Barnett $17,383.57 $2,995.05 $20,378.62
L. H. Bell, Jr. 9,307.81 2,414.08 11,721.89
L. D. Carlile 8,027.28 2,267.15 10,294.43
G. W. Edmonds 1,195.01 391.80 1,586.81
J. C. Floyd 7,590.15 2,228.29 9,818.44
J. D. Jordan 283.10 106.26 389.36
B. J. Lewis 2,331.43 655.19 2,986.62
Robert 0. Meador 10,324.58 2,498.38 12,822.94
Wayne H. Moore 11,019.12 2,764.23 13,783.35
H. R. Narramore 6,872.72 2,096.86 8,969.58
William C. Taylor 2,460.56 708.93 3,169.49
Charles R. Wallace 9,661.64 2,461.91 12,123.55
Don Weeks 8,242.22 1,384.57 9,626.79
In view of J. C. Floyd's decease it is recommended that
the Respondent be ordered to pay over to Floyd's estate
or any other person or persons as their interests may ap-
pear the backpay due and owing on behalf of Floyd. See
Herman Nelson Division, American Air Filter Company,
Inc., 127 NLRB 939.
The amended specification provides that transportation
expenses shall be allowable at 9 cents per mile. I deem
this an inadvertence and recommend that 10 cents per
mile be allowed for transportation expenses. See Rice
Lake Creamery Company, 151 NLRB 1113, 1114, foot-
note 5.
Since interest has been computed on the net backpay
due only until November 1, 1966, it is recommended that
interest on the net backpay due continue thereafter at the
rate of 6 percent per annum until the net backpay is paid
in full.
It is recommended that the net backpay awards be
reduced by such tax withholdings as are required by
Federal and State laws. Rice Lake Creamery Company,
supra, 1116, footnote 13.
its employees general wage increases of approximately 8-1/2 to 9-1/2 per-
cent
31 In the Respondent's brief to the Trial Examiner it is stated
It was because of the necessity of making prompt delivery of its
pumping units to the well sites in the various oil fields where they
were to be used and the unavailability of public transportation facili-
ties tc render such service that the Company began and continued the
operat..rn of its own trucks until June 18, 1960
310-541 0 - 70 - 35