C. C. Griffin Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1966

158 N.L.R.B. 890 (N.L.R.B. 1966)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has not been settled satisfactorily in Step 1 or Step 2 may then
be submitted to arbitration
As to duration, the Supplementary Agreement provides
This Agreement shall be effective from April 1, 1965, up to and
including April 1, 1968, and shall automatically continue in full
force and effect from year to year thereafter unless either party
serves written notice on the other party at least sixty (60) days
prior to April 1, 1968, or prior to any annual anniversary date
thereafter, of its desire to modify or terminate this Agreement
Under our construction of the intent of the Union and the
Employer manifested in their Agreements, excerpted above, we
believe it is clear that one of the several considerations provided in
the Label Agreement for the grant to the Employer of the right to
use the Union's label on the garments it manufactures, was the execu-
tion of the Supplementary Agreement, and that, whether or not it
be viewed as a part of the Label Agreement, the Supplementary
Agreement's duration and validity were to be determined by refer-
ence to its provisions alone Therefore, as the Supplementary Agree-
ment is by its terms a complete and valid collective-bargaining con-
tract, with a fixed duration of 3 years, we find, contrary to the
Regional Director, that it may operate as a bar herein Accordingly,
we shall dismiss the petition as it is untimely with respect to the
expiration date of the Supplementary Agreement 3
[The Board dismissed the petition ]
a See Pacific Coast Association of Pulp and Paper Manufacturers , 1 d1 NLRB 990, 992,
and General Cable Corporation, 139 NLRB 1123
8 Leonard Wholesale Meats, Inc, 136 NLRB 1000
Trinity Valley Iron and Steel Company, a Division of C. C Griffin
Manufacturing Company, Inc and International Molders and
Foundry Workers Union of North America, AFL-CIO, Local
No 9. Case No 16-CA-1256 May 16,1966
SUPPLEMENTAL DECISION AND ORDER
On April 27, 1960, the National Labor Relations Board issued a
Decision and Order in the above-entitled case,' finding that Trinity
Valley Iron and Steel Company, a Division of C C Griffin Manufac-
1 127 NLRB 417
158 NLRB No 80
TRINITY VALLEY IRON AND STEEL COMPANY 891
turing Company, Inc., herein called the Respondent, had engaged in
certain unfair labor practices within the meaning of the National
Labor Relations Act, as amended, and directing, inter alia, that
Respondent offer immediate and full reinstatement to certain
employees , dismissing if necessary employees hired on or after
June 30, 1959, and further directing Respondent to make whole the
reinstated employees for any loss of pay they may have suffered for
the period from 5 days after such employees applied for reinstate-
ment to the date of Respondent's offer of reinstatement, less net
earnings, if any, in said period. Thereafter, the Board's Order was
enforced by the United States Court of Appeals for the Fifth
Circuit.2
On January 31, 1962, the Regional Director for Region 16 issued
a backpay specification and notice of hearing. A settlement attempt
by Respondent's attorney and the Regional Office was not approved
by the Washington office of the General Counsel, and on April 30,
1963, the Regional Director issued an amended backpay specification
and notice of hearing.3 Respondent, pursuant to an order of the
Regional Director extending time to file answer, duly filed an
answer on August 29, 1963.
Pursuant to notice, a hearing was held before Trial Examiner W.
Edwin Youngblood to determine the amounts of backpay due. On
April 29, 1964, the Trial Examiner issued his Supplemental Deci-
sion attached hereto, in which he awarded specific amounts of back-
pay to 84 discriminatees and in which he made certain other conclu-
sions and findings. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's Supplemental Deci-
sion and supporting briefs, and the Respondent filed an answering
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
Trial Examiner's Supplemental Decision, the exceptions and briefs,
and the entire record in the case,,' and hereby adopts the findings,
2 290 F. 2d 47.
: As we herein find that some of the additional items sought by the General Counsel
are in fact proper additions to the backpay specification and are meritorious, and for the
additional reasons set forth by the Trial Examiner , we affirm his rejection of Respondent's
contention that the issuance of the amended specification was punitive.
"General Counsel ' s motions to strike and reject Respondent's exceptions and brief in
support of exceptions are hereby denied.
G Respondent 's request for oral argument before the Board, is hereby denied, as the
record , exceptions , and briefs adequately present the issues and positions of the parties.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions, and recommendations 'of the Trial Examiner only to
the extent consistent herewith.
1. Commencement of backpay period: On December 9 and 10,
1959, a majority of the strikers voted to call off the strike. On Decem-
ber 11; 1959, the union representative, Heickman, notified the
Respondent by letter that the strike was at an end and made an
unconditional request for reinstatement on behalf of each of the
striking employees. A list of employees was attached to the letter
which also requested that the Union be advised where and when the
strikers should report for work. On December 14, Heickman called,
Respondent's attorney, Price, and inquired what Respondent intended
to do about his letter. The attorney replied that he did not know.
In the course of their conversation, Heickman acknowledged that
some of the men were reluctant to give up the strike, but stated that
as far as the Union was concerned the strike was over and also- that
strike benefits had been cut off. However, when Price stated the
importance of knowing `which employees were coming back, Heick-
man said he had already talked to some of the men, and that he was
confident the men would probably do what he told them to do.
On the same day (December 14), Price wrote Heickman that
"striking employees who desire to individually' aiband'on the strike
and report for work should appear at the plant office ... December 19,
at 7:00 a.m. . . ." Heickman took steps to notify the strikers, and
-on December 19, some 38 strikers reported and were interviewed.
During the interviews, the strikers were asked if they had uncondi-
tionally given up the strike and were informed that they would be
sent to a doctor for a physical `before [they] would go to work," for
the purpose of recording their physical condition. Similar inter-
views were conducted thereafter as strikers reported, with 76 employ-
ees being interviewed in • December 1959, 11 more in January and
2 in February 1960. No employee was put to work at the time of
his interview, but commencing December 21, 1959, and on varying
dates thereafter, Respondent sent letters to employees who had been
interviewed, instructing them to report on specified dates "prepared
to go to work." Instructions fora physical examination. before the
specified work date were also included. Thereafter, on various dates
beginning December 22, the strikers were reemployed. _
The Trial Examiner found that the Union's letter of December 11
was an unconditional request for reinstatement on behalf of the
listed strikers. He rejected Respondent's contention that Heick-.
TRINITY VALLEY IRON AND STEEL COMPANY 893
man's phone conversation with Price on December 14, qualified the
Union's' unconditional offer to return to work. We agree with these
findings of the Trial Examiner.
In addition, the Trial Examiner further found that the Respond-
ent's letter of December 14 did not fulfill its reinstatement obligations.
as the interviews on December 19 and subsequent dates were con-
ducted to determine only availability for work and no strikers were:
offered employment until later, Thereafter, having found that.
Respondent was obligated to offer reinstatement to the strikers by
December 17, the Trial Examiner concluded that all strikers listed
in the 'Union's December 11 application were entitled to backpay
from December 17 to the date they were actually ordered to work
after their interview and physical examination.s On the other hand,
Respondent contends that any obligation it had to offer reinstatement
to the strikers-was satisfied by sending the December 14 letter to the
Union, and that it should not be penalized for any failure of the
union representative to notify the employees to report for interviews
on December 19, and for the failure of some strikers to appear on
December 19. Thereafter, Respondent argues that its backpay liabil-
ity should begin to run only from the date the striking employees
reported for work in response to its December 14 letter. We agree,
in part, with Respondent's position.
Under settled law, it is well within the Union's authority, as the
employees' bargaining agent, to make an unconditional application
for reinstatement on behalf of the strikers and thereby impose upon
the Respondent the duty to offer reinstatement to them:' By the
same token, Respondent is also entitled to discharge this obligation
by making its offer directly to the Union, as such employee repre-
sentative. This is especially true here, since the Union had requested
to be advised when and where the employees should report for work
and since the Union had indicated some uncertainty as to the inten-
tions of certain strikers. In the circumstances herein presented, we
find that' the Respondent's letter of December 14 was sufficient to
impose upon the Union the obligation of notifying the strikers to
report on December 19. With respect to those strikers who did not
report on that date, no reason appears :in the record for their delay
in reporting, and there is no evidence showing that these strikers
°The court-enforced Board Order and Remedy in the unfair labor practice proceeding
provides for a 5 -day period for reinstatement after application by the strikers. The
5 days are computed from receipt of the request for reinstatement.
7 E.g., Elmira Machine h Speciality Works, Inc., et al., 148 NLRB 1695.
894 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
had otherwise indicated their availability for work on December 19.
On the other hand, the record does not show that these late report-
ing employees, with the exception of Milton Smith, discussed infra,
intended to abandon their employee status. Accordingly, for those
who reported after December 19, we shall provide backpay for the
period between the date on which they reported to Respondent in
response to Respondent's letter of December 14 and the date on
which they were instructed to report for work.
However, with respect to those strikers who did respond to
Respondent's offer, by making themselves available for work at the
appointed time, it is clear, and we find that they were entitled to
backpay from the date they should have been reemployed, namely,
December 17,8 to the date they were actually ordered to work after
their interview and physical examination .9
2. The Trial Examiner found that the strikers were properly
reinstated even though they worked fewer hours after the strike
than in the prestrike period. The General Counsel excepts to this
finding, and contends that the strikers were improperly reinstated
because the decrease in their hours of work resulted from the failure
of the Respondent to discharge the large number of replacements
who were hired while the strike was in progress. General Counsel
argues that it was the retention of these replacements which caused
the returning strikers to receive fewer hours of employment after
the strike, and therefore the strikers were not properly reinstated in
compliance with our Order and the court's decree. We find merit in
the General Counsel's exceptions.
There is no dispute that after the strikers had returned to work,
and while a significant number of replacements remained on the
payroll, the weekly average hours of work was sharply below that
enjoyed by employees in the prestrike period. Indeed, on the basis
of Respondent's records it appears that in the three quarters prior
to the strike the weekly average hours worked varied between 46.6
and 49.1, hours, but after the strike ended, in only one, of eight
" While Respondent 's letter of December 14 may have been sufficient to require the
Union to notify the strikers to report for work on December 19, Respondent 's offer of
December 14 was defective in terms of the Board 's Order to the extent that Respondent
did not offer reinstatement within 5 days of application.
0 The record shows that 33 persons appeared for interviews on December 19, 1959.
However, it appears that James Williams refused to abandon the strike at the time of
his appearance , and therefore, as found by 'the Trial Examiner, Respondent was not
obligated to reinstate him. In addition , we further note that Horace Stewart also re-
ported on December 19, but General Counsel claims no backpay for him.
TRINITY VALLEY IRON AND STEEL COMPANY 895
quarters did weekly average hours reach a high of 40.5.10 Moreover,
after the strike, with numerous replacements remaining on the pay-
roll, Respondent's average number of employees per week rose to
164, whereas Respondent's normal employee complement averaged
142 prior to the strike. On the other hand, it does not appear that
Respondent's business requirements warranted such an expansion of
the work force, for in fact production was lower after the strike."
In summary, after the strikers were reinstated the Respondent uti-
lized a larger work force to turn out fewer pounds of castings, and
the reinstated employees worked appreciably fewer hours than they
had worked before the strike.
To comply with the judicially enforced Board's Order that the
unfair labor practice strikers be reinstated upon application, Respond-
ent is required, absent special circumstances, to restore the strikers
to their prestrike jobs under the same terms and conditions of
employment as existed prior to the strike, even if replacements have
to be discharged.12 It is axiomatic that the Respondent must also
return them to the same number of hours of work as they worked
10 In this regard , Respondent's records reveal the following.
Year Weekly Average Hours
Quarter:
3d------------------------------------------- 1958 49.1
4th------------------------------------------ 1958 47.3
1st------------------------------------------- 1959 46.6
2d (strike commenced)______________________ 1959 48.0
Strike•
1st------------------------------------------- 1960 38.4
2d------------------------------------------- 1960 86.8
3d------------------------------------------- 1960 40.5
4th------------------------------------------ 1960 35.4
ii Records of Respondent show:
Pounds of (rood Casting by Months
January-------------------------------
February------------------------------
March--- ------------------------------
April ----------------------------------
May-----------------------------------
June (strike) __________________________
1959 1960
1,207,584 981,112
1,175, 470 1,032,708
1,195, 641 895,696
1,198.090 747, 380
1,177, 995 889,107
505,220 1,112, 358
12 Mooney Ai*cra/t, Inc., 132 NLRB 1194 , enfd . 310 F. 2d 565 (C.A. 5) ; N.L 1f R. v.
Kohler Co., 351 F. 2d 798 (C.A.D.C.) ; N.L.R.R. v. Silvino Giannasca, d/b/a Imperial Reed
& Fibre Co., 119 F. 2d 756 (C.A. 2).
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before they went out on strike, for to do less would be to penalize
them for exercising their statutory right to strike Of course, this
obligation to restore unfair labor practice strikers to their former
jobs and terms and conditions of employment is not so absolute as to
preclude the Respondent from showing changed circumstances justi-
fying a reduction in the prestrike workweek or a change in other
conditions of employment 13 However, the burden of establishing
such changed circumstances rests on the Respondent," and this
burden is not met where Respondent merely shows that retaining
the replacements and simultaneously shortening the hours of work
might be advantageous to the Respondent as explained below 15
Heie, the evidence establishes that for at least 16 months preceding
the strike, it was the Respondent's normal practice to conduct its
operations with an aveiage complement of 142 or fewer employees
who worked longer hours than they did after their reinstatement
following the termination of the strike No evidence was adduced
by the Respondent, other than its self-serving declaration, that at
any time before the strike it regarded its employee complement as
inadequate, that it had made any effort to recruit additional
employees, or that the laboi situation in the area was such that it
was unable to fill its needs Nor did the Respondent produce any
evidence showing that the termination of the strike furnished it
with the first opportunity to meet its asserted employee require-
ments Indeed, it appeais that Respondent was able to recruit a
large number of employees when the strike necessitated the hire of
additional persons to maintain production Moreover, although the
Respondent's officials testified that to be fully staffed Respondent
needed 165 employees, it is clear that this figure was achieved, with
the retention of the replacements, in only the first quarter in 1960,
immediately aftei the stiike ended, and that this number steadily
decreased thereafter Furthermore, Respondent introduced no evi-
dence showing that returning strikers were insufficient in number to
handle the work load, particularly in light of the fact that produc-
tion requirements apparently were lower than the prestrike period
In these circumstances, it can hardly be said that 1 he Respondent
operated "shorthanded" before the strike and that it continued to
employ the replacements after the strike to rectify this situation
In any event, if the Respondent operated "shorthanded," there can
1s Of Cone Brothers Conti acting Company 158 NLRB 186
1* N L R B v Trinity Valley Iron and Steel Company 290 F 2d 41 48 (C A 5) enfg
the Board a Order in the Instant case Cf N L R B I Biscayne Television Corporation
337 F 2d 267 , 268 (I CA 5)
15 Mooney Aircraft and N L +B B v Giannasca footnote 12 supra
TRINITY VALLEY IRON AND STEEL COMPANY 897
be little question that it was a normal condition of employment in
view of the stability of total employment before the strike.16
In defense of its position Respondent contends, inter alia, that it
was necessary to retain a large number of the replacements in order
to implement its policy of eliminating overtime. Clearly, Respond-
ent's consistent prestrike overtime practice belies the existence of
such a policy. Moreover, its oral declaration of such policy is inade-
quate to overcome the -clear record of its longstanding practice of
operating on an overtime basis.''
Respondent has advanced other reasons for not discharging replace-
ments after the strike, namely, (1) only half the strikers reported
on December 19, 1959, and Respondent therefore did not know how
many strikers would report for work, and (2) vacations were due
for the returning strikers. We do not believe these reasons justified
the retention of the large number 'of replacements to the detriment
of the returning strikers. With respect to (1), even though only
38 appeared at Respondent's plant on December 19, it appears that
76 strikers had applied by December 29, and about 11 more strikers
applied in January 1960. Yet, only 21 of some 80 replacements
were terminated by Respondent in January 1960, another 8 in
February, and only a total of -38 were terminated by the end of
March -1960. - Thus, it is clear that Respondent kept many more
replacements than- could possibly be needed in event that some of
the 'strikers did not - seek reinstatement. As for (2), above, it is
clear from the record evidence, assuming arguendo the Respondent
could -act for its own convenience and retain a number of replace-
ments as a; reserve against vacations,"" that the number of replace-
ments retained` ion the payroll was far in excess of any reasonable
16 Respondent urges that even if replacements were regarded as extra men on the
payroll' their retention did not affect the-"regular" hours of employment of returning
strikers . However, this assumes that "overtime" had not become a normal expectation
and thus a part of, regular hours. The fact remains that during the prestrike period,
when production exceeded production after the strike , the Respondent used fewer em-
ployees in the production process and the employees consistently worked a greater num-
ber of hours than after the'strike.
In a similar context, the Court of Appeals for the District of Columbia has held in
N.L.R.B. v. Kohler Company, 351 F. 2d 7981:
Here, economic factors had already diminished substantially the available work.
Kohler diluted it further by deciding to add , rather than substitute , returning strikers.
As the Master said , "[T]he strikers .., . had to take their chances on a work week
adjusted . . . to[the Company 's] business and its policy of reducing the work week
rather than laying off employees, but not ... based upon retention of employees
hired on or after Sune 1, 1954 ." When Kohler enlarged its work force in the face
of economic trouble rather than break its promises to the replacements ,, it .violated
the Board's decree: " [T]he order secured [the strikers ] the-'benefit of [Kohler's]
judgment based upon the number of men who could efficiently do the work in hand,"
N.L.R.B. v. G iannasea, supra, 758 . Kohler denied them the benefit of that judgment.
17 See cases cited in footnote 12, supra.
18 Cf. N.L.R.B. v. Giannasca, footnote 12, supra.
221-731-67-vol. 158-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
need. Indeed, after the strike no more than 13 employees were on
vacation at one time and this total was reached only during the first
2 weeks of February 1960.
Finally, Respondent contends that certain of the replacements,
who were hired between June 8 and 30, 1959,, while the strike
was economic in nature, were hired as permanent replacements for
some of the strikers. The burden of establishing that. an economic
striker has been, permanently replaced rests upon the employer.19
The Respondent has not satisfied this burden. In this regard, its
payroll records reflect the hiring of several replacements and the
job classification for which each was employed. However, the rec-
ords submitted by Respondent do not show the new hires were
assigned as replacements for individual strikers. Indeed, it appears
that the list of alleged permanent replacements was compiled well
after the strike and solely for the purposes of the backpay proceed-
ing, and was based solely on the recollection of an officer of the
Respondent that certain new hires replaced specific employees. How-
ever, Respondent appeared uncertain as to the specific employees
involved, and the list of alleged permanent replacements appearing
in its answers to the backpay specifications differed from the list of
such replacements appearing in its brief. We further note the incon-
sistency of this claim with Respondent's contention that it was
"shorthanded" at the time. Nor does it appear that returning
strikers were advised that they had been replaced when they returned
to work.20 Accordingly, we find that Respondent has not affirma-
tively shown that those hired during the course of the strike were
considered permanent replacements for economic strikers.
3. Having found that the strikers were improperly deprived of
their normal longer workweek by Respondent's retention of replace-
ments, we turn to the formula to be utilized in the computation of
backpay provided for in the judicially approved Board Order. The
General Counsel, in his backpay specification, proposes that backpay
be computed for ' each discriminatee on the basis of his work experi-
ence in the first quarter of 1959,21 which is also the last complete
10 M. Eakin & Son, 135 NLRB 666, enfd. as modified sub nom. Confectionery .& Tobacco
Drivers, etc., 312 F. 2d 108 (C.A. 2), footnote 3.
20 We consider the failure of Respondent to inform strikers when reinstated that they
had been permanently replaced, as part of the cumulative evidence that they had not
in fact been so 'replaced . However, we find it unnecessary to reach the question whether
Alabama Marble Company, 83 NLRB 1047,' 185 F. 2d 1022 ( C.A. 5), cert. denied 342
U.S. 823, relied on by the Trial Examiner, is applicable to this factual situation.
21 The dates used for this quarter differ to some extent from the actual calendar quarter
and' correspond with the Respondent 's payroll accounting quarter.
TRINITY VALLEY IRON AND STEEL COMPANY 899
quarter before the strike began Under this formula, backpay is
computed for the period of discrimination prior to reemployment
and for the difference in hours of work (workweek differential)
caused by the improper reinstatement due to the reduced workweek
Gross backpay in the period prior to reemployment is the product
of (a) the number of weeks in the applicable calendar quarter from
the date the discriminatee was entitled to be reinstated to the date
of reinstatement, (b) the adjusted weekly average hours of employ-
ment,22 and (c) the applicable hourly wage rate The workweek
differential after reinstatement is computed in each applicable quar-
ter by (a) multiplying the number of weeks each discrimmatee
actually worked (exclusive of weeks in which a discriminatee worked
less than 24 hours) by his adjusted weekly average hours of employ-
ment, (b) subtracting from this the hours each discriminatee actually
worked (excluding hours in weeks of less than 24 hours, converting
overtime at the rate of 1 to 11/2, and including bonus hours as
straight time), and (c) multiplying the remainder, if any, by the
applicable wage rate
We find the General Counsel's formula to be reasonable and
appropriate No formula can precisely measure the exact amount
of work of which each discriminatee was deprived by Respondent's
retention of the replacements, but in our view the General Counsel
has composed a reasoned and workable formula The quarter
selected as representative by the General Counsel for determining
the normal hours of work which employees might expect is not only
the last complete quarter before the strike, but is also the same calen-
dar quarter as the one in which strikers were remstated and thus
minimizes any seasonal differences In fact, average hours in the
representative quarter were the lowest in the year before the strike 23
Moreover, in the representative quarter the average employment of
142 employees represents the norm in the 16 months preceedmg the
strike Therefore, the quarter utilized by the General Counsel to
22 "Adjusted weekly average hours ' as used herein means the weekly average hours for
each discriminates in the selected representative quarter , namely, the first quarter of
1959 In computing the average for each discriminatee weeks in which the discriminatee
worked less than 24 hours are excluded , overtime hours are converted to their straight
time equivalent at the rate of 1 to 1%, and "bonus" hours are included as straight time
worked For Huron Elvis Hornsby , Norman Ray Lewis , Roy Lee Rosborough, and Carl
Wagner, Jr, who were not employed in the representative period, the adjusted weekly
average is computed from the hours worked in March April , and May 1 959 Charles E
Washington was hired June 3, 1959 , only a few days before the strike ind a representa
love 40 hours was selected as his adjusted weekly average
23 Footnote 10, Supra
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine the average hours of each workweek is indeed representa-
tive of plant experience in the year prior to. the strike and its use
in' measuring the amount of hours lost as a' result of the reduced
workweek after the strike is logical and fair.24
On the other hand, the General Counsel has failed to specify a
date when the strikers could be considered fully reinstated, and back-
pay thus terminated. Since our grounds for awarding backpay to•
strikers after reinstatement is the Respondent's abnormally large
employment complement compared with the normal prestrike level,,
causing a reduced workweek, it follows that when total employment,
dropped to the normal prestrike level, the status quo was reasonably
reestablished. Thereafter, any reduction in hours would appear to.
be attributable to nondiscriminatory factors. The fact that some-
replacements thereafter remained on the payroll may be -attributed
to normal labor turnover. Accordingly, as average employment in
the last quarter of 1960 was 145, which approximates normal employ-
ment of around 142 in the prestrike period, we shall award backpay
through December 24, 1960, which is the end of Respondent's last
accounting quarter in 1960. -
In addition, we affirm the Trial Examiner's finding that certain
employees were reinstated at improper wage rates and were deprived
of periodic increases to which they, were entitled. Accordingly, we
shall include in our gross backpay calculations the amount found due
by the Trial Examiner to certain discriminatees to correct this
improper reinstatement.25 We shall also use the corrected wage
2' We find that the General Counsel , who here urges that Respondent's alternative
proposal that baekpay be computed on a departmental basis be rejected as not complying
with our Rules and Regulations , waived this defect at the 'commencement of the hearing..
Therefore , we have considered, although we now reject, the alternative method of comput-
ing backpay . Under this approach backpay would be computed in a given department
until employment , including both strikers and replacements, fell to the level existing in
some prestrike representative period . However, the evidence fails to establish that Re-
spondent operates ' on a rigid departmental basis. Indeed, employees may work in one.
"department" while the payroll shows him working in another "department'," In addi-
tion, Respondent 's evidence in support of its position reflects inconsistencies and tends to
show that employees are distinguished primarily by their job classification rather than by-
any "department ." In the circumstances , it would be difficult, at best, to determine the
departments existing prior to the strike and what their normal complement was. More-
over, by the nature of Respondent 's operations , excessive numbers of employees in one
department may result in that department performing its work in a short time leading
to fewer hours of work for another department , even though the latter is down to pre-
strike levels of employment . Thus, even under Respondent 's proposal , discriminatees
would still suffer from reduced hours due to the retention of replacements in other
departments.
27 We note that in his "Concluding Findings" the Trial E xanminer ,inadvertently credited
Andy Adkins with the amount actually due-Curtis Alexander for being reinstated at the
improper wage rate. Similarly , Robbie G. Ervin was credited with an amount actually
due Alvin C. Fields. We have corrected these inadvertent errors.
TRINITY VALLEY IRON AND STEEL COMPANY 901
rates in our calculation of the amounts due as a result of the reduced
workweek
In accordance with our holdings herein we have computed the
backpay of each disci iminatee entitled to such in Appendixes A and
B of this Supplemental Decision and Order The net backpay due
each discriminatee is the sum of these two Appendixes and is set
forth in our Order This backpay in each case is composed of (a)
the gross backpay due before reemployment, less stipulated net
interim earnings, (b) the amounts due as a result of reinstatement
to improper hours of work, computed quarterly through December 24,
1960, and (c) the hourly wage differential due after reemployment
4 Huron Elvis Hornsby In his Supplemental Decision the Trial
Examiner concluded that Huron Elvis Hornsby was improperly rein-
stated in January 1960, and again in May 1962, because he was not
returned to work on the same wheelabrator as he had worked on prior
to the strike We disagree 26
Hoinsby was classified as "cleaning labor" when hil ed about 3
weeks before the strike began In this capacity he helped Lewis Reed
on the turntable wheelabrator until "all the pipes were run" and then
would clean and sweep up the shop However, Bashami, foreman of
the cleaning labor, testified that the personnel he supervised were
assigned to various jobs as they needed to be done and that, if neces-
sary, individual job assignments were changed during the day.
Wheelabrator operators are permanently assigned and are given
assistance when available Some men who assist on the wheelabrator
have mole experience than others However, they are subject to
change in assignments if the foreman sees fit and there is no such
classification as wheelabrator operator helper While Hornsby, among
other duties, did assist on the wheelabrator before the strike, when
he returned he was reemployed at his old job classification of clean-
ing labor In this capacity he was assigned to painting pipe and,
according to Basham, was assigned where needed as he had been
prior to the strike
We find Hornsby's poststrike assignments to be consistent with his
job placement during the brief period in which he was employed
before the strike Under the broad classification of cleaning labor
he was called upon to perform a variety of tasks The fact that a
25 For the reasons already set out in connection with Respondent 's gem ral claim that
it had hired permanent replacements , we also reject Respondent's contention that Hornsby,
;while an economic striker, was permanently replaced
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good deal of his time during the 3 weeks before the strike was spent
assisting on one of the wheelabrators does not suffice to establish
that this was his sole assignment as opposed to other cleaning labor-
ers who were available for a variety of assignments Therefore,
when Hornsby was reinstated as cleaning labor and given work com-
mensurate with the general demands of this position he was rein-
stated to his prestrike job Accordingly, Hornsby is entitled to
backpay only for the period from December 17,1959, until March 10,
1960, when he left Respondent's employ
5 James Carl Nelson The Trial Examiner found it unnecessary
to resolve the issue of whether James Carl Nelson had applied for
reinstatement because of his conclusion that Respondent was obli-
gated to offer each of the strikers reinstatment by December 17, 1959,
and his further finding that this offer was not forthcoming in Nel-
son's case until May 21, 1962 We have herein previously set forth
our view that Respondent's letter of December 14, 1959, was a proper
notification to the Union to require the Union to see that the strikers
reported for work Accordingly, it is necessary for us to decide
whether Nelson did in fact properly and timely apply for
reinstatement
When the strike began in June 1959, Nelson had been absent from
work for about 2 months due to injuries His lawsuit pursuant to
the State's Workmen's Compensation Law was settled on Decem-
ber 17, 1959 Nelson testified that he considered himself a striker
and that he performed picket duty and other "things" that strikers
were doing Nelson contended that he returned to the plant before
Christmas 1959 and asked for his job back, but was told that
Respondent was not hiring Respondent denied that Nelson appeared
for the interview and further sought to impeach Nelson's credibility
on the basis of inconsistent statements made in connection with the
above-described lawsuit and as to when and with whom he applied
for reinstatement
In this regard, Respondent's Exhibit 24a-241, is Plant Superinten-
dent Robinson's handwritten record of interviews of strikers as they
reported back to the plant Each employee is listed in order of
appearance, together with the date he appeared These records
extend through February 1960 All of the strikers, with the excep-
tion of Nelson, who applied and were eventually rehired appear on
the list We find this list to be an accurate record of the discrimina-
TRINITY VALLEY IRON AND STEEL COMPANY 903
tees who applied for reemployment and accurate as to the dates whey
such application was made In view of the absence of Nelson's
name from the list and his confusing testimony, we do not credit
Nelson's assertion that he applied for reinstatement As Nelson
never applied for reinstatement, we find that the Trial Examiner
erred in awarding him backpay, and we do not include him among
the discriminatees entitled to backpay 27
6 Milton Smith Smith went out on strike with the other employ-
ees in June 1959 Several months later he left Fort Worth, Texas,
where the plant was located, and went to Marshall, Texas, about
200 miles away, to secure other employment After the strike ended
he returned to Fort Worth, and without inquiring of the Union or
the Respondent as to the status of the strike, secured various jobs
in the area Around the middle or end of January 1960, Smith
fortuitously learned from another employee about the termination
of the strike Approximately 1 month later, February 16, 1960, he
applied for work at Respondent's plant and was told there was no
need for his services at that time
In the circumstances we find merit in Respondent's claim that
Smith had abandoned his job No one act of Smith has lead us to
this conclusion, but his whole course of conduct before and after the
strike shows that he no longer considered himself as an employee of
the Company Thus, while a striker may on occasion seek employ-
ment in another area while the strike is in progress without having
abandoned his attachment to his original employment, Smith not
only sought such employment, but evinced no interest in his employ-
ment status with Respondent after he returned to the area Further-
more, after he learned of the termination of the strike he waited
a month before inquiring as to the possibility of reemployment
Moreover, even if we were not to find that Smith abandoned the job,
we would find that Smith, by waiting 1 month or more after he
learned of the termination of the strike before applying for his old
job, unreasonably delayed in making his application and would not
be entitled to reinstatement
Because Smith abandoned his job, Respondent was entitled to treat
him as any other new applicant for employment when he eventually
came to the plant in February 1960, and no backpay or right of
reinstatement is due him
' As we have disqualified Nelson for backpay , it is unnecessary to determine whether
he was permanently replaced before the strike began
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the foregoing Supplemental Decision and Order
and the entire record in this case, the- National Labor Relations
Board hereby orders that the Respondent, Trinity Valley Iron and
'Steel Company, Fort Worth, Texas, a division of C. C. Griffin Manu-
facturing Company, Inc., its officers, 'agents, successors, and assigns,
shall pay to the employees involved in this proceeding as net back-
pay in the following amounts: 28
Name Net backpay due
1. Adkins, Andy__ ___________________________________ $389.07
2. Alexander, Curtis__________________________________ 1,139.10
3. Allen, George Hilton_______________________________ 1,506.88
4. Allen, Lorenza_____________________________________ 842.04
5. Allen, Johnnie------------------------------------- 486.76
6. Bailey, Theodus----------------------------------- 999.93
7.• Bell, Lewis---------------------------------------- 972.93
8. Black,, George L____________________________________ 498.18
9. Boone, Claude H------------------------------------- 1, 234.21
10. Boone', Jessie M____________________________________ 734.53
11. Brewer, Leardis____________________________________ 997.87
12. Brookins, O. D_____________________________________ 1,293.43
13. Brookins, Sammie__________________________________ 1,034.83
14. Brown, Malvin------------------------------------- 1, 076.94
15._ Burnes, Earnest________________ • 881. 57--------------------
16. Cary, Nelson_______________________________________ 798.01
17. Conner, Everett____________________________________ 543.86
18. Crowe, Jeffro-------------- _-------- _-------------- 799.13
19. Cfownover, John 0., Jr------------------------------ 690.03
20. Davis, Edward_____________________________________ 1,053.59
21. Davis, R.,C., Jr___..--------------------------------- 733.05
22. Dawson, Claude____________________________________ 1,047.67
23. Edwards, L. C------------------------------------- 561.89
24. Ervin, Robbie G___________________________________ 618.39
25. Fields, Alvin C------------------------------------- 1,021.65
26. -Ford, Willie-------------------------------------- 376.21
27. Gillispie, C.C-------------------------------------- 872.94
28. Green, Willie E____________________________________ 790.94
29. Greer, Thomas A---------------------------------- 1, 293.92
30. Greer, Tommie_____________________________________ 788.07
31. Hamilton, Willie L_________________________________ 962. 77
32. Harrington, C. L___________________________________ 218.45
33. Harris, Pete_______________________________________ 1,173.25
34. Hayward, Jake, Jr--------------------------------- 1, 048.98
35. Hill, Milton-----'----------------------------------- 492.35
36. Hill, Milton, Jr------------------------------------ 825.41
29 The net backpay awards are to be reduced by such tax withholdings as are required
by Federal and State laws . Interest is to be added at the rate of 6 percent per annum
on the respective amounts of backpay , with such interest to accrue from the date of this
Order. Nassau d Suffolk Contractors Association , Inc., 151 NLRB 972.
TRINITY VALLEY IRON AND STEEL COMPANY 905
Name Net backpay due-
37. Hornsby, Huron Elvis------------------------------ 311. 81
38. Houston, Aubrey James---------------------------- 931.66
39. Jack, Henry--------------------------------------- 645.11
40. Jeffery, Albert=------------------------------------ 590.93
41. Jeffery, Charles------------------------------------ 593.65
42. Jeffery, Lonzo------------------------------------- 1,012.31
43. Johnson, Alphonso --------------------------------- 543.70•
44. Johnson, Cleo-------------------------------------- 451.54-
45. Johnson, Moses____________________________________ 1,113.35
46. Jones, Edward Lee--------------------------------- 921. 74
47. Jones, Johnnie Lee--------------------------------- 902.89
48. Kirk, Leon---------------------------------------- 1,173.16
49. Lee, Earnest--------------------------------------- 896.15-
50. Lee, Willie Fred----------------------------------- 1,062.12
51. Lewis, Edgar, Jr----------------------------------- 578.33
52. Lewis, Norman Ray-------------------------------- 497. 12
53. Lewis, William- Henry------------------------------ 1,280.65
54. Manning, Earnest Lee------------------------------ 795. 14
55. Manning, James Earnest---------------------------- 624. 18
56. McGee, Samuel B__________________________________ 974.94
57. Mitchell, Wilburn__________________________________ 494.65
58. Moore, Forrest_____________________________________ 17133.36-
59. Nelson, Miles Booker T__________________ -- 971. 86
60. Paul, Leon ----------------------------------------- 11326.72-
61. Perkins, Samuel__ __________________________________ 1,218.45
62. Porter, J. C---------------------------------------- 827.77-
63. Pouncy, Grant_____________________________________ 1,023.94
64. Prince, William M_________________________________ 1,531.14
65. Pyles, Clemen J____________________________________ 663. 55
66. Ragland , James____________________________________ 1, 073.44
67. Richardson Bennie T_______________________________ 1, 008.33
68. Robison , Ed'ward___________________________________ 769.65
69. Rosborough, Roy Lee------------------------- ----- 1,165.21
70. Scott, Booker T____________________________________ 451.31
71. Sneed, Elustus Ray_________________________________ 931.05
72. Spears, Eugene____________________________________ 428.51
73. Tolliver, Emmanuel________________________________ 1,546.17-
74. Townsend Cecil___________________________________ 1, 268.20,
75. Wagner, Gnarl, Jr----------------------------------- 1,273. 09
76. Warren, Jessie_____________________________________ 1, 751.05•
77. Washington, Charles Earl--------------------------- 575.95
78. Watson, Robert James, Jr--------------------------- 144.88
79. Wingham, Clifton--------------------------------- 1,113.48
80. Woodson, Perry Lee________________________________ 663.84
81. Wright, McKinley--------------------------------- 745.88
82. Young, Harold Thomas_____________________________ 1,179.00
Total amount due------------------------------- 71, 979. 78
Chairman McCulloch took no part in the above Supplemental De-
cision and Order.
APPENDIX A
BACKPAY DUE BEFORE REEMPLOYMENT
Name Backpay period Calendar
quarter
Weeks due
Adjusted 1
weekly
average
hours
Hourly
wage rate
Gross
amount
Net 2
interim
earnings
Net backpay
due for period
before re
employment
1 Adkins Andy 1/13/60 through 2/1/60 1960-1 2 8 38 1 $1 43 $153 55 $152 55
2 Alexander Curtis 12/21/59 through 1/11/60 _
-41959-4 2 0 51 2 1 31 134.14
} 214 631960-1 1 2 51 2 1 31 80 49
3 Allen, George Hilton 12/28/59 through 2/6/60
1959-4 1 0 51 7 1 26 65 14
390 851960-1 5 0 51 7 1 26 325 71 _
4 Allen Lo' enza 12/17/59 through 12/26 /59 - 1959-4 1 4 47 6 1 53 101 96 $132 00 -
5 Allen Johnrie 12/17/59 through 112/60 1959-4 2.4 41 0 1 50 147 60 147 60
6 Bailey Theodus 12/17/59 through 1/2/60 1959-4 2 4 47 0 1 71 192 89 - 192 89
7 Bell Lewis 12/17/59 through 1/21/60 - 1959-4 2 4 52 3 1 43 179 49 76 00 103 49
8 Black George L 12/21/59 through 1/11/60
1959-4 2 0 41 9 1 43 119 83
} 191 731960-1 1 2 41 9 1 43 71 90 _
9 Boone Claude H 12/21/59 through 12/26/59 1959-4 1 0 50 1 1 31 65 63 - 65 63
10 Boone Jessie M 2/2/60 through 2/13/60 1960-1 1 8 48 7 1 42 124.48 79 46 45 02
11 Brewer Leardis 12/21/59 through 12/26/59 1959-4 L 0 50 5 1 53 77 27 77 27
12 Brookins 0 D 12/17/59 through 2/20/60
1959-4 2 4 49 7 1 48 176 53 54 5
291 49
}1960-1 7 0 49 7 1 48 514 89 344 98
13 Brookins Sammie 12/17/59 through 2/1/60
1959-4 2 4 49 1 1 o3 180 30 107 10
104 321960-1 4 2 49 1 1 53 315 52 284 40
id B-o ^ *1a'- - 1/2o/6u inrougn 6/b/bi 1960-1 2 0 50 7 1 31 132 83
15 Burnes Earnest 12/23/59 through 1/25/60
1959-4
{
1 6 45 7 1 53 111 87 51 00
} 184 611960-1 3 2 45 7 1 53 223 75 100 01
16 Cary Nelson 12/22/59 through 1/25/60
1959-4 1 8 42 9 1 43 110 43
} 306 741960-1 3 2 42 9 1 43 196 31
17 Connor Everett 12/17/59 through 1/2/60 1959-4 2 4 42 9 1 43 147 23 76 48 70 75
18 Crowe Jeffro 12/21/59 through 1/11/60
1959-4
{
2 0 44 0 1 44
1
72 89 10
1
59 651960-1 1 2 44 0 1 44 76 03 54 00
J 1959-4 14 45 2 1 67 68105 92 9119 Crownover, John 0 , Jr___________ 12/14/59 through 1/11/60_____________
1960-1 1.2 45 2
.
1.67
.
90.68
.
--------------
103.36}
1959-4 20 44.4 1.26 111.89 --------------
20 Davis, Edward___________________ 12/21/59 through 1/11/60______________
l 1960-1 1.2 44.4 1.26 67.13 --------------
179 02
21 Davis, R. C., Jr___________________ 12/17/59 through 1/2/60_______________ 1959-4 24 45 8 4 1 37 150 59 100.30 50 29
22 Dawson, Claude__________________ 12/17/59 through 1/2/60_______________ 1959-4 2.4 46.8 1. 71 192 07 -------------- 192 07
23 Edwards; L. C____________________ 12/17/59 through 1/2/60_______________ 1959-4 2.4 43 4 1 43 148.95 63.75 85.20
24 Ervin, Robbie G__________________ 1/4/60 through 1/23/60________________ 1960-4 30 48 3 1.43 207 21 120 00 87 21
25 Fields, Alvin C___________________ 12/17/59 through 1/2/60_______________ 1959-4 2.4 47.3 1 60 181.63 -------------- 181 63
- J 1959-4 18 45 9 1 43 118 15 62 25
26 Ford, Willie-- --------------------- 12/22/59 through 1/25/60______________
. .
148.34
1960-1 32 45 9 1 43 210 04 17 60
27 Gilhspie,,C. C-------------------- 12/21/59 through 12/26/59_____________ 1959-4 1.0 47.5 1 43 67.93 65 93 2.00
28 Green, Willie E___________________ 12/21/59 through 12/26/59_____________ 1959-4 10 51.3 1.43 73 36 (6) 73 36
1959-4 1.0 46 3 1 42 65 75 32 00
29 Greer, Thomas A_________________ 12/28/59 through 1/25/60______________
1960-1 32 46 3
.
1.42 358 55 64.00
328.30
30 Greer, Tommie___________________ 12/17/59'through 1/2/60 ______________ 1959-4 24 44 6 1.43 153 07 -------------- 153.07
1959-4 2.0 48 4 1 67 161 66 90 6331 Hamilton, Willie L________________ 12/21/59 through 1/11/60______________
1960-1 12 48 4
.
1.67
.
96 99 64 63
103 39}
32 Harrington, C. L__________________ 12/17/59 through 12/21/59_____________ 1959-4 0.6 39 0 1.44 33.70 28 80 4.90
33 Harris, Pete----------------------- 12/21/59 through 12/26/59_____________ 1959-4 1.0 46 6 61.64 76 42 43.20 33 22
34 Hayward, lake____________________ 12/22/59 through 1/2/60_______________ 1959-4 18 50 6 1.53 139.35 14. 75 124 60
35 Hill, Milton_______________________ 12/17/59 through 12/22/60_____________ 1959-4 08 43.1 1 58 54.48 -------------- 54 48
36 Hill, Milton, Jr.................... 12/17/59 through 1/2/60_______________ 1959-4 2.4 44 9 1 67 179.96 70 37 109 59
1959-4 2.0 42 6 1 37 116 72 --------------37 Houston, Aubrey James__________ 12/21/59 through 2/13/60______________
1960-1 6.0 42 6 1.37 350. 17 -------------
466.89I
38 Jack, Henry ----------------------- 12/17/59 through 12/26/59_____________ 1959-4 1.4 41 6 1.67 97.26 -------------- 97 26
39 Jeffery, Albert____________________ 12/17/59 through 1/2/60_______________ 1959-4 24 47 8 1.43 164 05 63 75 100 30
40 Jeffery, Charles___________________ 12/17/59 through 1/2/60_______________ 1959-4 24 47 8 1 43 164 05 63.75 100.30
41 Jeffery, Lonzo_____________________ 12/17/59 through 1/2/60_______________ 1959-4 24 50 5 1 37 166 04 -------------- 166 04
42 Johnson, Alphonso________________ 12/17/59 through 12/21/59_____________ 1959-4 ` 0.6 44 6 1 58 42 28 33 13 9 15
43 Johnson, Cleo_____________________ 12/17/59 through 1/2/60_______________ 1959-4 24 42.3 1 43 145 17 123.13 22 04
1959-4 1.6 50 9 1 67 136 00 51 3344 Johnson, Moses____________________ 12/23/59 through 1/25/60______________
1960-1 3.2
.
50 9 1.67 272 01
.
167.00
189 68I
See footnotes at end of table.
00
APPENDIX A-Continued
Name Backpay period Calendar
quarter
Weeks due
Adjusted 1
weekly.
average
hours -
Hourly
wage rate
Gross
amount
Net f
interim
earnings
Net backpay
due for period
before re-
employment
45 Jones, Edward Lee________________ 12/21/59 through 12/26/59 ------------- 1959-4 1 0 46.2 $1 67 $77 15 $49 28 $27.87
46 Jones, Johnnie Lee________________ 12/29/59 through 2/1/60
(
{ 1959-4 0.8 50.8 1.26 51 21 45 74_______________
l 1960-1 4.2 50 8 1 26 268 83 239 60
34.70
}
47 Kirk, Leon________________________ 12/17/59 through 2/1/60_______________ J 1959-4 2 4 51.4 1 53 188 74 124 80
i 1960-1 4 2 51.4 1 53 330 30 283 64
110.60
j
48 Lee, Ernest_______________________ 12/17/59 through 1/2/60_______________ 1959-4 2.4 48 0 1.53 176 26 _
49 Lee, Willie Fred___________________ 12/21/59 through 1/11/60
(
{ 1959-4 2 0 48.4 1 61 155 85 ____________________________
l 1960-1 1.2 48 4 1.61 93 51 --------------
249.36
60 Lewis, Edgar, Jr__________________ 12/23/59 through 1/25/60 J 1959-4 1 6 42 3 1.37 92 72 89 00 l______________
1 1960-1 3.2 42.3 1 37 185 44 140.00
49 16
j51 Lewis, Norman Ray______________ 1/4/60 through 1/25/60________________ 1960-1 3.2 46.7 1.15 171.86
52 Lewis, William Henry_____________ 12/17/59 through 1/2/60_______________ 1959-4 2.4 48 4 1.53 177.73 12P 60 48 13
53 Manning, Earnest Lee_____________ 12/29/59 through 2/1/60
tt
!_______________
l 1960-1 4.2 47.4 1.37 272 74 260 65
36 05
J
54 Manning , James Earnest ---------- 12/28/59 through 1/25/60
r
{
1959-4 1.0 49 6 1.43 70.93 24 00______________
1960-1111 3.2 49.6 1 43
2
142.00
131.90
55 McGee, Samuel B_________________ 12/28/59 through 1/25/60
{(
(
1959-4 1 0 52.4 1 43 74 93, ______________ 1______________ l 1960-1l 3.2 52 4 1.43 239.78 314.711
56 Mitchell, Wilburn________________ 12/28/59 through 1/2/60_ ______________ 1959-4 1 0 43 5 1.49 64 82
______________
43 47 21.35
57 Moore, Forrest____________________ 12/17/59 through 12/26/59_____________ 1959-4 1.4 48.0 1.71 114.91
.
27.60 87.31
58 Nelson, Miles Booker T___________ 12/17/59 through 12/26/59_____________ 1959-4 1.4 50 9 1 66 118 29 _ 29
59 Paul, Leon________________________ 12/17/59 through 12/26/59_____________ 1959-4 1.4 50 6 1.26 89 26 50.04 39 22
60 Perkins, Samuel__________________ 1/4/60 through2/1/60_________________ 1960-1 4.2 44. 6 1.33 24914 ____________ 49.14
61 Porter, J. C________ 12/17/59 through 112/60 --------------- 1959-4 2 4 48.4 1.43 166 11
__
_ 166.11
62 Penney, Grant___________________ 12/17/59 through 12/26/60_____________ 1959-4 1.4 48 9 1 49 102 00 -------------- 102 00
63 Prince, William M_ 12/17/59 through 1/2/60_______________ 1959-4 2 4 60 7 1.43 208 32 ------- --- 208 32
64 Pyles, Clemen J__________________ 12/17/59 through 1/2/60_______________ 1959-4 2 4 an n 1 r1l iea 91
--- -
iea 91
5 Ragland James 12121/59 through 1/11/60______________
1959-4J 2 0 48 5 1 53 148 41 _____ _________ i 237 46___________________, l
1960-1 1.2 48 5 1 53 89 05 ______________ J
6 Richardson, Bennie T____________ 1/4160 through 2/20/60________________ 1960-1 7 0 50 0 1 53 535 50 461 94 73.56
7 ______________Robison Edward_ 12/21/59 through 1/11/60___ ___________
1959-4 2 0 44 3 1 53 135 56 _______ _______ 179 39, __ i 1960-1 1 2 44 3 1.53 81 33 37 50
S Rosborough Roy Lee_ ___________ 12/28/59 through 2/1/60_______________
1959-4 1 0 49 3 1.15 56.70 33 38 209 96,
l 1960-1 4 2 49 3 1 15 238 12 51.48
9 Scott, Booker T___________________ 1/13/60 through 1/25/60_______________ 1960-1 1.8 44 1 1 42 112 72 76 38 36.34
0 Elustus Ray __ ___Sneed 12/21159 through 1/11/60______________
1959-4
{
2 0 47 9 1 26 120 71 -------------- 193 14
}
_____ _____,
1960-1 1 2 47.9 1 26 72 43 --------------
'1 Spears, Eugene____________________ 1/11/60 through 1/25/60_______________ 1960-1 2 2 40 0 1 71 150 48 67 73 82.75
2 Tolliver, Emmanuel______________ 12/17/59 through 12/26/59_____________ 1959-4 1 4 49 2 2 11 145 34 -------------- 145 34
3 Ceml__________________Townsend 12/21/59 through 1/11/60______________
-41959
{
2 0 50 0 1 53 153 00 ______________ 244 80,
1960-1 1 2 50 0 153 91 80 --------------
4 Wagner Carl Jr 12/21/59 through 1/11/60______________
1959-4
{
2 0 49 4 1 15 113 62 -------------- 181.79, , ____
1960-1 1 2 49 4 1 15 68 17 _
'5 Warren, Jessie_____________________ 12/17/59 through 12/26/59_____________ 1959-4 1 4 60 4 1 44 121 77 -------------- 121 77
6 Washington, Charles Earl --------- 12/17/59 through 1/2/60_______________ 1959-4 2 4 40 0 1 15 110 40 -------------- 110 40
7 R atson, Robert James, Jr_________ 1/12/60 through 1/25/60_______________ 1960-1 2 0 43 2 1 15 99 36 44 19 55 17
8 Wingham, Clifton_________________ 12/22/59 through 1/2/60_______________ 1959-4 1 8 48 7 1 53 134 12 -------------- 134 12
9 Woodson, Perry Lee______________ 12/17/59 through 1/2/60 --------------- 1959-4 2 4 43 3 1 43 148 61 _
0 Wright, McEinley_________________ 1/20/60 through 2/1/60________________ 1960-1 1.8 47 1 1 53 129 71 66 32 63 39
1 Young, Harold Thomas___________ 12/28/59 through 1/2/60_______________ 1959-4 1.0 52 6 1 53 80 48 34 47 46 01
2 Hornsby, Huron Elvis____________ 12/17/59 through 112/60_______________ 1959-4 2 4 46 1 1 is 127 24 -------------- 127 24
8
I See footnote 22, supra.
2 In instances where the stipulated net interim earnings include amounts earned in
the period before the discriminates was entitled, under our Decision, to reinstatement,
we have prorated the stipulated net interim earnings.
2 In the cases of Jeffro Crowe, Pete Harris, and Edward Lee Jones, Christmas bonuses
granted to them by interim employers have been excluded from their interim earnings
as these bonuses are attributable to all of their 1959 employment for the interim employ-
ers and not just to the few days in December 1959 when backpay was due from the
Respondent Furthermore, no bonus is included in the gross backpay due these
discnminatees from the Respondent.
4 The correct wage rate at which R C Davis, Jr., should have been reinstated is
$1 37, as indicated in the Appendix to the Trial Examiner's Decision and as shown in
Appendix E (1) of the Amended Backpay Specifications All calculations for sub-
sequent quarters after reinstatement are adjusted accordingly.
5 All of Green's stipulated net interim earnings (Respondent's Exhibit 46) were earned
before the backpay period for Green began, as found in our Decision, and, therefore are
not available as a setoff against the gross amount due Breen. The same situation applies
in the case of Samuel B McGee, infra.
E We find $164, as set out in Appendix E (3) of the amended specifications, to be the
rate of pay Harris was entitled to upon reinstatement.
(LO
O
CZ)
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Workweek Differential after Reinstatement and Hourly Wage Rate Differential
Name Amount due for
workweek differential 1
Hourly wage rate
differential
1. Adkins, Andy -------------------------------- $236.52 --------------------------
2. Alexander , Curtis________________________________ 722.02 $202.45
3. Allen, George Hilton_________ ___________________ 927.25 188 78
4. Allen, Lorenza___________________________________ 780.91 61.13
5. Allen, Johnnie ___________________________________ 339.16 --------------------------
6. Bailey, Theodus _________________________________ 807.04
7. Bell, Lewis-------------------------------------- 869 44
8. Black, George L_________________________________ 306.45 ---------- ---- -- - -- -------
9. Boone, Claude H________________________________ 937.80 230 78
10. Boone, Jessie M__________________________________ 604.12 85.39
11. Brewer, Leardis___________ ______________________ 855 60 65.00
12. Brookins , 0.13 ----------------------------------- 883.12 118.82
13. Brookins , Sammie_________ ______________________ 859.32 71.19
14. Brown, Malvin __________________________________ 763.22 276 02
15. Burnes, Earnest__ _______________________________ 635.78 61.18
16. Cary, Nelson ----------------------------------- 491.27 --------------------------
17. Connor, Everett ___ ______________________________ 473.11 --------------------------
18. Crowe, Jeffro____________________________________ 474 46 265.02
19. Crownover, John 0., Jr____ ______________________ 586 68 --------------------------
20. Davis, Edward __________________________________ 503 65 370.92
21. Davis, R C., Jr--------------------------------- 552 56 130.20
22. Dawson , Claude_________________________________ 855.60 --------------------------
23. Edwards , L C---------------------------------- 476.69
24 Ervin, Robbie G________________________________ 531 18 --------------------------
25. Fields, Alvin C__________________________________ 664 86 175.16
26. Ford, Willie ------------------------------------- 227 87 --------------------------
27. Gillispie , C. C----------------------------------- 870.94
28. Green, Willie E__________________________________ 717 58 --------------------------
29. Greer, Thomas A________________________________ 646.39 319.23
30. Greer, Tommie__________________________________ 635.00 --------------------------
31. Hamilton , Willie L_______________________________ 859 38
32. Harrington , C. L________________________________ 213.55 -------------------------
33. Harris , Pete----- -------------------------------- 997.93 142 10
34. Hayward , Jake-- -------------------------------- 861 23 63.15
35. Hill, Milton ------------------------------------- 437 87 -------------------------
36. Hill, Milton, Jr__________________________________ 715.82
-------------------------
37. Houston, Aubrey James _________________________ 340 55 124.22
38. Jack, Henry------------------------------------- 547.85 -------------------------
39. Jeffery, Albert----------------------------------- 490.63
40. Jeffery, Charles__________________________________ 493.35
41. Jeffery , Lonzo- ---------------------------------- 715.36 130 91
42. Johnson , Alphonso_______________________________ 534.55
43. Johnson , Cleo_____ ______________________________ 429.50
44. Johnson , Moses_____ _____________________________ 923 67 --------------------------
45. Jones, Edward Lee______________________________ 885.95 7 92
46. Jones, Johnnie Lee------------------------------ 661.06 207.13
47. Kirk, Leon-------------------------------------- 998 27 64.29
48. Lee, Earnest ------------------------------------- 656.90 62.99
49. Lee, Willie Fred--- ------------------------------ 555.25 257.51
50. Lewis, Edgar , Jr_________________________________ 418.33 110.84
51. Lewis, Norman Ray_____________________________ 159.91 165 35
52. Lewis, William Henry ___________________________ 1,016 24 215 27
53 Manning , Earnest Lee ___________________________ 640.61 118.48
54. Manning , James Earnest _________________________ 492.28 --------------------------
55. McGee, Samuel B_______________________________ 660.23 - -------------------------
56. Mitchell , Wilburn__________ ______________________ 473 30 - -------------------------
57. Moore, Forrest ___________________________________ 991 22 54.63
58. Nelson, Miles Booker T__________________________ 853 57
See footnotes at end of tables.
TRINITY VALLEY IRON AND STEEL COMPANY
APPENDIX B-Continued
911
Name Amount due for
workweek differential I
Hourly wage rate
differential
59. Paul, Leon-------------------------------------- $966 54 $320.96
60 Perkins , Samuel___ ______________________________ 568 55 400.76
61 Porter , J. C------------------------------------- 661.66 ------------------------
62 Pouncy , Grant__ ________________________________ 921.94
63. Prince , William M- ------------------------------ 1,322.82 ------------------------
64. Pyles, Clemen J___ ______________________________ 328 31 192.03
65. Ragland , James_ ________________________________ 773 34 62.64
66. Richardson, Bennie T ___________________________ 874 70 60.07
67. Robison , Edward _______________________________ 529.08 61.18
68. Rosborough, Roy Lee_ __________________________ 739 45 215.80
69. Scott, Booker T_________________________________ 311 88 103.09
70 Sneed, Elustus Ray_____________________________ 535.30 202 61
71. Spears, Eugene-- -------------------------------- 345 76 ------------------------
72. Tolliver, Emmanuel_____________________________ 1,400 83 ------------------------
73. Townsend , Cecil ________________________________ 960 61 62.79
74. Wagner, Carl, Jr- -------------------------------- 773 26 318.04
75. Warren , Jessie___________________________________ 1,629 28 -----°-----------------
76. Washington , Charles Earl ________________________ 129 05 336.50
77. Watson , Robert James , Jr----------------------- 61.41 28 30
78. Wmgham, Clifton____ ___________________________ 917.51 61.85
79. Woodson , Perry Lee _____________________________ 515.23 ------------------------
80 Wright , McKinley--- ---------------------------- 511 40 171.09
81. Young, Harold Thomas _________________________ 1,067.31 65.68
82. Hornsby , Huron Elvis___________________________ ' 184.57 ------------------------
I The figure set forth in each case represents the sum of the quarteily amounts due for all quarters through
December 24, 1960.
2 The workweek differential for Hornsby represents the difference between the amount he was actually
paid ($334 .98) up to the time he quit Respondents ' employ (March 10, 1960), and the amount he would have
been entitled to ($519.55) if he had been reinstated to his pioper hours per week.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On April 27, 1960, the National Labor Relations Board , herein called the Board,
issued a Decision and Order 1 finding that Trinity Valley Iron and Steel Company,
a division of C. C. Griffin Manufacturing Company , Inc., herein called Respondent,
had engaged in certain unfair labor practices within the meaning of the National
Labor Relations Act, herein called the Act . In section 2 of its Order the Board
directed, inter alia, that Respondent:
(b) Upon application, offer immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , to all those employees who were on strike on and
after June 30, 1959 , and who have not already been reinstated to their former
or' substantially equivalent positions, without prejudice to their seniority or other
rights and privileges , dismissing if necessary.any persons hired by the Respond-
ent on or after June 30, 1959 , who were not in the Respondent 's employ on
that date.
(c) Make whole the employees specified in paragraph numbered 2(b),
above, for any loss of pay they may suffer by reason of the Respondent's re-
fusal , if any, to reinstate them in the manner provided in paragraph numbered
2(b), above, by payment to each of them a sum of money equal to that
which he normally would have earned as wages during the period from 5 days
after the date on which he applies for reinstatement to the date of the Respond-
ent's offer of reinstatement , less his net earnings if any during said period.
Respondent failed to comply with the Board 's Order, and it was subsequently en-
forced by the United States Court of Appeals for the Fifth Circuit.
1127 NLRB 417.
- 9l 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 31, 1962, the Regional Director for Region 16 issued a backpay
specification and notice of hearing alleging that Respondent's liability totaled
$24,348.48. Thereafter on February 23, 1962, Respondent's attorney and T. Lowery
Whittaker, an attorney in the office of Region 16, signed a document in an attempt
to settle the case.2 On April 30, 1963, the Regional Director issued the amended
backpay specification and notice of hearing alleging Respondent's liability to be
-$207,006.21. Respondent, pursuant to an order of the Regional Director extending
time to file answer, duly filed an answer on August 29, 1963.
A hearing was held before Trial Examiner W. Edwin Youngblood, at Fort
Worth, Texas, on October 1, 2, 3, 4, 7, 8, 9, 10, 11, and 12, 1963. All parties
-participated fully in the hearing. Briefs have been received from General Counsel
and Respondent and have been carefully considered .3
Upon the entire record, and from my observation of the witnesses, I make the
following findings and conclusions:
FINDINGS OF FACT
Background and Issues
The amended specification is based generally upon the General Counsel's con-
tentions that Respondent failed to comply with the Board's Order and court decree
in that: (1) strikers were not reinstated within 5 days following application; (2)
-strikers did not receive appropriate wage rate when reemployed (this involves the
so-called wage rate differential); (3) reemployed strikers did not receive the hours
of work to which they were entitled (this involves the so-called workweek differen-
-tial); and (4) certain individuals were not properly reinstated or made whole.
Respondent disputes each of the above contentions and sets forth various affirmative
defenses in its answer. These issues will be considered seriatim.
1. The 5-day issue
On December 9 or 10, 1959, a union meeting was-held at which the decision was
reached by majority vote to call off the strike. On December 11, 1959, Union Rep-
resentative Heickman sent the following letter to respondent:
Please' be advised that the strike which commenced on or about June 8th,
1959 is now at an end as of December 11th, 1959. This letter constitutes the
unconditional request on behalf of each of the striking employees for rein-
statement to former position, or in the alternative, to other employment with
your company.
Picketing of your warehouse and plant has ceased as of, Friday, Decem-
ber 11, 1959.
Please advise when and where the strikers should report for work.
Yours very truly,
INTERNATIONAL MOLDERS AND FOUNDARY WORKERS UNION OF
NORTH AMERICA, AFL-CIO, LOCAL No. 9
By (S) W. F. Heickman
W. F. HEICKMAN
International Representative.
Enc:
List of employees.
It appears that the Washington office of the General Counsel refused to approve this
-settlement and requested that additional items be included. Respondent did not agree to
the additional Items and an amended specification was issued . Respondent contends that
issuance of the amended specification was punitive. In the absence of evidence establish-
ing that the additional items . requested by the General Counsel were so,unreasonable as
to warrant the conclusion that they were proposed to "punish" the Respondent, this con-
tention Is rejected.
3 After some 10 days of hearing and all parties had completed presentation of their
evidence, Respondent moved that I disqualify myself from deciding this case. The basis
for the motion apparently was the allegation that I had worked in the 16th Regional
Office a number of years and possibly when "this case was on file" and the further ground
-that I had worked In close association with the present Regional Director who was then
Regional Attorney. Respondent requested that I state the dates I worked in that office
In denying the motion, I set forth certain dates generally that I worked in the 16th
TRINITY VALLEY IRON AND STEEL COMPANY 913
The letter was received by icespondent on December 11, 1959 . As the letter indi-
cates , a list of striking employees who were on the union strike payroll at the end
of the strike accompanied the letter.4
Price , Respondent's attorney , testified that Heickman telephoned him on Monday,
December 14, after the str :xe. Heickman asked what the Company was going to
do about the Union's letter. Price said that he was a little surprised ; according to
the union pamphlets no "self-respecting man" would work under the Company's
rules, and asked Heickman if he had changed his mind . Heickman said that some
of the men did not want to give up the strike but they did have to come back.
Further , Heickman said that the rules the Company had were "no good " and hard
to take but they did have to come back. Price said that there were still some
men out under the tree.5 Heickman said that as far as the Union was concerned
the strike was over and he had cut off the strike benefits. Price then stated that he
thought he knew the answer but they were going to have a meeting on it so he
would "rather wait and see for sure before I say." Price said what he wanted to
get from Heickman was who was coming back and whether he could get them
back. Price asked if Heickman had talked to all of them. Heickman said that he
had talked with some but not all and that they would probably do what he said
but he could not be sure. Heickman said that he had cut off the strike benefits and
as far as the Union was concerned he had called off the strike . Price said that he
had to know which employees were coming back. Heickman said that he would
see about it and that he would talk to them. Price said he had to wait and see
what the Company said but if Heickman could tell him then he could tell William-
son.6 Price said that as soon as he knew he would let Heickman know. Price re-
iterated that it was important that the Company know what the employees intended
to do and he wanted to make a date so that the thing could be "wound up." Price
said that he would let Heickman know and Heickman wanted to know when and
Price said that he did not know yet.
Heickman denied that he and Price had a discussion about whether there were
some of the strikers who were not ready to return to work. Further he denied
there was any discussion about strikers still remaining around the plant.
Heickman 's recollection of this conversation did not impress me as being as
good as that of Price's , and his testimony was not as convincing on this point as
that of Price. Moreover, Price's testimony as to this conversation is supported by
the transcript of a tape recorder of Price's end of the conversation and Price's notes.
(Respondent's Exhibits 72 and 73.) Accordingly, I credit Price's version of this
conversation.
General Counsel contends that the Union's letter of December 11, 1959, con-
stituted a valid unconditional request for reinstatement of strikers , and that
Respondent 's obligation under the Board 's Order and court's decree to offer rein-
statement to the strikers commenced 5 days later . It is well settled that a request
for reinstatement of strikers made by their union representative may constitute a
valid application for reinstatement . Accordingly, I find and conclude that the
Union's letter of December 11, 1959 , was an unconditional request for reinstate-
ment by the strikers whose names were on the attached list. In its brief, Respond-
ent contends, however, that the Union's letter was qualified by the telephone con-
versation between Heickman and Price on December 14, 1959. Respondent asserts
that "it had reasonable cause to believe that not all of the striking employees were
willing to either abandon the strike or return to work ." In other words , Respond-
Regional Office and observed that the dates could be checked with that Regional Office.
I stated that I did not know whether I was assigned to that office while this case was
pending. As noted above, the Board's Order issued on April 27, 1960, and was sub-
sequently enforced by the court. I Informed Respondent 's attorney at the hearing that
I left the 16th Regional Office in the early part of January 1960. In its brief Respondent
renewed the motion and again requested the dates that I served in that Regional Office.
I adhere to the ruling made at the hearing.
4 The foregoing is based on the credited testimony of Helekman and General Counsel
Exhibits 2( d), 2(f), and 2(g). Williamson testified he received the letter but did not
recall whether or not be received the list.
5 During the strike, various strikers had congregated under a three near Respondent's
plant.
This was a reference to C. W. Williamson , Respondent ' s general manager.
221-731-67-vol. 158-59
914 DECISIONS OF NATIONAL LABOR RELATIONS POARD
ent apparently contends that what was a valid request became invalid by virtue of
the telephone conversation In the telephone conversation, Heickman said that he
had not talked with all of the striking employees, could not be sure of what they
would do, and stated some of the men did not want to give up the strike The
fact is , however, that the strike had been called off and Respondent had been so
notified I do not believe that the fact that Heickman may not have talked to all
the striking employees about going back to work invalidates the request contained
in the Union's letter of December 11, 1959, or relieved Respondent of its obli-
gation to offer to reinstate the strikers within 5 days thereafter It does not neces-
sarily follow from the fact that Heickman had not talked to all strikers about re-
turning and did not know for sure that all would accept an offer that some did not
desire to return In any event, any uncertainties as to whether an employee would
return could have been cleared up by Respondent making an offer to reinstate him
within 5 days in compliance with the Board's Order and court decree This
Respondent did not do In short, I do not believe that Heickman's uncertainty as
to the return of all strikers nullified the unconditional request contained in his letter
of December 11, 1959 This contention is rejected
On December 14, 1959, Respondent wrote the following letter to Heickman 7
In our telephone conversation this morning you asked me to get for you an
early reply to your letter of December 11th addressed to Trinity Valley Iron
and Steel Company
Employees who have been on strike at our plant, and who desire to individ-
ually abandon the strike and report for work, should appear at the plant office
on Saturday, December 19th, at 7 00 o'clock a in
The problems of feeding these people into the process of production are
going to be rather numerous, therefore, please advise them that prompt report-
ing at the time specified is exceedingly important
According to the credited and undisputed testimony of Heickman, he immediately
took steps to see that the strikers were notified of the time and place to report
On December 19, 1959, a large group of strikers reported to the plant According
to the credited testimony of Plant Superintendent Robinson, he and Price inter-
viewed about 38 strikers on December 19, 1959 The interviews generally went as
follows Price told the striker that the Company had received a letter from Heick-
man stating they had given up the strike unconditionally and asked if that was
true The striker was asked where he had been working or if he was still working
somewhere at the time he was applying The striker was told he "would be sent
to the doctor for a physical for the purpose of getting on the record his condition at
the time of application before he would go to work " Robinson took down the names
and addresses and telephone numbers of the strikers If any striker did not under-
stand what "unconditional" meant, Price explained it as meaning a willingness to
come under the rules and regulations of the Company So far as the record shows
no striker was offered employment on December 19, 1959 Thi interviews were
apparently conducted to determine the availability for work Other strikers were
interviewed subsequent to December 19 by Robinson alone who tried to follow the
same procedure as was followed on December 19 Commencing on December 21,
1959, and on various dates thereafter Respondent wrote letters to strikers which,
except for reporting dates, were virtually identical A typical letter follows
If you desire to return to work at Trinity Valley Iron and Steel Company, as
you have indicated, report on Tuesday, January 26th at 3 00 PM prepared to
go to work at that time
You have agreed to take a physical examination before reporting to work It
will be necessary for you to take this examination before 3 00 PM Tuesday,
January 26th Please report to Coffey Clinic, 306 W Broadway, between the
hours of 8 30 AM to 5 PM weekdays and 8 30 AM to 12 AM on Saturday,
for the purpose of taking this examination This letter will be your authority
to have such an examination
If you do not intend to return to work at the time specified, we will expect
you to notify us prior to January 26
Strikers were reemployed at various dates thereafter beginning on December 22,
1959
7 General Counsel s Exhibit 3
TRINITY VALLEY IRON AND STEEL COMPANY 915
Respondent states in its brief "Respondent 's obligation, if any, arose out of the
letter written by the union and Respondent fulfilled whatever obligation it may have
had when it replied by letter (General Counsel 's Exhibit 3) to the union 's letter
Respondent in its letter specifically directed striking employees to report to the
Company on Saturday December 19, 1959 " Respondent contends in its brief
that any employee who failed to report on December 19 lost any right to rein-
statement
It is clear from the foregoing and the record , and I find, that Respondent did
not offer to reemploy any sinker until approximately December 21, 1959, when its
first letters to strikers offering employment at a fixed time were se nt out Accord-
ingly, I must reject Respondent 's contention that its obligation was satisfied by its
letter of December 14 and likewise its contention that strikers who failed to report
on December 19, 1959, lost their right to reinstatement By the terms of the
Board Order, Respondent was obliged to offer reinstatement to strikers who applied
unconditionally and until that was done Respondent 's obligation could not be
satisfied 8 Therefore Respondent is liable for backpay from December 17, 1959,
until striking employees were offered reinstatement
The parties disagree as to how to determine the amount of backpay due They
disagree as to the applicable wage rate and the number of hours the strikers would
have worked had they been reemployed in accordance with the terms of the Board's
Order Findings as to the applicable wage rate and the reasons therefor are set
forth herein 9 The remaining question is how to determine the number of hours
each discriminatee would have worked General Counsel has computed this on the
basis of what he contends to be a representative period namely, December 28, 1958
to March 28 , 1959 Respondent contends the appropriate measure of hours worked
should be the hours worked during the actual period of discrimination by other
employees in the same classification This is often the period used by the Board in
such computations General Counsel asserts, however , that this could not be a rep
resentative period because of the presence of replacements on the payroll This
point is discussed herein and General Counsel's basic contention on this point is
rejected Therefore , I find the most reasonable period for measuring hours due is
the period of discrimination itself This period is from December 17, 1959 to the date
the sinker was offered reemployment except for the special cases referred to herein
Accordingly , I find the number of hours each discriminatee would have worked is
to be determined by averaging the number of hours worked weekly by other em-
ployees in the same classification during the period of discrimination, including
overtime hours at the rate of 1 / to 1 and bonus hours 10 at the rate of i to 1 but
excluding the hours of employees working less than 24 hours in a week In those
situations where there were no employees working in the same classification during
the backpay period, the average weekly hours for which the discriminatee was paid
in the first 4 weeks of his employment after his return were used in computing the
number of hours he would have worked in the backpay period 11 In those situa-
tions where only one employee worked in the classification involved during the
backpay period , his actual hours on a weekly basis were used in determining the
hours the discriminatee in that classification would have worked In those weeks
when discriminatees would have worked less than a week during the backpay period,
a day was considered one-fifth of a week The gross backpay due is to be deter-
mined by obtaining the product of the average weekly hours worked times the
applicable hourly rate for each week in the period of discrimination computed on
8In its answer , Respondent avers that for the purpose of computing backpay 'no
backpay should be computed for such period of time in which the allered discriminatee
was required to submit to a medical examination " Respondent contended before the
circuit court that 5 days was unreasonably short because it did not take into account
various problems incidental to reemployment Including medical examinations The court
rejected this contention pointing out that such difficulties are all a foreseeable ' direct by
product' of the Respondent 's violation of the At Similarly the contention is
rejected here
0 The applicable wage rates are set forth in Appendixes B, item t, and J of the
amended specification
1013onus hours are referred to further herein Essentially they represent incenthe pav
11 Weeks in which discriminatees took vacations were excluded
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a calendar quarter basis. Net backpay is to be determined by obtaining the dif-
ference between gross backpay and net interim earnings on a calendar basis.12
Computations in accordance with the above formula are set forth in detail in the
Appendix, attached hereto, for all discriminatees including the special cases referred
to herein.
2: The hourly wage-rate differential
General Counsel contends that some of the strikers when reemployed did not re=
ceive their proper wage rate.13 This contention is based on General Counsel's
assertion that Respondent has a practice of granting employees 5-cent-an-hour wage
increases every 90 days until they reach the maximum wage rate for their classi-
fications. The General Counsel contends that since the Board held that the strike
in this case was prolonged • by Respondent's unfair labor practices approximately 6
months, the strikers but for, the unfair labor practices would have been working
and would have received two wage increases in that time. Since the strikers were
not credited with these increases when reemployed, General Counsel contends they
were not reemployed at the proper wage rate.14 During the period from June 1959
through December 1962 about 90 percent, of employees working at least a year
who were not already at their maximum rate for their classifications received 5-cent
increases for each 90-day period.15 Respondent contends, however, that the fore-
going does not establish that the strikers were entitled, to the 5-cent raises. Re-
spondent asserts the raises were not automatic because as even General Counsel's
Exhibit 6 demonstrates not every employee working 90 days received the increase.
Respondent's witnesses credibly and without contradiction testified to the prac-
tices followed. As an employee reaches 90 days' service, Margaret King, payroll
clerk, places his name on a list which is sent to Robinson. Robinson does not
give every such employee a raise but has denied or deferred raises to some of the
employees. Approximately 9 percent of employees in the group checked did not
receive raises and their cards showed the notation "hold." Raises were based on
experience and progress made by the employees in learning jobs.16 Some employees
did not get the raises because they were either not capable of learning or did not
commit themselves to learn. Other employees who were off duty for periods of
as much as 90 days because of injuries did not receive credit toward this increase
upon their return to work.17
Although not every employee received these raises, they were given with such a
high degree of regularity as to warrant the conclusion that the striking employees
would have received them absent unusual or special circumstances. I so find.
Respondent does not assert-that any particular striker would not have received a
raise because of unusual or special circumstances. But for Respondent's unfair
labor practices, striking employees would have been working and accumulating ad-
ditional experience and knowledge on their jobs. To deny strikers credit toward
these raises would permit Respondent to profit from its own wrongdoing. The Act
requires that unfair labor practice strikers be restored to the situation, as nearly as
possible, that they would have been in but for Respondent's wrongdoing.is I
find and conclude that the strikers upon reemployment should have been credited
with two 5-cent-per-hour wage increases in accordance with the allegations of the
amended specification, and their wage rates should have advanced accordingly there-
after to the date they either reached the maximum rate for their classifications or
12 The General Counsel alleged the net interim earnings of certain discriminatees were
as set forth in Appendix F' of the Amended Specification ; Respondent alleged the net
interim earnings of certain discriminatees were as set forth in Appendix B of Respondent's
Answer to Amended Specification. At the hearing, the parties stipulated the interim
earnings set forth in Respondent's Exhibit 46 would be controlling except for certain
information with respect to one discriminates, Milton Smith. The net interim earnings
used in the computations, therefore, are based on Respondent's Exhibit 46.
18 This w asreferred to at the hearing as hourly wage-rate differential.
1* This contention, of course, does not apply to strikers who had reached the maximum
wage rate for their classifications when the strike occurred, and were reemployed at
those rates.
-Based on General Counsel's Exhibit 6 which is based on Respondent's records.
1a During the contract negotiations preceding the strike, the Union requested that the
raises be made automatic, but Respondent refused to agree. Respondent's position was
that the raises should be based on ability;, (Respondent's Exhibit 47.)
17 The foregoing is based on the credited and undisputed testimony of Robinson, Margaret
King, and John Sligh, who was apparently Respondent's office manager.
29 Cf. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177.
TRINITY VALLEY IRON AND STEEL COMPANY 917
were terminated whichever occurred first 19 In accordance with the formula set
forth in the amended backpay specification, I find that the amount due each dis-
criminatee is that set forth opposite his name as follows ao
Name of employee Amount due
Alexander, Curtis-------------------------------------------- $202 45
Allen, George Hilton----------------------------------------- 188 78
Allen, Lorenza---------------------------------------------- 61 13
Boone, Jessie M----------------------------------------- 85 39
Boone , Claude----------------------------------------------- 230 78
Brewer, Leardis---------------------------------------------- 65 00
Brookins, 0 D---------------------------------------------- 118 82
Brookins, Sammie------------------------------------------ 71 19
Brown, Malvin---------------------------------------------- 276 02
Burns, Earnest----------------------------------------------- 61 18
Crowe,Jeffro------------------------------------------------ 265 02
Davis, Edward---------------------------------------------- 370 92
Davis, R C,Jr---------------------------------------------- 130 20
Fields, Alvin C---------------------------------------------- 175 16
Greer, Thomas A-------------------------------------------- 319 23
Harris, Pete------------------------------------------------- 142 10
Hayward,Jake,Jr ---------------------------------------63 15
Houston, Aubrey James--------------------------------------- 124 22
Jeffery, Lonzo------------------------------------------ ----- 130 91
Jones, Johnnie L--------------------------------------------- 207 13
Jones, Edward Lee------------------------------------------- 7 92
Kirk, Leon-------------------------------------------------- 64 29
Lee, Earnest ------------------------------------------------- 62 99
Lee, Willie Fred--------------------------------------------- 257 51
Lewis, Edgar, Jr---------------------------------------- 110 84
Lewis, Norman Ray------------------------------------------ 165 35
Lewis, Wm Henry ------------------------------------------ 216 27
Manning, Earnest Lee---------------------------------------- 118 48
Moore, Forrest----------------------------------------- 54 83
Paul, Leon-------------------------------------------------- 320 96
Perkins, Samuel--------------------------------------------- 400 76
Pyles, Clemen J---------------------------------------------- 192 03
Ragland, James---------------------------------------------- 62 64
Richardson, Bennie T----------------------------------------- 60 07
Robinson, Edward --------------------------------------- ----- 61 18
Rosborough, Roy Lee----------------------------------------- 215 80
Scott, Booker T---------------------------------------------- 103 09
Sneed, Elustus, Ray------------------------------------------- 202 61
Townsend, Cecil--------------------------------------- 62 79
Wagner, Carl Jr---------------------------------------------- 318 04
Washington, C E-------------------------------------------- 336 50
Watson, Robert J Jr----------------------------------------- 28 30
Wingham, Clifton--------------------------------------- 61 85
Wright, McKinley-------------------------------------------- 171 09
Young, Harold T--------------------------------------------- 65 68
Total--------------------- -------------------------- 7,010 65
3 The alleged workweek differential
During the strike, Respondent employed approximately 80 replacements who were
still working when the strikers were reemployed As General Counsel correctly
states in his brief,
During each week in the eleven month period prior to the strike, there were
approximately 140 employees working a total of approximately 6,500 hours
w Cf Story Oidsmobate Ino 145 NLRB 1647, Brown and Root Inc et at 132
NLRB 486 491
20 General Counsel contends the maximum rate for the night laborer classification in
1960 was $1 53 per hour Respondent in its answer alleged the top rate was $1 43 or
$144 per hour I am persuaded primarily on the basis of Respondent's records and its
practice that the General Counsel is correct in his contention and I so find The ap-
plicable computations reflect this finding
,918 MOJ,, IONS OF I'^ATIGIITAL'IABOR RELATIONS,BOARD
per week . (Exhibit GC-5). During each week of the first year after, the.
strike, the Respondent had on its payroll more than 145 employees , although
these employees never- worked more than approximately 6,000 hours in any,
week . . . The total number of employees on the payroll was substantially
higher with the total number of hours worked by all employees being sub-
stantially less than before the strike . (See Exhibit GC-5 and 7 and Appendix 2
attached hereto)."
It is the General Counsel 's contention that retaining the replacements resulted in
a denial to the returning strikers of the workweek they "normally" would have
had. Therefore the General Counsel contends that-"the reemployment of the strik-
ing employees was not reinstatement within the meaning of the Board's Order as
enforced by the Circuit Court ." General Counsel does not spell out precisely
what he means but it must be his contention that the foregoing requires, an
inference that the hours worked by strikers would have been increased if replace-
ments had been discharged prior -to reemployment of strikers . Let us consider
this point. - - - -
It is true that there were more employees working - after the strike than before
the strike , and that the total number of hours worked by all the employees in the
unit was less than it was before the strike . But it does not follow ipso facto that
this means strikers were deprived of their "normal" workweek . So `far as is as-
certainable from the record , strikers worked the same - basic workweek as other
employees in the unit and in their classification after their reemployment nor does
the General Counsel assert otherwise . It is true that the strikers in the first quarter
of 1960 individually worked less hours than they individually did in the first cal-
endar quarter of 1959 , however, the total hours - worked by all employees in the
first calendar quarter of 1959 , however, the total hours worked by all employees in
the first part of 1960 was also substantially less than it was in the first quarter of
1959.21 It appears clear from the record and I find that strikers and all other em-
ployees worked at least 8 hours a day when the plant was operating , indeed in
some instances strikers after they were reemployed worked overtime . Further it
appears clear that , assuming an adequately staffed plant , cycles of production are
determined by the orders on hand and the capacity of molding machines . A cycle
of production generally corresponds to a workday . This being a foundry when the
production process starts it continues until the castings are complete , which is usu-
ally within one 24-hour period . - The number of cycles a week that are worked
depends on the work orders on hand , again assuming adequate staffing 22 Therefore
I find and conclude that the continued presence of replacements on the payroll
after reemployment of strikers could not have affected regular hours of work of
strikers because the number of cycles a week are determined by orders and capa-
city of machines , and employees who clock in do work at least an 8 -hour day. The
presence of replacements could only have affected the overtime and bonus hours of
strikers. Both Williamson and Robinson testified that replacements might have de-
prived strikers of some overtime hours. However , Williamson and Robinson
credibly testified that it was Respondent 's policy to eliminate as much overtime as
possible. I do not believe that the Act under the circumstances of this case
required that strikers receive any particular amount of overtime or put another way
the fact that replacements may have prevented strikers from working some overtime
does not mean strikers were deprived of overtime to which they were lawfully en-
titled . As to bonus hours, the presence 'of replacements could not derive strikers
of incentive pay since that is based on production . The record does not establish
nor do I understand the General Counsel to contend that strikers were deprived of
the opportunity to make bonus hours by the presence of replacements on the
payroll . Therefore , under the circumstances described above , I am constrained to
reject General Counsel's contenton that the presence of replacements deprived
a Robinson credibly testified that the Respondent was generally shorthanded in early 1959.
22 The foregoing findings are based on the credited and undented testimony of William-
son and Robinson. General Counsel contends that Williamson's testimony is not worthy
of credence because he testified that discharging replacements would have had no effect
on hours worked by strikers in any 1 day But Williamson's testimony was predicated
on an adequate staff and so understood is I find logical and credible. This contention
is rejected. Nor can I attach the significance General Counsel seeks to the fact that
Respondent's payroll ledger sheets do not show employee workweeks in "neat multiples
of eight." Both Williamson and Robinson impressed me as credible witnesses
TRINITY YALLEY IRON AND STEEL COMPANY 919
'strikers of hours of work to which they were- lawfully entitled .23 I find and, con-
clude 24 that General ' Counsel has not established by a preponderance - of evidence
- that strikers were not adequately reinstated because they were deprived of -hours of
work to which they were lawfully entitled or, stated another way , that they were
unlawfully deprived of their "normal" workweek by the continued presence on the
payroll of replacements after the , strikers were reemployed.25
Perhaps Respondent 's reasons for not discharging , ieplacements should be noted.
In my view of the case , these reasons are immaterial because of my findings set
forth above that the General Counsel has failed to establish by a preponderance of
evidence that strikers were deprived of hours of work to which they were lawfully
entitled. Nevertheless , I note Williamson's testimony that he decided not to dis-
charge replacements prior to reinstating , strikes because : ( 1) The plant had been
working shorthanded and only about half of the strikers showed up at the plant
on December 19, (2) there would be a certain number of dropouts by replace-
ments, and (3) vacations were coming up for strikers . Williamson also testified
that if it had become - necessary he had decided to lay replacements off gradually
later . The record supports all three of the factors set forth above . Only about
38 strikers were interviewed on December 19;• 21 replacements terminated in
January 1960 , and 8 in February , and as of December 12, 1962, only 18 replace-
ments remained on the payroll ; and strikers did take vacations shortly after their
reemployment . I credit Williamson's testimony as to his reasons for not discharg-
ing replacements prior to reemploying strikers.
In accordance with the foregoing , I reject General Counsel's contention that
strikers were not adequately reinstated because after reemployment they did not
work the hours they "normally " would have worked , and recommend the dismissal
of those allegations of the amended specification pertaining to this contention.
4. Special cases
A. Huron Elvis Hornsby
Hornsby was employed as a wheelabrator operator's helper prior to the strike
• helping one Lewis Reed. There were two types of wheelabrators, one turning on
it table and the other tumbling. Hornsby worked on the wheelabrator turntable.
Following the strike and pursuant to a letter from Respondent, Hornsby reported
to the plant. There he was told to report to Foreman Lloyd Basham. Basham
did not ask Hornsby what work he did before the strike, but put him to work
painting pipe with the statement that this was the only job he had open.26 Reed,
'however, was still operating the same wheelabrator that Hornsby helped him on
prior to the strike. After about 3 or 4 weeks, Hornsby complained to Basham
about the smoke in his work area because it had caused him to start coughing up
23 It seems to me, however, that it might well be true that discharging replacements
would have increased the number of regular hours worked by strikers if the plant com-
plement were understaffed . In other words, if the Respondent were working shorthanded,
decreasing the number of workers even more would necessarily increase the hours worked
by employees remaining assuming a constant workload It seems to me that this is what
General Counsel's contention may really boil down to. That is, that the Respondent was
required to discharge replacements and work shorthanded in order to "reinstate" the
strikers. But surely the Act does not compel an employer to work shorthanded in order
to adequately reinstate striking employees simply because the employer may have been
working shorthanded 'prior to the strike.
u In view of this finding, I do not reach the question of whether backpay should be
computed on a departmental basis Accordingly, I do not reach the question of whether
Respondent's answer complies with the Board's rules and regulations or the admissibility
in evidence of Respondent's Exhibits 30, 32, 34, 35, 36, 37, 38, and 39.
25 It might well be noted that so long as the strikers were returned to their former
jobs at the correct rate of pay and on the same basis as other employees in the same job
classifications, any subsequent discrimination against them in respect to hours or other
working conditions might more properly be the subject of further unfair labor practice
proceedings, rather than backpay proceedings such as these
2'Basham was foreman of the cleaning department. Basham admitted that he did
not question Hornsby when he came back after the strike about where he worked prior
to the strike. In fact, Basham stated he did not care where Hornsby had worked prior
to the strike.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blood 27 'Basham asked Hornsby what work he" did before the strike to which
Hornsby replied that he had worked with Reed on the wheelabrator. Basham said
.that he was sorry but that was the only job he had open. Hornsby also com-
plained to Robinson about the smoke and told .him about coughing up blood.
Robinson also said that he was sorry but that was the only job that was open.
Hornsby worked about a week more and then after reminding Basham that the
smoke had him coughing up blood said that he was going to quit 28
1. Hornsby returned to work for Respondent on May 22, 1962, pursuant to a
letter from Respondent. On this occasion Robinson asked Hornsby what job he
had before and Hornsby was put to work on the wheelabrator. However, this was
not the one he helped' on before since this was the tumbling type and Hornsby
told Basham that this was not the correct wheelabrator. Hornsby continued to
work on this wheelabrator until June 26, 1962, when he was arrested and confined
to. jail for about 10 days. When he was released from jail, he did not report to
Respondent because other employees told him he did not have a job. Pursuant to
another letter from Respondent, Hornsby reported to Respondent on October 22,
1962, when he was placed on the correct wheelabrator helping Reed. Hornsby's
employment was terminated December 22, 1962.29
Respondent contends that Hornsby was permanently replaced by one Ervin
D. Fletcher prior to June 30, 1959 (the date the Board held the strike was con-
verted to an unfair labor practice strike), and therefore it had no obligation to
reinstate Hornsby. Respondent did not assert this defense when it twice re-
employed- Hornsby after• the strike. The Board has held that a respondent waived
its right to discipline employees who struck in violation of a no-strike clause by
permitting them to return to work 30 The Board stated in Alabama Marble Co.,
supra, that a respondent had the obligation to take affirmative action against
strikers or at least effectively to reserve that right, otherwise employees would be
in danger of discipline for indefinite periods of time. Accordingly, I find and
conclude that Respondent by reemploying Hornsby under these circumstances
waived its right to assert he had been permanently replaced prior to that time31
Respondent contends in its brief that no backpay is due Hornsby after the
strike because he "voluntarily suffered willful losses of employment subsequent
to the strike." It is true, as Respondent states in its brief, that Hornsby voluntar-
ily terminated his employment on several jobs for other employers during the
period of discrimination.32 The Board has held as erroneous in law, however, the
contention that by voluntarily quitting interim employment, an employee willfully
incurred losses which precluded him from recovery of any backpay.33 Respondent
does not assert Hornsby quit this employment for unjustified reasons, nor does it
appear from the record that he did. This contention is rejected. However,
Hornsby's termination of his employment by Respondent in June of 1962 as a
result of serving a jail sentence was not for a justifiable reason. Accordingly, I
n The hot pipe was dipped in vats resulting in smoke and an unpleasant odor.
28 The foregoing findings are based on the credited testimony of Hornsby who impressed
me as a candid and truthful witness. I do not regard Hornsby's erroneous testimony
that he worked for Purr's Food Store in Lubbock, Texas, when in fact it was Purr's Food
Store in Midland, Texas, as sufficient to alter this finding. Basham denied that Hornsby
complained about the smoke and both Basham and Robinson denied that Hornsby said
anything about coughing up blood. Their testimony was not as impressive as that of
Hornsby, accordingly I have credited Hornsby's testimony.
80 Based on the allegations in the amended specification, Respondent's answer thereto,
and Hornsby's testimony.
8D Alabama Marble Co., 83 NLRB 1047, 1048, 185 F. 2d 1022, cert. denied 342 U.S. 823.
31 Respondent also asserts in its brief that James Carl Nelson and in its answer to the
amended specification that certain other employees were permanently replaced prior to
June 30, 1959. For the reasons stated above, this contention is rejected It is not
without significance in evaluating this contention that the names of strikers alleged by
Respondent to have been permanently replaced prior to June 30, 1959, differed in its
answer to the amended specification from the ones named by Respondent in its amend-
ment to its answer and the ones named in its brief. Thus not only did Respondent fail
to assert this possible defense when it reemployed the strikers, but also its course of conduct
indicated considerable uncertainty as to the identity of strikers it had permanently
replaced.
as In its answer to the amended specification, Respondent makes the same contention
with respect to certain other strikers. For reasons stated herein, this contention is rejected.
13 East Texas Steel Castings Company, Inc., 116 NLRB 1336, 1347.
TRINITY VALLEY IRON AND STEEL COMPANY 921
have excluded the period of time from June 26, 1962 , to October 22, 1962, from
the backpay period
Since Respondent failed to reinstate Hornsby to his former job until October 22,
1962, Respondent is liable for backpay if any from December 17, 1959, to October 22,
1962 excluding the period referred to above Consistent with other findings herein,
General Counsels contention that Hornsby is entitled to backpay because he worked
a reduced workweek after reemployment is rejected
B James Carl Nelson
The amended specification alleges the backpay period of this employee runs
from December 17, 1959, to May 21, 1962 In addition to the contention pre-
viously stated and rejected that Nelson had been permanently replaced, Respondent
contends in effect that he lost his right to reinstatement by not reporting to the
Company within a reasonable period of time after the strike Assuming arguendo
that Nelson did not report for a reasonable period of time after the strike, this
contention is rejected for the reasons set forth in section 1 above 34 As therein
stated, the Union's letter of December 11, 1959, constituted a valid unconditional
request for the reinstatement of the strikers named on the attached list of whom
Nelson was one Respondent was therefore obligated to offer reinstatement to
Nelson within 5 days, and, as found above, its letter of December 14, 1959, was
not such an offer Therefore Respondent's obligation continued until May 21,
1962, when Nelson was finally offered reemployment I find and conclude that
Respondent is liable for backpay, if any, to Nelson for the period from Decem-
ber 17, 1959, to May 21, 1962 Respondent's contentions with respect to Nelson's
voluntary termination of interim employment are rejected for the reasons stated
elsewhere in this Decision General Counsel's contentions with respect to a
"reduced workweek" are rejected in accordance with other findings herein
C Milton Smith
Smith reported to the Respondent on February 16, 1960, and asked for reem-
ployment which was refused Robinson told Smith that they would call him or
write him a letter if they needed him On advice of counsel, Respondent offered
Smith reemployment doing the same kind of work he performed prior to the
strike which he accepted on May 21, 1962, and he was terminated on Sep-
tember 24, 1962 35 Smith's name was on the list which accompanied the Union's
letter of December 11, 1959 36 Thus Respondent was under an obligation to offer
to reinstate him This Respondent did not do until May 1962 Respondent argues,
however, that it was under no obligation to reinstate Smith because he abandoned
the strike by leaving the geographical area during the strike and the further ground
that he did not report to the plant until February 1960, even though he knew the
strike was over, because he had secured permanent employment f lsewhere As-
suming arguendo that Smith abandoned the strike, Respondent did not assert this
as a ground for refusing him reemployment in February 1960 Rather Smith was
told his services were not needed Nor did Respondent assert this as a defense as
late as May 1962, when Smith was reemployed I find Respondent has waived this
possible defense 37 With respect to Respondent's second ground, it helps
Respondent little to argue that it had no obligation to reinstate Smith because he
did not report to the plant until February 1960 Suffice it to say that even then
Respondent did not reinstate him, rather he was told his services were not needed
Surely, Respondent cannot be heard to say it had no obligation to reinstate him
under these circumstances I find Respondent liable for backpay, if any, for the
period from December 17, 1959, to May 21, 1962 General Counsel's contention
with respect to a "reduced work week" after reemployment are rejected in accord-
ance with other findings herein
D Johnny Morris Toombs
The amended specification alleges Toombs' backpay period begins September 28,
1961, and that he was reemployed on September 29, 1961, but at a reduced work-
'4 In its answer to the amended specification Respondent makes the same contention
with respect to certain other named strikers This contention is likewise rejected
35 'Based on the credited and undisputed testimony of Robinson Smith did not testify
at the hearing
ii General Counsel's Exhibit 2(f) and (g)
37 Cf Alabama Marble Co supra
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week.38- Toombs did not testify at the hearing. Toombs was employed as a "core
laborer" prior to the strike , and for a time after the strike as a "shipping - laborer,"'
and then again as a "core laborer ." I do not understand the General Counsel's
position to be that Toombs was not properly reinstated for this reason. In any
event, I note the wage rates are the same for both jobs, and the record does. not
establish that one job is more onerous or less desirable than the other. Therefore,
I would reject such a contention if made . Toombs' name does not appear- on the
list of names which accompanied the Union's letter of December 11, 1959. There-
fore, he was not included among those strikers in whose behalf the Union made.
an unconditional request for reinstatement . Although the amended specification
alleges Toombs' backpay period begins on September 28, 1961, there 'appears to
be no evidence in the record as,to when Toombs requested reinstatement after the
strike. Accordingly, I recommend the dismissal of this allegation. The allega-
tion with respect to a reduced workweek is rejected for the same reasons set forth
elsewhere in this Decision.
E. James Williams
The amended specification alleges that Williams' backpay period begins Decem-
ber 17, 1959. In its answer, Respondent alleges that Williams came to the plant
on December 19, 1959, and told, its representatives that he was not giving up the
strike and would not work under Respondent's existing rules and conditions.
According to the testimony of Plant Superintendent Robinson and Attorney Price,
they talked to Williams on December 19, when, he came to the plant. Price told
Williams that the Company had received a letter from Heickman telling them that
the men had given up the strike and were willing to come back to work uncondi-
tionally. Price then asked Williams if that were true and Williams replied that
it was not. Price advised Williams more than once what "unconditionally" meant. ,
Williams still said' he was not giving up the strike and "not coming back to work
under the rules and regulations of the Company at that time."
Williams denied that he told Price he was unwilling to give up the strike and
return to work unconditionally. - According to Williams, Price asked if he was
willing to come back under all the company rules and regulations, and he told
Price that he was with the group. Price then said he was not - talking about the
group, he was "talking direct to you." Williams then said "I don't know about it."
Thus, according to Williams' own version of the conversation, he refused to give
Respondent assurances that he would come back to work unconditionally.
. In June 1960, Respondent wrote Williams a letter offering him reinstatement
and inquiring if he was ready to give up the strike. Williams then telephoned
Robinson who inquired if he was ready to come back to work. Williams. replied
in the negative adding that he was going out of town. Robinson then asked why
he had called, to which Williams replied that he had called to let Robinson know,
that he got his letter.39
Under all the circumstances, Price's and Robinson's versions of the events of
December 19, seem more reliable than that of Williams. Accordingly, I credit
Price's and Robinson's testimony. Thus, I find that Williams told Respondent on
December 19, that he was not willing to return to work unconditionally. Therefore,,
Respondent was under no obligation to reinstate Williams and I shall recommend
the dismissal of paragraph 99 of the amended specification.
F. Sylvester Warsaw
Warsaw, as the amended specification alleges was reemployed on June 6, 1960,
as a "molder helper." 40 Warsaw did not perform all the duties he performed
prior to the strike because of several operations on his ankle. Warsaw was ter-
minated on September 9, 1960. Subsequently, he applied for work on October 3,
1960, but Robinson rejected his application.41 The amended specification alleges
m Although Toombs when reemployed did not receive the appropriate hourly wage rate,
it is undisputed that Respondent paid him the correct rate later together with a "makeup"
check for the amount due. I do not construe the amended specification to allege that
Toombs is due any backpay because of the "wage rate differential "
80 This paragraph is based on the credited testimony of Robinson and Williams which
is in substantial agreement.
40The amended specification admits Warsaw was ill and unavailable for employment
until June 6, 1960.
u The foregoing is based on the credited testimony of Robinson and Respondent 's payroll
records. Warsaw did not testify at the hearing.
TRINITY VALLEY IRON AND STEEL COMPANY 923
that Warsaw received a reduced workweek after being reemployed. Consistent
with other findings herein, this contention is rejected. Accordingly, I shall recom-
mend the dismissal of paragraph 100 of the amended specification.
Respondent contends that Lorenza Allen, O. D. Brookins, Sammie Brookins,
Leon Kirk, Bennie Richardson, and Roy Lee Rosborough engaged in strike l mis-
conduct by assaulting a nonstriking employee, Roy Lee Spearman, and thereby are
not entitled to reinstatement. All five of the above strikers were reemployed by
Respondent following the strike without reference to the alleged strike misconduct.
In fact, Robinson specifically testified that nothing was said about the fight when
he interviewed Kirk on December 19, 1959. Respondent does not contend it was,
unaware of the strike misconduct when the strikers were reemployed. Assuming,
arguendo, that these strikers engaged in strike misconduct sufficient to lose their
right to reinstatement, I find Respondent waived this possible defense by reemploy-
ing them under the circumstances described above.42
Concluding Findings
Pursuant to the foregoing findings and to the computations made under the
formulas I have adopted, I find that the obligations of Respondent under the Board
Order and court decree will be discharged by paying the strikers the amount set
forth opposite their respective names below, less any tax withholdings required by
Federal and State laws. The amount due each striker is set forth in column C and
is the sum of the backpay due prior to reemployment as set forth in column A
below and the amount due as a result of the wage rate differential set forth in
column B below:
Name A B C
Adkins, Andy------------------------------ $350 81 $202.45 $553 26
Alexander , Curtis ___________________________ 212.66 -------------------- 212.66
Allen, George Hilton___ ____________________ 327 07 188 78 515 85
Allen, Lorenza______________________________ -------------------- 61 13 61 13
Allen, Johnnie ______________________________ 115.50 -------------------- 115.50
Bailey, Theodus ____________________________ 129 45 129.45
Bell, Lewis_ ------------------------------ 34.11 34 11
Black, George L---------------------------- 190.98 -------------------- 190.98 - ,
Boone , Claude H_ __________________________ 62 04 230 78 292 82
Boone , l„ssie M----------------------------- 109 89 85.39 195.28
Brewer, Leardis ____________________________ 72.46 65.00 137.46
Brookins , 0. D----------------------------- 140 21 118 82 259.03
Brookins, Sammie __________________________ 12 94 71 19 84.13
Brown, Malvin ----------------------------- 95.04 276 02 371.06
Burnes, Earnest ____________________________ 147 75 61 18 208.93
Cary, Nelson------------------------------- 282.56 -------------------- 282 56
Conner, Everett____________________________ 55 66 -------------------- 55 66
Crowe, Jeffro------------------------------- 61 06 265 02 326.08
Crownover , John 0., Jr..................... 87 30 -------------------- 87.30
Davis, Edward_ ____ _______ 168 52 370 92 539.44
Davis, R C , Jr-------------------------- 5 19 130 20 135.39
Dawson, Claude---------------------------- 127.33 -------------------- 127 33
Edwards, L . C ----------------------------- 46 36 -------------------- 46.36
Ervin, Robbie G-__-____-_________________ 232 39 175 16 407.55
Fields, Alvin C_____________________________ 142 78 ------------------- 142 78
Ford, Willie _____________________ 98 82 -------------------- 98 82 -
Gillispie, C C----------------------------- -------------------- -------------------- -------------------
Green, 'iJhe F ------------------------------ 48 34 -------------------- 48 34
Greer, Thomas A___________________________ 149 12 3I9 23 468 35
Greer, Tommie ---------------------------- 110 11 110 11
Hamilton, Willie L-_--____________________ 67 98 67 98
Harrington , C L___________________________ 6 19 -------------------- 6 19
Harris, Pete -------------------------------- 7 37 142 10 149 47
Hayward, Jake, Jr -------------------------- 105 29 b3 15 168 44
Hill, Milton------------------------------- 48 16 ----------------- 48 16
Hill, Milton, Jr__ _____________ 79 66 79 66
41 Cf. Alabama Marble Co., supra.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name A B C
Houston, Aubrey James____________________ 443 87 124 22 568 09
Jack; Henry -------------------------------- 87 74 -------------------- 87 74
Jeffery, Albert______________________________ 59 77 -------------------- 59 77
Jeffery, Charles _______________________-__-_ 46 36 -------------------- 46 36
Jeffery, Lonzo ------------------------------ 120 26 130.91 251 17
Johnson, Alphonse __________________________ 4 88 4 88
Johnson, Cleo_______________________________ --------------------
Johnson, Moses_____________________________ 128 81 -------------------- 128 81
Jones, Edward Lee_________________________ 7 92 7 92
Jones, Johnnie Lee__________________________ 207 13 207.13
Birk, Leon--------------------------------- -------------------- 64 29 64 29
Lee, Earnest-------------------------------- 120 04 62 99 183 03
Lee, Willie Fred____________________________ 203 44 257 51 460 95
Lewis, Edgar, Jr---------------------------- 58 20 110 84 169.04
Lewis, Norman Ray________________________ 230 42 165 35 395 77
Lewis, William Henry______________________ -------------------- 216 27 216.27
Manning, Earnest Lee______________________ 33 42 118 48 151 90
Manning, James Earnest___________________ 87 98 -------------------- 87 98
McGee, Samuel B__________________________ 283 79 283 79
Mitchell, Wilburn___________________________ -------------------- -------------------- --------------------
Moore, Forrest______________________________ 746.78 54.83 101.61
Nelson, Miles Booker T_____________________ 90.64 -------------------- 90.64
Paul, Leon ---------------------------------- 9.63 320 96 330.59
Perkins, Samuel____________________________ 274.96 400.76 675.72
Porter, J. C--------------------------------- 109.08 -------------------- 109.08
Pouncy, Grant----;------------------------ 80.32 80.32
Prince, William M__________________________ 150.67 -------------------- 150.6
Pyles, Clemen J____________________ 136.62 192.03 327.65
Ragland, James_____________________________ 202.63 62 64 265.27
Richardson, Bennie T______________________ 27.74 60.07 87.81
Robison, Edward___________________________ 165.13 61.18 228 31
Rosborough, Roy Lee______________________ 139.83 215.80 355.6:'
Scott, Booker T____________________________ 112.05 103.09 215.14
Sneed, Elusius Ray________________________ 169.21 202.61 361.82
Spears, Eugene. ---------------------------- 186.86 -------------------- 186 86
Tolliver, Emmanuel________________________ 96 13 -------------------- 96.13
Townsend, Cecil ---------------------------- 202 63 62.79 265.42
Wagner, Carl Jr_____________________________ 140.94 318.04 458.98
Warren, Jessie_______________________________ 82.66 -------------------- 82 66
Washington, Charles Earl___________________ 105 03 336.50 441.53
Watson, Robert James, Jr................... 94 62 28 30 122 92
Wingham, Clifton___________________________ 120 04 61.85 181 89
Woodson, Perry Lee______________-________ 235 27 -------------------- 23b.27
Wright, McKinley-------------------------- 151 54 171.09 322.63
Young, Harold Thomas____________________ 44 20 65 68 109.88
Hornsby, Huron Elvin _____________________ 3,759 95 -------------------- 3,759 95
Nelson, James Carl_________________________ 5,394 78 5,394 78
Smith, Milton------------------------------ 4,272.32 4,272 32
Total Amount Due___________________ 22,431.34 7,010.65 29,441.99
Consistent with my rejection above of General Counsel's allegations with respect
to the so-called workweek differential, I likewise reject his contention that because
of the said workweek differential, backpay continues to accrue. I recommend that
the Board adopt the foregoing findings and conclusions. I do not recommend that
the payment of interest be required on the sums herein found due, as interest was
not required by the Board's original Order which was enforced in full by the
court. Ellis and Watts Products, Inc., 143 NLRB 1269.
[Appendix (Backpay for Period Prior to Discriminatee's Reemployment) omitted
from publication.]