Carter Lumber, Inc.

National Labor Relations Board - Board Decisions

Jan 6, 1977

227 N.L.R.B. 730 (N.L.R.B. 1977)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter Lumber, Inc. and Teamsters Local Union 654,
International Brotherhood of Teamsters, Chauff-
eurs, Warehousemen and Helpers of America. Case
9-CA-7908
January 6, -1977
SUPPLEMENTAL DECISION AND
ORDER -
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 15, 1976, Administrative Law Judge
William F. Jacobs issued the attached Supplemental
Decision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor, Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a ,three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The General Counsel excepts to the Administrative
Law Judge's finding that discriminatee Michael
Driscoll did not work all the hours available to him
when working for interim employers and that Dris-
coll's interim earnings should therefore be increased
to reflect a willful loss of earnings.'
The record establishes that Driscoll and the other
yardmen employed by Respondent were always
scheduled to work 53 hours per week, and that all
hours over 40 per week paid at time and one-half.
Driscoll often worked more, and sometimes less, than
53 hours, but never worked less than 40 hours per
week while he was employed by Respondent. The
record further establishes that approximately 40
hours of work per week were available to Driscoll
while working for interim employers. However,
Driscoll's unexcused and unexplained absences from
work during his interim employment resulted in his
failure to work even 40 hours per week. The General
Counsel contends that because Driscoll sometimes
worked less than 53 hours per week for Respondent
and this was considered in computing his average
weekly earnings as set forth in the backpay specifica-
tion, the Administrative Law Judge, by increasing
Driscoll's interim earnings to reflect the 40 hours per
week available to him, "provide[d] a double deduc-
tion for absenteeism." We disagree.
I Member Fanning does not believe that an issue as to interim earnings
was properly raised in Respondent 's answer and would adhere to the figures
in the backpay specification
2 F. W. Woolworth Company, 90 NLRB 289 (1950).
227 NLRB No. 117
It is well settled that gross backpay is computed on
the basis of what the employee would have earned
during the period of the discrimination against-him
absent such discrimination, and net backpay is that
amount less the employee's net earnings from interim
employment during the same period, all computed on
a- quarterly basis .2 It is equally well settled that
"deductions should be made not only -for actual
earnings by the worker but also-for losses which he
willfully incurred." 3 Thus, the formulas for comput-
ing gross backpay and for computing interim earn-
ings- are not based on the same factors, and in any
event are computed independently- of each other as
separate matters.
Here the gross backpay is based on what Driscoll
would have earned had he continued working for
Respondent, while his interim earnings must include
not only his actual ' earnings , but the amounts- he
would have earned but for his unexcused- and
unexplained absences from his interim employment.
To hold otherwise would require Respondent now to
indemnify Driscoll for his lack of diligence during his
interim employment, a result we find inequitable.
Consequently, we agree with the Administrative Law
Judge that an amount reflecting Driscoll's willfully
incurred loss of wages should be added to his actual
interim earnings.
We further agree with the Administrative Law
Judge's finding that the wage increases given to
Respondent's yardmen during the period between the
date Driscoll went out on strike and his reinstatement
were general and not merit increases and that the
amount of backpay due Driscoll should be increased
accordingly. However, the Administrative Law Judge
failed to find, as shown by uncontroverted evidence,
that Driscoll was not reinstated at the higher wage
rate which the Administrative Law Judge found was
due him. We conclude that Respondent's refusal to
pay Driscoll the higher rate upon his return to work
constitutes a failure to make a valid offer of reinstate-
ment in accord with our prior decision.4 Accordingly,
we shall modify the recommended Supplemental
Order by additionally requiring Respondent to pay
Driscoll the differential between what he has been
paid since his return to work for Respondent and
what he would have been paid if he had been
compensated at the same rate as other yardmen with
similar experience, for the period from March 10,
1975, until the date that Respondent makes him a
valid offer of reinstatement .5
3 Phelps Dodge Corp. v. N.L.R B, 313 U.S. 177, 198 (1941).
4 209 NLRB 929 (1974), enfd. 507 F.2d 1262 (C.A. 6, 1975).
5 Golden State Bottling Company, Inc d/b/a Pepsi Cola Bottling Company
of Sacramento, 187 NLRB 1017 (1971).
CARTER LUMBER, INC. 731
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Supplemental Order of the Administrative Law
Judge as modified below and hereby orders that the
Respondent, Carter Lumber , Inc., Springfield, Ohio,
its officers, agents -, successors, and assigns, shall take
the action set forth in the said recommended Supple-
mental Order, as so modified: -
Add the following after placing a comma at the end
of the first sentence:
"plus an amount which represents the difference
between what Driscoll has been paid in wages since
his return to Respondent 's employ and what he
would have been paid had he been compensated at
the same rate as other yardmen with similar experi-
ence, to the date of a valid offer of reinstatement."
SUPPLEMENTAL DECISION
WILLIAM F . JACOBS, Administrative Law Judge: This
supplemental proceeding was instituted for the sole purpose
of determining the amount of backpaydue discriminatee
Michael Driscoll under the Board 's Order in 209 NLRB
929, dated March 29 , 1974, and enforced by the Court of
Appeals for the Sixth Circuit on January 31, 1975.
No agreement having been reached as to the amount of
backpay due, the Regional Director for Region 9 issued a
backpay specification and notice of hearing on July 8, 1975.
Respondent filed an answer thereto, admitting in part, and
denying in part , the allegations of the specification. On
September 8, 1975 , the General Counsel filed with the
Board a motion for summary judgment submitting, in
effect, that the denials in Respondent 's answer to the
specification lacked the specificity required by Section
102.54(b) of the Boards Rules and Regulations , Series 8, as
amended. On September 12,1975, Respondent filed a brief
in opposition to the motion for summaryjudgment assert-
ing, in substance, that its denials of the allegations of the
specification had raised material issues of fact, particularly
with regard to the alleged interim earnings and expenses of
the discriminatee . On October 24, 1975, the Board issued its
order denying General Counsel's motion for summary
judgment and finding that:
Respondent 's denials of the allegations of paragraphs
2(c), 4 and 7 concerning whether a general and/or
individual wage increase was granted to Respondent's
employees , the alleged interim earnings and expenses
with respect to Driscoll and Driscoll's alleged refusal to
work on jobs as the cut-off date for backpay raise issues
which could best be resolved by a hearing . Inasmuch as
the Board finds no, issues raised by Respondent's
denials other , than set forth herein, said hearing, if any,
shall be limited to the issues raised by the denials of
interim earnings and expenses as set forth above.
On November 10, 1975 , General Counsel filed a "Motion
for a More Definite Statement of Facts " with regard to the
issues ordered by the Board as subject to hearing . Specifi-
cally, General Counsel requested the following informa-
tion:
1. The names of those employees at its Springfield
facility in the yardmen classification who did not
receive wage increases on the dates specified.
2. When and in what manner the discrimmatee
refused employment at the Springfield Cabinet Works.
3. The amounts [of expenses ] which Respondent
contends are correct ... and properly deductible from
interim earnings.
On December 1, 1975 , Respondent filed its "Answer to
Motion for a More Definite Statement of Facts," in which it
(1) provided the names requested in paragraph 1 of General
Counsel's motion for a more definite statement ; (2) advised
of its intention , at an appropriate hearing on the matter, to
subpena necessary witnesses from the Springfield Cabinet
Works who would testify that Driscoll refused employment
and in what manner such refusal was given; and (3)
demanded strict proof as to the figures in the backpay
specification entitled "expenses."
On December 31, 1975, Administrative Law Judge
Arthur Leff issued his Order on the motion for a more
definite statement of facts granting the motion to the extent
that, within 5 days of the receipt of the Order, Respondent
was to serve on General Counsel a statement in writing
stating:
The date when and the manner in which it is claimed
the discriminatee refused employment at the Springfield
Cabinet Works.
The motion of General Counsel was in all other respects
denied.
On January 9, 1975, Respondent sent the following
mailgram to General Counsel , presumably in an effort to
comply with Administrative Law Judge Left's Order:
In re Carter Lumber , Inc. Case No . 9-CA-7908
Michael Driscoll refused to go back to work at
Springfield Cabinet Works on February 25, 1974.
On January 14, 1976, a hearing was held before me in
Springfield , Ohio. The General Counsel, and Respondent,
Carter Lumber, Inc., were represented by counsel at the
hearing. The Charging Party Union was not separately
represented although notified of the hearing . All parties
present were afforded full opportunity to participate in the
proceeding . Briefs have been filed by the General Counsel
and Respondent and have been considered.
The issues presented through the pleadings as narrowed
by the Board's Order of October 24 , 1975, are as follows:1
I Counsel for Respondent argues in his brief that gross backpay should be
computed on the basis of $119 per week rather than the $121 .60 utilized in
pars 2(b) and 7(b) of the backpay specification . In his answer to the backpay
specification, however, counsel for Respondent only generally denied the
(Continued)
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Whether Driscoll incurred a willful loss of earnings
during the backpay period by:
(a) failing to work all of the hours made available to him
by his interim employers.
(b) quitting his employment at Springfield Cabinet Works
and refusing an offer of reemployment at that company.
(2) Whether Driscoll is entitled to be reimbursed for the
union dues charged off as expenses in the backpay
specification.
(3) Whether Respondent granted a general wage increase
or individual merit increases to its employees on or about
September 1, 1974, and March 3, 1974, and whether
Driscoll would likewise have been entitled to the increases
had he not previously been discriminatorily terminated.
Upon the entire record in this-case including my
observation of witnesses, and after due consideration of the
briefs filed by the parties, I hereby make the following:
FINDINGS OF FACT
A. Driscoll's Alleged Failure To Work All of the
Hours Made Available by His Interim Employers
Michael Driscoll was terminated by Respondent on July
12, 1973, and signed up at the unemployment office about 1
week later. He also unsuccessfully sought employment at
Rose Paper Box Company, Cargard and Muffler King
before obtaining employment at Buckeye Metal Company.
There is no evidence, nor does Respondent contend, that
Driscoll was remiss in diligently seeking employment
following his discharge by Respondent.
1. Buckeye Metal Company
Driscoll worked at Buckeye Metal Company from
August 17, 1973, until November 8, 1973, at which time he
was laid off for lack of work. It is not contended by
Respondent that Driscoll was not diligent in seeking
employment following his discharge by Respondent. Rath-
er it is claimed that, during his employment at Buckeye, 41-
1 /4 hours was the normal workweek, that Driscoll had
these hours available to him but he failed and refused to
work the available work hours and thereby was guilty of a
willful loss of employment. During the hearing, documents
were introduced and testimony offered to show that 41-1/4
hours were available and that Driscoll worked fewer hours
than he could have in all but 2 workweeks. In total during
his employment at Buckeye, Driscoll lost a total of 69-3/4
hours of work. When Driscoll was examined as to the
reasons he did not work full workweeks he replied, for the
most part, that he could not remember. He recalled being
sick during his third week of employment during which he
lost 8-3/4 hours, and being injured by a machine while at
work during his sixth week of work during which he lost 4-
1/4 hours. Under probing cross-examination concerning
his inability to recall why he was absent so frequently
Driscoll stated: "Everybody else takes some time off too,
other guys take off and get drunk." Implicit in this answer is
the admission by Driscoll that he, like the other employees,
simply, took time off when he wished. Moreover, when
undergoing examination, Driscoll was evasive and vague
and, when advised from the bench to be as candid as
possible inasmuch as the hearing was of extreme impor-
tance to him, Driscoll made no apparent attempt to be
more precise or productive of information in his testimony.
Taking into account Driscoll's lack of forthrightness and
candor, his refusal to be specific as to reasons for his
absences, and his record of perfect attendance during his
previous years of employment with Respondent, I must
conclude that, except for the 13 hours accounted for-as time
off for illness2 or injury,3 Driscoll's absences at Buckeye
constituted a willful loss of earntngs.4 I am therefore adding
to interim earnings, to be deducted from gross backpay, the
wages which Driscoll could have earned had he been
appropriately more diligent in his attendance. Specifically,
during the third quarter of 1973, Driscoll could have earned
more than he did, but willfully chose to earn less to the
following extent:
Week
127
Driscoll 's
Wages
Available
Wages Differ.
9-7 $60.50 $83.75 $23.25
9-14 65.50 83.75 18.25
$126.00 $167.50 $41.50
The sum of $41.50 will therefore be added to the $453.70
entered in the backpay specification as interim earnings.5
The new figure for interim earnings and net interim
earnings for the third quarter of 1973 will therefore be
$495.20.
During the fourth quarter, Driscoll continued to work
fewer hours at Buckeye than were available to him and
thereby willfully chose to earn less in wages than he could
have earned to the following extent:
Week
1973
Driscoll's
Wages
Available
WaQes_ Diff.
10-5 $49.00 $83.75 $34.75
10-12 66.00 83.75 17.75
10-19 77.50 83.75 6.25
10-26 74.00 83.75 9.75
11-2 71.50 83.75 12.25
$338 00 $418.5 $80.75
accuracy of the figure used and offered no affirmative basis for finding the
$121.60 figure inaccurate. Counsel for Respondent thereby failed to meet the
requirements of specificity demanded by Sec . 102.54(b) of the Rules and
Regulations . Consequently, the Board's Order of October 24, 1975, preclud-
ed consideration of this matter at the hearing and, as I am bound by the
Board's Order, I find that the figure utilized in the backpay specification,
namely, $121.60 per week, is the proper one and will be the basis for the
computations utilized herein.
2 Ordinarily there should be no deduction for employees' sporadic short
illnesses during the interim period . American Manufacturing Company of
Texas, 167 NLRB 520 (1967).
3 Absences due to industrial accidents at the interim employer are not
deductible. American Manufacturing Company ofTexas, supra
4 Cornwell Company, Inc., 171 NLRB 342 (1968)
5 Although Respondent suggested in his brief the possible use of other
formulae for computing backpay, I find that the formula utilized in the
backpay specification is reasonable and sufficient to approximate the losses
of the discrinunatee of pay he would have earned had he not been unlawfully
discharged . Moreover, the formula used in the backpay specification is
conveniently adaptable to the changes required by the findings herein.
CARTER LUMBER, INC.
The sum of $80.75 will therefore be added to the $675.50
entered in the backpay specification as interim earnings to
reflect the willful loss of earnings at Buckeye Metal
Company during the fourth quarter of 1973.
After being laid off at Buckeye Metal Company, Driscoll
obtained a few days employment at Manpower, Inc. This
work appears to be of an unsteady, oncall variety where the
pay vaned in accordance with the difficulty of thejob. The
remuneration received by Driscoll from Manpower does
not appear to be in question and is found to be in
accordance with the backpay specification -$19.80.
2. Springfield Cabinet Works
On November 14, 1973, Driscoll applied for and obtained
employment at Springfield Cabinet Works where he was
paid an initial wage rate of $2 per hour . Driscoll worked 18-
3/4 hours during the first week of employment at Spring-
field Cabinet Works . The testimony and records do not
provide sufficient information to indicate whether or not
Driscoll worked all of the available time during that partial
week of his employment.
According to the bookkeeper from Springfield Cabinet
Works , 40 hours of work per week were regularly made
available to Driscoll. Driscoll , however, testified that at
times he was sent home early for lack of work . On this
point , I credit the neutral witness and find , as she testified,
that Driscoll could have worked 40 hours each week had he
cared to do so. Driscoll, however , only worked the
following number of hours each week during the fourth
quarter of 1973 at Springfield Cabinet Works:
Week Ending
11-24-73 8 hrs.
12-1-73 36 hrs.
12-7-73 32 hrs.
12-14-73 36 1/2 hrs.
12-21-73 24 hrs.
12-28-73 16 hrs.
Driscoll was extensively examined as to why he did not
work the 40 hours per week which were available to him.
Once again Driscoll was evasive in his testimony, repeated-
ly stating that he did not know or could not remember why
he lost so much time . On one occasion he stated that he did
not work a full 40-hour week during the first week of his
employment, the week ending 11-17-73, because, "I got
hurt on that day, I am not sure." Clearly, since Driscoll was
hired on 11-14-73, he would not have worked 40 hours in
any event. But Driscoll made no real attempt to help his
own case . I have assumed for purposes of backpay
computation that Driscoll during his first week of employ-
ment worked all the time available. With regard to the
weeks following, in each instance of an incomplete week,
Driscoll testified that either he could not remember or he
did not know why he did not work those weeks. At one
point during the examination by Respondent's counsel the
following exchange took place:
6 Testimony that the electricity may have failed I day during this week,
causing a shutdown , was not evaluated since neither Driscoll nor the witness
733
Q. Any time you did not go to work was because
you didn't want to go to work, isn't that correct?
A. Well, sometime I was sick, yes.
The weakness of Driscoll's reply to this question, together
with the vagueness of his testimony in general, convinces
me that the pattern of working only when he felt like it,
which Driscoll established while employed at Buckeye
Metal Company, was continued throughout his employ-
ment at Springfield Cabinet Works. Thus, during the fourth
quarter of 1973, Driscoll sustained a willful loss of earnings
to the following extent:
Wk. Ending
1,9733
Driscoll ' s
Wads
Available
Wages .Diff
11-24 $76 $80 $64
12-1 72 80 8
12-7 6/ 64 80 16
12-14 73 80 7
12-21 48 80 32
12-28 32 80 48
$305 $8 $175
Having found that Driscoll willfully chose not to earn
$175 in wages which were available to him during the
fourth quarter of 1973 while he was employed at Springfield
Cabinet Works, that sum will be added to interim earnings
and net interim earnings in the backpay specification for
the fourth quarter.
The new figure for interim earnings and net interim
earnings for the fourth quarter of 1973 will be the original
figure of $675.50 plus $80.75 willfully lost at Buckeye, plus
$175.00 willfully lost at Springfield Cabinet Works, or
$931.25.
During the first quarter of 1974 Driscoll continued to
work at Springfield Cabinet Works and worked the
following hours:
Week ending
1-4-74 20 hrs.
1-11-74 25 1/4 hrs.
1-18-74 32 hrs.
During the first quarter 1974, Driscoll sustained the
following willful loss of earnings:
Wk. Ending Driscoll ' s
Wages
Available
Wages ip ff.
1-4-74 $40.00 $80.00 $40.00
1-11-74 51.76 82.00 30.24
1-18-74 65. 60 82 .00 16.40
$157.36 $244.00 $86.64
from Springfield Cabinet Works knew whether or not employees were paid
for that day
r Dnscoll's wages were increased during this pay period to $2 05 per hour
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Driscoll willfully chose not to earn
$86.64 in wages which were available to him during the first
quarter of 1974 while he was employed at Springfield
Cabinet Works, that sum will be added to interim earnings
and net interim earnings in the backpay specification for
that period.
While still employed at Springfield Cabinet Works
Driscoll read a newspaper article which led him to believe
that he would be reinstated by Respondent. Based on his
belief that reinstatement was imminent, Driscoll on or
about January 18, 1974, quit his job at Springfield Cabinet
Works. Thereafter, he was informed that his reinstatement
would not occur right away so he returned to Springfield to
seek reemployment with Springfield Cabinet Works. He
was, however, informed that that employer had already
hired a replacement for him and his job at Springfield
Cabinet was no longer available.
General Counsel argues in his brief that Driscoll should
be compensated by Respondent for the period during
which he was out of work following his voluntary quit at
Springfield Cabinet Works which was occasioned by his
belief that he was shortly to be reinstated at Respondent's
place of business. General Counsel, in proffering this
argument, relies on the fact that Driscoll is an unsophisti-
cated 22-year-old, unschooled in the legalities of labor law,
and that his good faith in the matter is reflected by the fact
that he immediately sought to return to Springfield Cabinet
Works when he learned that his reinstatement was not as
imminent as he had supposed. General Counsel points out
that, having failed in his attempt to obtain reemployment at
Springfield Cabinet Works, Driscoll sought and obtained
temporary employment at Manpower and thereafter sought
and obtained employment at Ohio Pressed Steel. Respon-
dent did not, in his brief or elsewhere, address himself to
this specific problem.
Inasmuch as Driscoll clearly, in good conscience, quit his
employment at Springfield Cabinet Works in anticipation
of an offer of reinstatement from the Respondent and, after
being refused reinstatement, thereafter made a diligent
search for other work, I fmd that he did not willfully incur a
loss of earnings by his voluntary quit at Springfield Cabinet
Works. Miami Coca-Cola Bottling Company, 151 NLRB
1701, 1702 (1965).
Respondent avers in its brief that Driscoll refused on
February 25, 1974, to return to work for Springfield
Cabinet Works. At the hearing counsel for Respondent
made a similar statement and referred to a telegram sent by
him to General Counsel on January 9, 1976, which
contained the bare assertion: "In re Carter Lumber, Inc.
Case No. 9-CA-7908. Michael Driscoll refused to go back
to work at Springfield Cabinet Works on February 25,
1974." No evidence was offered by Respondent to support
the assertion that Driscoll refused reemployment at Spring-
field Cabinet Works nor to sustain the apparent implication
" At the hearing General Counsel moved for fuller compliance with
Administrative Law Judge Leff s order of December 31, 1975, and requested
that Respondent furnish the date and manner in which it is claimed the
discnminatee refused employment at Springfield Cabinet Works; Respon-
dent did not comply with General Counsel's request and I must assume that
that he was offered reemployment at that time. In its brief
Respondent's counsel points out that the bookkeeper for
Springfield Cabinet Works was on the stand during the
hearing and that General Counsel never asked her about
the alleged refusal to return to work on February 25, 1974.
He argues from this fact that it can be concluded that the
refusal of employment actually occurred.
I have trouble following Respondent's logic with respect
to this matter but in any event fmd, in accordance with
existing and consistent Board law as supported by the
courts, that the burden of proving failure to mitigate
damages rests on Respondent and with regard to Respon-
dent's claim that Driscoll refused an offer of reemployment
at Springfield Cabinet Works on February 25, 1974, or at
any other time after he quit his job there, Respondent has
failed to present evidence to carry the burden of proof as
required. Shell Oil Company, 218 NLRB 87 (1975), affd. 461
F.2d 1264 (1972); N.L.R.B. v. Brown & Root, Inc., 311 F.2d
447, 454 (1967).8 There is, therefore, no basis for subtract-
ing the $328 from the backpay award as Respondent argues
in his brief.
3. Ohio Pressed Steel
Driscoll obtained employment at Ohio Pressed Steel on
March 20, 1974,9 at the initial wage rate of $2.10 per hour
and continued his employment at that company until he
was reinstated at Respondent. Driscoll worked a full 8
hours on the first day of his employment but only 1.2 hours
on Thursday, March 21, and 2.8 hours on Friday, March
22. Although Driscoll was specifically urged by the bench
to make a serious effort to answer all of the questions put to
him by counsel and an attempt was made to impress upon
him the importance to himself of his testimony with regard
to the reasons for his absences, when asked by counsel why
he did not work full time on the second and third day of his
employment, Driscoll replied, "I can't say. You have got
the proof, I haven't any." Thus Driscoll made no attempt
through testimony or other means to show that these
absences were caused by illness or other legitimate consid-
erations. Elsewhere in the record, after Driscoll admitted
that there were 40 hours of work available each week at
Ohio Pressed Steel, he testified as follows:
Q. You didn't work 40 hours a week, every week
that you were at Ohio Pressed Steel?
A. No, nobody else does either.
Q. So it is common to take off, is,that correct?
A. Not every week, no sir, I don't. I can't afford it.
Q. Whenever you could, you would take off, is that
correct?
A. When I needed to, yes sir.
the information was not furnished because there was no evidence to support
the affirmative defense proffered on this point
9 Although Driscoll was led during cross-examination into agreeing that
he started work on 3-24-74, the records furnished by Ohio Pressed Steel
indicate that he was hired on Wednesday, March 20, 1974.
CARTER LUMBER, INC. 735
The tenor of this testimony is that other employees took
off from work at Ohio Pressed Steel and so, whenever
Driscoll felt the need to, and could afford it, he also took
the day off. At no time did Driscoll during this part of his
testimony state that he took off only when ill or because of
other emergencies.
Elsewhere during the examination , however, he testified
as follows:
Q. You missed a lot of work, didn't you?
A. Sometimes, yes. Most of the time I was sick.
Still further on in his testimony Driscoll testified as
follows:
Q. What other reasons did you stay home some of
the time and not report for work?
A. Well, couple of times I was sick like I said.
Q.
A.
You weren't sick all those times?
No, sir, I wasn't.
s s s s s
Q. Now, [for] what other reasons did you stay
home, at least not report for work?
A. Well, that's the only reason, because I got sick,
didn't feel like going to work. Sometimes, Ijust didn't
want to go.
Q. Didn't want to go, dust didn't "feel like going."
A. Right.
Q. without being sick?
A. Sometimes, yes.
In short, Driscoll testified that his absences were some-
times due to illness and sometimes due to his not feeling
like working. When specifically examined as to the reasons
for absences during each week of work at Ohio Steel,
Driscoll stated that he could not remember why he was
absent. In no case did he state that he was ill during any
particular absence. Dnscoll's attendance records show that
his absences occurred most often on a Friday. Again, I am
unaware of any disease, disorder, or malady which is
peculiar to Fridays. Driscoll was also asked if he ever
reported late or went home early. He replied that he never
reported late nor went home early unless injured. Although
he worked partial days at Ohio Pressed Steel on 11 days, he
offered no explanation to indicate why this occurred. If one
granted credibility to his entire testimony one would have
to conclude that Driscoll was injured II times. In the
absence of more detailed testimony I find this conclusion
patently absurd. Similarly, I find Driscoll's overall testimo-
ny concerning his absences due to illness while employed at
Ohio Pressed Steel evasive, vague, and wholly incredible. In
the absence of his willingness or ability to testify truthfully
to the contrary, I have no alternative but to conclude that
Driscoll's absences amounted to a willful loss of earnings.
Thus, during the first quarter of 1974, Driscoll willfully
chose not to work 12 hours which were made available to
him (Thursday, 3-21-74, and Friday, 3-22-74). At $2.10
10 Driscoll received a 2-day disciplinary layoff during the week ending 2-
16-74 because ofunexcused absences the previous week
11 Driscoll sustained no willful loss of wages during the third quarter of
1974
per hour, Driscoll thereby willfully incurred a loss of wages
at Ohio Pressed Steel valued at $25.20.
Totaling the willfully incurred losses of wages during the
first quarter of 1974 at Springfield Cabinet Works - $86.64
and at Ohio Pressed Steel - $25.20, I find that the total of
$111.84 should be added to the first quarter interim
earnings and net interim earnings in the backpay specifica-
tion thus bringing those figures up to $517.
During the second, third, and fourth quarters of 1974 and
the first quarter of 1975 Driscoll continued to work at Ohio
Pressed Steel and worked the following hours during
incomplete (less than 40 hours) weeks:
Week ending
4-21-74 28 hrs.
5-19-74 32 hrs.
6-2-74 32.6 hrs. (holiday)
6-9-74 32 hrs.
6-30-74 32 hrs.
10-6-74 32 hrs.
10-20-74 36 hrs.
11-10-74 32 hrs.
11-24-74 32 hrs.
12-1-74 32 hrs.
12-8-74 32 hrs.
1-12-75 32 hrs.
2-2-75 32 his.
2-9-75 25.4 hrs.
2-16-75 24 hrs.io
3-2-75 36.5 hrs.
3-9-75 24 hrs.
During the second, third,)) and fourth quarters of 1974
and the first quarter of 1975 Driscoll sustained willful losses
of earnings at Ohio Pressed Steel to the following extent:
Wk. Ending
Driscoll's
Wages
Available
Wages Diff.
4-21-74 $ 61.60 12/ $ 88.00 $26.40
5-19-74 76.80 13/ 96.00 19.20
6-2-74 83.13 14/ 102.00 18.87
6-9-74 81.60 102.00 20.40
6-30-74 81.60 102.00 20.40
Total 2d qtr. $384.73 $490.00 $105.27
10-6-74 81.60 102.00 20.40
10-20-74 95.40 15/ 106.00 10.60
11-10-74 84.80 106.00 21.20
11-24-74 84.80 106.00 21.20
12-1-74 84.80 106.00 21.20
12-8-74 84.80 106.00 21.20
Total 4th qtr. $516.20 $632.00 $115.80
12 Driscoll received a wage increase to $2 20 per hour on 4-1-74
13 Driscoll received a wage increase to $2.40 per hour on 4-28-74.
14 Driscoll received a wage increase to $2 55 per hour on 5-28-74
15 Driscoll received a wage increase to $2 65 per hour on 10-14-74
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1-12-75 84.80 106.00 21.20
2-2-75 84.80 106.00 21.20
2-9-75 69.85 16/ 110.00 40.15
2-16-75 66.00 17/ 110.00 44.00
3-2-75 100.37 110.00 9.63
3-9-75 18/ 66.00 88.00 22.00
Total 1st qtr. $471.82 $630.00 $158.18
Consequently, I , find that the interim earnings for the
second and fourth quarters of 1974 and the first quarter of
1975 should be increased by the sums of $105.27, $115.80,
and $158.18, respectively.
B. Union Dues as Expenses Deductible From
Interim Earnings
The backpay specification lists $10 in expenses for the
second quarter 1974 and $15 each for the third and fourth
quarters of 1974 and the first quarter of 1975. These figures
were intended to reflect the fact that union dues had been
deducted from Driscoll's wages at Ohio Pressed Steel
during these quarters.
The record reveals that on May 28, 1974, UAW Local
682 was recognized at Ohio Pressed Steel. Thereafter a
contract was signed requiring the payment of union dues as
a condition of employment. The contract was not offered
into evidence. Deductions amounted to 2 hours of pay per
month, apparently beginning in June 1974.19 General
Counsel argues that the dues deducted from Driscoll's
wages at Ohio Pressed Steel are an expense properly
deductible from interim earnings. Respondent counters
that, although Carter Lumber does not have a union shop
contract covering its employees, Driscoll had joined Team-
sters Local Union 654 and therefore would have been
obligated to pay union dues had he continued employment
at Carter Lumber Company. Respondent therefore con-
cludes that the proper approach to the consideration of
union dues as a deduction from interim earnings is to
ignore such dues as an expense or, in the alternative, deduct
only the difference between the union dues paid by Driscoll
at Ohio Pressed Steel and the union dues he would have
paid had he remained in the employ of Carter Lumber
Company.
The case law on the subject appears to support the
argument of General Counsel. Thus it has long been
decided that union dues deducted from interim wages is an
expense deductible from interim wages where the dues were
paid pursuant to a union shop agreement. Firestone
Synthetic Fibers and Textile Company, Division of the
Firestone Tire and Rubber Company, 207 NLRB 810, 812
(1973). On the other hand, union dues are not considered
an expense if the dues are not compulsory even in situations
where, as a practical matter, the dischargee would ordinari-
ly be expected to continue his union membership during
employment. Continued membership in a union, absent a
union shop provision, cannot be assumed . Miami Coca-
Cola Bottling Company, 151 NLRB 1701, 1710 (1965). In the
instant case Driscoll, in order to maintain his position with
Ohio Pressed Steel, would of necessity have had to continue
paying his dues. At Carter Lumber Company, he might well
have chosen to withdraw from membership. Inasmuch as
Respondent was responsible for taking away this freedom
of choice by unlawfully terminating him, I find that the
question of Driscoll's possible continued membership in the
Union at Carter Lumber Company is irrelevant and the
dues paid by him at Ohio Pressed Steel are fully deductible
from interim earnings . Thus, I find that the following
expenses are deductible from interim earnings for the
indicated periods:
2d qtr. 197420 $ 5.10
3rd qtr. 197421 15.30
4th qtr. 197422 15.80
1st qtr . 197523 10.80
C. Wage Increases
According to the backpay specification two general pay
raises were given by Respondent to its yardmen, one on or
about September 1, 1974, when the hourly pay rate was
increased from $2 per hour to $2.25 per hour, and a second
one on or about March 3, 1975, when the hourly rate was
increased from $2.25 to $2.45. The backpay specification
awarded Driscoll an increase of 12-1/2 percent as of
September 1, 1974, and an increase of 9 percent as of
March 3, 1975, on the theory that, had he not been
discriminatorily discharged, he would have shared in the
increase enjoyed by other employees of Respondent in the
same classification. Respondent does not deny the correct-
ness of the computation but asserts that the wage increases
received on the dates in question were merit increases
awarded to certain of its employees but not all and that,
since Driscoll was not on the job when these merit increases
were awarded solely to those employees who earned them,
there is no way that it can be demonstrated that he would
have earned the increases and he is therefore not entitled to
those wage increases.
The record reveals that all of the employees of the
Respondent classified as yardmen, as was Driscoll, with
approximately the same experience with the Employer,
received a 25-cent-per-hour wage increase during the third
quarter of 1974 and another 20-cent-per-hour wage increase
during the first quarter of 1975. Other employees who were
the subject of testimony at the hearing who did not receive
16 Driscoll received a wage increase to $2.75 per hour on 2-3-75.
17 Driscoll received a 2-day disciplinary layoff because of poor atten-
dance I consider this layoff as willfully incurred inasmuch as I have found
his previous absences also willfully incurred.
1S Dnscoll's last day of work was Thursday 3-6-75.
19 General Counsel moved to amend the backpay specification to reflect
the proper amount of union dues deductions. The motion was granted. No
evidence was offered to indicate the effective date of the contract and, in the
absence of evidence to the contrary, I am unwilling to assume that a contract
containing a union shop clause was executed within 3 days of recognition.
Respondent made no issue of the effective date or date of execution of the
contract.
20 Dues for I month only. Inasmuch as the Union was not recognized
until May 28, 1974, it would appear highly unlikely that the contract with the
union-shop provision was executed and made effective prior to June 1974.
Dues are computed here at 2 (hrs.) x $2.55 per hour or $5.10 per month.
21 Computed at 3 x $5.10 per month.
22 Computed at one-half month at $2.55 per hour and 2-1/2 months at
$2.65 per hour.
23 Computed at I month at $2.65 per hour and I month at $2.75 per hour.
Driscoll was terminated March 5, 1975, and presumably did not pay dues for
the month of March.
CARTER LUMBER, INC. 737
comparable wage increases were either classified as coun-
termen or were part time or newer employees. One
exception was an employee named Macy who although
employed both as counterman and yardman did not receive
any wage increases. But Macy was already receiving $2.50
per hour, a higher wage than any other rank-and-file
yardman even after the others were awarded their wage
increases.
From the record then, it is clear that all of Respondent's
yardmen with experience similar to that of Driscoll received
wage increases at the same time. I find therefore that those
increases were general in nature rather than based on merit
and had Driscoll been employed by Respondent at the time
there is no reason to believe that he too would not have
received a similar increase. Consequently, the backpay
specification shall remain unchanged with respect to the
inclusion of the wage increase . The Richard W. Kaase
Company, 162 NLRB 1320 (1967).
Upon the basis of the foregoing-findings of fact, conclu-
sions of law and upon the entire record in this case, I hereby
issue the following recommended:
ORDER 24
Respondent, Carter Lumber, Inc., Springfield, Ohio, its
officers, agents, successors, and assigns , shall pay to
Michael Driscoll, in accordance with the computations
contained in the revised backpay specification, attached
marked "Appendix," the sum of $4,985.65. Interest is to be
added at the rate of 6 percent per annum on the basis of the
quarterly amounts of backpay due, in accordance with the
formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). There should be deducted from the
amount due any tax withholding required by Federal, and
state law.
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Supplemental Order herein shall, as provid-
ed in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Supplemental Order, and all objections
thereto shall be deemed waived for all purposes.
Calendar
liter.
Wks. and
Rate
Gross
Beckpay
APPENDIX
Interim
Earnings Expense ..
Net Interim
Earnings
Net
Backpay
1973-3 11.5 Wks. 'f $1,398.40 $ 495.20 0 $ 495 . 20 $ 903.20
$121.60 a wk.
1973-4 13 wks . a 1,580.80 931.25 0 931.25 649.55
$121.60 a wk.
3/ 1974-1 13 wks . @ 1,580.80 517.00 0 517.00 1,063.80
$121.60 a wk.
4/ 1974-2 13 wks. @ 1,580.80 1,153 . 60 5.10 1,148 . 50 432.30
$121.60 a wk.
5/ 1974-3 9 wks @u 1,641.60 886.00 15.30 870 . 70 770.90
$121.60 a wk.
$1,094.40; 4 wks.
$136.80 a wk.---
$547.20
6/ 1974-4 13 wks . @a 1,778 .40 963 .80 - 15.80 948.00 830.40
$136.80 a wk.
7/ 1975-1 9 wks . a@ 1,380 . 31 1,055 . 61 10.80 1,044 . 81 335.50
$136.80 a wk.--
$1,231 . 2001 wk.
149.11
Totals: $10 ,941.11 $6 ,002.46 $47.00 S5 ,955.46 $4,985.65
Begins July 12, 1973 . Interim employer : Buckeye Metals, Springfield, Ohio.
Interim employers: Buckeye Metals , Springfield , Ohio , $445.75; Springfield Cabinet Works, Springfield,
Ohio, $485.50.
Interim employers : Springfield Cabinet Works , $276.00 ; Ohio Pressed Steel , Springfield , Ohio , $ 221.20;
Manpower , Inc. of Springfield , Ohio , $ 19.80.
Interim employer : Ohio Pressed Steel , Springfield , Ohio . Expense:
UAW Local 682,-starting June 1974.
union dues of $5.10 per month, to
Change in rate represents the wage increase due Driscoll during the third quarter 1974 . Interim
employer ; Ohio Pressed Steel , Springfield, Ohio . Expense : Union dues of $5.10 per month.
Interim employer : Ohio Pressed Steel, Springfield , Ohio . Expense: Union dues computed at one-half
month at $2 .55 plus 2-1/2 mouths at $2.65.
Computed through March 10, 1975 , the date on which Driscoll returned to work . The change in rate
represents the wage increase due Driscoll during the first quarter , 1975. Interim employer: Ohio
Pressed Steel, Springfield , Ohio . Expense: union dues computed at 1 month at $2.65 " and 1 month at
$2.75.