Chicago Local 245, Graphic Arts Union

National Labor Relations Board - Board Decisions

May 28, 1975

217 N.L.R.B. 1112 (N.L.R.B. 1975)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Local No. 245 , Graphic Arts International
Union (Alden Press, Inc.)' and William G. Statt-
ner. Case 13-CB-2959
May-28, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On,April 28, 1972, the National Labor Relations
Board issued a Decision and Order finding that the
Respondent had caused Alden Press, Inc., to deny em-
ployment to William G. Stattner because of his non-
membership in the Respondent and Directing that he
be made whole for any loss of earnings suffered as a
result of the discrimination practiced against him.'
The Order of the Board was enforced by the United
States Court of Appeals for the Seventh Circuit on
August 21, 1973.
On May 10, 1974, the Regional Director for Region
13 issued and-served on the parties a backpay specifica-
tion and notice of hearing. The Respondent filed an
answer to the backpay specification on June 26, 1974.
On July 15 and 16, 1974, Administrative Law Judge
Henry L. Jalette conducted a hearing to determine the
amount of backpay due to William G. Stattner pursu-
ant to the Board's Order as enforced. On October 31,
1974, the Administrative Law Judge issued his Supple-
mental Decision, attached hereto, determining the
backpay due to William G. Stattner. Thereafter, the
Respondent filed exceptions to the Administrative Law
Judge's Supplemental Decision and a brief in support
of such exceptions; the Charging Party filed cross-
exceptions to the Supplemental Decision and a brief in
support of cross-exceptions;4 and the Respondent filed
a brief in answer to the cross-exceptions of the Charg-
ing Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
1 The name of Respondent appears as amended at the hearing.
2 196 NLRB 720.
3 481 F 2d 1406
4 The Charging Party moved for permission to file nunc pro tunc the
cross-exceptions and supporting brief on the grounds that its cross-excep-
tions were due on December 30, 1974, and that it had timely mailed such
cross-exceptions and brief to the Executive Secretary of the Board, the
General Counsel, and the Respondent, but, although the General Counsel
and the Respondent received the cross-exceptions and brief, the Board's
Executive Secretary had advised the Charging Party on January 13, 1975,
that such documents had not been received
As the Respondent has filed a reply to the Charging Party's cross-excep-
tions, and as the parties have not been prejudiced by the Board's failure to
timely receive such cross-exceptions and supporting brief, we grant such
motion.
tions, cross-exceptions, and briefs and has decided to
affirm the rulings, findings, and conclusions of the Ad-
ministrative Law Judge and to adopt his recommended
Order as modified herein.
The Respondent excepts to the Administrative Law
Judge's finding that the earnings of Darras for the first
quarters of 1972 and 1973, as well as the earnings of
Smetana, should not be included in determining the
average quarterly earnings. We find merit in the Re-
spondent's exceptions. The Administrative Law Judge
did not include Darras' earnings for the first quarter of
1972 because of his finding that Darras was absent
from work 4 weeks of the quarter. As to the Adminis-
trative Law Judge's refusal to include the earnings of
Darras in the first quarter of 1973, he did so only
because it appeared from the amount of his earnings
that he did not work full time during such quarter.
However, we find, in agreement with the Respondent,
that there is no basis for excluding Darras' earnings
during these quarters solely because he worked less and
earned less-than the other comparable employees dur-
ing such quarters. Additionally, we find that the Ad-
ministrative Law Judge should have included Smeta-
na's earnings.
We find merit in the Respondent's contention that,
when the Administrative Law Judge ruled that Statt-
ner's gross backpay should be determined by an aver-
age of selected first-shift platemakers, he should not
have excluded Smetana and Darras as he did solely
because they earned less than some other first-shift
platemakers who were included, since exclusion be-
cause they earned less than average earnings is incon-
sistent with the rationale for averaging wages during a
relevant backpay period, especially where, at the same
time, employees have been included who earned sub-
stantially more than the average during the relevant
period. In our view, an average for purposes of backpay
proceedings must obviously include all the highs and
lows of the earnings of comparable employees, the val-
leys and the peaks, the unfavorable as well as the favor-
able, if averaging is to have any value in the determina-
tion of backpay.
The record shows that Darras worked in excess of
the 35-hour regular workweek in all the weeks 'he
worked during the relevant period except during the
first quarters of 1972 and 1973. Also, during the same
period, Darras worked overtime nearly every week.
The record indicates that, during the first quarter of
1973, Darras worked overtime during 4 of the weeks
and averaged nearly 30 hours of work during all but 3
of the remaining weeks. He worked every week during
this period.
Thus, no good reason appears for excluding Darras'
earnings during the first quarters of 1972 and 1973, and
we find that Darras' earnings should be included in
217 NLRB No. 162
CHICAGO LOCAL 245, GRAPHIC ARTS UNION
computing the average for these quarters. During the
first quarter of 1972, the record shows that Darras
averaged approximately 36 hours of work per week
except for the 4-week period in which he did not work
at all. As to-the first quarter of 1973, the record shows
that Darras averaged approximately 32 hours of work
per week for the entire quarter. Clearly, Darras' work
performance during the relevant period was more than
sufficient and is representative of the earnings of em-
ployees during this period.
The Respondent also excepts to the Administrative
Law Judge's finding that Smetana's earnings during the
backpay period should not be used in the backpay for-
mula because of the consistent disparity between
Smetana's earnings and the earnings of other first-shift
employees, and for the reason, unexplained, that dur-
ing many weeks of the backpay period Smetana worked
less than full time. As Stattner was available for full-
time employment during the entire backpay period, the
Administrative Law Judge found that Smetana was not
a comparable employee. We disagree.
The record shows that Smetana was hired by the
Respondent on May 2, 1966, and he worked until June
16, 1972, when he was separated. He was the most
senior first-shift employee. While the record also shows
that Smetana did not work for several weeks during the
backpay period, it also shows that he worked a substan-
tial amount of time during each quarter of the backpay
period until the end of the second quarter of 1972.
Though somewhat erratic, Smetana's hours of work
during the relevant quarters include many weeks in
which he worked overtime and, except for the weeks in
which he did not work, his average workweek con-
tained sufficient hours to qualify Smetana as a compa-
rable employee whose earnings should be included in
computing the average for the respective quarters up to
and including the second quarter of 1972.
Additionally, we note that we are including Darras'
earnings for the first quarter of 1972, notwithstanding
that he did not work during 4 weeks of such period.
Consistency requires that we include Smetana's earn-
ings for similar periods since there was only 1 week
during which he did not work throughout the compara-
ble period. Clearly, there is no basis for excluding
Smetana's earnings solely because his earnings were
less than the average earnings of the other comparable
employees in every quarter.
Accordingly, we find that the earnings of Darras for
the first quarters of 1972 and 1973 are to be inclu d
in computing the average for the respective quarte s,
and that Smetana's earnings also are to be included in
the computation of earnings until his date of separati n
at the end of the second quarter of 1972.
ORDER
1113
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that the Respondent, Chicago Local No.
245, Graphic Arts International Union, its officers,
agents , and representatives, shall take the action set -
forth in ,the said recommended Order, as so modified:
1. In the Administrative Law Judge's recommended
Supplemental Order change $16,387.52 to $13,589.40.
2. Substitute the attached appendix for that of the
Administrative Law Judge.
MEMBER FANNING, dissenting in part:
Contrary to my colleagues, I would affirm the Ad-
ministrative Law Judge's Supplemental Decision and
would require the Respondent to make William Statt-
ner whole without including in the backpay formula
the earnings of Darras for the first quarters of 1972 and
1973. Nor would I include the earnings of Smetana for
each quarter through the second quarter of 1972.
As to Darras, my colleagues would include his earn-
ings in the first quarter of 1972 notwithstanding Dar-
ras' absence from work for a 4-week period, or nearly
one-third of the backpay period of 13 weeks during
such quarter. I am at a loss to understand why Stattner,
though available and willing to work at all times during
the backpay period, should be penalized and receive
reduced backpay because one employee took an inordi-
nate amount of time away from work during the quar-
ter. While I accept the averaging-out concept as one
which necessarily includes peaks and valleys of work
hours and earnings, I am also of the belief that it is
unreasonable to include a period in which an employee
was absent for 4 weeks in computing an average for a
claimant's backpay.
During the first quarter of 1973, Darras worked the
average 35-hour workweek for-only 4 weeks of the
13-week period in the quarter. Also during this same
period, Darras worked only 7 hours in 1 week and less
than 30 hours a week during 8 weeks of such quarter.
Additionally, I would not include Darras' earnings
during this quarter because such earnings were well
below the average earnings of the three other em-
ployees used in computing the average of representative
employees.
My colleagues fmd, also contrary to the Administra-
tive Law-Judge, that the earnings of Smetana must be
included in computing the average earnings through
the second quarter of 1972. I disagree and fmd, in
agreement with the Administrative Law Judge, that the
unexplained absences and erratic hours of employment
of Smetana during the relevant period require that his
earnings , which were consistently lower than the earn-
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings of Darras, Jacobs, Salemi , Blakemore, and Monzel
throughout most of the quarters that he worked, be
excluded from the computation of the average hours
and earnings of representative employees. My col-
leagues have not cited any precedent nor have they
indicated any necessity for arbitrarily reducing Statt-
ner''s backpay by including Smetana 's earnings in com-
puting the average earnings during the relevant back-
pay period.
I would change the Administrative Law Judge's Sup-
plemental Decision only to the extent recommended by
the Respondent, by changing the total net backpay
figure in the appendix to $16,369.52 rather than the
$16,387.52 as shown therein. Additionally, I would
correct the Administrative Law Judge's inadvertent er-
ror in the appendix, 3d quarter of 1973, by adding the
difference between Stattner's net interim earnings of
$4,866.92 and the average of the representative em-
ployees' earning of $5,866.28. Therefore, I would add
$999.36 to Stattner's backpay making a total backpay
figure of $17,368.88.
I would otherwise affirm the Administrative Law
Judge's Supplemental Decision.
8/1/69 to end
of 3d gtr. '69
4th
' 69
1st
'70
APPENDIX
2d
'70
3d
'70
4th
'70
1st
'71
2d
'71
Darras $1,809.52 $3,479.03 $2,707.55 $3,947.28 $4,407.28 $3,779.92 $3,051.16 $3,343.02
Jacobs 2 , 378.15 1/ 3,329.68 2 ,036.11
Salemi 2 , 261.40 3,281 . 72 2,811,12 3,141.80 4 , 266.99 3 , 715.68 2,857 . 90 3,515.31
Blakemore 2,770.26 2/ 3,141.51 4,408.25 6,173.70 4,237.94 3,377.33 3 , 826.10
Monzel 504.64 J 6, 805.20 4,222.68 3,448.49 3,718.02
Smetana 1,518.76 1/ 2,336.96 1,540.11 2,552.03 2,229 . 61 2,878.73 2,641.70 3,252.35
Total Gross
Earnings of
Representa-
tive
Employees , 7,967.83 12,427.39 10 , 200.29 14,049.36 23,882.92 18 , 834.95 15,376.58 17,654.80
Average 1,991 . 96 3,106 . 85 2,550.07 3,512.34 4,776.58 3,766.99 3,075.32 3,530.96
INTERIM EARNINGS
Photo Press,
Inc. $309.89 $3,749.80 $3,251.61 $3,357.41 $3,331.79 $3,782 . 89 $3,482.21 $3,679,11
ADDITIONAL
-EXPENSE
Travel by
private auto
at 111
per mi. $22.33 J $207.36 1 $207.35 $207.35 $191 . 40 7/ $207.35 $207.35 $207.35
NET INTERIM
EARNINGS $287.56 $3 ,542.45 $3,044.26 $3,150.06 $3,140 . 39 $3,575.54 $3,274.86 $ 3,471.76
NET BACKPAY $1,704.40 0 0 $362.28 $1,636 . 20 $201 . 45 0 $59.20
3d '71 4th '71 1st '72 2d '72 3d '72_ 4th '72 1st '73 2d '73 3d '73
Darras $3,520.58 $4,947.00 $2,156.28 $6,231.46 $5,896.27 $4,370.65 $2,659.14 $3,823.74 $5,248.19
Jacobs 2,954.78 10/ 7,992.40 4,133.07 4,114.35 3,718.24 5, 218.99
Salemi 4,167.06 4,246.85 1,973.81 11/
Blakemore 6,871.55 5,735.82 4,075.12 7,921.66 8,120.95 4,379.57 3,728.63 3,651.28 5,660.92
Monzel 6,807.58 5,408.55 4,940.14 7,850.39 7,059.05 4,257.36 3,356.26 3,837.38 7,337.03
Smetana 2 ,574.71 3,396.87 2,947.74 4,190.74
Total Gross
E f
z
0
arnings o
Represents-
Live
z
Employees $23,941.48 $23,735.09 $14,119.28 $26,194.25 $29,068.67 $17,140.65 $13,858.38 $15,030.64 $23,465.13
Average 4,788.30 4,747.02 3,529.82 6,548.56 7,267.17 4,285.16 $3,464.60 $3,757.66 $5,866.28
INTERIM
EARNINGS $4,008.60 $3,788.64 $3,727.50 $3,930.63 $4,547.78
C7
Photo Press,
Inc. $4,181.53 $3,878.46 $4,008.60 $3,788.64 $3,727.50 $3,930.63 $4,547.78
Viking
Graphics $4,833.60 $4,866.92
O
U
x
U
ADDITIONAL
EXPENSE
Travel by
private
auto at
11 4 per mi . $171.35 J $207.35 / $207.35 $79.86 L2/ $18.48 13 $20.02 $20.02 0 0
NET INTERIM
EARNINGS $4,010.18 $3,671 . 11 $3,801.25 $3 , 708.78 $3,709.02 $3,910.61 $4,527.76 $4,833.60 $4 , 866.92
NET BACKPAY $778.12 $1,075.91 0 2,839.78 $3,558.15 $374. 55 0 0 $999.36
TOTAL NET
BACKPAY $13,589.40
1/ The earnings submitted for Jacobs - and Salemi were for the period from July 25, 1969 , through September 30,
1969 , rather than from August 1, 1969 , the date the backpay period began . While an exact computation of
total gross earnings could be made by remanding this portion of the backpay period to the Regional
Director for a precise calculation , it appears to us that an accurate computation for this partial
quarter can be made by prorating the figures. Thus , based on a 5-day week Jacobs' earnings of $2,654.68
from July 25 to September 30 covered 48 days of work for an average of $55.31 per day; as this backpay
quarter involved only 43 days of backpay , Jacobs' earnings for use in the computation are estimated at
$2,378.15. Salami 's earnings are estimated at $2,261.40. Smetana's earnings are estimated at $1,518.76.
(Counsel for Respondent offered estimates , but did not indicate how he arrived at them.)
As Blakemore was hired October 13 , 1969, and did not work the full quarter, his earnings for this
particular quarter were not included.
As Jacobs was separated on January 26, 1970, and did not work the full quarter, his earnings for this
particular quarter were not included.
As Monzel was hired June 15 , 1970, and did not work the full quarter, his earnings for this particular
quarter were not included.
18.8 miles from home to Photo Press less 4.25 miles from home to Alden Press - 29.1 miles'daily for
7 work days (September 22 through September 30).
145 miles per 5-day week.
J Only 12 weeks of excess travel , because Stattner had a 1-week vacation.
8/ Only 11 weeks of excess travel , because Stattner had a 2-week vacation.
Although Stattner had moved to a new residence his excess travel was still 145 miles per 5-day week:
17.1 miles from Stattner's new residence to Photo Press , less 2.2 miles to Alden Press - 28.9 miles daily.
10 The earnings of Jacobs were not included in computing the average for this quarter, because he was
rehired on May 8 , 1972, and did not work the full quarter.
11/ The earnings of Salami were not included in computing the average for this quarter, because he was
separated on April 14, 1972, and did not work the full quarter . According to General Counsel's
Exhibit 2, Salemi had no earnings in the first quarter.
12 145 miles per week until May 1, 1972, when Alden Press changed location to a point 15.7 miles from
Stattner ' s residence ; excess travel from May 1 to June 30 was 2.8 miles daily or 14 miles per week
for 9 weeks.
13 14 miles per week for 12 weeks because Stattner had a 1-week vacation.
CHICAGO LOCAL 245, GRAPHIC ARTS UNION 1115
SUPPLEMENTAL DECISION
HENRY L. JALETTE, Administrative Law Judge: This is a
supplementary proceeding to determine the amount of back-
pay due to William G. Stattner. On April 28, 1972, the Na-
tional Labor Relations Board issued a Decision and Order
finding that Chicago Local No. 245, Graphic Arts Interna-
tional Union' had caused Alden Press, Inc., to deny em-
ployment to Stattner because of his nonmembership in Re-
spondent and directing that he be made whole for any loss of
earnings he may have suffered by reason of the discrimination
practiced against him.' On August 21, 1973, the Court of
Appeals for the Seventh Circuit entered a judgment enforcing
in full the provisions of the Board's Order. On May 10, 1974,
a controversy existing over the amount of backpay due under
the terms of the Board's Order, the Regional Director of
Region 13 issued a backpay specification. On July 15, 1974,
hearing thereon was held in Chicago, Illinois.
After close of hearing and the submission of briefs by
Charging Party and Respondent, deeming the record inade-
quate for determination of the issues, on August 28, 1974, I
issuied an order upon the parties for the submission of data
from the records of Alden Press, Inc. Said order is hereby
inserted into the record as Administrative Law Judge's Ex-
hibit 1. Thereafter, on September 9 and 20, 1974, at the
request of the parties I issued orders extending the time for
submission of the data. These orders are hereby inserted into
the record as Administrative Law Judge's Exhibits 2 and 3,
respectively. On September 25, 1974, in response to my order,
the parties stipulated to the admission into evidence of certain
payroll data labelled schedules 1 through 6. The stipulation
and schedules 1 through 6 are hereby received into evidence
as Administrative Law Judge's Exhibit 4.
Upon the entire record, including my observation of .the
wit riesses, and after due consideration of the briefs filed by the
Charging Party and Respondent,3 I make the following:
FINDINGS OF FACT
I PRELIMINARY STATEMENT
The backpay specification claimed , in addition to backpay,
that Stattner was entitled to medical and hospital expenses
for which he would have been reimbursed had Respondent
not caused Alden Press to deny him employment . Respond-
ent asserted a counterclaim for excess reimbursement it al-
leged Stattner had received . The claim for medical expenses
was withdrawn by General Counsel at the hearing, with the
concurrence of Stattner, and Respondent withdrew its coun-
terclaim.
The Backpay Period
The specification alleges that the backpay period is from
August 1, 1969, to September 30, 1973. Respondent denies
this allegation not because of any factual dispute, but on the
ground that the backpay period should be tolled (1) from
t The name of Respondent appears as amended at the hearing
2 The Board's Decision is reported at 196 NLRB 720.
3 ]Both Charging Party and Respondent supplemented their briefs to com-
ment on the postheanng data which I had requested the parties to submit.
January 1, 1970 (the date the Regional Director refused to
issue complaint), until October 30, 1.970 (the date the General
Counsel reversed the Regional Director's refusal to issue a
complaint), and (2) from November 2, 1971 (the date of the
Trial Examiner's dismissal of the complaint), to April 28,
1972 (the date of the decision of the National Labor Relations
Board reversing the Trial Examiner's Decision). I find no
merit to Respondent's contentions for tolling backpay during
such periods. A.P. W. Products Co., Inc., 137 NLRB 25
(1962), clearly and unequivocally rejects tolling in a situation
such as that presented here. Accordingly, I find that the back-
pay period is from August 1, 1969, to September 30, 19737.
The Gross Backpay Formula
Stattner is a platemaker and the backpay specification al-
leges that an appropriate measure of the gross earnings for
Stattner is the average earnings of all platemakers continu-
ously employed by Alden Press during the backpay period.
Alden Press operates three shifts and the rate of pay of plate-
makers varies from shift to shift. The first shift receives the
base hourly rate for a 7-hour day with time and a half for the
next 2 hours of any overtime worked, and double time there-
after. The second shift employees have the same formula for
overtime but are paid a $10 a week differential which is
computed into the base hourly rate. The third shift employees
also receive the $10 a week differential above the first shift
hourly rate which is computed into the base hourly rate, but
which produces an hourly rate higher than the second shift
because it is computed on a 30-hour week, rather than a
35-hour week. In addition, third shift platemakers receive
overtime at time and a half for the first 2 hours after 6 hours
of work and double time thereafter. By reason of these differ-
ences, plus the fact that more overtime is available for third
shift employees, the average gross earnings of third shift
employees exceed the average gross earnings of both the
second and first shift employees. Because of,these differ-
ences, Respondent contends that a gross backpay formula
based on the- average earnings of all platemakers on all
three shifts as alleged in the specification is inappropriate.
General Counsel did not file a brief and I must glean his
position from the testimony of Compliance Officer Robert
Simon. According to Simon, the formula adopted in the spec-
ification was one of four basic formulas acceptable to the
Board and the courts and he selected this particular formula
because there were accurate employer records available and
"I felt that it was a fair and equitable formula to all the parties
in view of the length of the backpay period." In amplification
of this explanation, Compliance Officer Simon stgted that he
included employees of the third shift because "I felt that there
was no evidence that Stattner would have worked the same
shift throughout the entire backpay period and I saw no
reason for selecting any particular shift . I also had no evi-
dence as to what shifts the various comparison employees
worked on either or whether the same employees worked the
same shifts throughout the entire backpay beriod. I felt it
would have been speculative to assume he would have worked
any particular shift throughout."
While the compliance officer's testimony is entitled to a
certain amount of weight in view of his "expertise" in such
- 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters, his testimony must be based on the facts of the case
and not solely on his feel of the case. Moreover, while it is
settled law that the proposed backpay formula need only be
shown to be reasonable and fair, and that the Board has a
broad discretion in choosing an appropriate formula, the bur-
den still rests on the General Counsel to prove the gross
backpay and that burden is not met by a statement that there
is no evidence that Stattner would have worked on the same
shift throughout. Such an approach shifts the burden of proof
upon the Respondent. The correct approach is to consider
what record ,facts exist upon which a fording may be made
that Stattner would have worked on more than one shift,
particularly the third shift. Respondent asserts there is no
evidence Stattner would have worked on the third shift and
I am persuaded the record supports a fording to that effect.
The evidence concerning which shift Stattner was being
hired for on August 1, 1969, is in conflict, but only-as between
shifts one and two. There is no contention he would have been
hired for the third shift. Nevertheless, according to counsel
for Stattner, use of third shift earnings is appropriate because
of Respondent's practice of transferring platemakers between
shifts and the numerous opportunities for such shift transfers
"for employees actively seeking such a change." I do not
agree.
In my judgment, the record does not support a finding of
substantial shift transfers. General Counsel's Exhibit 2 and
Charging Party's Exhibit 4 list all platemakers employed by
Alden Press during the backpay period (except Wozniak,
Kaltenbach, Fillipp, Van Antwerp, Campanelli, Adams, and
Harry),4 and, according to schedule 2, ALJ Exhibit 4,
among these platemakers there were only five instances of
transfers (Boyd, Janda, Tomkowiak, Ansley, and Tull). Ex-
cept in the case of Tull, an apprentice, these transfers were
very brief and clearly temporary, and none was to the third
shift.' In addition, Charging Party's Exhibit 5 shows em-
ployee Fillipp as employed on the first shift during the week
ending September 3, 1972, and on the third shift during the
week ending September 2, 1973. As this evidence relates to
employment during a particular week only, I am unable to
accept it as proof of a transfer from the first shift to the third
shift.
In addition to the foregoing, counsel for Stattner points to
the turnover among platemakers during the backpay period
and asserts that Alden Press had 24 occasions to hire plate-
makers, including 10 for openings on the second or third
shifts.6 Assertedly, Stattner would thereby have had several
opportunities to fill vacancies-on the third shift during the
backpay period. Supporting such a finding is Stattner's tes-
-timony that during his first period of employment with Alden
Press in 1963-64 he had been transferred to-the third shift.
I have some reservations about Stattner's testimony on this
4 Why these individuals were not listed is not explained
5 Counsel for Charging Party asserts in the supplemental brief that there
were IO transfers, 7 of which were to either the second or third shifts. Obvi-
ously, his figures were arrived at by counting the initial transfer of a plate-
maker as one transfer and his return to his original shift as a second transfer.
In the -same way, by counting the return to a shift originally held as a
transfer, counsel formulates seven transfers to either the second or third
shifts This is not a valid approach for the purpose under consideration herein.
6 Counsel based his assertions on ALJ Exh. 4, schedule 1. I do not count 24
hires or rehires during the backpay period.
point, because he was careless about distinguishing between
temporary assignments to third shift and transfers. Admit-
tedly, he could-not recall how the transfer to the third shift
came about . In any event , Stattner's experience during his
first period of employment by Alden Press was under a super-
visor other than Al Presco whose testimony indicates that
any transfers while he was supervisor were voluntary. Statt-
ner's own transfer during his second period of employment
was voluntary. It follows, therefore, that no significance can
be attached to the number of openings that may have arisen
on the third shift unless it can be held that Stattner would
have sought one. The record as a whole indicates clearly that
Stattner's shift preference was for the first shift. This was
reflected during his second period of employment by Alden
Press, by his overall record of employment, and by his admis-
sion that in October 1973, when the Union notified Alden
Press it had no objection to Stattner 's being employed, he
called- Alden Press about a day job-this last point is dis-
cussed in more detail below. In light of these facts , whatever
opportunities for transfer which may have arisen during the
backpay period, I am persuaded and I find that Stattner
would not have sought a transfer to either the second or third
shifts.
Counsel for Stattner asserts that because of his personal
financial circumstances Stattner would have preferred a more
remunerative shift. The testimony of Stattner about his per-
sonal financial circumstances is in my judgment not deserv-
ing of any consideration whatsoever, and I do not credit it.
In short, I conclude that had Stattner been employed" by
Alden Press on August 1, 1969, on the first or second shift,
he would not thereafter during the backpay period have
sought to transfer to the third shift, and, if employed on the
first shift, he would not have sought to transfer to the second
shift. As the record does not support a finding that it was the
practice of Alden Press to transfer employees involuntarily,
I conclude that a backpay formula which uses the earnings
of third-shift platemakers to measure the gross backpay due
Stattner is unreasonable and I reject the formula set forth in
the specification. What then, is a reasonable and fair
formula?7 The answer to this question depends, in part, on
which shift Stattner would have been placed on August 1,
1969, but for Respondent's unlawful conduct.
Stattner had been employed by Alden Press in 1963 and
1968. He quit in 1968 to accept another job. On July 25, 1969,
Stattner spoke to Supervisor Presco about returning to work
for Alden Press, and Presco hired him to begin work on
August 1. It was this hiring for which Stattner was refused
clearance and which was the subject of the unfair labor prac-
tice finding. According to Stattner, when he discussed the job
opening with Presco and told him he could start on August
1, Presco told him "You realize you'll have to go back on
nights." Stattner said O.K. (In his prior period of employ-
ment with Alden Press in 1968, Stattner had been employed
on the second shift, but when an opening occurred he had
transferred to the first shift at his request.)
I As the Board has said, and, Respondent points out, "it is for the
[Administrative Law Judge] to consider whether the General Counsel's
formula is the proper one in view of all the facts adduced by the parties and
to make recommendations to the Board as to the most accurate method of
determining the amounts due " American Manufacturing Company of
Texas, 167 NLRB 520 (1967).
CHICAGO LOCAL 245, GRAPHIC ARTS UNION
When Stattner did not report for work on August 1, be-
cause he did not obtain union clearance, Presco called him,
but there was no discussion of the shift on which he had been
expected. Stattner did not talk to Presco again until after, the
Board decision wherein Respondent Union was-, ordered to
notify Alden Press it had no objection to its employment of
Stattner. Stattner called Presco to find out if Alden Press had
received such notification and when Presco said yes, Stattner
asked "Well, are you going to give me a day job?" Presco
replied, "What do you mean, a day job? Usually when I hire
a new man, he automatically goes onto the second shift or the
third shift and then when an opening occurs [on the first
shift] he goes by seniority."
On the basis of this testimony, counsel for Stattner con-
tends that Stattner would have been hired on the second shift.
Respondent disputes this contention because of testimony
of Presco contrary to Stattner's. Presco could not recall any
details of his conversation with Stattner on July 25, 1969, and
he did not expressly deny stating to Stattner that he'd have
to go on nights. He implicitly contradicted him, however, by
stating that according to his recollection of the conversation
with Stattner, he was hiring Stattner back for the same shift
he was on when he left in 1968, that is, the first;shift. As to
a conversation with Stattner after the Board decision, Presco
recalled such a conversation and that Stattner asked him
about a day job. When asked if he recalled telling Stattner
that a man automatically goes on the second or third shift,
Presco replied, "If I did, it was just in jest because there's no
truth to that, a new man going on automatically to second
shift." Presco testified a new man would go on any shift,
wherever the need was.
On the basis of Presco's testimony, Respondent asserts that
Stattner would have been hired on the' first shift on August
1, 1969, and that given Stattner's shift preference of the past,
he would have worked on that shift only__throughout the
backpay period.
I credit Presco and I find that but for the discrimination
practiced against him by Respondent, Stattner would have
been employed by Alden Press on August 1, 1969, on the first
shift. There are several reasons for crediting Presco, First, he
was in a sense disinterested. The proceeding was not against
his employer, but against the Union, and while he is a mem-
ber of the Union and might be loathe to add to its liability to
make Stattner whole, it is noteworthy that in the initial pro-
ceeding he testified on behalf of the General Counsel in a
situation where his testimony was far more critical to Re-
spondent than it was here. Second, Presco adverted to three
circumstances which bolstered his recollection: (1) The fact
that personnel records reflected that in September 1969 the
platemaker complement had been increased by one on the
day shift (this fact alone is not'too persuasive because the
increase could have been achieved by a shift transfer); (2)
Stattner had mentioned his wife's pregnancy and the impor-
tance to him of working on the first shift; and (3) the fact that
when Stattner left he had been on the first shift. Third, Presco
stated that where was no such policy as that which Stattner
described whereby employees were not hired for the first shift
and he asserted that Company records would support him.
General Counsel's Exhibit 2, Charging Party's Exhibit 5, and
schedule 6, ALJ Exhibit 4, appear to do so. (See Blakemore,
1117
Ansley, Monzel, Kaltenbach, Fillipp, Van Antwerp, Cam-
panelli, Favarillo, and Urban.) ,
As opposed to the foregoing, there is only Stattner's tes-
timony and Stattner did, not impress me as a particularly
reliable witness. For example, in testifying about his October
1973 call wherein he asked Presco about- a day job, Stattner
asserted he was merely trying to "buffalo" and "bully" Presto,
On examination by his counsel, he testified that he had no shift
preference in 1973, and later, on examination by General
Counsel, he testified he would "have went, on nights," but
then indicated that he mentioned a day job to Presco be-
cause he had a day job at his interim employer, his family
situation had changed and he'd "like to probably stay on
days." There is a fictitious -quality about that episode, and
Stattner's entire testimony about it, as well as other parts
of his testimony, indicated to me a willingness on his part
to state whatever he believed necessary to sustain the back-
pay claim. I do not credit him as against Presco.
On the basis of the foregoing, I find that Stattner would
have been placed on the first shift August 11, 1969, and that
he would not have transferred to other shifts during the
backpay period. Accordingly, I find that a backpay formula
which utilizes earnings of platemakers on the second shift is
not reasonable and fair.
A formula which includes the earnings of second-and
third-shift employees having been found unreasonable and
unfair, what other formula may be utilized? One cannot uti-
lize the earnings of the platemaker employed by Alden Press
in lieu of Stattner, because Presco did not know who that was.
Respondent rightly asserts that an appropriate formula for
computing the backpay of a claimant is a comparable em-
ployee formula. Respondent contended initially that one Dar-
ras, the only first shift platemaker continuously employed by
Alden Press for the entire backpay period, was such a compa-
rable employee and that his earnings would-be an appropriate
measure of Stattner 's likely earnings. In its supplemental
statement, Respondent asserts that one Smetana is an even
more comparable employee, and that his earnings at least for
the beginning of the backpay period through the second quar-
ter of 1972 should be used as an appropriate measure of
Stattner's likely earnings, with the earnings of Darras being
used for the remainder of the backpay period. I do not agree.
Smetana is clearly not a comparable employee. A review of
General Counsel's Exhibit 2 and Charging Party's Exhibit 4
reveals a consistent disparity between his earnings and the
earnings of other first shift employees. In addition schedule
5, ALJ Exhibit 4 reveals that for some unexplained reason
during many weeks of the backpay period Smetana worked
less than full time. As Stattner was available for full time
employment during the entire backpay period, I conclude not
only that Smetana was not a comparable employee, but also
that his earnings should not be used in the backpay formula
herein found appropriate. -
As to the contention that Darras is a comparable employee,
apart from the fact that Darras was continuously employed
on the first shift during the entire backpay period, there is no
evidence on which to predicate a finding that he is a compara-
ble employee. True, in answer to a question which I asked,
Presco stated that Darras was comparable to Stattner. Actu-
ally my question was conclusionary in form and Presco's
affirmative answer added no facts to the record. There- is
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence of Darras' regular and overtime earnings during 4
weeks of the backpay period and Respondent has compared
those earnings to the regular and overtime earnings of other
first-shift platemakers. Respondent asserts that its compu-
tation reveals that the weekly average of regular hours
worked by first-shift employees for 4 weeks was less than
the weekly average of regular hours worked by Darras;,that
the first-shift average of overtime hours by first-shift
employees was only 45 minutes per week more that Darras'
average; and the double time hours virtually equal. I have
not made an independent analysis of Respondent's figures,
because I deem a comparison based on 4 weeks out of a
backpay period of 216 weeks to be completely unreliable.
Respondent also asserts Darras' comparability on the basis
of a comparison of his overtime hours for 4 weeks of the
backpay period with the overtime hours worked by Stattner
for his interim employer, Photo Press. I consider this com-
parison unreliable, not only because it rests on only 4 weeks
of Darras' work record, but also because I see no justification
for comparing Darras overtime at Alden Press with Statt-
ner's overtime at Photo Press. There is no evidence in the
record to indicate that Alden Press and Photo Press are in
any way comparable employers.
Next, Respondent asserts that Darras' comparability is
shown by a comparison of his quarterly earnings during the
backpay period against an average of all first shift platemak-
ers. According to Respondent's computation, such a com-
parison reveals that there exists only a 3-percent difference
between Darras' total earnings during the backpay period
and the average earnings of all first-shift platemakers. In
urging that such a discrepancy is minor, Respondent points
to approval of a formula in Golden State Bottling Company,
Ina, d/b/a Pepsi-Cola Bottling Company of Sacramento, 187
NLRB 1017 (1971), which had a 7.2-percent discrepancy.
I am not persuaded, however, that the considerations
which supported use of a comparable employee's earnings in
that case are present here. In that case, the comparison in-
volved salesmen and it is peculiarly appropriate to compare
salesmen on the basis of their rankings, that is, one top sales-
man with another top salesman. In this case, there is no
evidentiary basis for comparing Darras with Stattner other
than the limited earnings data in the record. Moreover, as
noted at page 1023 of the decision in Pepsi-Cola, the discrep-
ancy resulting from the use of a comparable employee was
justified in part because it was "the most accurate method
available short of involved calculations to eliminate the slight
bias favoring Respondents." A formula using the earnings of
all first shift platemakers employed during each quarter of the
backpay period and not only the earnings of Darras does not
require overly involved calculations. Moreover, given the
variables which may affect earnings such as availability of
overtime, willingness to work overtime and the possibility of
temporary shift transfers as substitutes for platemakers on
vacation or otherwise absent, a formula based on the earnings
of all first shift platemakers is less liable to -distortions at-
tributable to individual characteristics. For the foregoing rea-
sons, I reject Respondent's contention that the earnings of
Darras alone be used, and I find that it would be more appro-
priate and fair to measure the gross backpay due Stattner as
an average of the earnings of all first shift platemakers who
worked full time during each quarter of the backpay period.
Such a formula differs from that advocated by General
Counsel, and subscribed to by Respondent, of excluding
platemakers who did not work continuously during the entire
backpay period. The compliance officer's explanation for thus
limiting the representative group is, in my judgment, wholly
unjustified. Under that formula, excluded from consideration
are first-shift platemakers such as Blakemore who worked 16
quarters of the 17 quarters of the backpay period; Monzel,
who worked 14; Salemi, who worked 11; and Jacobs, who
worked 9. The inclusion of the earnings of these individuals
requires more work than does their exclusion, but the task is
a relatively simple one. True, if one attempted to include the
earnings of first-shift platemakers who were employed during
only part of a quarter, the computation could become un-
wieldly. But just as it is not necessary to restrict the formula
to one platemaker to arrive at a fair estimate of Stattner's
gross backpay, it is not necessary to use all first-shift plate-
makers and, in each quarter of the backpay period, I have
excluded from the computation which I am herein recom-
mending for adoption by the Board the earnings of those
first-shift platemakers who did not work the full quarter or
who did not work full time. In this connection, I note that it
is undisputed that Stattner was available for full-time employ-
ment throughout the backpay period.
Based on the foregoing, I conclude that Stattner is entitled
to gross backpay in accordance with the computation at-
tached hereto as Appendix A. The number and identity of
first shift platemakers in my computation have been taken
from Schedule 2, ALJ Exhibit 4 and differ somewhat from the
number and identity of those used by Respondent in making
comparisons. Thus, Respondent includes the following on the
first shift: Darras, Jacobs, Smetana, Salemi, Blakemore,
Monzel, Libertore, and Koch. I have already stated why I
have not included Smetana. I have not included Libertore and
Koch because Presco testified that at one period of time, not
specified, they were apprentices. I have excluded Tull for the
same reason.' Respondent does not include Ansley and nei-
ther have I. Presco described Ansley as a first-shift plate-
maker, but according to schedule 2, ALJ Exhibit 4, Ansley
was a third-shift platemaker who worked on the first shift for
only one quarter.
Schedule 6,'ALJ Exhibit 4 indicates that other platemakers
were employed on the first shift whose earnings I have not
included in my computation. They are Kaltenbach, Fillipp,
Van Antwerp, Campanelli, Favarillo, and Urban. I have not
included these individuals in my computations for any of the
quarters of the backpay period because no evidence was ad-
duced as to their earnings. None of them worked any appre-
ciable portion of the backpay period, and, while the earnings
of one or more of them could have been included for any full
quarter each was employed, inasmuch as the comparative
group includes three or more platemakers in all but one quar-
ter, I am persuaded their exclusion will not affect the average
earnings significantly. -
8 It should also be noted that there are discrepancies in the data submitted
regarding Koch, Libertore and Tull See G.C Exh. 2, schedules 1 and 2, ALJ
Exh 4.
CHICAGO LOCAL 245, GRAPHIC ARTS UNION 1119
Travel Expense
Throughout part of the backpay period, Stattner had in-
terim employment which required that he travel a longer
distance than would have been necessary had he been em-
ployed at Alden Press. Stattner travelled by private automo-
bile and the parties stipulated that the one way mileage from
his home at the time of the unfair labor practice to Alden
Press was 4.25 miles. The parties further stipulated that by
the route Stattner travelled the one-way mileage to his in-
terim employer, Photo Press Inc., was 18.8 miles. In October
1971, Stattner changed residence and the one-way mileage he
travelled to his interim employment was 17. 1 miles,
The backpay specification claims a deduction from interim
earnings for the additional travel incurred by Stattner on the
basis of 11 cents per mile of additional travel. Respondent
does not dispute that Stattner is entitled to a deduction for
additional travel, nor does it contest a rate of 11 cents per
mile. Respondent's disagreement with the claim is that it
contends that Stattner incurred unnecessary expense by not
travelling a more direct route to and from interim employ-
ment. For example, according to Respondent, a more direct
route to Photo Press from where Stattner lived at the time of
the unfair labor practice measured 16.6 miles instead of the
18.8 travelled; a more direct route to Photo Press from his
second place of residence measured 14.3 miles instead of the
17.1 travelled.
I do not agree with Respondent's contention that Stattner
is not entitled to an allowance for the actual mileage he
travelled. The mileage figures above show that the difference
in mileage between Stattner's choice of route and Respon-
dent's more direct route is so minor that it may fairly be held
that Stattner's choice of route, if not the most direct, was
neither arbitrary and capricious, nor was it unreasonable. If
is a matter of human experience that many factors enter into
an individual's choice in a matter such as this, including
traffic volume, the presence or absence of traffic controls,
familiarity with streets, and the like. (One route suggested by
Respondent was not used by Stattner because of a toll
charge.) For this reason, I conclude that the routes of travel
used by Stattner were reasonable and he is entitled to a deduc-
tion from interim earnings of the expense of travel to interim
employment which exceeded the expense he would have had
to travel to and from Alden Press. However, my computation
of his travel expenses does not conform to General Counsel's
computation in appendix A of the specification, which has
not been explained. Thus, for the August 1 to September 30,
1969, quarter, the specification claims an allowance of $66,
which represents 150 miles of excess travel per Week for 4
weeks. It appears, however, that Stattner was not employed
by Photo Press until about September 22, 1969, which would
mean that he only had 7 workdays in that quarter for a total
of 203 excess miles and an allowance of $22.33.
Respondent does not expressly so claim, but its brief sug-
gests that it is entitled to a credit for the period from August
1, 1969, to September 22, 1969, a period for which backpay
is claimed when Stattner did not have to travel to and from
Alden Press at a savings to him of 8.5 miles daily. Such a
savings to the claimant does not redound to the credit of the
Respondent; a credit is allowable only where the claimant
claims travel expense to his interim employer and in such
event the claimant is entitled to the difference between the
travel expense to his interim employer and the travel
expense to the employer from whom he was excluded. East
Texas Steel Castings Company, Inc., 116 NLRB 1336, 1342
(1956). As no claim for travel expenses has been made for
the period from August 1 to September 22,-1969, Respon-
dent is not entitled to a travel credit.
\ For the period beginning with the third quarter 1971, the
specification claims excess travel of 80 miles per week. As
noted above, Stattner had changed his place of residence on
October 1 and this appears to be why the specification claims
a travel allowance different from that in the preceding quar-
ters. However, there is no explanation of how 80 miles was
computed and according to my computation there was no
change in excess of travel as a result of Stattner's change of
residence., Footnote 9 of Appendix A sets forth, the applicable
mileage figures.
On March 29, 1973, Stattner changed his interim employ-
ment and the distance travelled to his new interim employer
was less than he would have travelled had he been employed
by Alden Press. The specification allowed a credit to Re-
spondent for the difference. This was error. East Texas Steel
Castings, supra.
The foregoing findings are reflected in Appendix A which
is attached hereto and made a part hereof.
II SUMMARY
Summarizing the foregoing, I conclude that Respondent's
obligation to make William Stattner whole shall be fulfilled
by payment to him of the total net backpay set forth and
computed in Appendix A.
On the basis of the foregoing findings and conclusions, I
recommend that the Board issue the following:
ORDER
Respondent, Chicago Local No. 245, Graphic Arts Inter-
national Union, its officers, agents, and representatives, shall
pay to William Stattner as net backpay $16,387.52, less any
tax withholding required by law, plus interest at the rate of
6 percent per annum in accordance with the formula pre-
scribed in Isis Plumbing & Heating Co„ 138 NLRB 716
(1962).