Famet, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1976

222 N.L.R.B. 1180 (N.L.R.B. 1976)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Famet, Inc. and International Association of Machin-
ists and Aerospace Workers, AFL-CIO, Local
Lodge No. 1327. Case 20-CA-7242
February 27, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
ORDER
On the basis of the Administrative Law Judge's
Supplemental Decision and the entire record in this
case, the National Labor Relations Board hereby or-
ders that the Respondent, Famet, Inc., Redwood
City, California, its officers, agents, successors, and
assigns, shall pay employee Ronald Rutledge, in-
volved in this proceeding, as net backpay the amount
determined to be due him by the Administrative Law
Judge in her attached Supplemental Decision.
On March 15, 1973, the National Labor Relations
Board issued a Decision and Order in the above-enti- '202 NLRB 409
tled case, finding that the Respondent had dis-
charged Ronald Rutledge in violation of Section
8(a)(3) and (1) of the National Labor Relations Act,
as amended, and requiring the Respondent to rein-
state Ronald Rutledge to his former or substantially
equivalent position and to make him whole for any
loss of pay suffered by reason of Respondent's dis-
crimination against him.' Thereafter, on February
12, 1974, the United States Court of Appeals for the
Ninth Circuit entered its judgment enforcing, inter
alia, the backpay provisions of the Board's Order .2
On May 1, 1975, the Acting Regional Director for
Region 20 issued a backpay specification and notice
of hearing, to which Respondent filed a timely an-
swer. On July 3, 1975, a hearing was held before Ad-
ministrative Law Judge Earldean V. S. Robbins for
the purpose of determining the amount of backpay
due Ronald Rutledge.
On September 19, 1975, the Administrative Law
Judge issued her Supplemental Decision, which is at-
tached hereto, in which she found Ronald Rutledge
was entitled to the amount of backpay therein set
forth. Thereafter, the Respondent filed exceptions to
the Supplemental Decision and a supporting brief.
The General Counsel filed a brief in support of the
Supplemental Decision.
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 reviewed the rulings made by the
Administrative Law Judge at the hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Administrative Law Judge's Supplemental Decision,
the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclu-
sions, and recommended Supplemental Order of the
Administrative Law Judge.
z 490 F 2d 293
SUPPLEMENTAL DECISION
EARLDEAN V. S. ROBBINS, Administrative Law Judge: On
March 15, 1973, the Board entered its Decision and Order'
in this matter in which it found that Respondent dis-
charged Ronald Rutledge in violation of Section 8(a)(1)
and (3) of the Act. The Board ordered Respondent, inter
alia, to make Rutledge whole for any loss of earnings suf-
fered as a result of his discharge. Thereafter, on February
12, 1974, the United States Court of Appeals for the Ninth
Circuit entered its judgment enforcing, inter alia, the back-
pay provisions of the Board's Order.2 A controversy having
arisen over the amount of backpay due under the terms of
the Order, on May 1, 1975, the Acting Regional Director
for Region 20 issued a backpay specification and notice of
hearing, to which Respondent filed a timely answer. The
matter was heard before me in San Francisco, California,
on July 3, 1975. Posthearing briefs were filed by General
Counsel and by Respondent.
The issues herein are: (1) What is the appropriate rate of
pay to be utilized in the backpay computations herein; (2)
whether, in determining the number of hours Rutledge
would have worked during the backpay period, a reduction
should be made based on his alleged pattern of absentee-
ism as contended by Respondent; and (3) whether the doc-
trine of laches should be applied herein based on the delay
in processing this matter following enforcement of the
Board's Decision and Order on February 1, 1974.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FACT
1. THE GROSS BACKPAY
Respondent admits that the backpay period begins on
November 13, 1971, and ends on April 30, 1974, as alleged
in the backpay specification; and also admits that an ap-
'202 NLRB 409 (1973)
2 490 F 2d 293 (C.A 9, 1973)
222 NLRB No. 190
FAMET, INC.
propriate measure of gross backpay is the total number of
hours it reasonably may be assumed Rutledge would have
worked for Respondent during the backpay period multi-
plied by the wage rates Respondent paid employees em-
ployed in Rutledge's job classification. However, Respon-
dent contends that the 40-hour week and the minimum of
$5.50 an hour journeyman machinist wage rate set forth in
the backpay specification are not appropriate for comput-
ing the gross backpay.
A. The Appropriate Measure of Rutledge's Hours
Specifically, Respondent alleges that Rutledge's absen-
teeism should be taken into account and that the appropri-
ate measure of his hours is his average workweek during
his employ by Respondent. In support thereof Respondent
relies solely on its payroll record for Rutledge which, ac-
cording to Respondent's computations, shows that an aver-
age of the hours worked by Rutledge during the course of
his employment by Respondent was 35.88 hours weekly.
However, there is a complete absence of evidence to estab-
lish that Rutledge was ever absent when otherwise sched-
uled to work. In fact, to the limited extent that a compari-
son of his workweek could be made with that of employee
Gerald Stout,' who admittedly did the same type of work,
the record establishes that in many instances they both
worked the same number of hours short of 40 hours a
week. In these circumstances, I find that Respondent has
failed to meet the burden of establishing that the amount
of backpay should be mitigated based on alleged absentee-
ism. The Rogers Mfg. Co., 164 NLRB 284 (1967); cf. Winn-
Dixie Stores, Inc., 170 NLRB 1734 fn. 2 (1968); Jack C.
Robinson, doing business as Robinson Freight Lines, 129
NLRB 1040; 1042 (1960).
Respondent does not dispute that, aside from his alleged
rate of absenteeism, and excluding certain short work-
weeks stipulated by the parties,4 Rutledge would have
worked a 40-hour week during the backpay period. Ac-
cordingly, I find that, except for the stipulated workweeks,
Rutledge's backpay should be computed on the basis of a
40-hour workweek as alleged in the backpay specification.
B. The Appropriate Rate of Pay
As to the appropriate wage rate, General Counsel con-
tends that backpay should be computed at the rate of $4.90
per hour up to and including June 30, 1972. Respondent
admits that at the- time of his discharge Rutledge's base
rate of pay was $4.90 per hour. However, Respondent con-
tends that 45 cents per hour of that rate was a special pre-
mium, above Rutledge's regular classification rate, paid to
him because of a meritorious suggestion on production
3 The complete payroll records for Stout are not in the record.
4 The parties stipulated that Respondent's employees worked the follow-
ing short workweeks during the backpay period
1181
made by him, and that such premium was to continue only
through the balance of the calendar year 1971. In support
thereof, Katshen testified that, to compensate Rutledge for
this suggestion, he gave him $50 and told him he would
receive a 45-cent-per-hour raise for the balance of the
year.5 However, Respondent's payroll records show only
that Rutledge received a wage increase to $4.90 per hour.
There is no notation indicating any limitation on this in-
crease.
Furthermore, the records show that Stout received a
wage increase on that same date and that Stout and Rut-
ledge both received wage increases on the same date in
1970. Also, Katshen admits that, in August 1974, he sub-
mitted to the Regional Office a report on Rutledge's earn-
ings which mentions the $50 award and the wage increase
but does not mention any limitation on the wage increase.
In the circumstances, I do not credit Katshen's testimony
that the wage increase was to be paid only to the end of
1971. Accordingly, I find that the appropriate rate of pay
for purposes of computing Rutledge's gross backpay from
November 13, 1971, to June 30, 1972, inclusive, is $4.90 per
hour.
On July 1, 1972, Respondent and the Union entered into
a collective-bargaining agreement which expired by its
terms on June 30, 1973. The agreement provides, inter alia,
for wage rates of $4.75 an hour for the production special-
ist classification 6 and $5.50 an hour for journeymen ma-
chinists. General Counsel contends that, but for his dis-
charge, Rutledge would have been paid no less than $5.50
an hour after June 30, 1972. Respondent contends that he
would have received the pay of a production specialist.
In support of General Counsel's position, evidence was
adduced to establish Rutledge's level of skill and Union
Representative Stephen Gatto testified that, if Rugledge
had remained in Respondent's employ, it would have been
the Union's position that he be classified as a journeyman
machinist. However, the evidence tends to support
Respondent's position. Thus Gatto testified that there are
two ways of becoming a journeyman-through a formal
apprenticeship program and through normal attrition in a
plant's operation and training without an apprenticeship.
As Gatto put it, it depends on the particular employer.
There is no dispute that Rutledge never completed an
apprenticeship program. It is also undisputed that, follow-
ing the execution of the collective-bargaining agreement,
none of Respondent's employees were classified as jour-
neymen machinists? Rutledge and Katshen agree that
Stout performed the same type of production work per-
formed by Rutledge. Stout had about 2-1/2 months less
seniority than Rutledge. Under the agreement, Stout was
classified as a production specialist and, went into training
for journeyman machinist.
5 Rutledge was not questioned on rebuttal with regard to this latter con-
tention of Katshen, so he does not specifically deny it, However, during the
presentation of General Counsel's prima facie case, he testified that, as he
recalls, he received the cash award after his rate of pay was increased to
November 14, 1971 36 hours $4.90 an hour
6November 21, 1971 36 hours The contract also provides for a lower beginning rate for inexperienced
January 2, 1972 24 hours employees with monthly progressions until the regular rate for the classifica-
January 9, 1972 36 hours tion is reached
7November 6, 1972 32 hours Only the foreman, Gary Staudt, was considered as a journeyman ma-
chinist.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the above circumstances, I reject General Counsel's
contention that Rutledge would have been classified as a
journeyman machinist . Rather, considering that they did
the same type of production work, that Rutledge had
slightly more seniority and received higher pay, and in pre-
vious years received raises at the same time , I conclude
that Rutledge would have been accorded the same treat-
ment as Stout ; i.e., that he would have been classified as a
production specialist and would have been assigned for
training as a journeyman machinist.
I further conclude that the pay increases granted Stout
are the most appropriate measure of the increases that
would have been received by Rutledge if he had remained
in Respondent's employ. However, the record is void as to
the amounts and dates of Stout's pay increases subsequent
to December 25, 1972. The only evidence as to his pay
thereafter is Katshen 's testimony that at the time of the
backpay hearing he was receiving $6.60 or $6.70 per hour
and had received that rate of pay for several months. Thus
it is clear that his wage rate was not restricted to the rate
for the production specialist classification.
Accordingly, I find that Rutledge's base rate of pay
should be adjusted upward to reflect wage raises at the
same time and in the same amount as received by Stout for
the period that such information is available in the record,
and that thereafter his base rate of pay should be adjusted
upward to reflect wage raises at the same time and in the
same amount as stipulated was received by employees in
the production specialist classification.
Respondent's payroll records show that Stout received a
25-cent-pay raise on July 1, 1972, and a 15-cent-pay raise
on December 25, 1972. The parties stipulated that the wage
rate for production specialists increased by 33 cents to
$5.08 an hour on July 1, 1973, and by 5 cents to $5.13 an
hour on January 1, 1974. I therefore find that, if Rutledge
had continued in Respondent's employ, his base rate of
pay would have been no less than $4.90 an hour from No-
vember 13, 1971, to June 30, 1972, inclusive; $5.15 an hour
from July 1, 1972, to December 24, 1972, inclusive; $5.30
an hour from December 25, 1972, to June 30, 1973, inclu-
sive ; $5.63 an hour from July 1, 1973, to December 31,
1973, inclusive; and $5.68 from January 1, 1974, to April
30, 1974, inclusive.
Also at issue is whether Rutledge would have received
premium pay as a leadman . I credit Rutledge 's testimony
that he was designated as leadman , that such designation
along with two others. was posted on the bulletin board,
and that he and the other leadmen were required to attend
biweekly meetings to discuss their respective areas of work
and to try to resolve problems. The collective-bargaining
agreement provides, in article V, section 3, that, when an
employee is specifically assigned as leadman, he shall re-
ceive not less than 10 percent above the rate of pay for the
highest classification led, or 5 percent above his own classi-
fication rate, whichever is greater.
Katshen denies that Rutledge was a leadman. However,
8 Katshen testified that Stout had reached the journeyman level within the
three months or to preceding the backpay hearing herein , but did not re-
ceive a pay increase at that time because he had received an increase shortly
before then.
I note that , in the original hearing herein, Katshen admit-
ted that Rutledge and some others were called leadmen 9
because they were key employees . In the backpay hearing
herein , Katshen admits to having only polisher leadmen. I
also note that Respondent 's records show that Mhael
Rogerson , who Katshen contends replaced Rutled , was
granted 10-percent premium pay above $4.75 an hour be-
ginning July 1, 1972, the date the collective-bargaining
agreement went into effect . Considering these and other
inconsistencies in Katshen's testimony and the demeanor
of both Katshen and Rutledge on the witness stand , I cred-
it Rutledge, who impressed me as an honest, forthright wit-
ness, and find that at the time of his discharge Rutledge
was designated as a leadman . In so doing, I am cognizant
of the conclusion of the Administrative Law Judge in the
original decision in this matter, that Rutledge was not, in
fact , a leadman.16 There are no facts set forth in the deci-
sion to support this conclusion , the conclusion appears to
be gratuitous , and the Administrative Law Judge found
that Rutledge was, in fact, one of the employees called
leadmen by Respondent.
What is material here is not whether Rutledge 's duties
and responsibilities would meet some objective standard
for a leadman but rather whether it is reasonable to assume
that Respondent and -the Union would have agreed that,
under the collective-bargaining agreement, he should re-
ceive leadman's premium pay. There is no way of knowing
definitely how this question would have been resolved, but,
since Katshen admits that some employees did receive
leadman premium pay, and since the uncertainty as to
Rutledge would not exist but for Respondent 's unlawful
conduct, the uncertainty must be resolved against Respon-
dent rather than against the backpay claimant. Southern
Household Products Company, Inc., 203 NLRB 881 (1973).
Accordingly , I find that Rutledge should receive the 5 per-
cent leadman bonus . Therefore, his backpay should be
computed at the rate of $4.90 an hour from November 13,
1971, to June 30, 1972, inclusive ; $5.40 an hour from July
1, 1972, to December 24 , 1972, inclusive ; $5.56 an hour
from December 25, 1972, to June 30 , 1973, inclusive; $5.91
an hour from July 1, 1973, to December 31, 1973, inclu-
sive; and $5 .96 -an hour from January 1, 1974, to April 30,
1974, inclusive.
C. Medical Expenses
The General Counsel computes medical expenses due
Rutledge in the amount of $198.09. Respondent admits
that at all times during the backpay period it maintained in
effect a prepaid group medical benefits plan at no expense
to its employees, but contends that General Counsel has
failed to estabhslr that the medical expenses incurred by
Rutledge would have been covered by said medical plan. I
find merit in this contention. Counsel for General Counsel
questioned Rutledge as to these expenses , but Rutledge
could not recall the dates these expenses were incurred.
The only testimony as to the nature of expenses was
Rutledge's general statement that they were medical and
9 202 NLRB 409, 414 (1973).
1 ° ld at 414.
FAMET, INC. 1183
dental. Neither the medical nor the dental plan was entered
into evidence. The only record evidence as to the coverage
under these plans is in the collective-bargaming agreement
which provides in article XV:
The Company offers a fully paid medical, hospital
and surgical insurance plan to all full time employees
The Company offers a fully paid dental plan to all
employees after-they have been two months, under the
medical plan.
No mention-is made in the agreement as to dependent cov-
erage.
Counsel for the General Counsel chose to rely solely on
certain medical and dental bills placed into evidence. Un-
fortunately, these bills fall to establish a prima facie case.
Basically there appear to be three separate bills. One is a
$19 bill for an emergency room visit and a laboratory
charge for Paula Rutledge from Harold D. Chope Commu-
nity Hospital dated November 30, 1972; the second and
third bills are not the initial bills and show neither the date
incurred nor the amount of expense incurred. They both
show only a balance and a notation that-the balance is over
90 days. One, from Jack G. Ikle, D.D.S., shows a balance
of $165 as of December 21. The year does not appear in the
date but there is a handwritten notation showing a pay-
ment on March 19, 1973. Later bills reflecting payments on
this amount seem to indicate that Rutledge was the patient.
The third bill shows a balance of $8.12 as of December 22
from Pardoe & Held Dental Corporation. There is no indi-
cation as to whether Rutledge or some member of his fam-
ily was the patient.
On the state of the record there is no evidence to estab-
lish that, but for the unlawful discrimination, Rutledge
would have received medical and dental benefits for his
dependents. Therefore, the $19 expense incurred by Paula
Rutledge is disallowed. On the record, it appears that there
was no dental coverage until at least September 1, 1972. It
is apparent from the dental bills that the expenses were
incurred prior to September 21, 1972, but there is no -evi-
dence as to exactly when they were incurred. In these cir-
cumstances, I find that General Counsel has not met his
burden of reasonably establishing that, had Rutledge re-
mained in Respondent's employ, these dental expenses
would have been paid under Respondent's dental plan.
Accordingly, the claim for medical and dental expenses is
disallowed.
II. NET BA-CKPAY
A. Alleged Willful Loss of Earnings
On or about April 19, 1973, Rutledge quit his interim
employment with North American Van Lines. Respondent
contends that Rutledge thereby incurred a willful loss of
earnings to the extent that subsequent employment- paid
less than he would have earned at North American. I find
no merit in this argument. Rutledge testified that he quit
his job at North American Van Lines because the job re-
quired extensive traveling throughout this country and
Canada, which led to domestic difficulties imperiling his
marriage. I find that Rutledge's reason for quitting was not
unreasonable. There is no contention that he removed him-
self from the job market or that he did not diligently seek
work elsewhere and, as a matter of fact, he did secure other
employment. Accordingly, I find that by-quitting his job at
North American Van Lines, Rutledge did not incur any
willful loss of earnings. Cf. Sam Tanksley Trucking, Inc.,
210 NLRB 656 (1974); Mansion House Center Management
Corporation, etc., 208 NLRB 684 (1974).
B. Offsets Against Interim Earnings
1. The union reinstatement fee
General Counsel claims that Rutledge is entitled to $100
paid for union reinstatement fee as an offset against inter-
im earning for the second quarter of 1973. Rutledge testi-
fied that union membership was-required as a condition of
his employment at Kliklock Corporation, and that he paid
a $100 reinstatement fee, the receipt for which was entered
into the record. Relying on Rutledge's testimony that he
had to pay the reinstatement fee because he had neglected
to obtain a withdrawal card from the Union, Respondent
contends that the Board's rule that discriminatees must
seek other employment in mitigation of damages would
require that an employee must request a withdrawal card
rather then incur damages in the form of reinstatement
fees. I know of no case law supporting this position. Even
as to interim employment, the employee is held only to
reasonable exertions, not the highest standard of diligence.
Mastro Plastics Corporation, 136 NLRB 1342, 1349, enfd.
345 F.2d 170 (C.A. 2, 1965), cert. denied 384 U.S. 972
(1966); NCIL.R.B. v. Miami Coca-Cola Bottling Co., 360 F.2d
569 (C.A. 5, 1966). Furthermore, this is an affirmative
defense and the burden is on- the Employer to prove that
Rutledge acted unreasonably. That burden has not been
met. Accordingly, I find that Rutledge's interim earnings in
the second quarter of 1973 should be offset by the $100 fee
paid for reinstatement into the Union.
2. Meals and lodging, etc. -
Rutledge testified that he incurred expenses for:meals,
lodging, and laundry during his employment by North
American Van Lines. Respondent argues that the expenses
in the amount of $750 for the fourth quarter of 1972 and
$850 for the first quarter of 1973 should be disallowed be-
cause there is no documentation to support the claims, and
they are, at best,-estimates or guesses. Even assuming that
they were, in part, estimates, there is nothing in the record
to indicate that they were unreasonable. Furthermore, Rut-
ledge credibly testified that he kept a notebook record of
his expenditures which he destroyed after compiling them
for income tax purposes, and that the expenses claimed
herein were taken from this record.
Credible testimony by the discriminatee that he incurred
the expense is sufficient to support the expense claimed,
and reasonable estimates are adequate. W. C. Nabors,
d/b/a W. C. Nabors Company, 134 NLRB 1078, 1100
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1961), enfd . 323 F.2d 686, 692 (C.A. 5, 1963). Rutledge
drove vans cross-country and in Canada, and he was away
from home for periods ranging from 3 days to 4 weeks. In
the circumstances I find that the amount of expenses
claimed is reasonable and such expenses are allowed as
offsets against interim earnings.
As to the expense incurred for the purchase of a crescent
wrench, it is well settled that the cost of tools required to
maintain interim employment is allowable . Rice Lake
Creamery Company, 151 NLRB 1113 (1965).
3. Driver's training program
General Counsel claims as an offset against interim
earnings the $595 cost of a driver's training program. Re-
spondent argues that it should not be allowed because (1)
truck driving is too far afield of-the machinist industry and
(2) that the-benefits Rutledge derived from this schooling
are something he will enjoy throughout his work life. Re-
spondent also points to the distinction ' drawn by the Inter-
nal Revenue Service between the deductibility of expense
for schooling to maintain one's present job and the nonde-
ductibility of school expenses to learn a completely new
skill or occupation. _
Neither General Counsel nor Respondent cites any cases
in specific support of their respective positions and I have
found no cases directly on point. However, I find merit in
General Counsel 's position . At the time Rutledge was em-
ployed by D & M Driveway Service, Inc., to deliver cars.
His employer suggested that Rutledge go to driver's school
so that he could drive trucks, and thus would be paid a
higher rate of pay by D & M. As a matter of fact, Respon-
dent benefited from this expense . It was this training that
enabled Rutledge to obtain a job at North American Van
Lines, a job which substantially decreased Respondent's
backpay obligation. In these circumstances , I find that, by
attending the driver's training program , Rutledge was mak-
ing an honest effort to increase his interim earnings , direct-
ly related to his then interim employment. I further find
that such effort was reasonable and did operate to
Respondent's benefit as well as Rutledge 's. Accordingly, I
conclude that Rutledge should not be penalized, nor
should Respondent be enriched thereby, and find that the
expense of the driver's training program is allowable as an
offset against interim earnings.
III. RESPONDENT'S CONTENTION AS TO ALLEGED DELAY IN
SETTLING THE BACKPAY ASPECT OF THIS MATTER
agree or controvert those stated , figures, even though re-
spondent may be completely lacking any knowledge neces-
sary to make an intelligent response to the request.
Respondent would thus hold General Counsel to a high-
er standard during the informal compliance stage prior to a
backpay hearing than that required by the Board and the
Courts during the formal backpay proceeding. I reject such
a contention . It is well settled that the finding of an unfair
labor practice is presumptive proof that some backpay is
owed, N.L.R.B. v. Mastro Plastics Corp., supra, 178, and
that in a backpay proceeding the sole burden on the Gen-
eral Counsel is to show the gross amounts of backpay
due-the amount the employee would have received but
for the employer's illegal conduct . Virginia Electric & Pow-
er Co. v. N.L.R.B., 319 U.S. 533, 544 ( 1943). Once that has
been established , "the burden is upon the employer to es-
tablish facts which would negative the existence of liability
to a given employee or which would mitigate that liability."
N.L.R.B. v. Brown & Root, Inc., et al., 311 F.2d 477, 454
(C.A. 8, 1963). That the General Counsel goes further, pur-
suant to Section 102.53 of the Board 's Rules and Regula-
tions, and includes in the backpay specification a deduc-
tion from gross backpay of all those amounts in mitigation
which he discovered through personal interviews , social se-
curity records, etc., does not mean that General Counsel
thereby assumes the burden of establishing the truth of all
the information supplied or of negativing matters of de-
fense or mitigation . N.L.R.B. v. Brown & Root, Inc., supra.
Accordingly, I find Respondent 's contention without mer-
it.
Although Respondent's brief appears to define its posi-
tion as different from a laches contention, its answer as-
serts as an affirmative defense that the backpay specifica-
tion should be dismissed because of the delay in the
proceedings herein following the enforcement of the
Board's Order on February 21, 1974. I find no merit in this
defense . This is a proceeding to vindicate public , not pri-
vate, rights. Its purpose is to restore the status quo, and
even assuming that the delay was inordinate, the Board is
not required to place the consequences of its own delay
upon the wronged employees to the benefit of the wrong-
doing employer. N.L.R.B. v. J. H. Rutter-Rex Manufactur-
ing Co., Inc., et al., 396 U.S. 258 (1969); W. C. Nabors,
d/b/a W. C. Nabors Company v. N.L.R.B., 323 F.2d 686
(C.A. 5, 1963 ), cert . denied 376 U.S. 9, 11.
Upon the foregoing findings of fact and the entire rec-
ord, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
Respondent contends that the backpay specification
should - be dismissed in its entirety because the Regional
Office refused to provide Respondent with substantiating
evidence in support of the amount alleged in the backpay
specification as owed Rutledge . Insofar as I can under-
stand Respondent's position, he is not arguing any specific
misconduct on the part of General Counsel or the Regional
Office in the instant matter, -or, if so, there is no evidence to
support such a contention . Rather, Respondent is arguing
essentially that it is unfair for the Board , in its backpay
administrative procedures , to present a bill to a respondent
with no supporting data and demand that the respondent
ORDER II
Respondent , Famet, Inc., Redwood City, California, its
officers, agents, successors, and assigns , shall make Ronald
Rutledge whole by payment to him of the sum of
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 10248 of the Rules and Regulations , be adopted by the-Board
and become its findings , conclusions , and Supplemental Order, and all ob-
jections thereto shall be deemed waived for all purposes
FAMET, INC. 1185
$5,808.4612 with interest at 6 percent per annum as pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), less tax withholdings as required by law.
12 An appendix showing the manner in which this sum was computed is
attached hereto
APPENDIX
YEAR QUARTER GROSS
BACKPAY
INTERIM
EARNINGS
DEDUCTIBLE
EXPENSES
NET INTERIM
EARNINGS
NET
BACKPAY
1971 IV $1332.80 $162 .00 1/ -0-_ $162.00 $1170.80
1972 I 2450 .00 1397.06 2/ $604.78 792.28 1657.72
1972 II 2548 .00 1921.25 2/ -0- 1921.25 626.75
1972 III 2808 . 00 1466 . 25 2/ -0- 1466 . 25 1341.75
1972 IV 2771.20 3318. 00 750.00 2568 .00 203.20
1973 I 2891 . 20 3061.00 850 . 00 2211.00 680.20
1973 II 2891 . 20 3074 . 81 4/ 100 .00 2974.81 -0-
1973 III 3073 . 20 3528 . 21 -0- 3528.21 -0-
1973 IV 3073 . 20 3388 . 66 5/ -0- 3388.66 -0-
1974 I 3099 . 20 3158 . 50 -0- 3158.50 -0-
1974 II 1048 . 96 920 . 92 -0- 920.92 128.04
$5808.46
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James Rankin Bail Bonds.
D & M Driveway Service, Inc.
North American Van Lines
North American Van Lines ; Klikiock Corporation ; El Camino Towing Company
Kliklock Corporation; El Camino Towing Company
Kliklock Corporation