Flora and Argus Construction Co.

National Labor Relations Board - Board Decisions

Nov 6, 1964

149 N.L.R.B. 583 (N.L.R.B. 1964)

FLORA AND ARGUS CONSTRUCTION COMPANY 583
Flora Construction Company and Argus Construction Company
d/b/a Flora and Argus Construction Company and Casper
Building and Construction Trades Council , AFL-CIO. Case
No. 27-CA-789 (formerly 30-CA-789). November 6, 1964
SUPPLEMENTAL DECISION AND ORDER
On August 7, 1961, the Board issued a Decision and Order in the
above-entitled case, 132 NLRB 776, which was enforced by the U.S.
Court of Appeals for the Tenth Circuit by a decree entered on
December 7, 1962, 311 F. 2d 310. Thereafter, on May 31, 1963, a
backpay specification and appropriate notice was issued by the
Regional Director for Region 27.1 Respondent Flora Construction
Company, hereinafter referred to as Flora, Bled an answer thereto on
July 10. Counsel for the Regional Director, referred to herein as
the General Counsel, thereupon filed a motion to strike Flora's an-
swer to the backpay specification and for summary judgment in
accordance with the specifications. The General Counsel's motion was
referred to Trial Examiner Maurice Miller for disposition, and, on
August 9, 1963, he issued an order granting in part and denying in
part the General Counsel's motion to strike, denying the motion for
summary judgment, and reserving some questions for ruling by the
Trial Examiner who was to conduct the supplemental hearing. On
August 12, 1963, Flora filed an answer to the General Counsel's
motion to strike and for summary judgment, in which it requested
that the motion be denied and that the entire matter be dismissed.
The next day, when the hearing on the backpay specification
opened before Trial Examiner David F. Doyle, Respondent filed a
document which was admitted as an exhibit in which it attacked the
basis of computation of the amounts alleged to be due and repeated
other contentions and arguments previously made.
At the hearing Trial Examiner Doyle refused to permit litigation
of those issues raised by Flora's answer which had been stricken by
Trial Examiner Miller's order. The hearing was therefore limited to
litigation only of those issues which Trial Examiner Miller had re-
served for disposition at the, hearing.
On October 3, 1963, Trial Examiner Doyle issued the attached
Supplemental Decision finding as to the issues reserved for his dis-
position that Flora's backpay obligation to Samuel K. Wilson was
tolled by its offer of employment on February 12, 1960; that Re-
1 Service of process could not be effected on Argue Construction Company, which appears
to have gone out of business in the meantime . However, service on the joint venture was
effected by service on the other constituent company, Flora Construction Company.
149 NLRB No. 56.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's offer of a position to Vincent Jahner in Las Vegas,
Nevada, was not reinstatement to his former or substantially equiva-
lent position; and that D. R. McCaslin was entitled to backpay dur-
ing the 2-week period in which there was no replacement employee
who performed any work in McCaslin's job classification. As Re-
spondent's answer to the backpay specifications concerning the other
four discriminatees-Bolan, Cuddy, Schuchardt, and Sutton-had
already been stricken, the Trial Examiner recommended that specific
amounts of backpay be awarded to the discriminatees in accordance
with the backpay specifications, as modified, with respect to Wilson.
Thereafter, Flora filed exceptions to Trial Examiner Miller's order of
August 9, 1963, and to Trial Examiner Doyle's Supplemental Deci-
sion of October 3, 1963, together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch, Members Leedom and
Jenkins].
The Board has reviewed the rulings of Trial Examiner Doyle
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the order of Trial Examiner Miller, granting in part and denying in
part the General Counsel's motion to strike Respondent's answer to
the backpay specifications, Trial Examiner Doyle's Supplemental
Decision, and the entire record in this case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of both Trial Examiners with the following additional
comments :
Trial Examiner Doyle who presided at the hearing did not admit
any testimony or consider any arguments with respect to those issues
which Trial Examiner Miller had disposed of in striking portions of
the Respondent's answer to the backpay specifications. As Respond-
ent has filed exceptions both to the Supplemental Decision and to
Trial Examiner Miller's order, we shall consider the merits of Re-
spondent's arguments as to both documents. Respondent asserts that
it has been denied an opportunity to present evidence at the hearing
on what it considers to be the merits of this controversy. However,
as Trial Examiner Miller correctly notes in this Order, many of
Respondent's contentions are in support of its argument that most of
the discriminatees are not entitled to any backpay because they were
incompetent or incapable of performing work which had to be done
after their discharges or because no one had been hired as their spe-
cific replacements. To the extent it now asserts incompetence as the
reason for the termination of the discriminatees, Respondent quite
clearly was not entitled to introduce testimony or to reargue its con-
FLORA AND ARGUS CONSTRUCTION COMPANY 585
tentions, since these,matters were fully considered by the Board in
its original Decision, were also reviewed by the court, and are now
res adjudicata.
However, Respondent also argues that because of the alleged in-
competence of the discriminatees, they would not have been retained
even absent discrimination, since they did not have the capability for
performing the jobs which had to be filled at the Respondent's con-
struction projects. Thus, the Respondent asserts that a single job
classification such as laborer or millwright covers a multitude of
skills and that the discriminatees, although they may have been capa-
ble of performing the simpler aspects of such jobs, were not capable
of fulfilling the more skilled requirements included within the same
general job description. The answer to this argument is simply that
there is now no way to verify its truth or accuracy. The seven dis-
criminatees were hired and were paid to carry out the duties assigned
to them, and were terminated, not for failure to perform satisfac-
torily, but for discriminatory reasons. Except for McCaslin, Re-
spondent made no attempt to test its asserted reason that the discrim-
inatees did not have the capability for working out satisfactorily on
the remaining work at the project. It is true that the Act imposes no
obligation on an employer to retain an inefficient employee or one
who is incapable of carrying out assigned duties. But where, as here,
an employer has unlawfully discharged employees, foreclosing the
opportunity its discharged employees would otherwise have had to
demonstrate their fitness for future tasks and thereby precluding a
reliable determination of their future suitability, the employer is
scarcely in a position to assert that it would not have continued to
utilize such employees on jobs within their classification even in the
absence of discrimination.
Respondent's second major argument against the backpay specifica-
tion is that it is under no obligation to reimburse any discriminatee
unless the General Counsel can establish the identity of his particular
replacement as well as an exact equivalence of jobs and skills between
the discriminatee and such replacement. It may be true, as Respond-
ent contends, that work on a construction project is not wholly com-
parable to work in an industrial plant where job classifications are
defined and an employee is limited to a particular range of skills.
However, construction employees are also assigned to a particular
job classification at a fixed rate of pay, and we are entitled to assume
that two employees in the same job classification, paid at the same
rate, are roughly comparable in skills and may be interchanged with
respect to their assigned duties. Nor is it necessary for the General
Counsel to establish that a discriminates has been replaced by a par-
ticular named individual. An employer may-reassign employees,
reschedule particular aspects of the work to be done, and make other
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes which enable him to obtain the quantum of work needed, by
a variety of means. As long as the General Counsel establishes, as he
had done here, that work remained to be done in the classifications
to which the discriminatees had been assigned, he has established
prima facie that but for the discrimination the terminated individ-
uals would have been retained. We are satisfied in this case that
Respondent's answer to the backpay specification does not support its
contention that there would have been no work which these discrimi-
natees could have done at its construction project.
As for Wilson and McCaslin, Respondent also makes the argument
that they were laid off because material on which they were to work
was unavailable, and that they were reoffered their jobs as soon as
such material could be obtained. Here again Respondent attempts to
relitigate what the Board and the Court of Appeals have already
decided-that Wilson and McCaslin were laid off not because of lack
of materials, but because of their activities on behalf of the Charging
Union. We are again asked to speculate whether Wilson and Mc-
Caslin would have had work to perform for the short periods of
their layoffs if they had not been laid off for discriminatory reasons.
In determining the amount of backpay due the discriminatees, it is
the position of the Board that approximation of the -loss to such
individuals by reasonable methods is sufficient, and that the formula
based on proportionalizing backpay and interim earnings which
Trial Examiner Doyle adopted here is proper where it is impossible
to determine the exact conditions which would have prevailed in the
absence of the discrimination. The Board's right to exercise broad
discretion in matters of this nature has been upheld by the courts.2
ORDER
On the basis of Trial Examiner Miller's order and Trial Examiner
Doyle's Supplemental Decision and the entire record in this case, the
National Labor Relations Board hereby orders that the Respondents,
Flora Construction Company and Argus Construction Company,
d/b/a Flora and Argus Construction Company, their officers, agents,
successors, and assigns, shall pay to the discriminatees involved in
this proceeding as net backpay the amounts set forth opposite their
names in the concluding findings of Trial Examiner Doyle in the
attached Supplemental Decision.
2 N.L.R.B . v. Ozark Hardwood Company , 282 F. 2d 1 (^C.A. 8).
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This supplemental proceeding was heard by Trial Examiner David F. Doyle
in Denver, Colorado, on August 13, 14, and 15, 1963, on a specification of
the General Counsel and the answer of Flora Construction Company, herein
FLORA AND ARGUS CONSTRUCTION COMPANY 587
called Flora. The purpose of the proceeding was to determine the amount of
backpay due and owing seven named discriminatees under an order of the Board
in the above-captioned matter. At the hearing the parties, who appeared as
noted above, were afforded a full opportunity to examine and cross-examine wit-
nesses, to introduce evidence, to present oral argument, and to file briefs presenting
their respective contentions.
Upon a consideration of the entire record in this supplemental proceeding,
and the Board's Decision and Order in Flora Construction Company and Argus
Construction Company, d/b/a Flora and Argus Construction Company, 132 NLRB
776, of which I take judicial notice, I make the following:
FINDINGS AND CONCLUSIONS
A. The prior unfair labor practice proceeding
On March 13, 1961, after a hearing in which all parties were represented
by counsel, Trial Examiner Maurice M. Miller issued his Intermediate Report
finding that Flora Construction Company and Argus Construction Company,
Wyoming corporations, doing business as a joint venture, were employers en-
gaged in commerce within the meaning of the Act, and were guilty of unfair
labor practices, in violation of Section 8(a)(3) of the Act, directed at seven
named employees.' Trial Examiner Miller recommended that the Respondents
offer the employees named immediate and full reinstatment to their former
or substantially equivalent positions without prejudice to their seniority or other
rights and privileges and make them whole for the loss of wages caused by
the Respondents' discrimination against them.
On August 7, 1961, the Board issued its Decision and Order affirming the
Trial Examiner's Intermediate Report and Recommended Order. The Board's
Decision and Order likewise directed that six of the named employees be offered
immediate and full reinstatement and that they be made whole for any loss of pay
suffered because of the discrimination against them . As to McCaslin, the Board
did not' order reinstatement but specifically ordered that he be made whole for
any loss of pay suffered between December 11, 1959, and January 12, 1960.2
Thereafter, the General Counsel sought enforcement of the Board's order by
the United States Court of Appeals, Tenth Circuit. On December 7, 1962, the
court entered its decree,$ directing enforcement of the Board's Order. The court
found that under , its rules, Walter W. Flora, president and stockholder of Flora
Construction Company, could not appear on behalf of the corporation since he
was not 'a member of the bar, and, after an examination of the record, the
court stated that it was satisfied that the Board's Order was supported by proper
findings and was in accordance with the statute.
B. The instant proceeding; default by Argus
At this point it should be noted that, by the terms of the Board's Order
and the court's decree, Flora Construction Company, herein referred to as Flora,
and Argus Construction Company, herein referred to as Argus, d/b/a Flora
and Argus Construction Company,. are each, together with their respective officers,
agents, successors , and assigns , jointly and severally, obligated to comply with
the terms of the Board 's Order and the court's decree . It should also bey noted,
in this connection, that all Respondents were represented by counsel before Trial
Examiner Miller in the unfair labor practice proceeding. However, after issuance
of the Board's Order, Argus Construction Company appears to have vanished
from the business scene and thereafter did not participate in the various appeals
in the unfair labor practice proceeding.
At the instant hearing , the representative of the General Counsel stated -that
diligent search and inquiry had been made to ascertain the whereabouts of Argus
or its officers and that they could not be found. In the instant proceeding,
a copy of the backpay specification addressed to Argus Construction Company
was mailed to the home of Walter W. Flora, formerly president of Flora Construc-
tion Company. On prior occasions service had been effected on Argus by the
1 Steve Bolan , Jack Cuddy , Vince Jahner, Samuel K . Wilson , Herbert Schuchardt, Jerry
Sutton, and D . R. McCaslin.
S This Decision and Order of the Board has been mentioned above and is reported at
132 NLRB 778.
8 N.L.R.B. v. Flora Construction Company and Argue Construction Company, d/b/a
Flora and Argue Construction Co., 811 F. 2d 810.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mailing of papers to the same address and the acceptance of such papers by
Flora. On this occasion, however, receipt of the specification and notice of hear-
ing was refused and the papers were returned to the General Counsel by the
post office department. The representative of Flora at the instant hearing stated
that Flora could not locate either Argus Construction Company or its officers,
and refused to accept service for them. The Trial Examiner then ruled that
the service of process upon Argus and Flora in the prior proceeding and their
participation in the unfair labor practice bearing rendered both companies subject
to the jurisdiction of the Board in this supplemental proceeding, since the instant
proceeding is a continuation of the prior proceeding for the specific purpose
of effecting compliance with the Order of the Board and the decree of the
court. The Trial Examiner then ruled that Argus was in default in this proceed-
ing and as to it, the General Counsel was entitled to summary judgment, but
he limited the liability of Argus to such liability as might be imposed upon
Flora, after a consideration of all the evidence in this supplemental proceed-
ing. Thereafter, the instant hearing proceeded with Flora, alone of the Respond-
ent's, participating.
It is undisputed that Respondents have failed to comply with any of the provi-
sions of the Board's Order and have specifically failed to comply with the backpay
provisions, and that a controversy has arisen over the amounts of backpay due
under the terms of the Board's Order. It is likewise undisputed that on May 31,
1963, the Regional Director of Region 27, pursuant to Section 102.52, 102.59,
of the Board's Rules and Regulations, Series 8, as amended, issued and caused
to be served upon Flora a backpay specification and notice of hearing for July 9,
1963. Thereafter the hearing was duly continued until August 13, 1963,
at Denver, Colorado.
C. The answer of Flora and the General Counsel's motion to strike
On July 10, 1963, Flora, by Mildred L. Flora, secretary-treasurer, filed with
Region 27 an answer to the backpay specification.
On July 31, 1963, W. Bruce Gillis, Jr., on behalf of the Regional Director
for Region 27, filed a motion to strike Flora's answer to the backpay specification
and for summary judgment in accordance with the aforesaid specifications. The
motion to strike Flora's answer was based on the alleged failure of Flora's
answer to meet the requirements of Section 102.52 through 102.59 of the Board
Rules. This motion to strike the answer and for summary judgment was referred
to Trial Examiner Maurice M. Miller, who, on August 9, 1963, issued an order
granting in part and denying in part the General Counsel's motion to strike,
and denying General Counsel's motion for summary judgment. This order also
reserved some questions for a ruling by the Trial Examiner conducting the
supplemental hearing.
D. The backpay hearing; the pretrial conference
On August 13, 1963, the hearing on the backpay specification and answer
of Flora came on regularly to be heard before this Trial Examiner at Denver,
Colorado. The parties were represented at the backpay hearing by the representa-
tives whose appearances have been listed above.
At the opening of the hearing , the Trial Examiner stated that he wished
to conduct a pretrial conference on the record with the representatives of the
parties ( 1) to ascertain , by joint study, what issues remained to be litigated,
since much of Flora's answer had been stricken by Trial Examiner Miller's order
dated August 9, 1963, and (2) to rule on those specific questions which Mr.
Miller's order reserved for disposition by the Trial Examiner who conducted
the hearing. The representatives of the parties cooperated in this endeavor, where-
by the backpay specification, the answer, the motion, and Mr. Miller's order
were analyzed, paragraph by paragraph. In the course of the pretrial conference
on the record, the Trial Examiner, after hearing the arguments of counsel,
ruled on the remaining questions raised by the motion to strike.
E. The issues
At the close of the pretrial conference on the record, the Trial Examiner
stated that those portions of Flora's answer which had not been stricken pursuant
to motion presented only three specific issues. These issues are embodied in
the following questions:
FLORA AND ARGUS CONSTRUCTION COMPANY 589
1. Was Respondent's backpay obligation to Samuel K. Wilson tolled by Respond-
ent's offer of employment to Wilson on February 12, 1960?.
2. Was Respondent's backpay obligation to Vincent Jahner tolled by Respond-
ent's offer of employment to Jahner in April 1960 or March 1961?
3. Is Respondent required to make whole D. R. McCaslin in view of the
fact that during McCaslin 's backpay period (a period of 2 weeks ) there was
no replacement employee in McCaslin 's job classification?
F. The evidence on the issues
The parties agreed to certain stipulations of fact as to the issues outlined
above . The stipulations are as follows:
1. Samuel K . Wilson
It was stipulated by the parties that Respondent 's Exhibit No. 2 correctly stated
the facts as to an offer of employment made to Wilson . This document reads
as follows:
Respondent , on February 12, 1960 , sent to Mr . Samuel K . Wilson, 1708
S. Chestnut Street , Casper, Wyoming , a registered letter , which was received
by Mr. Wilson on the 13th, as evidenced by his signature on the return
receipt, which read:
We are expecting to receive some of the screwed pipe over this week-
end. We are intending to hire some pipefitters for this work. Our
scale is $3 .42-1/2 for pipefitting work . If you are interested in the
work at the Fremont Canyon Powerplant , it would be desirable that
you start work Monday morning , February 15, 1960 . Please contact
our office in Casper and let us know your desire in this regard.
Very truly yours,
FLORA CONSTRUCTION COMPANY'
ARGUS CONSTRUCTION COMPANY
Walter W. Flora.
Wilson did not accept the employment offered.
The General Counsel conceded on the record that the rate of pay of the
job offered to Wilson was the same as his former position and the place of
employment was the same.
2. Vincent Jahner
The parties stipulated that the facts set forth in Respondent's answer and in
Respondent 's Exhibit No. 2 in evidence presented a true statement of fact in
regard to the offers of employment made to Jahner . The pertinent portion of
the answer reads as follows:
Jahner's principal experience had been as a backhoe operator with Flora
Construction Company, and he was "borrowed " for this 'joint venture from
his regular employment at Las Vegas, Nevada. Jahner was offered employ-
ment as backhoe operator in Las Vegas, April, 1960 . He refused , stating
he was permanently employed with a house mover in Casper . He was again
offered employment as a backhoe operator in Las Vegas in March, 1961,
which he refused on the basis his employment with the house mover was
steady.
Respondent's Exhibit No. 2 4 has the following reference to the offers of employment:
If. C. The wage , classification rate for a backhoe operator on the job
that was offered to Jahner in 1960 , and again in 1961, was as an equipment
operator , for which the Davis -Bacon scale was $3 .81. This type of equipment
operator , variously termed and described in respondent 's Answer as "backhoe
operator" was in no way similar to the crane operator position which Jahner
had previously occupied at this power plant. -
Counsel for the parties also stipulated that Jahner's rate of pay as a crane
operator was $3.04 per hour and as a laborer was $1 . 875 per hour, and that
the Davis -Bacon scale of pay for the job which was offered to Jahner was $3.81
per hour. '
* Page 4 of exhibit
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. D. R. McCaslin
The resolution of this issue was submitted by the parties on the record without
additional evidence.
CONCLUDING FINDINGS
As noted above, certain contentions of Flora as to its backpay liability were
first raised in the instant proceeding. At the hearing the General Counsel and
the representative of Flora stipulated to certain facts involving the offer of employ-
ment to Wilson, which stated in brief that the Company had offered Wilson
employment in the same job classification, at the same rate of pay, and at the
same location. This job offer was received by Wilson on February 13, 1960,
with the employment to start on Monday; February 15, 1960. Wilson refused
the employment offered.
In his brief herein, the representative of the General Counsel with commendable
frankness and fairness stated that -under the- circumstances it appeared to -him
that the Company had tolled its backpay. , liability to Wilson by this offer of
reinstatement to Wilson's former position. As authority for his position in this
matter, the General Counsel has cited certain authorities .5 Consistent with the
General Counsel's new position, he amended, the specification in, his -brief to
eliminate any claim for, backpay'Feyon'd'February''15, 1960, the date-upon- which
Wilson was to report for- work -under the" terms of Respondent's offer. After
a review of all the evidence on this point, I agree that' the General 'Counsel's
new'position is•factually and legally correct.'
Therefore, in accordance- withr the amended specification , it is found that the
total: amount of backpay due Samuel-K. _Wilson by'the Respondents, pursuant
to the Order of the Board and the decree of the court, is, prior to• applicable
tax deductions, the sum of $344.72. 1 '
Vincent Jahner: Counsel for the parties- stipulated the circumstances under which
the Company made two offers of employment to Jahner. It is the position of
the General -Counsel that these job offers were not sufficient to comply with
the, terms of the Board's Order and the court's decree and thus toll the Company's
liability for backpay due Jahner.
From an analysis of the job offers it seems clear that the offer of employment
in Las Vegas, Nevada, rather than at the jobsite in Casper, Wyoming, would
have required Jahner to move a substantial distance (approximately 800- miles)
in order to accept the employment. While it is true that Jahner had previously
lived in Las Vegas, Nevada, it seems apparent that at the time of both offers
of reemployment in April 1960 and March 1961 he was a resident of Casper,
Wyoming. Therefore, it would seem to follow that an offer to Jahner of
employment at Las Vegas, Nevada, was not "reinstatement to his former, or
substantially equivalent position." Furthermore, from the entire record it'appears
that both offers of reemployment to Jahner were made at times when the employers
were still employing other employees in Jahner's job classification of "laborer"
and/or "crane operator."
The Board had a similar case before it in The Chase National Bank of the
City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, ' at page
829. In that case the Board wrote:
The Act is remedial in nature and our affirmative orders, made pursuant
to Section 10(c) thereof, are designed to effectuate the policies of the
Act. To that end, our reinstatement order in the instant case , as in all
cases, envisages "a restoration of the situation , as nearly as possible, to
that which would have obtained but for the employer's illegal discrimina-
tion."4 Thus, where a discriminatee's former position is in existence as of
the date of our Order, the restoration of the status quo requires that the
employer reinstate him to that position, . . . However, in order to meet
a contingency where reinstatement to the former position may not be possible,
paragraph 2(a) makes the alternative provision for reinstatement to a substan-
tially equivalent position. This contingent method of complying with our
'Phelps Dodge Corp. v. N.L.R .B., 313 U.S. 177,194; N.L.R.B. V. Remington Rand,
Inc., 94 F. ( 2d) 862, 872, cert . denied 304 U. S. 576.
5 Eastern Die Company, 142 NLRB 601 ; Research Designing Service, Inc., 141 NLRB 211.
FLORA AND ARGUS CONSTRUCTION COMPANY 591
reinstatement order was not designed to give the employer a choice as
to positions to be offered; on the contrary it was specifically intended thereby
to impose a continuing obligation on the employer to restore the status
quo as nearly as possible when it is not possible to restore the absolute
status quo. Thus, consistent with the remedial purposes of the Act, reinstate-
ment orders, like paragraph 2(a) of the Order herein, are, and always
have been, interpreted by us to require restoration of the discriminatee to
his former position wherever- possible, but, if such position is no longer
in existence then to a substantially equivalent position.
Upon the basis of all the evidence, it is found that the employer's two offers
of reemployment were not the immediate and full reinstatement to his "former
or substantially equivalent position," which-was directed by the Board's Order.
Therefore, I' find that Jahner is ' entitled to be awarded full backpay as set
forth in the specification,; which. is, prior to applicable tax deductions, the
sum of $1,746.58. - -
D. R. McCaslin: - The sole' question in regard to backpay for McCaslin is
whether he, should, receive no backpay; as, contended by Flora, because' during
his backpay period (December 11, 1959, to January 12, 1960) there was no
replacement employee who - performed any 'work in McCaslin's job classifica-
tion. There is no dispute as to McCaslin's rate of pay and hours worked, and
it--appears ,that the specification sets forth an obviously reasonable formula for
compensating McCaslin. The only peculiarity' about ' McCaslin' s case is that no
employee replaced him during the backpay, period. However, it appears from
the, terms of the Board's Order that it had this situation in mind when it awarded
backpay to McCaslin: Apparently, the ' Board 'was - familiar with • the facts as
to McCaslin, including the fact that no electrical work was - performed during
his backpay period; Notwithstanding this situation, the Board ordered McCaslin
to be made whole, although without reinstatement. The Board's discretion in
the fashioning of backpay remedies is very broad and the Board has frequently
awarded backpay in, situations where there were no replacement employees present
to be used as a standard for computation 6 -
Upon all the evidence, it is found that McCaslin is entitled to the - award
of backpay set forth in the specification,- which is, prior to applicable tax deduc-
tions, the sum of $403.20.
The above findings dispose of the, only - issues raised by such portions of
Flora's answer which were not stricken on motion by either Trial Examiner
Miller in his order of August 9, 1963, or by the Trial Examiner at the hearing.
In that posture of the case, the General Counsel is entitled to a decision
awarding backpay to the other discriminatees in accordance with the computations
contained in the specification. Upon a review of the specification , I find the
computations to be accurate and in accordance with Board precedent in all respects.
Therefore, upon all the evidence, I find that the Respondents, Flora Construction
Company and Argus Construction Company, d/b/a Flora and Argus Construction
Company, are each jointly and severally obligated to pay, by virtue of the
Board's Order and the court's decree, to the discriminatees named below the
sum of money set opposite each name . Said sums are each subject to applicable
tax deductions required by Federal and State laws. ,
Name: Net backpay
Bolan, Steve-------------------------------------- $2, 347.47
Cuddy, John R------------------------------------ 1,558.36
Jahner, Vincent----------------------------------- 1,746.58
McCaslin, D. R----------------------------------- 403.20
Schuchardt, Herbert 0------------------------------ 2, 529.86
Sutton, Jerry M----------------------------------- 2,931.61
Wilson, Samuel K--------------------------------- 334.72
It is recommended that the Board adopt the foregoing findings and conclusions
and take such action in the premises as it deems appropriate.
e Philadelphia Marine Trade Association and its Members , 138 NLRB 737; Missouri
Transit Company and its President, P. W. Fletcher, 116 NLRB 687; Darlington Manu-
facturing Company et at., 139 NLRB 241; Esti Neiderman at al., doing business as Star
Baby Co., 140 NLRB 678.