Florsheim Shoe Store Co. of Pittsburgh

National Labor Relations Board - Board Decisions

Feb 26, 1979

240 N.L.R.B. 919 (N.L.R.B. 1979)

FLORSHEIM SHOE STORE COMPANY OF PITTSBURGH9 919
The Florsheim Shoe Store Company of Pittsburgh
Pennsylvania, and the Florsheim Shoe Store Com-
pany of Monroeville, Pennsylvania and Retail Store
Employees Union Local 1407, as chartered by Re-
tail Clerks International Association, AFIL('IO.
Case 6-C('A 8591
February 26. 1979
SUPPLEMENTAL DECISION AND ORDER
BYi CHAIRMAN FANNING ND ML 1MBtRS P I ()
ANDI ML:RPIIY
The Board issued its original Decision and Order
in this case on January 17, 1977. in which it found
that Respondent had violated Section 8(a)( ). (3).
and (5) of the National Labor Relations Act. as
amended.' On review and cross-application for en-
forcement, the United States Court of Appeals for
the Second Circuit enforced all of the Board's Order
except that portion dealing with the reinstatement
rights and entitlement to backpay of unlawfully dis-
charged part-time employees, which matters it re-
manded to the Board for further proceedings consis-
tent with its opinion.2 On May 3, 1978. the Board
issued its Order reopening record and remanding
proceeding to the Regional Director for further hear-
ing and findings in which it ordered, inter alia, that
further proceedings be held before an Administrative
Law Judge on the issues remanded by the court's
opinion. On October 13, 1978. Administrative l.aw
Judge Joseph I. Nachman issued his attached Sup-
plemental Decision in this proceeding. Thereafter.
Respondent filed exceptions and a supporting brief.
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 court's
opinion and Respondent's exceptions and brief and
has decided to affirm the rulings. findings, and con-
clusions 3 of the Administrative Law Judge and to
adopt his recommended remedial provisions.
Tti RiiM. I))
In accordance with the Administrative Law
Judge's Decision and recommendations, we herebN
227 NIRB I 115
Ihiornheil Sh,, S, ,rt, ( , . R . , [ 2d1 1240 (2d ( ir 1977
I he Adminliratlve [.a Judge in the ecCI n cnilllcd "Contentlionlll, ai
('onclusilins ' inadvertentll refers ito dscrimin.lee ichael Sle r a. I.,, li,
Sar er
240 NLRB No. 135
modif, the remed, and order sections of the Board's
prior Decision and Order to conform to his addition-
al findings.
tHaving found that discriniinatees Thomas Capel-
lo. l)ouglas l-oreman. Andrew Hallidav, and Robert
(orrigan are available for part-time employment
with Respondent. we shall order that Respondent of-
fer each of them immediate. full, and unconditional
reinstatement to the job such employee held at the
time of his termination or, if such job is no longer
available, to substantially equivalent employment.
without prejudice to the seniority or other rights.
privileges or working conditions previously enjoyed.
and to make each of them whole for any loss of earn-
ings suffered. by paying to each a sum of money
equal to the amount he would have earned from the
date of his termination to the date of Respondent's
offer of reinstatement, less any amount he mav have
earned as wages in that period. Such backpay shall
be computed in accordance with the formula set
forth in : : Wi'oolworth Comlpanr . 90 NLRB 289
{1950): interest on the backpay shall be computed as
set forth in our decision in Florida Steel (orporation.
231 NLRB 651 (19771.4
lHaving found that discriminatees Robert Belsky.
Larrv Paranzino. James Ball. and Michael Sarver are
no longer available for part-time employment with
Respondent. we shall order that Respondent pas
each of them backpay. in the manner set forth above.
from the date of his unlawful termination to the date
he was no longer available to work for Respondent.
The backpay period for Robert Belskv and Larr
Paranzino is from September 18. 1975, to September
1, 1976: for James Ball the backpay period is from
September 18. 1975. to April 15, 1975: and for Mi-
chael Sarver the backpay period is from September
18, 1975. to March 1. 1977.
laving found that there is insufficient evidence to
determine discriminatees Arnold Mc(ionigle's. Wil-
liam Messenger's. and Richard Furis' availability for
part-time employment at Respondent's Pittsburgh
stores. we leave it to the compliance stage of this
proceeding to determine whether each would be enti-
tled to an offer of reinstatement and the amount of
back pay each would receive, the latter to be comput-
ed in the manner set forth above.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts, as modified below, the Order
previousl? issued and hereby orders that the Respon-
dent. The Florsheim Shoe Store Company of Pitts-
Sc. cncrtarl. 1Is Ph'iml t,,, 6 lctrnk (c,L 138 NI.RB 71h6 1962)
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burgh, Pennsylvania, and The Florsheim Shoe Store
Company of Monroeville. Pennsylvania, its officers,
agents, successors. and assigns, shall take the action
set forth in the Board's original Decision and Order,
as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Offer immediate, full, and unconditional re-
instatement to Thomas Capello, Douglas Foreman,
Andrew Halliday, and Robert Corrigan to the jobs
said employees held prior to the discrimination
against them or, if said positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make each of them whole for any loss of earnings he
may have suffered as a result of the discrimination
against him in the manner set forth in the section of
the Decision entitled 'The Remedy.'"
2. Insert the following as paragraphs 2(c) and (d)
and reletter the subsequent paragraphs accordingly:
"(c) Make employees Robert Belsky, Larry Paran-
zino, James Ball, and Michael Sarver whole for any
loss of earnings they may have suffered as a result of
the discrimination against them for the period from
the date of their termination to the date each of them
was no longer available to work for Respondent, as
set forth in the section of this Supplemental Decision
entitled 'The Remedy.'
"(d) Offer reinstatement to Arnold McGonigle,
William Messenger, and Richard Furis, provided
each is available for part-time employment, to the
jobs said employees held prior to the discrimination
against them or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges previous-
ly enjoyed, and make each of them whole for any
loss of earnings he may have suffered as a result of
the discrimination against him as provided in the sec-
tion of this Supplemental Decision entitled 'The
Remedy.' "
3. Substitute the attached notice for the original.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARI)
An Agency of the United States Government
After a hearing in which all sides had an opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
We will carry out the Order of the Board, the judg-
ment of any court enforcing the same, and particu-
larly the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refuse to do any or all these things.
WE WILL NOT do anything to interfere with you
in the exercise of the aforementioned rights, and
all our employees are free to become or remain
members of Retail Store Employees Union Lo-
cal 1407, as chartered by Retail Clerks Interna-
tional Association, AFL-CIO, or not to become
or remain a member of that or any other union.
WE WILL NOT question you about your sympa-
thies for or activities on behalf of Local 1407 or
any other union.
WE WIL.L NOT question you as to whether or
not you have signed a card for Local 1407 or
any other union.
WE wI lI NOT discharge, threaten to discharge,
or transfer any employee because he has sup-
ported a union.
WE WILL. upon request, bargain collectively
with Local 1407, as exclusive collective-bargain-
ing representative of our employees in an appro-
priate unit composed of all full-time and regular
part-time selling and nonselling employees at
our retail shoe stores in the Pittsburgh, Pennsyl-
vania, metropolitan area, excluding office cleri-
cal employees and guards, professional employ-
ees and supervisors, as defined in the Act, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, reduce the same to a
signed written agreement.
WE. WILL offer unlawfully discharged part-
time employees who are available to work part-
time full and unconditional reinstatement to
their former jobs or, if such jobs are no longer
available, to substantially equivalent jobs, with-
out loss in their seniority or other rights and
privileges previously enjoyed, and we will make
all unlawfully discharged employees whole for
any loss of earnings because of our discrimina-
tion against them, plus interest.
THE FLORSIIEIM SHOE SORE COMPANY OF
Pl IT SBUR;H. PENNSYLVANIA
THE FLORSHEIM SHOE SORE COMPANY OF
MONROEVII IE. PENNSYLVANIA
----
FLORSHEIM SHOE STORE COMPANY OF PITTSBURGH 921
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN Senior Administrative Law Judge:
This proceeding, initially heard by me at Pittsburgh, Penn-
sylvania, in March 1976, came on for further hearing on
August 8, 1978, pursuant to remand to the National Labor
Relations Board from the United States Court of Appeals
for the Second Circuit and the Board's Order thereon dat-
ed May 3, 1978. At that time General Counsel and Re-
spondent appeared by their respective counsel, and were
permitted to introduce relevant evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to submit briefs. Oral argument was waived. Briefs submit-
ted by the General Counsel and Respondent, respectively,
have been duly considered.
Upon consideration of all the evidence, including that
taken at the initial trial, the stipulations of counsel, and my
observation of the demeanor of the witnesses while testify-
ing, and the entire record in the case, I make the following:
FINDINGS OF FACT
As fully stated in my initial Decision, Respondent oper-
ates five retail shoestores in Metropolitan Pittsburgh,
Pennsylvania.' The stores are part of a national chain of
stores operated in various cities of the United States. Louis
G. Brien, whose offices are in Chicago, Illinois, is national
general sales manager of the operation. Each store in the
Pittsburgh area was staffed by a manager, several full-time
employees, and a number of part-time employees as the
manager deemed necessary to properly staff the store in
light of anticipated business. In late August 1975 the
Union here involved made demand upon Respondent for
recognition and bargaining, and on September 18, 1975.
Respondent terminated all part-time salesmen in the Pitts-
burgh stores. In my prior decision it was held, inter alia,
that such terminations were discriminatorily motivated,
with the intent of punishing the employees for their sup-
port of the Union and destroying the Union's majority.
On exceptions, the Board adopted the foregoing finding,
as well as my recommended Order which, to the extent
here material, directs Respondent to offer reinstatement to
each of the II part-time employees it discharged and make
each whole, in accordance with the Board's established for-
mula, for the net wages they lost. See Florsheim Shoe Store.
etc., 227 NLRB 1153 (1977).
On Florsheim's petition to review and set aside the
Board's Order and the Board's cross-petition for enforce-
ment, the court of appeals enforced the Board's Order in
all respects except paragraph 2(b), which provides for rein-
statement and backpay for the part-time employees. That
portion of the Order the court of appeals set aside and
remanded the case to the Board for further proceedings
consistent with the court's opinion. With respect to the re-
1wo of the stores are In the dowsntan area of the cit\. aind the other
three are in suburban shopping centers
instatement and backpay remedy, the court stated (565
F.2d 1240, 1246-47):
Florsheim contends that even if the Board was right
in finding that the termination of the part-time em-
ployees was an unfair labor practice, the order direct-
ing Florsheim to offer the dismissed employees uncon-
ditional reinstatement to their former part-time jobs
went too far. Florsheim argues that it is enough to
offer the former employees full-time jobs as such jobs
become available. The remedy Florsheim suggests is
self-evidently inappropriate and inadequate, but the
Board's remedy presents a question of some difficulty
As Florsheim argues, reinstatement of all the part-
time employees may displace some full-time employ-
ees. But that is an inevitable consequence of any order
to reinstate employees whose dismissal was unlawful.
The Board has the power to order reinstatement and it
is the normal remedy in the circumstances of the pres-
ent case. In the present case the economic reasons ad-
vanced as justifying the dismissals and as militating
against reinstatement as a remedy are at best slight.
The work continues at the same work places and to
the same purpose: only hours of service are altered,
and they have been altered not to avert loss, but to
enhance a too modest improvement. Reinstatement as
a remedy is not in principle inappropriate simply be-
cause the dismissals may also have advanced a general
economic interest independent of the interest in dis-
couraging unionization. And in any event since Local
1407 attained majority representation status before the
decision to terminate part-time work was made, Flor-
sheim was at minimum under a duty to consider with
Local 1407 the time and manner of implementing the
decision and the consideration to be given to the part-
time employees.
Although reinstatement was in principle the appro-
priate relief, it is not implicit in the Board's rejection
as incredible of Florsheim's testimony that the part-
time employees were terminated in delayed execution
of an early decision to eliminate part-time help for
economic reasons that the Board also found that the
economic point was invalid or non-existent. The criti-
cal emphasis of the Board's finding is that the dis-
missals were based upon antipathy to the union activi-
ty of the part-time employees; it is consistent with the
finding to suppose that there were an amorphous pref-
erence for full-time over part-time service based on
business considerations, and that there was a general
disposition to go over in time to full-time employment.
Florsheim was entitled to have the Board shape its
order in a form that did not impose a duty to recreate
for an indeterminate period jobs that would have been
"phased out" of existence over time whether or not
there had been a dispute over unionization. The
Board's first-stage task as in Savoy Laundnry (327 F.2d
at 371), was to determine whether the economic rea-
son was honestly invoked and was in fact the cause of
the dismissals; on the unfair labor practice issue it was
necessary to determine the existence and the general
validity of the economic policy. On the issues of rem-
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edy, however, the existence of and the validity of the
economic policy and the effect its implementation
would have on the duration of part-time jobs and the
number of jobs that would exist over time was impor-
tant. It may well be that on the present record or on
the record as supplemented the Board might find that
the economic policy had valid existence, and would
have been implemented over a determinable period of
time. Certain of the part-time employees were students
who may not have planned, or may not have been
able, to continue with Florsheim beyond dates de-
termined by their educational plans. Hence the order
to offer unconditional reinstatement to part-time work
and to make the part-time employees whole for earn-
ings losses to the date of the offer of reinstatement is
not supportable in the absence of findings with respect
to the reality of Florsheim's stated policy favoring full-
time staffing of the Pittsburgh area stores, the dura-
tion and, over time, the number of part-time jobs that
would have been available, the experience of the Piits-
burgh area stores on the duration of part-time jobs,
and such other findings as may be required to frame a
remedial provision that will without impairing
Florsheim's right to make legitimate business deci-
sions, so far as feasible recreate the situation that
would have followed if Florsheim had not dismissed
the employees, and had recognized and dealt with L.o-
cal 1407.
Evideftce on Remand
The General Counsel produced as witnesses 6 of the I I
discriminatees, and as to 2 others a stipulation was reached
covering certain facts. Of the three remaining part-time
employees covered by the Board's Order, the General
Counsel was unable to locate or communicate with two of
them, and the other, although located by the General
Counsel, did not respond to the subpena duly served upon
him. The evidence introduced by the General Counsel con-
sisted of the testimony of six of the discriminatees, regard-
ing their employment and availability for employment
since September 18. 1975. In addition, a stipulation was
reached with respect to two of the discriminatees. This tes-
timony will hereafter be more fully detailed. The stipula-
tions reached by the parties. except to the extent that they
related to discriminatees Belsky and Paranzino, which will
be hereafter discussed, are the following:
Respondent does not employ part-time employees
in its stores in New York City, San Francisco and
Oakland, California, except on rare occasions, and in
such instances the employees would not be what the
Board regards as a regular part-time employee. In At-
lanta. Cleveland and Los Angeles, the stores do have
part-time employees. These are what the Board re-
gards as regular part-time employees. In Philadelphia
some stores employ part-time employees, but the ma-
jority do not.
Respondent called as its only witness Louis G. Brien.
who is, and all times material was, national general manag-
er of Florsheim Shoe Store Company, with some 325 stores
under his supervision. Brien testified that since September
1975 he received a number of requests from managers of
the Pittsburgh stores for permission to hire part-time em-
ployees in those stores and that all such requests were de-
nied.2 Brien additionally testified that it is his view that
stores operated entirely with full-time personnel are more
efficient and profitable than those operated with both full-
time and part-time salespeople, and for this reason his goal
is to operate nationwide only with full-time people. He ad-
mitted, however, that he has not been able to achieve that
goal. Brien explained that since the advent of the suburban
stores with their extended hours, which are usually eve-
nings, Saturdays, and Sundays, it is basically impossible to
get full-time people to work the necessary hours. Brien
pointed out that all New York stores have operated for
years only with full-time help and that he would not permit
that situation to change. At San Francisco and Oakland,
likewise, no part-time salespeople are employed. Brien ad-
mitted that in Atlanta part-time help was at one time elimi-
nated but was resumed and has continued for the past few
years and that part-time employees also work in the stores
at Cleveland and Los Angeles. Although Brien claimed
that since 1975 the overall number of part-time people em-
ployed in its stores nationwide has been reduced, he was
unable to give any specifics, saying that any figures he
might provide would be a pure guess, and he admitted that
other than in Pittsburgh, there is no area where part-time
salespeople have been eliminated.
In addition, Respondent offers a compilation of the em-
ployment records of all part-time employees at the Pitts-
burgh stores since 1969. Originally, a great number of these
records were marked and identified, but some were there-
after withdrawn. What remains are the employment rec-
ords for 24 employees, and I of these (Wm. G. McPeak,
Exh. 15(d) ), Respondent states in its brief, was included in
error, because he was in fact a full-time employee. The
remaining 23 include the I I discriminatees involved in this
case. According to these exhibits the I discriminatees here
involved worked from a minimum of about 8 months (Cor-
rigan, Exh. 15(a) ) to a maximum of about 4-1/2 years
(McGonigle, Exh. 15(r) ). their average period of employ-
ment being just under 2 years. The remaining 12 part-time
employees, according to the exhibits, worked from a mini-
mum of about 2 months (Hartfield. Exh. 15X and
Schwamberger, Exh. 15 x) to a maximum of about 5-1/2
years (Hall, Exh. 15-v), and the average period of employ-
ment of this group is also just under 2 years. No figures of
similar nature for full-time employees were provided.3
Brien also identified a contract between Respondent and the Union
cntered i in i May 1978. ias of ebruars I 1978,. for a term of 2 sears,
uhmch resulted from the bargaining ordered h the Board and enforced by
Ihe couul of arppeals. The contract proided he nion recognition for all
emplrees in the fe stores operated b Respondent in the Pittsburgh
.;lea. excludili office clericals. guards, professional emplosees. and super-
oisorr. Article 20 of this contract provides: "In the event the emploxer hires
part eniploNces. the parties shall meet to negotiate wages. hours and ork-
it1 ctnditions for such empl,\ees."
although the court of appeals stated that in framing an appropriate
reciedll rd.ler. the Board should gie consideration to "the experience of
the IPltH'huTLh aIea stores on he duration of parl-tlme obs .... (565
I 2d 1 24
7
1. 1 do nio regard this is a holding b the court that this is neces-
,id ls mou tlolliigi. .As the court poinled out (al 1246):
FLORSHEIM SHOE STORE COMPANY OF PITTSBURG(H3 923
Contentions and Conclusions
Respondent's basic contention is that in September 1975
it made a nondiscriminatory business decision to phase out
all part-time salespeople nationwide and that Pittsburgh
was simply the area where its decision was first implement-
ed and that from and after the date mentioned there were
and have been no jobs to which the discriminatees might
be reinstated, and hence there has been and can be no right
to reinstatement and no accrual of backpay to any discri-
minatee. I agree with Respondent that for the period no
jobs existed to which a discriminatee could be reinstated.
no backpay would be due him for that period, but I am
unable to accept and accordingly reject Respondent's con-
tention that the decision to terminate the part-time em-
ployees in the Pittsburgh area was a bona fide exercise of a
nondiscriminatorily motivated business decision. I do so
for the following reasons:
I. In my initial Decision I stated (227 NLRB at 1162):
"My consideration of the entire record convinces me, and I
therefore find that the testimony as to when and how the
decision to terminate part-time employees was made was
concocted in the effort to establish legitimacy for those
terminations when no legitimate reason in fact existed." 4
Stated somewhat differently, I am convinced that Respon-
dent's defense is a pretext, and that had the Union not
appeared on the scene, the part-time employees in the
Pittsburgh stores would not have been terminated. The tes-
timony on remand, far from raising any doubts in my mind
with respect to my initial conclusion, actually confirms it.'
2. Brien did not impress me as a frank and forthright
witness. Rather. I got the distinct impression that although
he was at times very talkative, on essential points he was
holding back in fear that he might say something harmful
to Respondent's theory of the case. Although he main-
tained that Respondent finds full-time employees prefera-
ble for its operations, he admitted that the practicalities of
the situation are such that in many instances its preference
is not attainable. As Brien explained, the advent of the
surburban shopping centers with their expanded business
the Board has the poset tiI order reills.ilellent il it is the inl Ii.
remedx n the clrcumstances Of tile present case In the present is the
ecoitn lic realsons .aldJ nced . I illtlirlct tlhe dlill s ,. il.1 a , i11d a-
ing agalinst relnstaemienl as .i renied ire .at best shlihi I lie -ik
contilnues at the same ork places and iti the Saliec purpose: 1i\ hoiullr
olf serslce are altered and thex ha; hbeen altered not Air Ite l[,ss but
to enhance a toO IllOdest improerilent Reilst,litenenll a. rcnlted is
not in principle in.pprilpria;te silpl hbeal use e dxiillsls, rluii .Asi,-
have advanced a genera.l ecnolmic nllteresl inidependenil f the interest
in discouraging Uinllnliatilon
In light of this I doi not helieve that the icourt hieant tihat .i dlsCrl1lilliniee
%h, hias in fact entitled to hbackpa? for a petliod of 3 Sears shoulld he litimied
to a 4-',ear period simpl because the .nierage period of eliplol mctl of
parl-time emplo,\ees In Ihe Pittsburgh sores is 2 \ears
4'he Board adopted this finding ithllhllln midfl.lioalln
On this phase Of the case the court If appeals stllated ti.t onr remand
"tlhe Board's first-stage task . asm Io deternllne hether the ern[Oili
reason isa, honestll inukecd and sas In fact the cu.me of the dilsn11111lb
t at 1247). pointiig o ul ihal Ta lthogh li "critiil ertphal.ls if tile
Biard's finding is that the dlsnmlssais scre hi,cdi upoin iantlpah It tile
Lnimn actlslsl of tlie prtl-tilne emplo\ees. it is oC lslstetll lli Ile fllndlne
to suppose thall there u;as arl aniorphhls preference for fill-tille ome p1all
lime ser ice based in btlminesh lconlider.alll. and hl there uis .I relltei
dspisltion to gel oer in iime to full t11im etmplit nenl
hours requires the use of part-time employees because full-
time employees will not work the required hours.
3. Finally. but by no means of minor importance. there
is Brien's admission that since September 1975, in no area
of its operations were part-time employees completely
eliminated, other than in Pittsburgh. If complete elimina-
tion of part-time employees in all its stores was a bona fide
business decision, it is simply incredible that the objective
would not have been accomplished in at least some stores
which were formerly staffed with part-time employees.
Lpon the entire record, including the testimony taken at
the initial hearing I am convinced and therefore find and
conclude that Respondent never made a bona fide business
decision to eliminate all part-time salesmen from its stores
and that the terminations of the part-time employees at the
Pittsburgh stores were made to retaliate against those em-
ployees for having sought union representation and to de-
stro the matjority status which the Union had attained.
Although. as the Board initially held and the court of
appeals recognized, the normal remedy for terminations
motivated as herein found is reinstatement with backpay
for wages lost, less earnings in the interim. in the instant
case the court has directed that the Board determine which
of the discriminatees are available for reinstatement and if
not, when such unavailability began. In short, my function
on this phase of the case is simply to determine when, if at
all, with respect to each employee. Respondent's backpay
obligation ceased and whether an offer of reinstatement is
still required. I proceed now to consider those questions
separately for each of the II discriminatees.
I. With respect to Robert Belskv and Larr Paranzino,
the parties stipulated that both would have been available
for part-time work until September 1976. but not thereafter
because of their attendance at school on a full-time basis.'
Accordingly, I fix the backpa 3 period for Belsk and
Paranzino as September IX. 1975. to September 1. 1976. As
neither would have been available for work after the last-
mentioned date, an offer of reinstatement at this time
would seem pointless and should not be required.
2. James Ball testified that following completion of his
schooling in April 1977. he took employment with an auto-
mobile dealer and thereafter would very probably not have
been available for employment with Florsheim. Accord-
inl:. I fix his backpay period as September 18. 1975. to
April 15, 1977. Consistent with my conclusion regarding
Belsky and Paranzino. an offer of reinstatement to Ball at
this time would seem pointless and should not be required.
3. James Sarver completed his schooling in March 1976
and worked as a carpenter's helper until March 1977. at
which time he obtained regular full-time employment in an
industrial plant. and from and after that date would not
IIl nder tile ooirtl prlte ,iih queslons .ie irinlall resoled it hit
is elt rillt referred i, i the ootmpliatle stage of the proeed inr . hb a, rec-
ncllnrt f the parties I pilhe .id.l It nt. h .a ftlii.ll hlackpai hiearin 'here
a tr , l l c atter a isu e are iaed. blet ItI reteh h . oult .l if i x tp l In
tli, a ic oth ,i t palties rill.lt.alled tillat the, . rel not p.rticipatic irln i hak-
pal plo cedi n g_ N c dermitc ,is ittroduted delini 'tuI the iiutan of
tos-s i a.kp ,. or (lie interitm earnll nir ofl il do icllln Al t .i -
\ltlhoucl te stiplatlron doe s nt fls .i spctif.l it eilc il, Septlembi er I
tolstrtlue it I,,Ciei Sepeniber 1 197¢) I c Iluec i a the t ilslil prictice, if
,cl ils of operiunl slorix fter I ibI i).s .iul te fa t iil stidets lnor-
niallN tIesic . pertiod ,f frec rntic hefore becinnin the s ,chool icrFil
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been available for employment at Florsheim, al-
though he would have been available for such employment
prior to March 1977. Accordingly, I find his backpay pe-
riod to be from September 18, 1975, to March 1, 1977. In
his case also, an offer of reinstatement at this time would
seem to be inappropriate and should not be required.
4. Thomas Capello, during his employment by Flor-
sheim, was and still is a full-time employee of the Veterans
Administration. There is no evidence that after September
1975 Capello had any employment other than at the Veter-
ans Administration, although he would have been available
for part-time employment at Respondent had he not been
discriminatorily terminated in September 1975, as hereto-
fore determined. Accordingly, I find and conclude that Ca-
pello is entitled to an offer from Respondent of reinstate-
ment to such a part-time job as that which he held prior to
his termination and that his backpay period runs from Sep-
tember 18, 1975, to the date of such offer.
5. Douglas Foreman at the time of his termination also
had full-time employment with another employer 8 and
worked part-time for Respondent. The credited evidence is
that had he not been discriminatorily terminated by Re-
spondent, he would have continued there as a part-time
employee. He is entitled, I find and conclude, to an offer of
reinstatement from Respondent, and I find his backpay
period to be from September 18. 1975, to the date of such
offer.
6. Andrew Halliday at the time of his discharge had full-
time employment, apparently as an outside salesman, and
also worked part-time as a salesman for Respondent.
Based on the credited testimony, I find and conclude that
had he not been discriminatorily discharged as heretofore
found, he would have continued to work for Respondent
on a part-time basis. Accordingly, I find and conclude that
Halliday is entitled to an offer of reinstatement from Re-
Robert Morris College, but the record does nlt show the nature of such
employment.
spondent and that his backpay period runs from Septem-
ber 18, 1975, to the date of such offer.
7. Robert Corrigan at the time of his termination was
attending a community college on a full-time basis and
also worked as a part-time salesman for Respondent. Fol-
lowing his discriminatory termination by Respondent, he
continued to attend the college until January 1976, when
he was forced to suspend that activity, apparently for lack
of finances. Corrigan then obtained part-time employment
for a short period with Baker Shoes, and in May 1976 be-
came the manager of a fast-food chain outlet where he
worked a weekly schedule of 44 hours. Although admitting
that it would have been difficult, Corrigan claims that he
could have worked that schedule and still worked part-time
for Respondent. Corrigan now has a regular job in an in-
dustrial plant and claims that he can now work a part-time
schedule for Florsheim, but the record does not show when
the job at the industrial plant began.
On the basis of these facts, I find and conclude that
Corrigan is entitled to an offer of reinstatement from Re-
spondent for part-time employment and that his backpay
period is from September 18, 1975, to the date of such
offer.
8. The remaining three discriminatees (Arnold McGoni-
gle, William Messenger. and Richard Furis) did not testify
on remand. There is thus a lack of evidence to warrant a
finding as to whether an offer of reinstatement is appropri-
ate at this time or whether any event has occurred that
would warrant terminating the backpay period. Accord-
ingly, I recommend that these questions be disposed of at
the compliance stage of this proceeding, in accordance
with the principles stated.
RECOMMENDATION
For reasons stated, it is recommended that The Remedy
of the Board's prior Decision and Order herein (227.NLRB
1153) be modified as herein set forth and that so modified,
the same be adhered to and reaffirmed by the Board.