Fort Lock Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1977

233 N.L.R.B. 78 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fort Lock Corporation and Local 44A, Service
Employees International Union, AFL-CIO-CLC.
Cases 13-CA-13034 and 13-RC-13232
October 20, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 21, 1977, Administrative Law Judge
Thomas D. Johnston issued the attached Supplemen-
tal Decision in this proceeding.' Thereafter, the
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Fort Lock
Corporation, River Grove, Illinois, its officers,
agents, successors, and assigns, pay the amount set
forth in the said recommended Order.
I The Board's original Decision and Order is reported at 216 NLRB 160
(1975).
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Chicago, Illinois, on March 7, 1977,
based on a backpay specification issued on November 26,
1976, for purposes of resolving a controversy arising over
I Unless otherwise indicated, the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
233 NLRB No. 17
the amounts of backpay due Juanita Diaz, Rosario Padilla,
and Ismael Diaz under the terms of the Decision and Order
of the National Labor Relations Board in Fort Lock
Corporation, 216 NLRB 160 (1975), enfd. November 7,
1975 (unpublished). See 525 F.2d 696 (C.A. 7).
The backpay specification, which was amended at the
hearing, alleges that the amounts of backpay due are:
Juanita Diaz, $690, Rosario Padilla, $1,865.42, and Ismael
Diaz, $3,052, for a total of $5,607.42 plus interest, less the
amounts of taxes required to be withheld under Federal
and state laws.
The Respondent in its amended answer filed on January
17, 1977, as amplified by a motion filed simultaneously,
and further amended at the hearing, denies owing the
amounts of backpay allegedly due these individuals and
asserts no backpay was owed to Juanita Diaz after
November 8, 1974, because she was discharged for cause
by her interim employer.
The issues involved are what amounts of backpay, if any,
are due Juanita Diaz, Rosario Padilla, and Ismael Diaz.
Upon the entire record in this case and from my
observation of the witnesses and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent, I hereby make the following:
FINDINGS OF FACT
Juanita Diaz, Rosario Padilla, and Ismael Diaz, as found
in the initial Decision, were discriminatorily discharged by
the Respondent on February 18, 1974. Their backpay
periods, with the exception of Ismael Diaz' which began on
March 5, 1974, extended from those dates until January 24,
1976.
The appropriate measure of gross backpay for Juanita
Diaz establishes that had she continued to work for the
Respondent during the backpay period, she would have
earned $100 a week. This amount, computed on a quarterly
basis, shows her gross earnings would have been $600 for
the first quarter of 1974; $1,300 for each quarter beginning
with the second quarter of 1974 through the fourth quarter
of 1975; and $350 for the first quarter of 1976.
Following her discharge by the Respondent, Juanita
Diaz was employed on March 11, 1974, by Nu-Way
Speaker Products, Incorporated (herein referred to as Nu-
Way), operating a punch press machine at the rate of $2.40
an hour. She continued this same work except for operating
different machines, but at the same rate of pay, until her
discharge on November 8, 1974, for having excessive
absences.
Juanita Diaz, while working at Nu-Way, which was
located further from her home than the Respondent's
facility, depended upon her husband's cousin for a ride to
work. Her absences 2 resulting in her discharge were caused
by the failure of the driver to pick her up to take her to
work. Juanita Diaz worked Mondays through Fridays at
Nu-Way. Although the plant was open a half day on
Saturdays and some employees in her classification worked
2 Juanita Diaz missed work on approximately five or six occasions.
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FORT LOCK CORP.
on Saturdays, while some men in her classification also
worked more than 8 hours a day, she did not know whether
overtime was available to her.3
While the record does not set forth the actual interim
earnings of Juanita Diaz while employed at Nu-Way, those
interim earnings conceded in the backpay specification are
$288 for the first quarter of 1974; $1,248 for each quarter
beginning with the second quarter of 1974 through the last
quarter of 1975, and $336 for the first quarter of 1976. The
amounts of these interim earnings are based on informa-
tion furnished by Nu-Way to the Board that Diaz could
have earned $96 a week at a rate of $2.40 an hour and that,
although 40 hours' work a week were available to her, she
worked fewer hours. Further, the same amount of interim
earnings for the period after her discharge from Nu-Way
on November 8, 1974, are included by the General Counsel
who contends that the Respondent was liable for the
difference between the pay she would have earned had she
not been discriminatorily discharged by the Respondent
and what she would have earned had she not been
terminated by Nu-Way for excessive absences.
Deducting these interim earnings of Juanita Diaz from
her gross earnings, computed on a quarterly basis,
establishes her net backpay for the first quarter of 1974
would have been $312; for each of the quarters beginning
with the second quarter of 1974 through the fourth quarter
of 1975 would have been $52; and for the first quarter of
1976 would have been $14, for a total net backpay due of
$690.
After being discriminatorily discharged by the Respon-
dent on February 18, 1974, Juanita Diaz did not apply for
employment with other employees prior to being employed
by Nu-Way. 4
During the period between Juanita Diaz' discharge by
Nu-Way on November 8, 1974, and her reinstatement by
the Respondent in January 1976, Diaz applied for
employment with Federal Pacific in December 1974.
Although she filed an application and Federal Pacific
indicated they were going to call her, they never did. She
also applied at two other plants in January 1975, including
Chicago Lock and in addition applied for work at a
perfume firm located across from her home, but was not
hired.
The appropriate measure of gross backpay for Rosario
Padilla establishes that, had he continued to work for the
Respondent during the backpay period, he would have
earned an average of $125.41 per week for the first quarter
of 1974; $180.32 per week for the second quarter; and
$143.52 per week for the third quarter.5 This amount,
computed on a quarterly basis, establishes his gross
earnings for the first quarter of 1974 would have been
$752.46; for the second quarter, would have been
$2,344.16; and for the third quarter, would have been
$1,865.76.
3 Respondent's payroll records for 1973 and 1974 reflect that out of
approximately 58 weeks, Diaz only worked over 40 hours on approximately
siX occasions and, on 28 other weeks, she worked less than 40 hours.
4 The date Juanita Diaz first contacted Nu-Way concerning employment
was not established by the record.
5 No backpay was claimed for subsequent quarters on the grounds his
earnings exceeded his gross backpay or because he could have earned more
if he had worked the hours available to him from his interim employer.
Padilla had no interim earnings during the first quarter
of 1974 while his interim earnings for the second quarter
were $1,473.09 and for the third quarter were $1,623.87.
Deducting Padilla's interim earnings from his gross
earnings, computed on a quarterly basis, establishes his net
backpay for the first quarter of 1974 was $752.46; for the
second quarter, was $871.07; and for the third quarter, was
$241.89 for a total net backpay of $1,865.42.
Following his discharge, Padilla immediately began
looking for work by applying for employment with
approximately five to seven different employers a day. On
April 3, 1974, he began work for Newly Weds Foods,
loading trailers at approximately $3 an hour, which was his
only source of income during the quarters claimed.
Padilla, prior to his discharge by the Respondent, had
been employed as a die-cast operator where, on more than
one occasion, he worked as many as 50 hours a week
although, on other occasions, he worked as few as 14-1/2
hours a week.
While employed by Newly Weds Foods there were
opportunities to work overtime and Padilla credibly denied
ever turning down overtime work.
The appropriate measure of gross backpay for Ismael
Diaz establishes that, had he continued working for the
Respondent during the backpay period, he would have had
average earnings of $118.24 per week for the first quarter of
1974; $170.02 per week for the second quarter; and $135.42
per week for the third quarter.s This amount, computed on
a quarterly basis, establishes his gross earnings for the first
quarter of 1974 would have been $472.96; for the second
quarter would have been $2,210.26; and for the third
quarter would have been $1,756.16.
Ismael Diaz had no interim earnings during the first and
second quarters of 1974 and had interim earnings of
$1,390.38 during the third quarter of 1974.
Deducting Ismael Diaz' interim earnings from his gross
earnings, computed on a quarterly basis, establishes that
his net backpay for the first quarter of 1974 was $472.96;
for the second quarter was $2,210.26; and for the third
quarter was $368.78 for a total net backpay of $3,052.
Following his discharge, Ismael Diaz credibly testified
that he looked for work in Chicago and Skokie. Initially
someone from the Union took him around in an automo-
bile to look for work. He applied at approximately 200
different factories, sometimes applying at 10 to 12 places a
day. Except for stating one of the factories where he
applied was located at Irving Park, Diaz could not further
identify them. He also applied for work at the State
Employment Office located on California Avenue at Irving
Park but could not recall the number of occasions.
About August 1974, Ismael Diaz began work at Federal
Pacific as an ironworker earning $4.40 an hour which was
his only source of income during the backpay period.?
Ismael Diaz' workweek at Federal Pacific varied from 48 to
6 No backpay was claimed for subsequent quarters on the grounds that
his intenm earnings exceeded his gross earnings for those quarters.
I Diaz was uncertain whether he started in August or October 1974.
However, his interim earnings dunng the third quarter of 1974 indicate it
was prior to October.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 hours per week and, although it was not required, he
also worked overtime.
ANALYSIS AND CONCLUSIONS
The General Counsel contends that the amounts of
backpay due are: Juanita Diaz, $690, Rosario Padilla,
$1,865.42, and Ismael Diaz, $3,052, plus interest, less the
amounts of taxes required to be withheld under Federal
and state laws. The Respondent denies owing the amounts
of backpay allegedly due and contends that Juanita Diaz,
Ismael Diaz, and Rosario Padilla were not entitled to
backpay because they failed to make diligent searches for
work and that Juanita Diaz and Rosario Padilla had
refused overtime work with their interim employers.8
While the General Counsel has the burden of proof to
establish the gross backpay over the backpay period, a
respondent has the burden of proof to show diminution of
that amount whether such diminution results from the
willful loss of earnings by :he failure to either look for or
keep a substantially equivalent job or from unavailability
of jobs at a respondent's plant for reasons unconnected
with discrimination. Cornwell Company, Inc., 171 NLRB
342, 343 (1968); New England Tank Industries, Inc., Reeds
Manufacturing Co., Inc., 136 NLRB 1342, 1346 (1962),
enfd. 345 F.2d 170 (C.A. 2, 1956), cert. denied 384 U.S. 972
(1966). An employee in seeking work is held only to
"reasonable exertion" and not to the "highest standard of
diligence." N.LR.B. v. Arduini Manufacturing Corporation,
394 F.2d 420 (C.A. 1, 1968).
Applying these principles, the findings, supra, establish
Juanita Diaz was terminated by her interim employer, Nu-
Way, for absences caused by the lack of transportation to
work through no fault of her own. Therefore the evidence
was insufficient to establish a willful loss of earnings
depriving her of any loss of backpay. However, following
her termination from Nu-Way on November 8, 1974, with
the exceptions of the last quarter of 1974 and the first
quarter of 1975, during which she attempted to find
employment elsewhere, Diaz made no attempts to fmd
other employment during the remainder of her backpay
period, and based upon her previous efforts to find work as
enumerated, there was no showing that she had exhausted
the labor market. Under these circumstances, I find that
Juanita Diaz had removed herself from the labor market by
failing to look for work and, therefore, was not entitled to
backpay after the first quarter of 1975. Contrary to the
Respondent's assertions, I do not find the evidence
s The litigation of these defenses was properly within the scope of the
issues framed by the pleadings.
9 The amounts of net backpay for the fourth quarter of 1974 and for the
first quarter of 1975 are the only amounts of backpay claimed for those
quarters.
'o In the event no exceptions are filed as provided by Sec. 102.46 of the
sufficient to establish Juanita Diaz refused to work
overtime work at Nu-Way or that she did not make a
reasonable search to obtain work following her discrimina-
tory discharge and her employment at Nu-Way. Accord-
ingly, I find the net backpay due Juanita Diaz is $312 for
the first quarter of 1974; $52 for the second quarter; $52
for the third quarter; $52 for the fourth quarter; and $52
for the first quarter of 1975,9 for a total net backpay due of
$520. 147 NLRB 598, 601 (1964); and Mastro Plastics
Corporation and French-American
The evidence, supra, with respect to Rosario Padilla,
establishes, contrary to the Respondent's position, that he
made reasonable efforts during the backpay period to
obtain employment and did not refuse to work overtime at
Newly Weds Foods. Accordingly, I find the net backpay
due Rosario Padilla is $752.46 for the first quarter of 1974;
$871.07 for the second quarter; and $241.89 for the third
quarter, for a total net backpay due of $1,865.42.
With respect to Ismael Diaz, the evidence, supra,
establishes, contrary to the Respondent's position, that he
made reasonable efforts during the backpay period to
obtain employment. Therefore, I find the net backpay due
Ismael Diaz is $472.96 for the first quarter of 1974;
$2,210.20 for the second quarter; and $368.78 for the third
quarter, for a total net backpay of $3,052. the backpay
period to obtain employment and did not refuse to work
overtime at Newly Weds Foods. Accordingly, I find the net
backpay due Rosario Padilla is $752.46 for the first quarter
of 1974; $871.07 for the second quarter; and $241.89 for
the third quarter, for a total net backpay due of $1,865.42.
In making the above findings, except to the extent
previously indicated, I find that the Respondent has failed
to establish, as its burden, diminution of those amounts of
net backpay herein found for each of the three individuals.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 10
The Respondent, Fort Lock Corporation, River Grove,
Illinois, its officers, agents, successors, and assigns, shall
pay to Juanita Diaz the sum of $520, shall pay to Rosario
Padilla the sum of $1,865.42, and shall pay to Ismael Diaz
the sum of $3,052, plus interest at 6-percent per annum
computed in the manner prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), less the tax
withholdings required by Federal and state laws.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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