Gary Aircraft Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 554 (N.L.R.B. 1974)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gary Aircraft Corporation and International Union,
United Automobile, Aerospace and Agricultural in the said Supplemental Order.
Implement Workers of America (UAW). Cases
23-CA-3672,123-CA-3702,23-CA-3733,23-CA-
1733-2, 23-CA-3733-3, and 23-CA-3733-4
June 13, 1974
successors , and assigns, shall take the action set forth
1 This case number inadvertently appears as Case 23-CA-3627 in the
Administrative Law Judge's Supplemental Decision.
2 193 NLRB 108.
3 N.L.R.B. v. Gary Aircraft Corporation, 468 F.2d 951 (affd. without
published opinion).
4 Chairman Miller would find that discriminatee Otero was not entitled
to backpay for the month of November 1970, for the reason that Otero
made no search for employment during that month.
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 14, 1971, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding,2 directing Respondent to,
inter alia, make whole Joel Estala, Lloyd Wright,
Vincent Paredes, Victor San Miguel, Benito Perez,
and Joe M. Otero for their losses resulting from
unfair labor practices committed by Respondent in
violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. Thereafter, the
Board 's Order was enforced by the United States
Court of Appeals for the Fifth Circuit.3
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
23, a hearing was held on November 7, 8, and 9, 1973,
before Administrative Law Judge Stanley Gilbert,
for the purpose of determining the amount of
backpay due the discriminatees.
On February 7, 1974, the Administrative Law
Judge issued the attached Supplemental Decision.
Thereafter, Respondent filed exceptions to the
Administrative Law Judge's Decision and a brief in
support thereof. The General Counsel filed an
answering 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 Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his Supplemental
Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Supplemen-
tal Order of the Administrative Law Judge and
hereby orders that Respondent, Gary Aircraft
SUPPLEMENTAL DECISION
STANLEY GILBERT, Administrative Law Judge: On
September 14, 1971, the National Labor Relations Board
issued its Decision and Order' in the above-entitled
proceeding directing Respondent herein, Gary Aircraft
Corporation, its officers , agents, successors , and assigns to,
inter alia, make whole Joel Estala, Lloyd Wright, Vincent
Paredes, Victor San Miguel, Benito Perez, and Joe M.
Otero for their losses resulting from unfair labor practices
committed by Respondent in violation of Section 8(a)(1)
and (3) of the Act. On November 2, 1972, the United States
Court of Appeals for the Fifth Circuit by its opinion of
November 2, 1972,2 and its judgment of November 24,
1972, enforced in full the backpay provisions of the
Board's Order herein . A controversy having arisen over the
amount of backpay due under the terms of the Board's
Order, Regional Director of the National Labor Relations
Board for Region 23 in the name of the Board and
pursuant to Section 102.52 of the Board's Rules and
Regulations , Series 8 , as amended , issued the backpay
specifications in this proceeding on September 12, 1973.
Respondent, by its answer, raised various issues with
respect to the computation of the net backpay set forth in
said specifications.
Pursuant to notice, a hearing was held in this supplemen-
tal proceeding in San Antonio, Texas, on November 7, 8,
and 9, 1973, before me, duly designated as Administrative
Law Judge. Briefs were filed on behalf of the General
Counsel on December 21, 1973, and on behalf of
Respondent on December 20, 1973.
Upon the record in this supplemental hearing and from
my observation of the witnesses who testified, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
There is no dispute as to the backpay periods for each of
the discriminatees or with respect to the formula upon
which the gross backpay is computed. The periods for each
of the discriminatees are as follows:
Joel Estala-July 20, 1970, through May 14, 1973.
Lloyd Wright-September 4, 1970, through May 25,
1973.
Vincent Paredes-June 4, 1970, through July 10, 1970.
Victor San Miguel-July 9, 1970, through May 23,
1973.
Benito Perez-September 3, 1970, through May 14,
1973.
1 193 NLRB 108.
Corporation, San Antonio, Texas, its officers, agents, 2 468 F.2d 951 (1972) (affd. without published opinion).
211 NLRB No. 65
GARY AIRCRAFT CORP.
Joe M. Otero-September 14, 1970, through May 22,
1973.
Following is the computation of the net backpay due to
each of the discriminatees for the periods set forth
hereinabove.
Joel Estala-Based upon the stipulation of the parties,
the total net backpay due to Estala is $2,415.
Lloyd Wright-Wright did not appear at the hearing,
although he was subpenaed. Therefore, he was not
available for examination by Respondent. It was agreed by
the parties that the tentative amount of net backpay due to
him for the third quarter of 1970 is $226 to be held in
escrow by the Regional Director subject to his examination
on the interim backpay he earned during the third quarter
of 1970 (in addition to that set forth in the specification).
The parties agreed that he was not entitled to any backpay
after said quarter.
It will be recommended in the Order hereinbelow that
the Respondent be ordered to pay to the Regional Director
for Region 23 the amount of the tentative backpay ($226)
to be held in escrow for a period not exceeding 1 year from
the date of this Supplemental Decision. It is further
recommended that the Regional Director be instructed to
make suitable arrangements to afford the Respondent,
together with the General Counsel's and the Charging
Party's representatives, an opportunity to examine Wright
and any other witnesses with relevant testimony and to
introduce any relevant and material evidence bearing on
the amount of backpay due to Wright. It is further
recommended that the Regional Director make a final
determination whether any interim earnings or any
amounts in excess of those shown here or any other factors
are revealed which may alter the amount of backpay due
under existing Board precedent . In the event the Regional
Director determines that deductions are warranted, it is
recommended that the amount so deducted be returned to
the Respondent. In addition, it is recommended that the
Regional Director, when this matter has been finally
resolved, promptly and no later than 1 year from the date
of the Supplemental Decision report to the Board the
status of this matter.
Vincent Paredes-The parties stipulated, and it is found,
that the total amount of net backpay due to Paredes is
$148.
Victor San Miguel-It appears from Respondent's brief
that the only issue with respect to the amount of backpay
due San Miguel is whether or not monies which he received
from International Union, United Automobile, Aeorspace
and Agricultural Implement Workers of America (UAW),
hereinafter referred to as the Union, constiuted interim
earnings in mitigation of the "net backpay" amounts set
forth hereinbelow.3 These figures ar° based upon the stipu-
lation of the parties and representations in the record.
3 In stipulating to the net backpay for the calendar quarters set forth
hereinbelow, Respondent reserved the affirmative defense that the monies
San Miguel received from the Union "should be counted as additional
interim earnings "
3d Qtr. 1970 $537.00
4th Qtr. 1970 815.50
1st Qtr. 1971 500.00
2d Qtr. 1971 531.00
3d Qtr. 1971 733.00
4th Qtr. 1971 592.00
1st Qtr. 1972 421.00
2d Qtr. 1972 0
3d Qtr. 1972 0
4th Qtr. 1972 116.00
1st Qtr. 1973 19.00
2d Qtr. 1973 0
24 add,
@30i^ per
hrs.
hr.
5/21-5/23/73 7.00
555
Total $4,271.50
It appears that San Miguel received a total of $4,880
from the Union (constituting $40 a week for a period of
122 weeks from the latter part of July 1970 to November
20, 1972). Receipts and cancelled checks were produced
which totalled the sum of $3,840, the first of which is dated
January 19, 1971, and the last of which is dated August 11,
1972. Obviously, an additional sum of $1,040 is not
accounted for by any receipts or cancelled checks. There is
nothing in the record to explain these omissions . However,
there is no dispute that he did receive a total of $4,880.
These payments to him were not always regularly made;
for example, on January 19, 1971, he received $400; on
January 21, 1971, he received a check dated January 19,
,1971, for $120; and the next dated receipt is that of April
19, 1971, for $520. Also, it is noted that on August 10, 1972,
there was a check issued to him for $160, but also on
,August It, 1972, he apparently executed a receipt for a
check issued earlier in the sum of $240. It is noted that the
,Inext earlier receipt was for $160 dated May 30, 1972. Thus,
the somewhat sporadically received checks for amounts in
'various multiples of $40.
1 San Miguel testified that he was told by a representative
iof the Union that a loan of $40 a week could be arranged
for him. While there is some discrepancy in his testimcny
as to when this conversation took place , no significance is
attached thereto.
It is noted that the first eight receipts in the record signed
by him dated from January 19, 1971, to September 9, 1971,
contained the following language or words to the same
effect:
I, Victor San Miguel, hereby acknowledge receipt of
Check # in the amount of $ , from the
International Union, UAW. I understand that the
amount of this check and all monies that I receive from
the UAW Strike Fund are given to me on the basis of a
loan. In the event I am reinstated with back pay to my
job at Gary Aircraft, Inc., I will repay the UAW Strike
Fund in the total amount that I receive from it.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commencing with the receipt dated October 8, 1971, the
wording was that of a simple receipt as follows:
TO WHOM IT MAY CONCERN:
I received from Juan Diaz on this day, the day of
, 197 , International Union, UAW, Check
# in the amount of
It is inferred from the language of the earlier receipts that
the same conditions that were set forth in the earlier
receipts (that the money is given on the basis of a "loan"
with the provision of repayment in the event of reinstate-
ment with backpay) were applicable to the monies received
subsequently. It is found that the total amount of $4,880
was considered by the Union and San Miguel to be a
"loan" to him to be repaid in the event of his reinstatement
with backpay.
Respondent argues that the said sum of $4,880 was
actually paid to San Miguel for services rendered to the
Union. The only evidence to support this position is San
Miguel's testimony as to some organizational work he did
for the Union. Said testimony is correctly outlined in
Respondent's brief as follows:
With respect to assisting and/or performing services
for or on behalf of the Union, Mr. San Miguel testified
to the following:
1. Approximately one and one-half to two months
after his discharge, San Miguel traveled to the
Company's plant in Victoria, Texas to pass out leaflets
encouraging the Company's employees to sign UAW
authorization cards. Mr. San Miguel testified that he
passed out leaflets at the Victoria plant on two
occasions for "two days or something like that."
2. Mr. San Miguel testified that following his
discharge from the Company's San Antonio plant and
to the present time he has actively encouraged
employees at the San Antonio plant to sign Union
authorization cards. Mr. San Miguel stated, however,
that he was not actively working on behalf of the
Union, but, rather, was actively working on behalf of
the people themselves. In this connection, Mr. San
Miguel testified that he "would go and talk to the
people, and [he ] would ask the people to ask Roy
[Hernandez ] for the cards."
3. Mr. San Miguel admitted performing Union
organizational work at Comanche Steel. He testified
that approximately three weeks after he commenced
working for Comanche Steel he contacted UAW
Organizer Juan Diaz and set up a meeting with his co-
workers. At the meeting San Miguel's co-workers
signed Union authorization cards. It has been stipulat-
ed that the UAW petition for an election at Comanche
Steel was filed August 16, 1971, and that August 17,
1971 was the last day that San Miguel worked for
Comanche Steel.
It was further stipulated by the parties that San Miguel
started working for Comanche Steel on July 12, 1971.
San Miguel credibly testified that the type of job he had
consisted of cutting steel which was more onerous work
than that he performed for Respondent, that he received
$1.70 an hour from Comanche, and that he quit because he
was offered a job as a carpenter's helper at $3 an hour. It is
found that the fact that he quit his job the day after the
petition was filed was a mere coincidence.
It is concluded that there is insufficient evidence to
permit the inference that the monies paid by the Union
were compensation for services rendered to the Union. As
General Counsel pointed out in his brief, considering the
amount of time San Miguel spent in organizing efforts for
the Union to conclude that the $4,880 were paid to him for
engaging in such activity would have "surely established
San Miguel as one of the highest paid organizers of all
time." Obviously, the sums of money received by San
Miguel had no relationship to the efforts he spent on
behalf of the Union and therefore could not have been
intended as compensation to him for services rendered.
Respondent further argues that the monies could not
have been a loan, because under the "Labor Management
Reporting and Disclosure Act" the Union was required to
make a report of loans made to its members and it is
stipulated that such a report was not made under said Act.
Respondent contends that in view of the failure to make
the report, the Union did not consider the monies paid to
San Miguel to be a loan. There is no testimony in the
record from a representative of the Union as to why such a
report was not made. Whatever the reason, it does not
appear that the failure to make the report in anyway
altered the understanding between the Union and San
Miguel that the money would be repaid in the event he was
reinstated with backpay by Respondent. True, the ad-
vances made to San Miguel did not bear all of the
characteristics of a normal loan in that interest was not
required and repayment was not unconditional. What they
appear to have been, however, are advances of monies
against recovery of backpay from Respondent. It is noted
there is no evidence that the Union treated them as wages
or compensation for services, since there is no showing that
it made the required withholdings applicable to earnings,
such as for taxes and social security. In all of the
circumstances, it is concluded that the advances totalling
$4,880 made by the Union to San Miguel cannot be
considered as interim earnings, My Store, Inc., 181 NLRB
321, 326, 329.
Therefore, it is concluded that the net backpay due to
Victor San Miguel is the amount of $4,271.50, as set forth
hereinabove.
Benito Perez-No purpose would be served in setting
forth a summary of the backpay computation for Perez in
view of the findings and conclusion herein below. Perez
testified that about a week after he was discharged he
started to look for employment. It appears that he found
work immediately. The General Counsel accurately sum-
marizes in his brief the facts material to the issue with
respect to the backpay due to Perez. In his brief the
General Counsel states:
The record reflects that Benito Perez went to work at
B. B. Saxon Company, Inc. the week after he was
discharged; that he had worked [there] prior to going to
work for Respondent; and that he quit his employment
after working one week for Saxon. Perez gave as his
GARY AIRCRAFT CORP.
reason for quitting his employment with Saxon, "I just
didn't like to work there".
The record further reflects that Perez was perform-
ing substantially equivalent work at Saxon as he did
with Respondent, and that he was earning $1.90 per
hour at Saxon .4
In his brief, General Counsel argues as follows:
It is clear that Benito Perez voluntarily quit
substantially equivalent employment with B. B. Saxon
Company, Inc. It does not follow, however, as
Respondent contends that Respondent's liability to
Perez is forevermore cut off thereafter. The Board has
held in East Texas Steel Castings Company, Inc., 116
NLRB 1336, 1347-48 (1956) that:
Assuming, however, that (claimant] quit some of
these [interim] jobs without a justifiable reason,
we still cannot subscribe to the Respondent's
theory that a voluntary quitting of employment
... necessarily constitutes a loss willfully in-
curred which bars the claimant from recovery of
any back pay for a whole period of discrimination
rather than for the periods of the voluntary
idleness of the discriminatee during which he was
out of the labor market.
In that case the discriminatee was barred from
recovery of backpay only for the period of voluntary
idleness that he was out of the labor market, and
backpay resumed when he reentered the labor market.
Here it is undenied that Perez immediately reentered
the labor market, actively sought employment and was
employed in a training program where he not only
earned wages but also developed craft skills enabling
him to eventually secure a higher rate of pay than he
ever had with Respondent. Accord: Associated Trans-
port Company of Texas, Inc., Etc., 194 NLRB 62, 73-74
(1971).
On the other hand, Respondent argues as follows:
In sum, it is respectfully submitted that Respondent
Company's backpay obligation is tolled to the extent of
the earnings that Claimant Benito Perez would have
earned had he not quit his interim employment with B.
B. Saxon; ... .
It appears that, had Perez not quit his employment at
Saxon, he would have continued to earn more than he
would have earned had he remained in the employ of
Respondent.
General Counsel apparently misunderstands the issue.
The issue is not whether, or how long, Perez' backpay is
completely tolled because he unjustifiably quit his interim
employment at Saxon and took himself out of the labor
market, rather, it is whether or not for the duration of the
backpay period the gross backpay computations for each
quarter should be offset by the amount of money he would
have earned had he remained in the employ of Saxon. It
appears to be well established that when a claimant
unjustifiably quits an interim job, as Perez did, there is an
557
offset for the remainder of the backpay period of the
amount he would have earned had he retained his interim
employment . This is clearly set forth in Knickerbocker
Plastic Co., Inc., 132 NLRB -1209, 1215. In said case the
Board states as follows:
We further find that, as a result of such quitting, each
of these claimants shall be deemed to have earned for
the remainder of the period for which each is awarded
backpay the hourly wage being earned at the time such
quitting occurred. Therefore, an offset computed on the
appropriate rate per hour will be deducted as interim
earnings from the gross backpay of each of these
claimants . This offset shall be made applicable from
the date of the unjustified quitting throughout the
remainder of the backpay period for each particular
claimant. In this connection, where the claimant has
secured other employment during the time the offset is
applicable, and if, on a quarterly basis, she earned a
greater amount than the offset, the offset will not be
applied, but the actual interim earnings will be
deducted from gross backpay. If she earned less than
the offset at employment secured subsequent to the
quitting, also on a quarterly basis, the amount of the
offset will be applied.
Thus, it is concluded that throughout the backpay period
for Perez an offset is applicable for each quarter against his
gross backpay of the amount he would have earned had he
remained at Saxon. Since the offsets are in excess of the
amounts of the gross backpay set forth in the specification
for each quarter there is no money due to Perez for
backpay.
Joe M. Otero-The Respondent raised two issues with
respect to the computation of the backpay due to Otero.
First, Respondent argues that he did not make an
"honest good faith effort" to secure interim employment
subsequent to his discharge on September 14 for the
remainder of the third quarter 1970 and the fourth quarter
of 1970 and that, therefore, the backpay should be tolled
during said periods. It appears from Otero's testimony that
he started looking for work shortly after his discharge and
sought employment with reasonable diligence at a number
of places in September, October, and December. However,
there is little evidence of any attempt on his part to secure
employment during the month of November. When
questioned about what he did in November, he testified
that he did not recall what he did during that month to
obtain employment. His testimony as to that month is
extremely vague. It appears appropriate, however, to find
that during the backpay period from September 14, 1970,
to the end of the fourth quarter of 1970, as a whole, Otero
exercised diligence in seeking interim employment. There-
fore, it is found that the Respondent has not sustained the
burden of proof that during said period the claimant did
not make a good-faith effort to seek employment. Cornwell
Company, Inc., 171 NLRB 342, 343.
The second issue involves his discharge from interim
employment. In February 1971 Otero obtained employment
4 It is noted that he was earning $1 .75 per hour at the time he was
discharged by Respondent.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Jorrie's Furniture Company as a furniture
refinisher . He was hired as a refinisher and worked at that
job for 1 1/2 months, but then was transferred to the job of
truckdriver's helper (assisting the truckdriver in delivering
furniture). Otero credibly testified that he weighs only 130
lbs. and was unable to match the work of the heavier
truckdrivers . Apparently he was terminated for his inabili-
ty to cope with the job . Said job of assisting in the delivery
of furniture was obviously not substantially equivalent to
the one from which he was discharged by Respondent and
it is found that he lost his job not because of any willful
conduct on his part but because of his lack of physical
qualifications for the work . Although in the course of the
hearing the Respondent indicated that because of his
termination by Jorrie's backpay should be tolled until he
obtained other employment, in its brief the Respondent
does not urge this contention . In any event , in view of the
fact that his termination was from a job which was not
comparable to the one from which he was discriminatorily
discharged and that he did not willfully cause his discharge
from Jorrie 's, it does not appear that there is any basis for
tolling Otero's backpay for the period after his discharge
from Jorrie 's until he secured other employment, as
contended by Respondent.
There is no dispute with respect to the computation of
backpay for Otero for the remainder of his backpay period.
Otero's backpay is therefore computed as follows:
3d Qtr. '70
Gross Backpay Due
(2-3/5 wks. only)
130 hrs . @ $ 1.60 = $208
3d Qtr. '71
Net Backpay $148
4th Qtr. '71
Net Backpay $287
1st Qtr. '72
Net Backpay $ 9
2d Qtr. '72
Net Backpay $ 0
3d Qtr. '72
Net Backpay $ 80
4th Qtr. '72
Net Backpay $ 39
1st Qtr. '73
Net Backpay $ 86
2d Qtr. '73
Net Backpay $ 0
16 add. hrs. @ 30c per hr.
5/21-5/22/73 $ 5
TOTAL NET BACKPAY $2,633
Less Interim Earnings 0
Net Backpay $208
4th Qtr. '70 Upon the foregoing findings of fact , conclusions of law,
Gross Backpay Due and upon the entire record , and pursuant to Section 10(c)
733 hrs. @ $1.60 = $1,173 of the Act, I hereby issue the following recommended:
Less Backpay for Nov. 0
SUPPLEMENTAL ORDERS
Net Backpay $1,173
1st Qtr. '71
Gross Backpay Due
79 hrs. @ $1.60 = $126
435 hrs. @$1.70 = 740 $866
Less Interim Earnings
Jorrie's Furniture Co. 304
Net Backpay $562
2d Qtr. '71
Gross Backpay Due
241 hrs. @ $1.70 = $410
280 hrs. @ $1 . 75 - 490 $900
Less Interim Earnings
Jorrie's Furniture Co. $224
Springfield Maintenance 640 864
$ 36
Respondent, Gary Aircraft Corporation , its officers,
agents, successors, and assigns, shall:
1. Pay each of the discriminatees named herein as net
backpay the amounts set forth below: Joel Estala, $2,415;
Vincent Paredes , $ 148; Victor San Miguel , $4,271.50; and
Joe M. Otero, $2,633.
2. Pay to the Regional Director for Region 23 the sum
of $226, the tentative amount of backpay found to be due
to Lloyd Wright, to be held by said Regional Director in
escrow pursuant to the recommendations set forth hereina-
bove.
3. In addition to the above amounts , pay interest at the
rate of 6 percent per annum computed on the basis of each
1 S 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
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.
GARY AIRCRAFT CORP. 559
quarterly amount of net backpay due less any tax backpay due to Benito Perez, the Respondent is not
withholding required by law. 'ordered to pay any money to said discriminatee.
It having been found hereinabove that there is no