Hill Transportation Co.

National Labor Relations Board - Board Decisions

Feb 5, 1953

102 N.L.R.B. 1015 (N.L.R.B. 1953)

HILL TRANSPORTATION COMPANY 1015
HILL TRANSPORTATION COMPANY AND MACKENZIE COACH LINES, INC.
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS, LOCAL No. 633 (AFL). Case No.
1-C X823. February 5,1953
Supplemental Decision and Recommendation
On February 4, 1948, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
proceeding, which was thereafter enforced by a decree entered on
December 7, 1948, by the United States Court of Appeals for the
First Circuit. The decree provided, inter alia, that certain persons,
herein called the claimants, who had been discriminatorily dis-
charged by the Respondents, were entitled to back pay to be paid by
the Respondents for the period of the discrimination against them.
On April 29, 1952, Trial Examiner Albert P. Wheatley issued his
Report Concerning Back Pay, a copy of which is attached hereto,
finding that the claimants are entitled to certain specific amounts of
back pay.' Thereafter, one of the Respondents, through its trustee
in bankruptcy, filed exceptions to the Trial Examiner's report.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
report, the exceptions thereto, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and modifications :
With respect to 2 of the 6 claimants involved herein, the Trial
Examiner found, and we agree, that Harold J. Bartlett and Alkeenon
Nichols were entitled to back pay from the date of the Respondents'
discrimination against them until December 20, 1947. The Respond-
ent contends that the cutoff date as to these employees should be
July 1947, because that is the date the Board's General Counsel
relied upon in a brief filed at one stage of the bankruptcy proceeding.
While this is true, the record shows that the General Counsel relied
upon the assertion of an officer of the Respondents that Bartlett and
Nichols had been offered and refused reinstatement in July 1947;
I As fully set forth in the Trial Examiner 's report, an involuntary petition in bank-
ruptcy was filed against one of the Respondents and there was a dispute as to the amounts
of back pay to which each claimant was entitled . On October 4, 1951 , the Board issued
an order reopening the record for the purpose of determining these amounts . In accord-
ance therewith the Trial Examiner conducted a hearing between February 26 and March
4, 1952. The authority of the Board to make the back-pay computations in this matter
has recently been affirmed by the Supreme Court of the United States. Nathanson,
Trustee V. N. L. B. B., 344 U. S. 25.
2 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 Herzog and
Members Murdock and Peterson].
102 NLRB No. 100.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whereas, as found by the Trial Examiner herein, such offers were not
received by these employees. Consequently, the Trial Examiner
properly determined, from the record as a whole, that the back-pay
cutoff date was December 20, 1947, as this is the date that the jobs of
Bartlett and Nichols were discontinued.
The Trial Examiner found that the amount of gross back pay due to
C. R. Bunn, one of the dischargees, was $1,482.63. At the time of
the hearing, Bunn's whereabouts were not known and there was no
adequate record of his interim earnings. Since the hearing, however,
Bunn has been located and the parties entered into a stipulation
on December 22, 1952, which provides evidence that Bunn's interim
earnings amounted to $1,061.98. The stipulation is hereby approved
and made a part of the record. Accordingly, we find that the amount
of net back pay due to Bunn is $420.65.
Recommendation
Upon the basis of this Supplemental Decision and the entire record
in the proceeding, the National Labor Relations Board hereby respect-
fully recommends to the United States Court of Appeals for the
First Circuit that its decree, entered on December 7, 1948, be amended
to incorporate therein the respective amounts of net back pay
required to be paid by the Respondents to each of the claimants, as
follows :
Elwyn L. Bartlett---------------------------------- $779.43
Harold J. Bartlett--------------------------------- 1,331.25
Clifford R. Bunn---------------------------------- 420.65
Gerry S. Kimball---------------------------------- 243.30
Alkeenon Nichols---------------------------------- 1,114.54
Robert Varney------------------------------------ 862.42
Report Concerning Back Pay
STATEMENT OF THE CASE
On January 3, 1947, the National Labor Relations Board, herein called the
Board, issued a complaint against Hill Transportation Company and Mac-
Kenzie Coach Lines, Inc., herein called Respondents, alleging that they had en-
gaged in unfair labor practices in violation of the National Labor Relations
Act, herein called the Act. After appropriate proceedings, the Board on Febru-
ary 4, 1948, ordered "Hill Transportation Company and MacKenzie Coach
Lines, Inc., and their officers, agents, successors, and assigns" to pay certain
persons back pay from the date of discrimination found by the Board to the
date of an offer of reinstatement.
On June 7, 1948, an involuntary petition in bankruptcy was filed against
MacKenzie Coach Lines, Inc.
On December 7, 1948, the United States Court of Appeals for the First Cir-
cuit entered its decree enforcing the Board's Order of February 4, 1948. There-
HILL TRANSPORTATION COMPANY 1017
after, the Board filed with the referee in bankruptcy its proof of claim for
back pay for some of the persons covered by the court's decree . The referee
held a hearing on April 17, 1950, at which he entertained an amendment to the
claim and took evidence. On June 29, 1950, the referee disallowed the claim. On
July 7, 1950, the Board petitioned the District Court of the United States for
the District of Massachusetts for review of the order of the referee. In his
December 1, 1950, certificate to the district court, the referee assigned as his
reasons for disallowing the Board's claim that the persons covered by the back-
pay order were not employees of the bankrupt ; that the claims of these persons
had, in any event, been compromised ; and that the claims were not liquidated.
On September 27, 1951, the district court ruled that "neither the reasons
given by the Referee, nor the additional reasons urged in this Court by the
Trustee in Bankruptcy warranted the Referee' s action in disallowing the
Board's amended claim."' On September 28, 1951, the district court entered
its order setting aside the referee's disallowance of the amended claim of the
Board. The referee was also ordered to permit the matter to stand in abey-
ance for 2 months to permit the Board, in accordance with the National Labor
Relations Act, to fix the precise amount now owing from the bankrupt to the
Board and to file with the referee an amendment to its claim showing such
amount. Thereafter the trustee in bankruptcy of MacKenzie Coach Lines,
Inc., appealed to the United States Court of Appeals for the First Circuit
from the order of the district court.
On February 11, 1952, the aforesaid circuit court entered its decision affirm-
ing the order of the district court (194 F. 2d 248).
Pursuant to a notice of further hearing, dated February 12, 1952, and signed
by the Board's Regional Director for the First Region, Boston, Massachusetts,
a further hearing was held before the undersigned on February 26, 27, 28, 29,
and March 3 and 4, 1952, in which the trustee in bankruptcy and his attorney,
counsel for the National Labor Relations Board, and the president of Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
Local No. 633 (AFL), herein called the Union, participated. The notice of
further hearing stated that the purpose of said hearing was:
... to determine the amount of back pay due Elwyn Bartlett, Alkernon'
Nichols, Robert Varney, Harold Bartlett, C. R. Bunn and Gerry Kim-
ball.'
At the hearing before the undersigned the trustee attempted, as he did
before the referee and the courts, to have a determination made that some
of the discharged employees were not employees of the bankrupt and that
therefore the trustee was not obliged to make restitution to them. The
undersigned ruled that such an issue was not properly before the undersigned
in view of the prior proceedings, including especially the order of the Board
as enforced by the circuit court on December 7, 1948, wherein the back-pay
liability was imposed jointly and severally upon Hill Transportation Com-
pany and MacKenzie Coach Lines, Inc. The undersigned has considered this
matter further and is still of the opinion that he has no authority at this
stage of the proceedings to rule upon such matters.
At the hearing before the undersigned the trustee renewed his efforts to
establish a compromise settlement of the back-pay liability. Because the
undersigned was at that time unfamiliar with the prior proceedings and not
in a position to rule whether this issue was properly before him, the under-
1100 F. Supp. 489.
A misspelling. The name should be Alkeenon Nichols.
3 The persons named in the Board's Order as enforced by the circuit court.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed received evidence with respect to this matter conditionally, i. e., sub-
ject to a determination as to whether such matter was properly before the
undersigned. After further consideration the undersigned is of the view that
this matter is res judicator at this stage of the proceedings and that the evi-
dence with respect thereto should not now be considered.4
Because the undersigned was not familiar with the prior proceedings and
not in a position to rule with respect to such matters, at the hearing before
him the undersigned considered the possibility that the trustee's liability
might be limited so as not to extend beyond the amounts specified in the
Board's claims before the referee. After further consideration of the matter
and in view of the remand of these proceedings "to fix the precise amount
now owing . . . and to file with the Referee an amendment to its claim show-
ing such amount" (100 F. Supp. 489, 491) the undersigned believes and finds
that this matter is not properly before him for consideration.
In the opinion of the undersigned his sole responsibility herein is to deter-
mine, in accordance with the provisions of the Board's Order as enforced, the
amount of back pay now outstanding, if any.
The Board's Order as enforced by the United States Court of Appeals for
the First Circuit provides, inter alia, that Hill Transportation Company and
MacKenzie Coach Lines, Inc., shall6
(a) Offer Elwyn Bartlett, Harold Bartlett, Alkernon Nichols, Robert
Varney, and C. R. Bunn immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority
or other rights and privileges in the manner set forth in the Intermediate
Report in the section entitled "The remedy" ;
(b) Make whole in the manner set forth in "The remedy" the persons
whose names appear in Appendix A of this Order [Elwyn Bartlett, Alkeenon
Nichols, Robert Varney, Harold Bartlett, C. R. Bunn, and Gerry Kimball]
for any loss they may have suffered by reason of respondents' discrimina-
tion against them.
The pertinent provisions of the section entitled "The Remedy," states :
It will be recommended that respondents offer to each of them [Elwyn
Bartlett, Harold Bartlett, Alkeenon Nichols, Robert Varney, C. R. Bunn,
and Gerry Kimball] except Gerry Kimball" immediate and full reinstate-
ment to his former or substantially equivalent position' without prejudice
to his seniority or other rights and privileges, and make each of them whole
for any loss of pay suffered by reason of such discrimination by payment to
each of them of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him" to the date of
32 Kimball was offered and refused his former position on or about November 11,
1946.
33 In accordance with the Board's consistent interpretation of the term, the expres-
sion "former or substantially equivalent position" is intended to mean "former posi-
tion wherever possible, but if such position is no longer in existence, then to a sub-
stantially equivalent position." See Matter of The Chase National Bank of the City
of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827.
34 In the cases of the five men who went on strike on March 25 [Robert Varney,
Harold Bartlett, Gerry Kimball, Alkeenon Nichols, and C. R. Bunn], it appears that
they remained on strike until on or about March 27. It is accordingly recommended
that back pay be awarded them commencing March 27, 1946, except in the case of
Gerry Kimball who testified that he made no attempts to obtain other employment
until 6 weeks after his discharge. In his case, it is recommended that back pay
commence at that time.
4 If this evidence should be considered the undersigned believes such evidence inadequate
to show that the Board approved any settlement agreement.
6 See T5 NLRB 1203.
HILL TRANSPORTATION COMPANY 1019
offer of reinstatement" less his net earnings SB during that period.
It appears from the record that there are at the present time less em-
ployees in the unit [maintenance and repair shop employees] than at the
time of the commission of the unfair labor practices. Although it does not
appear whether or not this is a temporary situation, the undersigned [the
Trial Examiner who presided at the original hearing] will provide for this
contingency in the event that the size of the unit has been permanently
reduced. It is accordingly recommended, in the event there are not now
sufficient positions available, that all employees hired since March 25, 1946,
within the appropriate unit, shall, if necessary, be dismissed by respondents
to provide employment for those employees to be offered and who shall
accept reinstatement. If thereupon, there is not sufficient employment
immediately available for the employees to be offered and who shall accept
reinstatement, then all positions shall be distributed by respondents among
the employees presently working, excluding those dismissed, and the em-
ployees to be offered and who shall accept reinstatement in accordance with
respondents' usual method of reducing their force, following such system )f
seniority or other non-discriminatory procedure as has been heretofore
applied by respondents in the conduct of their businesses. Those employees
remaining after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list, with priority determined
among them in accordance with such system of seniority or other non-
discriminatory procedure as has heretofore been applied by respondents,
and thereafter, in accordance with such list, be offered reinstatement to
their former or substantially equivalent positions as such employment
becomes available and before other persons are hired for such work.
" In Kimball's case, it is recommended that back pay be awarded only to the date
he refused employment on November 11, 1946.
36 See Matter of Crossett Lumber Company, & NLRB 440.
The record reflects that Respondents gradually discontinue (for business rea-
sons) the use of maintenance and repair shop workers and eventually went out
of business. Nevertheless, during this period and at times when Respondents
would not normally have utilized the services of some of the dischargees in the
maintenance and repair shop, Respondents employed certain individuals, whose
employment began after the date of the discharges herein, as bus operators.
Thus a question arises as to whether in computing gross back pay, consideration
should be given to the probability that absent discrimination, during periods
when work for mechanics slackened, the dischargees would have been employed
as bus operators.
The text of the section of the Board's Order, as enforced, entitled "The Remedy"
(quoted above) appears not to require Respondents to offer bus operators jobs
to the dischargees as part of the reinstatement requirement. Furthermore in
the opinion of the undersigned, bus operators jobs are not substantially equiva-
lent to the positions which the dischargees held prior to their discharges.'
Nevertheless, the purpose of the Board's Order is to effectuate the policies of
the National Labor Relations Act and to expunge the effect of prior unfair labor
practices and the text of the Order must be read in this light. As thus inter-
preted, it seems apparent that the Order is not to put the dischargees in a worse
position financially than they would have been except for Respondents' unfair
labor practices. Furthermore, the section of the Board's Order entitled "The
Remedy" makes it apparent that the requirements with respect to reinstatement
6 There are substantial differences of pay and different types of services are required.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are distinguishable from those concerning back pay. Thus the reinstatement
provisions of the Order require offers of former or substantially equivalent posi-
tions-offers of jobs as mechanics-whereas the back-pay provisions encompass
all wages the dischargees would have received absent discriminations against
them. The record herein reflects many instances when maintenance and repair
shop workers became bus operators. Thus it seems probable that absent the
discharges the individuals involved herein, during periods of slack work in the
maintenance and repair shop, would have been afforded an opportunity to con-
tinue in Respondents' employ as bus operators. It follows that a ruling that
Respondents were not required to offer available bus operator jobs to the dis-
chargees would penalize said individuals because of Respondents' unfair labor
practices and inequitably deprive them of earnings which they otherwise prob-
ably would have had. Accordingly, in computing gross back pay, the undersigned
has endeavored to determine the periods when the dischargees would have been
employed as mechanics and the periods when, because of slack work in the
maintenance and repair shop, the dischargees would probably have been em-
ployed as bus operators.
The Calculation of Back Pay
It is apparent from an examination of the record herein that there were not
enough mechanics' jobs during the whole back-pay period ° to go around among
all the dischargees. This means that all the dischargees would not have been
employed steadily between the time of their discharges and the time when the
back-pay period ends. Thus, one of the requirements of an accurate back-pay
formula is to provide some method for determining how many of the employees
are entitled to back pay during each week in the back-pay period. In addition,
it must provide a system for determining which of the dischargees would have
been employed, absent discrimination, in each week of the back-pay period.
Respondents' records show that no steady or normal number of hours of work
per week was available during the back-pay period. Since most of the dischargees
were employed on an hourly pay-rate basis, some provision must be made to
determine the number of hours of work which were available to each of them
during the back-pay period. The General Counsel proposed a simple formula
for determining gross back pay. He would have gross back pay consist of the
average predischarge weekly earnings of each claimant multiplied by the number
of weeks in the back-pay period. On the other hand, the Respondents' desire that
only the actual earnings of the replacements for the discriminatees be the meas-
ure of the back pay for them. The General Counsel's formula is inapplicable
since it fails to consider the reduction in jobs available for the dischargees and
does not provide for reduced hours of employment available during the back-pay
period. The Respondents' formula is inappropriate for the reason that it fails
to take into account the different rates of pay as between the dischargees and
their replacements. It is manifestly not a fair remedy to award a dischargee
back pay at the rate of 80 cents per hour when his rate of pay, absent the dis-
crimination, would have been $1 per hour.
In view of these considerations, the undersigned has employed a formula
which does provide for all the contingencies previously related and which borrows
elements from the suggested formulae of both the General Counsel and the
Respondents.
During the first 4 weeks following the discharges there were fewer jobs occu-
pied by replacement mechanics than there were dischargees. However, from
1 Back-pay period ends December 20, 1947.
HILL TRANSPORTATION COMPANY 1021
April 28 through June 22, 1946, the number of mechanics employed by Respond-
ents ran from a low of 10 to a high of 13 (more than the number of mechanics
employed in the week of the discharges). (Appendix A.) This implies that the
reduced employment between March 27 and April 27, 1946, was caused not by
economic factors but by the upset conditions resulting from the discharge of
virtually the entire staff of mechanics on the former date. Accordingly it ap-
pears that absent discrimination, the dischargees would have continued working
through June 22, 1946, at the same rates of pay and for at least the same number
of hours they had worked theretofore. Hence, their average weekly earnings
prior to their discharges multiplied by the number of weeks in this period is an
appropriate measure of their back pay for the period from the date of the dis-
charges through June 22, 1946.
Thereafter, however, the employment of mechanics appears to have receded to
lower levels for reasons unrelated to the discharges and the problems created by
the existence of fewer jobs than dischargees needs to be provided for.
The question of how many dischargees would have been employed as mechanics
in any given week after June 22, 1946, is answered by an examination of
Respondents' payroll records to determine the number of mechanics actually
employed. For if Respondents actually employed four mechanics in, say, the
week ending June 29, 1946, it is reasonable to believe that absent discrimination
they would have likewise employed four of the dischargees in that week, and so
on throughout the back-pay period. Thus, for every week in the back-pay period
(after June 22, 1946) the number of replacements employed has been regarded by
the undersigned as the number of jobs available for dischargees (Appendix A).
Another question which stems from the need to compensate some dischargees
for portions of their back-pay periods during which they would have occupied
jobs as bus drivers is : Were there, during these times, always enough jobs as
bus drivers to go around among all such claimants? This question is answered
in the affirmative by the data in Appendix B, which is an analysis of the
Respondents' records to show the number of bus drivers employed by weeks who
were hired for the first time after the discharges in question took place.
The next element to be considered is a basis for allocating the available jobs
among the dischargees . In view of the section of the Board 's Order entitled
"The Remedy" the undersigned has adopted seniority as the basis for distributing
available jobs (Appendix C).
Thus, the jobs were allocated among the oldest of the dischargees , and reduc-
tions in force applied first to the youngest of the dischargees in order of seniority.
Inasmuch as the hours of employment fluctuated between weeks, and among
the various replacements during the back-pay period (as well as among the dis-
chargees prior to their discharge ) the question is raised-how much would the
dischargees who would have been employed have earned? This may be answered
by an examination of the total number of hours worked in each week by the re-
placement mechanics . For if a staff of 4 replacement mechanics worked a total
of 168 hours in a given week, there is no reason to believe that a similar amount
of work would not have been available to the dischargees absent discrimination.
As to the probable allocation of these hours among the dischargees, no accurate
index is at hand to determine this; hence the average weekly hours worked by
the replacements is allocated to each of the dischargees for whom work was
available (Appendix A). In our sample week referred to above, each of 4 of the
most senior dischargees has been considered eligible to the gross back pay repre-
sented by 42 hours of work.
Most of the dischargees had been paid on an hourly basis prior to their dis-
charge. For these, their gross back pay has been calculated by multiplying their
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hourly rate by the average hours of work they would have had, absent discrimi-
nation. Complications were encountered in the cases of Elwyn Bartlett and
Clifford Bunn . The methods for determining their hourly rate of pay are dis-
cussed below . However , their gross back pay has been computed in the same
way as that of the other dischargees as described above.
Interim Earnings
The source of the main data as to interim earnings of the dischargees was the
reports of the Social Security Administration . Since these account for earnings
on a quarterly basis, the amounts reported have not always coincided in time
with the payroll periods of Respondents 8 This is of importance since at times
when no gross back pay is accruing to the credit of a claimant , no monies he may
have earned in the same times are properly deductible from the total gross back
pay." The consequent necessity of making an adjustment of interim earnings
to account for this contingency was met by ascertaining the number of working
days in the quarter affected, dividing the quarter 's earnings by this figure to
obtain a daily earning rate, and finally multiplying the daily earning rate by
the number of days in the quarter in which gross back pay was accruing to
the claimant 's credit.
In summary , gross back pay has been computed as follows :
1. For the period from the date of the discharges to June 22, 1946, multiply the
dischargees' average weekly earnings prior to their discharge by the number of
weeks in this period.
2. For the remainder of back-pay period :
a. Dischargees are eligible to mechanics jobs in the same number as there
were replacements working in each of the weeks in the back-pay period.
b. Jobs are allocated on the basis of seniority.
c. The average hours worked by the replacements multiplied by the pre-
discharge rates of pay of the dischargees equals their gross back pay.
d. In those weeks when no work as a mechanic was available for a dischargee,
back pay was calculated for him as a bus driver. This consisted of the average
weekly earnings of all the bus drivers employed by Respondents in the weeks in
question (Appendix D).
e. Total gross back pay less total net interim earnings equals net back pay.
f. Net back pay less amounts already paid by Respondents equal amounts
presently remaining to be paid.
Elwyn Bartlett (See Appendix E)
Elwyn Bartlett's employment with Respondent commenced on March 24,
1943. At the time of his discharge on March 22, 1946, he was a mechanic and
his average earnings weekly totaled $63.509. The record does not indicate
his hourly rate of pay prior to his discharge but does indicate that after his
reemployment on May 26, 1947, he averaged $1.09 per hour. From the entire
record herein this appears to be the approximate hourly rate of Elwyn Bartlett
prior to his discharge and will be used herein in computing his gross back pay.
By letter dated May 19, 1947, Bartlett was informed that MacKenzie Coach
Lines had "a position which you can fill" and was requested to "report for work
8 Thus , for instance , the back-pay period of a claimant might end on July 30 whereas the
comparable report of interim earnings would include all earnings for the months July,
August, and September.
9 N . L. R. B. v Hudson Motor Car Co., 136 F. 2d 385 ( C. A. 6).
HILL TRANSPORTATION COMPANY 1023
on Monday, May 26, 1947." Bartlett reported for work on this date and counsel
for the Board does not seek back pay for him beyond May 26, 1947.
The payroll records (General Counsel Exhibits Nos. 15C, 15A) indicate that
Elwyn Bartlett received 1 week's vacation pay in addition to his regular pay
in the week ending June 6, 1945. About 6 months later in the week ending
November 28, 1945, he received another week's vacation pay in addition to his
regular pay. From this, the undersigned concludes that in addition to his
regular pay, in the ordinary course of events, Elwyn Bartlett would have received
2 weeks' vacation pay in the year 1946 had he not been illegally discharged.
Accordingly, this amount has been credited to the gross back pay due him
(Appendix E).
The record herein reflects that absent discrimination Elwyn Bartlett nor-
mally would have earned during the period from March 22, 1946, to May 26,
1947, a total of $3,605.43 (Appendix E).
Elwyn Bartlett's interim earnings during the period involved herein (from
March 22, 1946, to May 26, 1947) totaled $2,276. The following table concerns
Elwyn Bartlett's interim earnings and is self-explanatory :
Name of employer Period employed Earnings 10
Sherman's Garage_______________________________ 4-1-46--6-430-46 $252
William Yeaton_________________________________ 4-1-46-6-30-46 208
Sherman's Garage_______________________________ 7-1-46-9-30-46 240
William Yeaton_________________________________ 7-1-46-9-30--46 216
Boston and Maine Transportation________________ 10-1-46-5-26-47 1,360
The record reflects that Elwyn Bartlett has received from Respondents $550
which is to be deducted from his net back pay leaving the net amount of $779.43
remaining to be paid him (Appendix E).
Harold Bartlett (See Appendix F)
Harold Bartlett worked for Respondents about 1 year before he was dis-
charged on or about March 27, 1946. At the time of his discharge Harold Bart-
lett's weekly earnings averaged $68.996.
There is conflicting evidence as to whether Harold Bartlett was offered re-
instatement and declined such. On the basis of Harold Bartlett's testimony,
which the undersigned credits, and the entire record herein the undersigned be-
lieves and finds that Harold Bartlett was not offered reinstatement and did not
decline an offer of reinstatement.
Absent discrimination Harold Bartlett would have earned a total of $4,729.28
(see Appendix F).
Harold Bartlett's interim earnings, computed as follows, totaled $3,239.53.
Name of employer Period employed Earnings
Charles Farmer________________________________ 4-1-46-630-46 11$87.62
Paquette & Trafton_____________________________ 4-1-46-6-30-46 88.00
7-1-46-9-30-46 683.75
10-1-46-12-31-46 628.60
"The record reveals that during this period Bartlett also received $15 or $20, for work
commenced prior to his discharge but completed thereafter. This sum is not deductible as
interim earnings as Bartlett had enjoyed this independent source of income prior to the
date of the discrimination against him (see 6'ifers Candy Company, 92 , NLRB 1220).
11 Expenses incurred in driving to and from work, between Kittery, Maine , and Roches-
ter, New Hampshire , a distance of about 70 miles per round trip at $.05 per mile for 20
days have been deducted from the total earnings from Charles Farmer ( see Crossett
Lumber Co., 9 NLRB 440').
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name of employer Period employed Earnings
Philip Rowe & Carrol Trafton------------------- 1-1-47-3-31-47 $197.00
4-1-47-6-30-47 390.10
United Aircraft-------------------------------- 1-1-47-3-31-47 " 164. 46
Stanley Ware------------------------------- 7-1-47-12-20-47" 1,000.00
The record herein reflects that $500 was paid to the Union which was distrib-
uted proportionately among the dischargees.
Harold Bartlett's share of the $500 totaled $158.50 which sum is to be de-
ducted from the net back pay leaving the net amount of $1,331.25 remaining to
be paid him (see Appendix F).
C. R. Bunn (See Appendix G)
C. R. Bunn's employment with Respondents commenced January 5, 1946. At
the time of his discharge on March 27, 1946, he was a mechanic and his earnings
weekly averaged $47.619.
Bunn was reemployed by Respondents and worked as a bus driver operating
a bus on a regular route for about 5 days in October 1946. The payroll records
reveal that he earned a gross amount of $29.95 during the week ending Octo-
ber 23, 1946. The record herein reveals that immediately after the termination
of this employment, Bunn left the vicinity of Respondents' business and since
that time his whereabouts have been unknown. The record, including state-
ments of counsel, further reveals that efforts to locate him have not been fruitful.
No evidence was offered in the proceeding before the undersigned concerning
interim earnings of Bunn 14
Under normal circumstances where interim earnings and availability for
employment cannot be ascertained because of the absence of information con-
cerning the whereabouts of the dischargee the undersigned would recommend
that the maximum amount of back pay that might be due such individual be
held in escrow a reasonable time pending the ascertainment of such information
(interim earnings and availability for employment) and the establishment of
the correct amount due such individual. However, in view of the bankruptcy
proceedings, the cessation of business by Hill Transportation Company, the length
of time that has already elapsed since the entry of the Board's Order, the fruit-
less efforts to locate Bunn,15 and the expediency of bringing this proceeding to a
successful conclusion at an early date, the undersigned has endeavored to arrive
at a reasonable method of effectuating compliance on the basis of available in-
formation and recommends that such be accomplished in the following manner :
That back pay due Bunn be ascertained by computing what he would have earned,
absent discrimination, between March 27 and October 23, 1946 and deducting
therefrom $29.95, which he earned during the week of October 23, 1946,18 and
that the resulting sum be deposited with the Treasurer of the United States to
the credit of Bunn.
12 The following expenses incurred in seeking and holding the job at United Aircraft have
been deducted from earnings at this concern which is located in East Hartford, Connecticut.
$10 a week for 6 weeks for room-$60; 6 round trips to see family, 300 miles per round
ti ip @ 5 cents a mile-$90 ; $3 per day for meals for 30 days-$90.
13 $1 an hour , 40 hour weeks, for the 25 weeks in the back-pay period.
14 As noted above Bunn was employed as a bus operator in October 1946. However, there
is no evidence that at that time Respondents endeavored to ascertain Bunn's interim
earnings.
15 Although the record does not reveal any direct attempts by Respondents to locate
Bunn after October 23, 1946.
19 Bunn did not receive any portion of the $500 paid by Respondents to the Union or any
other sums that should be deducted from his net back pay.
HILL TRANSPORTATION COMPANY 1025
The record herein reflects that absent discrimination Bunn would have earned
a total of $1,482.63 (see Appendix G). The amount of net back pay remaining
to be paid is $1,452.68.
Gerry Kimball ( See Appendix H)
Under the terms of the Board's Order, as enforced , Gerry Kimball's back pay
is computed for the period May 9 to November 11, 1946.
Prior to his discharge on March 27, 1946, Kimball worked as a maintenance
and repair shop worker at $1 an hour and his earnings averaged weekly $52.328.
Absent discrimination Kimball normally would have earned a total of $1,503.88
(see Appendix H). Kimball's interim earnings totaled $1,135.38.
Name of employer Period employed Earnings
Aime Prince Garage-------------------------- 5-9-46-10- 1-46 $840.00"
Prince & Tibbs Inc-------------------------- 10-1--46-11-11-46 295.381
Kimball received from Respondents $125.20 7° which is to be deducted from
the net back pay leaving the net amount remaining to be paid of $243.30 (see
Appendix H).
Alkeenon Nichols (See Appendix I)
The record reveals that Nichols' employment with Respondents began July 5,
1944 . At the time of his discharge Nichols was employed in a dual capacity.
He drove a regularly scheduled bus to the Portsmouth Navy Yard in the morn-
ing and then proceeded to the garage and completed the day there as a member
of the maintenance and repair unit and then drove a scheduled return trip
from the Navy Yard. His average weekly earnings at the time of his discharge
were $52 .289. His normal rate of pay was 80 cents per hour.
There is conflicting evidence as to whether Nichols was offered reinstatement
and declined such. On the basis of the entire record, including Nichols' testi-
mony with respect to this matter which the undersigned credits, it is found that
no such offer and declination was made. Accordingly, the period to be used
in computing Nichols' back pay is from March 27, 1946, to December 20, 1947.
The record herein reflects that Nichols' gross back pay totals $4,281.17 (see
Appendix I).
Nichols' interim earnings totaled $3,085.96.
Name of employer Period employed Earnings
Gurton King------------------------------- 3-26-46- 1- 1-47 $1,000.00
H. O. Rondeau Shoe Co-------------------- 1- 1-47- 3-31-47 388.26
4- 1-47- 6-30-47 621.34
7- 1-47- 9-30-47 625.01
10- 1-47-12-31-47 451.35
3,085.96
The record herein reflects that Nichols has received from Respondents $80.67
which is to be deducted from the net pack pay f0 due him leaving the amount
$1,114.54 remaining to be paid.
11 Forty dollars a week for 21 weeks.
u Social -security records reveal that Kimball received from Prince & Tibbs Inc. $640 for
period 10-1-46-12-31-46 and above figure ($295.38) was arrived at by taking 6/13 of
$640.
19 This I. Kimball 's share of the $500 paid by Respondents to the Union and distributed
by the Union.
1° The record reveals that $500 was paid to the Union which was distributed by the
Union proportionately among the dischargees . Nichols received the sum stated above.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert Varney (See Appendix J)
Robert Varney's employment with Respondent commenced October 22, 1945.
At the time of his discharge on March 27, 1946, Varney was a mechanic and his
weekly earnings averaged $54.555.
There is conflicting evidence as to whether Varney was offered reinstatement
and declined such. He denied such was the case. On the other hand, Gerald
R. Robinson, an official in each of the companies involved herein, testified that
in July 1947 a letter was sent to Varney stating:
P. O. Box 216, Hampton, N. H.
July 21, 1947.
Mr. Robert Varney
20 Wentworth Street
Rochester, N. H.
Dear Sir :
You are hereby informed that this Company has a position which you
can fill.
Please report for work on Friday , July 25, 1947.
If for any reason you do not care to accept this offer of work , please let
us know at your earliest convenience.
Very truly yours,
MACKENZIE COACH LINES, INC.
G. R. ROBINSON , President
Robinson further testified that thereafter he received "in the ordinary course
of mail" a postal card, addressed to him at Post Office Box 216, Hampton, New
Hampshire, bearing a post office stamp showing the card had been mailed from
Rochester, New Hampshire, July 23, 1947, at 1 p. in. and stating:
Mr. Robinson
I thank you for your letter. I will be unable to except [sic] your job.
As I am working steady now.
Sincerely,
ROBERT VARNEY,
20 Wentworth St.
Rochester, N. H.
There is no evidence that the aforementioned postal card actually bears
(or does not bear) the signature of Varney. Varney was not confronted with
this card while on the witness stand as a witness for the Board and was not
called as a rebuttal witness after the card was received in evidence. Con-
sequently Varney gave no testimony directly relating to this card although he
did testify he was not at any time notified that he was "being offered a job-
a position with either Hill or MacKenzie" ; that he never received any offer
of reinstatement ; that he did not receive a letter offering employment ; and
that he did not "tell MacKenzie Coach Lines or Hill Transportation that you
[Varney] were employed on a permanent basis and had no desire to return
to employment." As noted above, the card was received in the ordinary
course of mail, is postmarked within a few days of the date of the letter
offering employment, and is postmarked from the vicinity of the addressee of
the letter. Under these circumstances, and despite the evidence indicating
Robinson's testimony should not be credited unless corroborated, the under-
signed finds that the aforementioned letter offering employment to Varney
HILL TRANSPORTATION COMPANY 1027
was sent to him (Varney) and received by him or someone on his behalf and
that he (Varney) did not thereafter accept such offer. Accordingly, the
undersigned concludes that Varney's back pay should be computed from March 27,
1946, to July 23, 1947.
The record herein reflects that absent discrimination Varney would have
earned a total of $3,346.27 1 see Appendix J).
Varney's interim earnings totaled $2,348.22. They have been computed as
follows :
Name of Employer Period Employed Earnings
W. A. Stackpole------------------------------- 4-1-46- 6-30-46 $638.90
7-1-46- 9-30-46 344.29
Robinson's Esso Service______________________ 10-1-46--12-31-46 400.00
Prue Motor Transportation____________________ 1-1-47- 31-47 517.94
4-1-47- (i-30-47 360.40
7-1-47- 7-23-47 21 86.69
The record herein reflects that Varney has received from Respondents $135.63 22
which is to be deducted from the net back pay due him leaving $862.42 currently
remaining to be paid him (see Appendix J).
Total Back Pay Due
In view of the foregoing the undersigned finds that the amount of back pay
now outstanding under the provisions of the Board's Order, as enforced, totals
$5,783.62.
21 Varney earned $34 &. 75 in the period July 1 to September 30, 1947 [16 /64x346.75-
$86.69] since there are 16 working days to July 23, 1947 , the end of the back -pay period,
and 64 days in the entire working quarter.
n Varney's portion of the $500 given to the Union.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
Average hours worked by replacement mechanics and number of jobs available
April 1, 1946-December 20, 1947
Date week ending i
(1)
of replacee-
ment
mechanics
working
(2)
Avera
hours (ad-
lusted)
worked '
(3)
Date week ending I
(1)
of replaaccee-
ment
mechanics
working
(2)
Average
-
justed)
worked I
(3)
1946 1947
April 6----------------------- 3 ---------- February 8------------------- 4 40April 13---------------------- 5
----------
February 15 ------------------ 3 3734
April 20---------------------- 4 February 22 ------------------ 4 3634
April 27---------------------- 5 - 1--------------------- 3 3594
May 4---- ------------------- 10 ---------- March 8-------------------- 3 3835
May 11---------------------- 12 - 3 3134
May 18----------------------- 12 ---------- March 22--------------------- 3 2934
May 25----------------------- 12 - 30)1
June 1----------------------- 12 ---------- April 5 --------------------- 3 4135
June 8------------------------ 12 --------- April 12--------------------- 8 39
June 15----------------------- 13 - 19--------------------- 2 3835June 22-- --------------------- 10 - 35
June 29---------------------- 4 54)4 May 3------------------------ 1
July 6----------------------- 6 4294 May 10------------------- 1 4435
July 13----------------------- 5 7035 May 17----______---__-------_ 1 8534
July 20----------------------- 6 6735 May 24__------------------___ 1 10035
July 27---------------------- 6 6235 May 31----------------------- 1 63
August 3 -------------------- 6 63 June 7------------------------ 1 81%
August 10-------------------- 6 57 June 14--------------___--____ 7435
August 17-------------------- 6 6034 June 21------------------- __-- 1 67
August 24-------------------- 6 6734 June 28--------------- _------- 1 9835
August 31-------------------- 6 8235 July 5 ----------------------- 1 6334
September 7__________________ 6 6035 July 12 ----------------------- 1 97%
September 14_________________ 6 5434 July 19-----. ----------------- 0 0
September 21---_------------ 6 5335 July 26_______________________ 0 0
September 28_________________ 6 6134 August 2--------------------- 2 54
October 5--------------------- 6 5134 August 9--------------------- 2 66
October 12 -------------------- 7 4534 August 16---------- --------- 2 6734
October 19-------------------- 7 42 August 23-------------- ------ 2 6035
October 26-------------------- 6 54 August 30 ------------------- 3 5734
November 2------------------ 4 6035 September 6 ----------------- 3 4634
November 9------------------ 4 5134 September 13----------------- 3 6034
November 16----------------- 4 51 September 20 ---------------- 2 7935
November 23----------------- 4 5335 September 27------------- _-- 1 7434
November 30----------------- 4 4335 October 4--------------------- 1 7234
December 7 ----------------- 5 4434 October 11 -------------------- 1 8434
December 14----------------- 5 5234 October 18 -------------------- 1 6034
December 21----------------- 5 56 October 25 ------------- __---- 1 6834
December 28----------------- 4 3734 November 1------------------ 1 6634
November 8 ----------------- 1 6235
1947 November 15----------------- 1 7434
fanuary 4-------------------- 5 48 November 22 ----------------- 1 6934
fanuary 11 ------------------- 5 4634 November 29 ----------------- 1 73
fanuary 18------------------- 5 4634 December 6------------------ 1 61
fanuary 25------------------- 5 39 December 13__-_------------- 1 6434
February 1------------------- 4 41 December 20------------------ 1 3734
1 The payroll periods for Hill Transportation Co. end 3 days prior to the MacKenzie payroll periods.
Since data in both pay records needed to be joined, this was done by adding the "Hill" data for a given week
to the MacKenzie data for the week ending 3 days after. Thus, "Hill" data for the week ending May 1, 1946,
for example , was coupled with MacKenzie data for the week ending May 4, 1946, etc.
f All hours worked were converted to their equivalent in straight-time hours for convenience in computa-
tion Thus, if 44 actual hours were worked these were reckoned as 46 "adjusted" hours (40 straight-time
hours; 4 overtime hours at 134 times straight-time rate is equivalent to 6 hours at straight-time rate for a total
of 46 straight-time or "adjusted " hours).
HILL TRANSPORTATION COMPANY 1029
Appendix B
Number,of new bus drivers employed by weeks, June 16, 1946, through December
20, 19471
Week ending Hill ReKenzie Total Week
ending Hill Mac- Total
1946 1947
June 22------------------ 2 2 4 March 22---------------- 3 0 3
June 29------------------ 2 2 4 March 29 ---------------- 2 0 2
July 6-------------------- 2 3 5 April 5------------------ 3 0 3
July 13------------------- 2 4 6 April 12------------------ 3 0 3
July 20------------------- 2 5 7 April 19------------------ 3 0 3
July 27------------------- 2 4 6 April 26 ------------------ 3 0 3
August 3----------------- 2 5 7 May 3------------------- 3 2 5
August 10---------------- 1 8 9 May 10 ------------------ 1 3 4
August 17---------------- 1 9 10 May 17 ------------------ 0 4 4
August 24---------------- 2 7 9 May 24------------------ 0 5 5
August 31--------------- 3 6 9 May 31 ------------------ 0 5 5
September 7------------- 3 6 9 June 7------------------- 0 5 5
September 14------------ 4 6 10 June 14------------------ 0 5 5
September 21------------ 5 3 8 June 21------------------ 0 5 5
September 28------------ 4 3 7 June 28------------------ 0 7 7
October 5---------------- 5 3 8 July 5-------------------- 0 7 7
October 12--------------- 3 2 5 July 12 ------------------- 0 10 10
October 19--------------- 3 2 5 July 19 -------- ---------- 0 9 9
October 26--------------- 3 2 5 July 26 ------------------- 0 7 7
November 2------------- 4 2 6 August 2----------------- 0 9 9
November 9------------- 4 2 6 August 9----------------- 0 8 8
November 16------------ 4 2 6 August 16---------------- 0 8 8
November 23 ------------ 3 3 6 August 23---------------- 0 9 9
November 30------------ 3 2 5 August 30---------------- 0 9 9
December 7-------------- 4 3 7 September 6------------- 0 9 9
December 14------------- 1 2 3 September 13 ------------ 0 7 7
December 21------------- 1 1 2 September 20 ------------ 0 7 7
December 28------------- 1 0 1 September 27 ------------ 0 5 5
October 4---------------- 0 5 5
1947 October 11--------------- 0 5 5
January 4---------------- 0 0 0 October 18 --------------- 0 4 4
January 11--------------- 1 0 1 October 25--------------- 0 6 6
January 18--------------- 1 0 1 November 1------------- 0 6 6
January 25--------------- 1 0 1 November 8------------- 0 2 2
February 1-------------- 2 0 2 November 15 ------------ 0 2 2
February 8-------------- 2 0 2 November 22 ------------ 0 2 2
February 15------------- 2 0 2 November 29 ------------ 0 2 2
February 22------------- 2 0 2 December 6-------------- 0 2 2
March 1----------------- 2 0 2 December 13 ------------- 0 1 1
March 8----------------- 3 0 3 December 20 ------------- 0 1 1
March 15---------------- 2 0 2
I Only those working 24 hours or mote were included in this group.
Appendix C
Dischargees ranked in order of seniority, highest at top
Name Date hired Name Date hired
1. Kimball , Gerry 5------------ March 17, 1943. 4. Bartlett, H ------------------ May 24, 1945.
2. Bartlett, Elwyn L------------ March 24, 1943. 5. Varney, Robert-------------- October 22, 1945.
3. Nichols , Alkeenon-------__-__ July 5, 1944. 6. Bunn, Clifford--------------- January 5, 1946.
250983-vol . 102-53-66
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix D
Average earnings of bus drivers-selected weeks in 1946-1947
Date week ending Averageearnings I Date week ending
Average
earningst
1946 1947
June 29--- ---------------------------- $47 73 June 14------------------------------- 45.73
July 13------------------------------- 51 22 June 21 ---------------------------- 52 36
November 2--------------------------- 46 87 June 28------------------------------- 59 73
November 9------------------------__ 44 25 July 5--------------------------------- 66 80
November 16-------------------------- 45 33 July 12---------------------------- 63.96
November 23-------------------------- 43.42 July 19-------------------------------- 67.56
November 30-------------------------- 44.57 July 26 -------------------------------- 66 27
December 28 -------------------------- 38 40 August 2------------------------------ 66 29
August 9 ------------------------------ 63 75
1947 August 16----------------------------- 65 88
February 1--------------------------- 32.73 August 23-------------------------- 64 78
February 8-------------------------- 30 99 August 30 ----------------------------- 64 84
February 15-------------------------- 32 73 September 6- ------------------------- 66 86
February 22--------------------------- 31 73 September 13 -------------------------- 67 21
March 1 ------------------ 34 87 September 20---------------------_--_ 68 32
March 8_------------------------- 33.19 September 27------------------------- 54.03
March 15------------------------------ 34 23 October 4------------------- 62 67
March 22 ----------------------------- 34 61 October 11---------------------------- 56 12
March 29 ----------------------------- 37 98 October 18 ---------------------------- 61.23
April5 ----------------------------- 30 12 October 25------------------------_-_ 49 30
April 12------------------------------ 28 72 November 1-------------------------- 55.93
April19----------------- - 32 35 November 8 --- -----_ _ 53.26
April 26------------------------------- 29 20 November 15------------------------- 57.08
May 3 -------------------------------- 42 84 November 22---------------------__-_ 42 74
May 10------------------------------ 52 62 November 29-------------------------- 52 38
May 17---------------------------- 74 31 December 6------------------------- 45.91
May 24-------------------------- 57 96 December 13-------------------------- 52 69
May 31------------------ --- 56 70 December20 ---------------- --------- - 24.19
June 7--------------------------------- 52 93
I Men working fewer than 24 hours in any given week were excluded . Since bus drivers were usually
paid 75 cents per hour, this means that those earning less than $18 (750 X 24 hours=$18) were excluded from
the average (Harvest Queen Mill & Elevator Co., 90 NLRB 320).
Appendix E
Bartlett , Elwyn L.
Hourly rate of Pay before Discharge, $1.09
Back-pay period
Job classification in which eligible for Adjustedhours for
Gross hack
back pay back pay
pay
(1) June 22, 1946 through May 26, Mechanic Back pay for this period -------------- $825 62
1947. of 13 weeks is computed at the rate of
$63 509 per week.
(2) June 22, 1946 ____________________ Mechanic ----------------------------- 24338ii i 2, 652.79
Gross back pay-------------------------------------------------------------------------------- $3,478 41
Add: Vacation pay for 1 yr--------------------------------------------------------------------- 8127.02
Total gross back pay------------------------------------ ------------------------------ 3.605 43
Less. Interim earnings -------------------------------------------------------------------------- 2,276 00
Net Back Pay---------------------------------------------------------------------------- 1,329.43
Less amount already paid by respondents------------------------------- --- ------------------------------ 550 00
Net amount remaining to be paid--------------------------------------------------------- 779 43
I Hourly rate of pay multiplied by "adjusted hours for back pay."
2 Two weeks' pay at $63 509 per week equals $127.02.
HILL TRANSPORTATION COMPANY 1031
Appendix F
Bartlett , Harold J.
Hourly rate of Pay before Discharge , $0.92304
Back-pay period
Job classification in which eligible for
back pay
Adjusted
boors for
back pay
Gross backpay
(1) March 27, 1946 through June 22, Mechanic- Back pay for this period is -------------- $862.45
1946. computed at the rate of $68.996 per
week for 12!,1 weeks.
(2) June 23, 1946 through April 12, Mechanic----------------------------- 2,08336 1,923.15
1947.
(3) April 13, 1947 through July 26, Driver-------------------------------- -------------- 821 32
1947
(4) July 27, 1947 through September Mechanic----------------------------- 492% 454.83
20, 1947.
(5) September 21, 1947 through De- Driver-------------------------------- -------------- 667.53
cember 20, 1947.
Total gross back pay--------------------------------------------------------------------------- $4,729 28
Less: Total interim earnings -------------------------------------------------------------------- 3,239.53
Net Back Pay--------------------------------------------------------------------------- 1,489 75
Less : Amount already paid by respondent------------------------------------------------------ 158 50
Net amount remaining to be paid--------------------------------------------------------- 1,331 25
Appendix G
Bunn , Clifford R.
Hourly rate of Pay before Discharge , $0.87591
Back-pay period Job classification in which eligible forback pay
Adjusted
hours for
back pay
Gross back
pay
(1) March 27,1946----------------- Mechanic Back pay for this period is
computed at the rate of $47.619 per
week for 1236 weeks.
$595.24
(2) June 23, 1946 through June 29, Driver '------------------------------ 47 73
1946.
(3) June 30, 1946 through July 6, Mechanic--------- ------------------- 42% 37.44
1946.
(4) July 7,1946 through July 13,1946 Driver-------------------------------- 51.22
(5) July 14,1946 through October19, Mechanic----------------------------- 83035 727.35
1946
(6) October 20, 1946 through Octo- Mechanic----------------------------- 327 23 65
23, 1946.
Totals------------------------ 1,482.63
Total Gross Back Pay-------------------------------------------------------------------------- $1,482 63
Less. Interim Earnings------------------------------------------------------------------------- 29 95
Net Back Pay and Net------------------------------------------------------------------- 1,452.68
Bunn's hourly rate of pay did not appear in the record . His earnings for the 6 full weeks worked prior
to his discharge were $314 64. The other closest employee in terms of earnings was Varney who earned
$323 33 for the same 6 weeks. Bunn's earnings are 2 69 percent lower than Varney's. Varney's rate of pay
was $ 90 per hour. A rate 2 69 percent lower than $ 90 is $.8758 per hour This figure is taken by the under-
signed to be a reasonably close approximation of Bunn's predischarge hourly rate of pay and is so used in
this calculation of gross back pay
3 Average weekly earnings of all regularly employed drivers (24 hours or more in given week) is attributed
to claimant as gross back pay as a driver.
3 Claimant is entitled to one-half of 1 week's pay in the week ending October 26, 1946. He is credited,
therefore, with one-half the average hours worked by the replacement mechanics in that week.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix H
Kimball, Gerry S.
Hourly rate of Pay before Discharge, $1
period Job classification in which eligible for
Adjusted
hours (}roes backback pay
backck pay y
pay
(1) May 9, 1946 through June 22, Mechanic: Back pay for this period is -------------- $340.13
1946. computed at the rate of $52 328 per
week for 634 weeks.
(2) June 23, 1946 through November Mechanic----------------------------- 1,16334 1,163.75
11, 1946.
Total Gross Back pay-------------------------------------------------------------------------- $1,503.88
Less: Interim Earnings------------------------------------------------------------------------- 1,135.38
Net back pay----------------------------------------------------------------------------- 368.50
Less: Amount already paid by Respondent----------------------------------------------------- 125.28
Net amount remaining to be paid--------------------------------------------------------- 243.30
Appendix I
Nichols, Aikeenon
Hourly rate of Pay before Discharge, $0.80
period
Job classification in which eligible for
back pay
Adjusted
boors for
back pay
Gross backpay
(1) March 27, 1946 through June Mechanic Back pay for this period is -------------- $653.61
22, 1946. computed at the rate of $52.289 per
week for 1234 weeks.
(2) June 23, 1946 through April 19, Mechanic----------------------------- 2,122 1,697.60
1947.
(3) April 20, 1947 through May 24, Driver-------------------------------- -------------- 256 93
1947.
(4) May 25, 1947 through July 12, Mechanic----------------------------- 51534 412.60
1947.
(5) July 13, 1947 through July 26, Driver-------------------------------- -------------- 133 83
1947.
(6) July 27, 1947 through December Mechanic----------------------------- 1,36044 1,088.20
20, 1947
Total------------------------------------------------------------------------------------------- $4,242.77
Add: Vacation pay for 1947 '-------------------------------------------------------------------- 38.40
Total gross back pay ---------------------------------------------------------------------- 4,281.17
Less: Interim earnings-------------------------------------------------------------------------- 3,085.96
Net back pay----------------------------------------------------------------------------- 1,195 21
Less: Amount already paid by Respondent----------------------------------------------------- 80 67
Net amount remaining to be paid--------------------------------------------------------- 1,114.54
' Nichols received $38.40 in vacation pay in the week ending August 1, 1945, and again in the first quarter
of 1946. From this the undersigned concludes that in addition to his regular pay, in the ordinary course
of events, Nichols would have received $38.40 as vacation pay in the year 1947 had he not been illegally
discharged.
THE L . B. HOSIERY CO., INCORPORATED 1033
Appendix J
Varney , Robert
Hourly rate of Pay before Discharge, $0.90
Back-pay period Job classification In which eligible for
back pay
Adjusted
hours for
back pay
Gross backpay
(1) March 27, 1946 through June 22, Mechanic : Back pay for this period is -------------- $681.94
1946 . computed at the rate of $54.555 per
week for 12,t weeks.
(2) June 23, 1946 through June 29, Driver-------------------------------- -------------- 47.73
1946.
(3) June 30, 1946 through October Mechanic ----------------------------- 99794 897.98
26, 1946.
(4) October 27, 1946 through No- Driver-------------------------------- -------------- 91.12
vember 9, 1946.
(5) November 10, 1946 through Mechanic- ---------------------------- 59994 539.78
February 8, 1947.
(6) February 9, 1947 through Feb- Driver-------------------------------- -------------- 32.73
ruary 15, 1947.
(7) February 16, 1947 through Feb- Mechanic----------------------------- 3694 33.08
ruary 22, 1947.
(8) February 23, 1947 through July Driver-------------------------------- -------------- 1,021.91
23, 1947.
Total gross back pay---------------------------------------------------------------------------- $3,346.27Less: Interim earnings-------------------------------------------------------------------------- 2,348.22
Net back pay---------------------------------------------------------------------------- 998.05
Less: Amount already paid by Respondent----------------------------------------------------- 135.63
Net amount remaining to be paid--------------------------------------------------------- 862.42
THE L. B. HOSIERY CO., INCORPORATED AND LEE MAISEL, DOING BIISI-
NESS AS MYERSTOWN HOSIERY MILLS and AMERICAN FEDERATION OF
HOSIERY WORKERS . Case No. 4-CA-59. February 5, 1953
Second Supplemental Decision and Order
On March 10, 1950, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding, which Order
was thereafter enforced by the United States Court of Appeals for
the Third Circuit by a decree entered on April 18, 1951. The decree
provided, inter alia, that the Respondents make whole certain of
their employees for losses of pay suffered by reason of the Respond-
ents' discrimination against them. On October 3, 1951, the Board
issued an Order remanding the proceeding to the Regional Director
for the Fourth Region and ordering that a further hearing be held
for the purpose of adducing evidence with respect to the amounts of
back pay to which the discriminatees might be entitled.
On February 8, 1952, Trial Examiner Louis Plost issued his Sup-
plemental Intermediate Report and Recommendations finding that
certain of the discriminatees were entitled to specified amounts of
back pay and that no back pay was due to certain other discrim-
inatees. In this report, the Trial Examiner found that Paul Garnet,
who had purchased a business on August 1, 1949, had intended to re-
102 NLRB No. 106.