Irv's Market

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1176 (N.L.R.B. 1972)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irving N. Rothkin d/b/a Irv's Market and Retail
Clerks International Association, Local No. 698,
AFL-CIO. Case 8-CA-5802
October 30, 1972
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 19, 1972, Administrative Law Judge '
Wellington A. Gillis issued the attached Supplemen-
tal Decision 2 in this proceeding. Thereafter, Respon-
dent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings,' and conclusions 4 of the Administrative
Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Irving
N. Rothkin d/b/a Irv's Market, Akron, Ohio, his offi-
cers, agents, successors, and assigns, shall pay to Joan
Graham as backpay the amounts awarded to her in
the Administrative Law Judge's Supplemental Deci-
sion.
1 The title of "real Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The original Decision and Order is reported at 188 NLRB 271
3 The Administrative Law Judge offset certain of Graham's earnings from
a second job Graham held since before her unlawful discharge . As no excep-
tions have been filed by the General Counsel with respect to this finding, we
shall adopt it pro forma.
4 We agree with the Administrative Law Judge that backpay was properly
computed from January 22, 1970.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: The supple-
mental proceeding is concerned with the determination as
to the amount of backpay due discrimmatee Joan Graham
under the Board's Decision and Order issued January 30,
1971.1 The Board therein found, inter alia, that the Respon-
dent had discriminatorily discharged Joan Graham on De-
1 Irving N. Rothkm d/b/a Irv's Market, 188 NLRB 271
cember 20, 1969, in violation of Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended (61 Stat.
136), herein referred to as the Act, and directed that the
Respondent offer her immediate and full reinstatement to
her former or substantially equivalent position and make
her whole for any loss of earnings she may have suffered as
a result of the unlawful discrimination. On June 16, 1971,
the United States Court of Appeals for the Sixth Circuit
entered its decree enforcing in full the backpay provisions
of the Board's Order.
Subsequent to the issuance of the Board's Order and
the entering of the court decree, the Regional Director for
Region 8, on behalf of the Board and pursuant to Section
102.52 et seq, of the Board's Rules and Regulations, Series
8, as amended, issued on April 11, 1972, a backpay specifi-
cation and notice of hearing, setting forth therein the com-
putation of gross backpay due Graham, as well as
admissions of interim earnings and computations of net
backpay due. An answer to the backpay specification was
filed by the Respondent on April 25, 1972.
Pursuant to notice, this supplemental hearing was held
before me at Akron, Ohio, on May 19, 1972, for the purpose
of determining the amount of backpay due the claimant. All
parties were represented by counsel and were afforded full
opportunity to examine and cross-examine witnesses, to in-
troduce evidence pertinent to the issues, and to engage in
oral argument. All parties waived the filing of briefs and
argued orally on the record.
Upon the entire record in this case, and from my obser-
vation of the witnesses, and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and inherent probability of testi-
mony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,
496), I make the following:
FINDINGS AND CONCLUSIONS
The General Counsel asserts that Graham's backpay
period commences on December 17, 1969, the date of her
discharge, and, except for a 4-month period of illness, runs
until April 11, 1972, the date of the issuance of the backpay
specification, and, as no offer of reinstatement has been
made, is continuing to run. Based upon a gross backpay
computation of $40 per week in wages, the General Counsel
asserts that the Respondent owes net backpay in the
amount of $1,534.05, plus that which is continuing to ac-
crue. Respondent in its answer and at the hearing contests
the backpay period, denies that Graham averaged $40 per
week in wages, asserts that Graham was not available for
work because of a conflict in hours with another job she
held, that she refused to work the hours requested, and
denies generally the obligation of any backpay.
Joan Graham appears to have been first employed by
the Respondent on September 5, 1969,2 and worked in the
Respondent's market as a part-time produce department
employee. She was hired at $1.50 per hour, and during the
weekly pay period ending December 11, 1969, was raised to
$1.60 per hour. As a part-time employee, Graham worked
2 While- the Decision and Order in the unfair labor practice proceeding
reveals almost nothing as to Graham's employment , her testimony set forth
therein establishes this fact.
199 NLRB No. 152
1177
some days from 8 a.m. to 12 noon, other days from 9 a.m.
to 1 p.m., occasionally running the register in the afternoon,
and "on call" to fill in any time in case of illness or for any
reason an employee were absent. It appears that many days
she did not work at all. Sometime in November 1969, in
order to increase her income, Graham commenced working
for Lawson's Milk Company for $1.35 an hour.3 According
to Graham, her hours at Lawson's were juggled so as to
mesh with those at the Respondent.
Just when Graham last worked for the Respondent is
in dispute. The Board in the unfair labor practice proceed-
ing, based solely upon the General Counsel's evidence,4
found that Graham was discharged on December 20, 1969.
The General Counsel holds to this date, as does Graham in
her testimony herein. Respondent, however, placed in evi-
dence in this proceeding original timecards, most with
Graham's admitted signature on them, indicating that she
continued to work for the Respondent the remainder of
December and through the week ending January 22, 1970.
In view of the apparent authenticity of these cards with
Graham's admitted signature, coupled with other company
employee records for January, I find that, in fact, Graham
did work until January 21, 1970. However, I shall treat this
fact as altering the commencement of the backpay period
only, and of no moment as far as the December 20, 1969,
unlawful discharge date found by the Board is concerned.
Richard Rothkin, store manager and son of the owner,
testified that on a number of occasions after Graham took
on the second job at Lawson's, from November into Janu-
ary, he called her to go to work, to fill in for another employ-
ee on the afternoon shift, and that she refused. Finally,
according to Rothkin, on January 22, 1970, he told Graham
that he needed someone he could rely on more often to fill
in for other employees than she was able to do, and, because
of this conflict with her other job and her absenteeism, he
had to find someone else. Graham, except for the December
20 discharge telephone call, denied that Rothkin at any time
called her at her home. But Graham, contrary to my finding,
also denied that she was ever in the store in January or ever
worked for the Respondent after December 20, 1969.
While inclined to credit Rothkin, at least to the extent
that on occasion during this period Graham was not avail-
able when needed, the fact remains that the Board has
found Graham to have been unlawfully terminated from
Respondent's employ and ordered the Respondent to offer
Graham full reinstatement to her former or substantially
equivalent position.
In this regard, on March 23, 1971, less than 2 months
after the Board's January 30, 1971, Order issued, Graham,
accompanied by William Rhodes, then organizer for Local
698, went to the Respondent's store. Rhodes presented his
business card and introduced himself to Rothkin and asked
him when he was going to put Graham back to work.
Rhodes also asked him if he were aware of the Labor
Board's decision. Rothkin replied that he was aware of it but
that he was not going to put Graham back to work and,
indicating that he was not going to have the Union or the
Government run his business for him, said that he would
like them to leave the store as soon as possible. As of the
hearing, Graham had not received an offer of reinstatement
from the Respondent.
Concerning the issue as to gross backpay, it must be
recognized that the burden of proof is upon the General
Counsel "to establish the damage which has resulted from
Respondent's established discriminatory discharge, i.e., the
gross backpay over the backpay penod."5 As noted here-
tofore, the specification herein asserts that Graham, prior to
her discharge, was earning an average of $40 per week in
wages. It appears, however, that this figure was but an esti-
mate on the part of the General Counsel,6 and that he had
no records whatsoever to base it on. The General Counsel,
on May 2, 1972, had issued a subpoena duces tecum on the
Respondent's owner to bring to the hearing certain records
pertaining to the hourly rates of employees, range increases
and vacation pay. These records were not produced. In
reply to my question, however, the General Counsel indica-
ted that he was seeking records solely to determine whether
there had been any bonus increases, vacation benefits, and
the like, which would, of necessity, pertain to the period
subsequent to Graham's discharge and would be of no assis-
tance in ascertaining Graham's average pay while she was
employed.
The fact that Graham was a part-time employee, work-
ing some days and not others, and filling in from time to
time, contributes to the problem of establishing a formula
for computing gross backpay. The only evidence shedding
light on the matter is the weekly timecards for Graham, put
in evidence by the Respondent, showing Graham's weekly
hours and pay from the week ending October 16, 1969,
through the week ending January 22, 1970. These cards 7
reveal the following:
Week
ending
Hours
worked
Wages
received
10/16 25-1/2 $42.88
10/23 19-1/4 28.88
11/13 22-1/2 33.75
11/20 16 24.00
12/4 5 7.50
12/11 10 16.00 7/
12/18 27-1/4 43.60
12/23 19 30.40
1/1 10 16.00
1/8 10 16.00
1/15 10-1/4 15.37
1/22 9 14.40
3 Except for the period when she was out sick , Graham worked at
Lawson's, at one location or another , until October 12, 1971.
° The Respondent , although duly served with the complaint and notice of
hearing, did not appear and was not represented by counsel.
5 Mastro Plastics Corporation, 136 NLRB 1342, 1346, enfd. 354 F.2d 170
(C A. 2), cert denied 384 U S 972.
6 In fact, counsel for General Counsel so admitted
r Graham, during this week , was raised from $1 .50 to $1 .60 per hour.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It can be seen that Graham reached the $40 figure on
but two weekly occasions during the entire penod and was
far below that on the rest . Although the General Counsel
asserts that the use of these cards does not reflect Graham's
true earnings because of an alleged diminution of hours
during this penod , they constitute the only evidence upon
which to establish a formula for determining gross backpay.
Using the weekly hours worked by Graham and the $1.60
wage rate she was earning when she left the Respondent's
employ, the average weekly pay for the entire period, Octo-
ber 15 through January 22 , would amount to $24 .40. How-
ever , if one were to use only the hours worked during the
weeks preceding her unlawful discharge , October 16
through the week ending December 18, the $1.60 rate would
Quarter No . of
weeks
Gross
backpay
Interim
earnings
1969 IV 0 0 0
1970 I 1 $ 28.60 $151.20
1970 II 4-1 / 2 128.70 151.20
1970 III 13 371.80 436.80
1970 IV 12 343.20 464.80
1971 I 13 371.80 453.60
1971 II 13 371.80 453.60
1971 III 13 371.80 487.80
1971 IV 13 371.80 0
1972 I 13 371.80 0
1972 II 1-1/2 42.90 0
I find the sum of $869 .50, plus interest at the rate of 6
percent per annum computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716, until the date of,
payment of all backpay , is due ' Graham from the Respon-
dent for the period ending April 11 , 1972. I further find that
an additional sum of backpay , computed as above, is due
show an average weekly pay of $28 . 58, which , rounded to
$28.60, appears to be more proper.
Amount of Backpay Due
Having revised the backpay period to commence Jan-
uary 22, 1970, and adjusted from $40 to $28.60 the weekly
rate upon which the gross backpay is to be computed, and
taking cognizance of the fact that Graham was unavailable
for employment from February 1, 1970, to May 31, 1970, I
find the following to constitute the proper computation by
quarters of the amount of backpay due Joan Graham, be-
fore interest:
Expenses Net
backpay
0 0
0 0
0 0
0 0
0 0
0 0
0 0
$40.00 $411.80
40.00 411.80
3.00 45.90
$869.50
Graham for the period commencing April 12, 1972, and
terminating at such time as the Respondent offers Graham
reinstatement to her former or substantially equivalent posi-
tion . Payment of, these sums shall be less any taxes required
to be withheld by Respondent under Federal, state, and
local law.