J. H. Rutter-Rex Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1966

158 N.L.R.B. 1414 (N.L.R.B. 1966)

1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to move out of town in order to discourage activities-
in support of said Local 406.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of rights guaranteed to them by Section 7
of the Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively with the said Local 406 as the
bargaining representative of all the employees in the bargaining unit described"
below with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All our production and maintenance employees, including truckdrivers,
shipping and receiving employees, and printing press operators and help-
ers, but excluding office clerical employees, professional employees, guards,
and all supervisors within the meaning of the Act.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of said Local 406, or any other labor organization.
H. & H. PLASTICS MFG., CO.,
Employer.
Dated------------------- By--------------=----------------------------
(Representative) (Title)
This notice must remain posted-for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other' material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No.
226-3244.
J. H. Rutter-Rex Manufacturing Company, Inc. and Amal-
gamated Clothing Workers of America , AFL-CIO. Cases Nos.
15-CA-721 and 15-CA-723. June 6, 1966
SUPPLEMENTAL DECISION AND ORDER
On February 13, 1956, the National Labor Relations Board issued
a Decision,and Order 1 in the above-entitled case, in which it found
that Respondent violated Section 8(a) (5) and (1) of the National
Labor Relations Act, as amended, by unlawfully prolonging a strike
of its employees. The Board ordered Respondent to offer, upon
application, to all those employees who went on strike on April 21,
1954, or thereafter, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if necessary, all
persons hired on or after that date, and make such applicants whole
for any loss of pay suffered by reasons of the Respondent's refusal,
if any, to reinstate them, from 5 days after the date of their appli-
cations to the dates of Respondent's offer of reinstatement. There-
J. H. Rutter-Rea Manufacturing Company , Inc., 115 NLRB 388.
158 NLRB No. 122.
J. H. RUTTER-REX MANUFACTURING COMPANY 1415
after, on June 10, 195'%, the Court of Appeals for the Fifth Circuit
issued its decision granting enforcement of the Board's Order.'
On November 16, 1961, the Regional Director for Region 15 of the
National Labor Relations Board issued a backpay specification and
notified Respondent of its right to file an answer to the specification
within 15 days. After obtaining an extension of time to file its
answer, Respondent, filed a motion for an injunction in the Court
of Appeals for the Fifth Circuit, seeking to enjoin the Board from
proceeding further in the matter because of the lapse of time be-
tween the end of the strike and the filing of the backpay specifica-
tion. On August 28, 1962, the court denied Respondent's motion for
a permanent injunction.3
Respondent filed its answer to the backpay specification on
September 4, 1962. On October 3, 1962, counsel for the General
Counsel filed a motion to strike Respondent's answer to backpay
specification and for judgment on the pleadings. Respondent filed
an opposition thereto. The Trial Examiner granted the General
Counsel's motion in substantial part but with leave to Respondent
to file an amended answer at a later date. Pursuant to notice, a
hearing was held on November 13 through 16, 1962, before Trial
Examiner Owsley Vose for the purpose of determining the validity
of the method of computing backpay. At the hearing, Respondent
contended that it had no obligation to reinstate any of the strikers
because the Board's Order was wholly prospective in operation and
that all the strikers had applied for reinstatement before the entry
of the Board's Order herein. The Respondent also contended that
the Board's method of computation in the backpay specification was
unreasonable. On January 23, 1963, Trial Examiner Vose issued
the attached Preliminary Intermediate Report and Order in Back-
pay Proceeding, in which he approved the method of computing
backpay set forth in the specification, but provided that such com-
putation should be subject to a 6-percent reduction which he found
necessary in order fully to reflect the number of absences characteris-
tic of a typical employee, and in which he rejected Respondent's
argument with regard to its liability to reinstate the strikers, dis-
cussed infra. Thereafter, on various dates between February 12 and
September 30, 1963, hearings were held on the issues raised by the
backpay specification and the Respondent's amended answer.
On June 2, 1964, the Trial Examiner issued the attached Supple-
mental Decision in Backpay Proceeding, in which he ordered specific
amounts of _',5ackpay to approximately 172 claimants and denied
2 N.L.R.B. v. (J. H.) Rutter-Rem Manufacturing Company, 245 F. 2d 594. The court
ente•ed its decree of enforcement on August 19, 1957.
3 805 F. 2d 242 (C.A. 5).
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay to approximately 35 others The Recommended Supple-
mental Order also provides for payment of simple interest at 6 per-
cent on the backpay due for each quarter commencing from the date
of his Decision Thereafter, Respondent, General Counsel, and the
Union filed exceptions to the Supplemental Decision and supporting
briefs Subsequently, Respondent also filed a motion requesting the
Boai d to reopen the record The General Counsel and the Union
filed oppositions thereto This motion is denied for the reasons given
in our discussion below
Pursuant to the provisions of Section 3(ib) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Fanning and Jenkins]
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that no prejudicial error was committed
The rulings are hereby affirmed The Board has considered the
entire record in this case, including the Preliminary Intermediate
Report and the Supplemental Decision, the parties' exceptions and
briefs, Respondent's motion to reopen the record, and the General
Counsel's and the Union's oppositions thereto, and hereby adopts the
findings,4 conclusions, and recommendations of the Trial Examiner
except to the extent that they are modified below 5
1 Respondent's request to include in the record a copy of its letter
dated March 4, 1963, directed to the Board and General Counsel, and
giving reasons in support of its requests for subpoenas dices tecim,
is granted However, its motion to overrule the revocation of such
subpenas and to reopen the record for further cross-examination on
documents to be furnished by the General Counsel under such sub-
penas is denied In our opinion, General Engineerviig, Inc & Ha.7-
'vey A7uminum v N L R R, 341 F 2d 367 (C A 9), on which the
Respondent relies in support of its motion, is not applicable to the
facts of this case In General Engvneering, the court emphasized that
the evidence sought to be adduced by the subpoenas duces tecum was
material and relevant to the issues in the case and that the failure of
the Trial Examiner and the Board to require its production was
attributable solely to observance of Section 102 118 of the Board's
Rules and Regulations, Series 8, as amended, revised January 1,
1965, which forbids employees of the Board from producing records
and documents of the Agency without the written consent of the
A The Trial Examiner used the term "Respondent" instead- of the term 'General Coun
sell' on the first line of section J , 1 of his Supplemental Decision we hereby correct
this inadvertent error
5 The Respondent has requested oral argument This request is hereby denied because
the record exceptions , and briefs adequately present the issues and the positions of
the parties
T. H. RUTTER-REX MANUFACTURING COMPANY 1417
Board or., the General Counsel. The court there held that the
-Board was not entitled to rely solely on such a provision in the
Rules as justification for the withholding of relevant material to
the production of which -the party requesting it would-otherwise be
entitled. In the present case,.,counsel for the General, Counsel in
both of his petitions to revoke specifically asserted the immateriality
and irrelevancy, of, the evidence sought to be adduced, and, as to the
items which the, Trial Examiner did not require to .be,,produced, we
are convinced that counsel for the General Counsel's objections to
-the irrelevancy and the' immateriality of these items are well taken.
Likewise, in contrast with the General Engineering case, here the
,Trial Examiner in his rulings did not rely upon the Board rule
mentioned above. Thus, although the General Counsel in-his letter
of March 8, 1953, to the Respondent denied permission to represent-
atives of the Board in New Orleans to produce any of the items
listed in the subpoenas daces tecum, the Trial Examiner did require
the production of many of_the items listed in both subpenas and they
were in fact produced at the hearing. During the hearing, the Trial
Examiner exhibited concern lest the Respondent be prejudiced in its
cross-examination of witnesses by the General Counsel's withholding
of documents under a strict interpretation of Section 102.118 of the
Rules. , For this reason, the Trial Examiner required the General
Counsel to produce material, including affidavits, from files contain-
ing information about the claimants without regard to'whether or
not the claimants were called to testify. In this respect,, the Trial
Examiner expressed ,the view that the Board's general procedural
rules were not designed to cover backpay proceedings, and his con-
duct of the hearing was consistent with this view.
We find that the Trial Examiner's rulings with respect to the pro-
duction of material sought by Respondent in its two requests for
subpoenas daces tecum were in fact consistent with, if indeed they
did not exceed the requirements of, the policy underlined by the
court in General Engineering. We are convinced, however, that
insofar as the Respondent's subpenas sought disclosure of analysis
memorandums and similar, memorandums and reports prepared by
various agents for the Board or General Counsel in the. course of
their investigation of the case, the subpenas went too far, for to
have required such production would have violated rights of privacy
in the "work product" of such agents under the doctrine of Hick-
man v. Taylor, 329 U.S. 495, 507-514. The Trial Examiner did not
require the production of such material and we affirm his ruling in
this respect. ,
2. We adopt 'the Trial Examiner's finding in his Preliminary
Intermediate Report that Respondent had an obligation to reinstate
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all unfair labor practice strikers on their unconditional application
to return to work As more fully detailed in the Preliminary Inter-
mediate Report, Respondent contended that the Board's Order was
"prospective" and that no finding of a violation of that Order can
be based on applications for reinstatement which preceded the Order
itself Hence, Respondent argues, it was under no duty to reinstate
any of the employees here involved because none of them applied
for, and were refused, reinstatement after the Board entered its orig-
inal Order on February 13,1956
The Board's Order is in its usual form and is clearly drawn and
intended to include a requirement for reinstatement and backpay for
those employees who might already have made proper application
for reinstatement at the time of the issuance of the Order The
well-established rule of law is that stated by the Court of Appeals
for the Fifth Circuit in its decision granting enforcement of the
Board's Order, as follows 6
For once the strike is an unfair labor strike, or becomes
such the employer is compelled under the Act to reinstate
the strikers upon application [Emphasis supplied 1
Accordingly, in agreement with the Trial Examiner and for the
reasons more fully set forth in his Preliminary Intermediate Report,
we find that the Board Order was retrospective in operation and
required the Respondent to reemploy those employees making proper
application for reinstatement, including those who made such appli-
cation prior to the issuance of the Board Order
3 Respondent contended it the hearing that its good-faith belief
that some employees were guilty of serious acts of misconduct dur-
ing the strike justified Respondent's refusal to reinstate them upon
application In reply to this contention, the Trial Examiner held
that "[i]t is the nature and seriousness of the employees' conduct
ratl et than 1,he [Respondent's] belief in this regard which is deter-
mina i ive " In N L Pb B v Burnup and Sams, Inc ,7 the Supreme
Court held that an employer's honest belief was not a defense if it
affirmatively appeared that such misconduct did not in fact occur
And as more fully detailed in the Trial Examiner's Supplemental
Decision, misconduct of certain employees was not affirmatively
proved in this case
4 We find no merit in Respondent's exception to the Trial Exam-
iner's failure to find that certain employees were guilty of miscon-
duct during the strike In support of its defense at the hearing,
Respondent sought to introduce a 1954 judgment of a State court
which "temporarily restrained, prohibited and enjoined" the several
9 Page 598 of the court's opinion cited at footnote 2 supra
7379 US 21
J H RUTTER-REX MANUFACTURING COMPANY 1419
persons named therein, including some of the claimants herein, from
engaging in various and sundry acts, such as picketing Respondent's
premises and loitering in the vicinity of Respondent's plants and
strike headquarters The judgment also enjoined those persons
named therein from, inter alga, engaging in threats to assault or
molest employees The Trial Examiner ruled that the judgment was
not properly admissable as evidence because it fails to indicate what
specific acts of misconduct are charged to any of the individuals
named therein We have examined this exhibit and, in agreement
with the Trial Examiner, we find that it has no probative value
because it doe,, not attribute any specific act of misconduct to any
specific individual and thus offers no assistance to us in assessing
whether the acts of misconduct engaged in by any of the individuals
were of sufficient gravity to warrant denial to them of reinstate-
ment and backpay 8
5 The following corrections, additions, and modifications s are
made in the Trial Examiner's findings as to individual employees
Rose Marie Hicks The General Counsel excepted to the Trial
Examiner's award of backpay to Rose Marie Hicks for the second
quaitei of 1956 in the amount of $36 44 As the General Counsel
notes, and we agree, the social security records indicate that Hicks
eeai ned an additional $88 during that quarter which is not reflected in
her intoinn earnings listed by the Trial Examiner in the Appendix
Accordingly, as Hicks' total interim earnings during that period
exceed the wages she would have earned if reinstated by Respond-
ent, we shall reduce her net backpay in the amount of $36 44 Thus,
the correct amount of net backpay due to Hicks is $3,519 31
Noel Martin We find merit, in part, in Respondent's exceptions
to the Trial Examiner's award of backpay to Martin We agree
with the Trial Examiner's finding that Martin applied for rein-
statement at Respondent's plant in December 1954 10 Contrary to
the Trial Examiner, however, we find that Martin is eligible for
backpay only up to the beginning of 1959 Martin testified that he
began to work as an apprentice bricklayer for 75 cents per hour in
August 1954 He completed his apprenticeship 4 years later and
8 And, in any event assuming that the judgment was free of the inherent defects men
tioned above and was otherwise material and competent it could nevertheless not in
itself control our determination of whether or not the named claimants are entitled to
reinstatement and backpay Farrell Hicks Chevrolet , Inc 149 NLRB 1512 footnote 8
of the Intermediate Report and cases therein
8 We agree with the Trial Examiner s computation and award of backpay to Shirley
Edgerson However we find it unnecessaiy to pass on and do not adopt the Trial
Examiner 's comments in Ldgerson 's case relating to computation by the projection forward
of interim earnings during a period after she had quit a job probably without justification
"About this same time, which was some 4 months before the end of the strike Martin
made application at one other sewing factory for work Thereafter apart from his pursuit
of the trade of bricklaying , he made no other search for employment
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
became a "full fledged" bricklayer and began to earn the journeyman
rate of $3 per hour He considers himself a bricklayer since learning
the trade, and intends to earn his living at that trade In view of
these facts, we reject the Trial Examiner's award of backpay to
Martin from 1959, when he completed his apprenticeship and
achieved journeyman status, through the remainder of the backpay
period covered by these proceedings Accordingly, Martin's net
backpay is reduced to $948 47
Dorothy B Rubit We agree with the Trial Examiner's finding
that Dorothy B Rubit was not properly reinstated and is entitled to
backpay However, we find merit in that part of Respondent's
exception which relates to the award of backpay for the second
quaiter of 1961 Rubit testified that she began training as a prac-
tical nurse by going to school from October 1959 until Decem-
ber 196011 Upon completion of her training, she became a "quali-
fied graduate practical nurse" and since January 1961 has been
steadily employed as a practical nurse and desires to continue in that
line of work Under these circumstances, we find that Rubit removed
herself from the sewing factory labor market on the completion of
her training in December 1960
Accordingly, we shall disallow her claim for backpay for the sec-
ond quarter of 1961 Thus, her net backpay award is reduced to
$3,035 92
Dorothy P Rubit We find merit in Respondent's exception to
the Trial Examiner's aR and of backpay to Dorothy P Rubit
Rubit testified at one point that she applied for work at another
sewing factory during the backpay period However, at another
point she testified that she was not sure whether she applied at the
other plant during or after the strike She did not look for other
work except at Respondent's plant We find that her testimony,
which at best is inconsistent, is insufficient to warrant a finding that
she was diligent in her search for work during the backpay period
Accoi dingly, we find that she incurred a willful loss of earnings and
is not entitled to any backpay
Mignotte Thomas We find merit in Respondent's exceptions to
the Trial Examiner's award of backpay to Thomas for the first two
quarters of 1956 We affirm, however, his finding that Thomas was
entitled to backpay from August 5 to December 31, 1955
The General Counsel concedes and the record shows that because
of an illness iequiring surgery, Thomas was not available for work
and did not look for work during the entire first quarter of 1956 and
up to June 1, 1956, of the second quarter
"The General Counsel made no claim for backpay during this training period
J H RUTTER-REX MANUFACTURING COMPANY 1421
We find theiefore that Thomas is not entitled to backpay for the
first and second quarters of 1956 Accordingly, her backpay is
reduced to $608 37
Herbert Lotten We find merit, in part, in Respondent 's exceptions
to the Trial Examiner 's finding with respect to Lotten The record
shows that Lotten secured a job in a cleaning business owned by
his father-in-law sometime during the strike and continued at this
job throughout the entice backpay period In a conversation with
Lotten, apparently before the end of the strike , Batiste , a good friend
and his supervisor, asked Lotten if he was interested in return-
ing to his old job Lotten refused because he was satisfied with his
job Shortly thereafter , Lotten became dissatisfied because he had
a disagreement with his father -in-law and asked to be reinstated,
and in November 1955 he filed an application with Respondent but
he was not reinstated According to Lotten 's own testimony, he
informed Batiste , sometime after the end of the strike , that he had
patched things up with his father -in-law and was not then inter-
ested in having his old job back Respondent introduced into evi-
dence a memorandum indicating that Lotten had been sent for in
June 1957 but he told Batiste that he was not interested, that he was
working for his father-in-law In view of Lotten 's admission that
he rejected an offer of reinstatement after the strike was over, a fact
which is corroborated by Respondent's memorandum , and there
being no other evidence to fix the date of such refusal , we find that
Lotten's backpay should be terminated in June 1957 Accordingly,
we find that Lotten is entitled to backpay only for the first, second,
and third quarters of 1956 and the second quarter of 1957 in the
total amount of $153 05
B,essze Montgomery We agree with the Trial Examiner 's finding
that Montgomery willfully incurred a loss of earnings by quitting a
job in the second quarter of 1959 , and that this continued until she
renewed her search for work in the second quarter of 1960 How-
ever, in his conclusion, the Trial Examiner stated that "no willful
loss of earnings has been pi oven " We hereby correct this inad-
vertent error
We agree with the Trial Examiner 's finding that Montgomery is
entitled to backpay in the amount of $1,152 82
Marjorie Walker We overrule Respondent 's exception to the Trial
Examiner 's award of backpay to Walker for the following reasons
The specification alleged, and Respondent conceded , that Walker
applied for reinstatement on March 22 , 1955 In its amended
answer, Respondent contended that it did not reinstate Walker
because she failed to apply after the strike The Trial Examiner
found, and we agree, that a reinstatement application made by an
1422 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
unfair labor practice striker during the strike creates an obligation-
on Respondent which can be terminated only by an unconditional
offer of reinstatement. The Respondent further contended, however',
that Walker had left its employ prior to the beginning of the strike.
Walker testified that because she was pregnant, her last employment
with Respondent was "approximately 2 or 3 weeks" before the strike.
Prior to her leaving, she discussed the possibility of returning to
work after her baby was born with the lady who "was over" her.
Her baby was born in May 1954. About 6 weeks after her baby was
born, she went on picket duty with the Union outside Respondent's
plant. - The record shows a general pattern among the female employ-
ees, of leaving Respondent's employ because of pregnancy, illness,
etc., and later returning to work. It is therefore clear, under the
circumstances, that Walker remained an employee 'of the.Respondent
and is entitled to backpay in this proceeding. - Moreover, Respond-
ent's contention, raised for the first time in its exceptions to the
Trial Examiner's Supplemental Decision, that Walker was not work-
ing-for Respondent at the time of the strike is without merit as it'
was not alleged in Respondent's amended answer as a defense.
Accordingly, we find that Walker was an employee of the Respond-
ent who, became a striker and is entitled to reinstatement. She is
entitled,to backpay in the amount of $2,639.56 ,as found by the Trial
Examiner.
Bessie Brown - (Harris) : We agree with the Trial Examiner's fin d-
ing that Brown is entitled to backpay. We find merit, however, in
the General Counsel's exception to the Trial Examiner's failure to
award backpav to. Brown for the third quarter of 1955 after finding
that her backpay period ended on July 18, 1955. The General Coun-
sel alleges that Brown is entitled to an additional sum in the amount
of $58.56 for the period from July 1 to 18, 1955. This appears to
be an inadvertent error by the Trial Examiner and, accordingly,
Brown's backpay is increased by that amount. We find that the
total backpay due her is $124.88.
Marguerite Head and Audrey Zeno : We find merit in the General
Counsel's exceptions to the Trial Examiner's refusal to allow amend-
ments to the specification to extend the backpay period for Head and
Zeno. The specification alleged that Head was offered reinstatement
on May 15, 1955, and that Zeno was offered reinstatement on June,9,
1955: In its amended answer, Respondent admitted that reinstate-
ment was offered on July 18 and 12, 1955, to Head and Zeno, respec-
tively. . The. cases of these two claimants are distinguishable from
other oases discussed by the Trial Examiner in his Supplemental
Decision wherein he refused to allow either party to amend, because,
unlike 'other motions to amend the specification, the present motion
J. H. RUTTER-REX MANUFACTURING COMPANY 1423
is based upon the written admission of the Respondent. We shall
therefore amend their schedule to reflect the total backpay due for
the period from April 14 to July 18, 1955, for Head and from
April 14 to July 12, 1955, for Zeno, in the following tables :
MARGUERITE HEAD'S BACKPAY
Year and Period Quarter Gross
Backpay 12
Interim
Eai pings
Net Backpay
1955-4/14/55-6/30/55____________________
1955-Bonus----------------------------
1955-7/l/55-7/18/55 _____________________
II
II
III
$312 47
23.61
66.99
0
0
$312.47
23.61
66.99
Total 1955________________________ $403.07
AUDREY ZENO'S BACKPAY
1955--4/14/55-6/30/55 ____________________ II $312.47 $58.86 $253.61
1955-Bonus---------------------------- II 23.61 -------- -------- 23.61
1955-7/1/55-7/12/55___________________ III 42.55 34.86 7.69
Total 1955________________________ $284.91
Accordingly, we find that Head and Zeno are entitled to $403.07
and $284.91, respectively.
Genevieve Green (Hilliard) : We find merit in the General Coun-
sel's exception to the Trial Examiner's failure to award backpay to,
Green for the fourth quarter of 1955. The Trial Examiner found,
and we agree, that Green made application and was refused rein-
statement on November 9, 1955, and that her backpay period began
on November 17, 1955. The Trial Examiner also found that Green
searched unsuccessfully for work during the remainder of this quar-
ter but he failed to include this period in computing net backpay.
Accordingly, we shall amend her schedule to include backpay for
the fourth quarter of 1955.
The specification indicates that if Green hat! been reinstated and
had continued to work for the remainder of the quarter, her earn-
ings would have been according to the following computation :
GENEVIEVE GREEN'S (HILLIARD) BACKPAY
Year and Period
1955-11/17/55-12/31/55__________________
Quarter Gross
Backpay I3
N $192 03
Interim
Earnings
0
Net Backpay
$192.03
12 The 6 -percent adjustment computed by the Trial Examiner is included in our computa-
tion of gross backpay.
13 The 6 -percent adjustment recommended by the Trial Examiner is included In our
recomputation of gross backpay
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that Green is entitled to an additional
$192 03, which, added to the $79 25 for the second quarter of 1956,
amounts to $27128 in backpay
Marietta Newman We find merit in the General Counsel' s excep-
tion to the Trial Examiner's failure to award backpay to Newman
from July 1 to 20, 1957 The Trial Examiner found, and we agree,
that Newman was employed as a nurse from October 1955 until
July 20, 1957 During this period, she worked 3 days per week at $6
a day The specification indicates that had she worked for Respond-
ent during this 3-week pei iod in July 1957, she would have earned
$10170 Her interim earnings of $54 deducted from what she would
have earned if reinstated by the Respondent entitled her to an addi-
tional amount of $47 70 in backpay Accordingly, we find that New-
man is entitled to $1,614 m backpay
Eunice Johnson We find merit in the Union's exception to the
Trial Examiner's failure to award backpay to Johnson for the first
quaff ter of 1960 We do, however, concur in the Trial Examiner's
remaining findings with respect to Johnson
In his brief to the Trial Examiner, the General Counsel requested
that backpay be eliminated for a "period when [Johnson] was unable
to work because of her mother's illness " The Trial Examiner inter-
preted this as a request to eliminate backpay for the entire first quar-
ter of 1960 The record shows, however, that Johnson worked for
one employer for the first 2 months of this quarter before quitting
because of illness in her family However, the record further shows
that Johnson was only idle for 1 week during this quarter before
starting to work for another employer, where she remained employed
until some time in the second quarter The social security records
indicate that for the first quarter of 1960 she had interim earnings
in the amount of $172 81 while working for both employers
We note that several other claimants in the same category as John-
son would have earned $470 56, including the 6-percent adjustment,
during this quarter if they had been reinstated by Respondent (see
Nos 101, 102, 116, and 149 in the Appendix to the Trial Examiner's
Supplemental Decision) However, we find also that Johnson in-
curred a willful loss of earnings for 1 week by quitting one job during
the quarter before being reemployed at another job for the remain-
der of the quarter The specification indicates that had she worked
for Respondent during that week, she would have earned a total of
$30 47, including the 6-percent adjustment computed by the Trial
Examiner Thus, we shall deduct that amount from the $470 65,
leaving $440 09 Since we have found that her interim earnings
amounted to $171 81, her net backpay for this period is $440 09 less
11
J H RUTTER-REX M (NUFACTURING COMPANY 1425
$172 81, or $267 28 Accordingly, we shall add this amount to the
$5,386 11, found by the Trial Examiner, making the total amount of
backpay due $5,653 39
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, J H Rutter-Rex Manufacturing Company, Inc, its
officers, agents, successors, and assigns, shall pay to the employees
involved in this proceeding as net backpay the amounts, including
interest, from the date of the Trial Examinei's Supplemental Deci-
sion, but minus the tax withholding required by Federal and State
laws, set forth opposite their names in the Appendix to the Trial
Examiner's Supplemental Decision, except for the individuals named
below who shall be paid the following amounts, set opposite their
names
Rose Marie Hicks------ $3, 519 31 Marguerite Head------ $403 07
Noel Martin__________ 948 47 Audrey Zeno------- 284 91
Dorothy B Rubit------ 3, 035 92
--
Genevieve Green
Dorothy P Rubrt------ None (Hilliard ) ----------- 271 28
Mignonette Thomas_ _-_ 608 37 Marietta Newman----- 1, 614 00
Herbert Lotten________ 153 05 Eunice Johnson-------- 5, 653 39
Bessie Brown (Harris)-_ 124 80
With respect to those employees whose backpay was still accruing,
as found by the Trial Examiner in his Supplemental Decision, pay-
ment to them of the net amount found to be due and accruing consti-
tutes satisfaction of Respondent's obligation only up to June 24,
1961, which is the end of the period covered by the specification
PRELIMINARY INTERMEDIATE REPORT AND ORDER IN
BACKPAY PROCEEDING
Statement of the Proceedings
The National Labor Relations Board on February 13, 1956 , issued its Decision
and Order directing , inter alia , the Respondent , J H Rutter-Rex Manufacturing
Company, Inc, upon application , to offer immediate and full reinstatement to their
former or substantially equivalent positions to all those employees who went out
on strike on April 21, 1954, or thereafter, without prejudice to their seniority or
other rights and privileges, dismissing , if necessary, all persons hired on or after
that date , and to make such applicants whole for any loss of pay suffered during
the period from 5 days after the date of their applications for reinstatement, to
the date of the Respondent's offer of reinstatement The United States Court of
Appeals for the Fifth Circuit rendered its opinion enforcing the Board 's Order on
June 10, 1957 (245 F 2d 594 ), and on August 19, 1957 , entered its decree in
conformity therewith
Thereafter, on November 16, 1961 , the Board, by its Regional Director at New
Orleans, issued a backpay specification setting forth the specific amounts of gross
and net backpay due each of 207 striking employees who allegedly had applied for
reinstatement, and notifying the Respondent that a hearing was scheduled to be
held on January 29, 1962, and further notifying the Respondent of its right to file
an answer to the specification within 15 days pursuant to Section 102 54 of the
Board's Rules and Regulations , Series 8, as amended
221-731-67-vol 168--91
1426 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
After obtaining an extension of time for filing its answer until January 4, 1962,
the Respondent, on December 30, 1961, filed an ex parte application with the
Court of Appeals for the Fifth Circuit to enjoin the Board from conducting this
backpay proceeding because of its delays in the matter. The court, after issuing
an order temporarily staying the proceedings, on July 19, 1962, issued its opinion
declining permanently to stay these proceedings. On August 28, 1962, the court,
in conformity with its opinion, issued its decree dissolving the temporary stay of
the proceedings previously issued by it and denying Respondent's motion for a
permanent stay.
Thereafter, on September 4, 1962, the Respondent filed an answer to the back-
pay specification. On September 20, 1962, the Regional Director issued an order
rescheduling the hearing for November 13, 1962. On October 3, 1962, counsel
for the General Counsel filed with the Regional Director a motion to strike the
Respondent's answer to backpay specification and for judgment on the pleadings.
The aforesaid motion was referred to Trial Examiner Owsley Vose for ruling.
After considering the aforesaid motion, the General Counsel's argument in support
thereof dated October 29, 1962, and the Respondent's opposition thereto dated
October ;30, 1962, I issued my opinion and order on November 5, 1962, granting
the General Counsel's motion to strike the Respondent's answer in substantial
part,-with leave to the Respondent to file an amended answer at a date later to be
set, by me, and, notifying the parties that the hearing scheduled for November 13,
1962, would be confined to the issue of the method of computation to be used in
computing the amount, if any, of backpay due in this case, and related preliminary
issues . of law and fact.
`The proceeding was heard in New Orleans on November 13 through 16, 1962.
Evidence was received from all parties on the issue of the method of computation
to.,be.used in this case. At the hearing the parties were invited to submit sugges-
tions as to the appropriate procedure to be followed thereafter in the case in
resolving the extremely numerous factual issues involved herein. After the hear-
ing, which was participated in by all parties, the Respondent on December 10, 1962,
filed a memorandum in which it opposed the method of computation adopted in
the backpay specification. The General Counsel filed a memorandum supporting
the specification on December 21, 1962, and the Amalgamated Clothing Workers
of America, AFL-CIO, filed a memorandum on December 26, 1962.
1. THE QUESTIONS INVOLVED
The first question to be decided in this proceeding is whether the Respondent
has any obligation to reinstate the striking employees here involved, all of them
allegedly having applied for reinstatement before the entry of the Board's Order
herein, and none of them, so far as the record shows, having, reapplied thereafter.
The Respondent, asserting that the Board's Order is wholly prospective in opera-
tion, contends that this question should be answered in the negative.
The second question, assuming that the answer to the first question is in the
affirmative, concerns the, reasonableness of the method of computation used in the
backpay specification. It is settled that in making backpay determinations, the
Board may adopt formulas reasonably designed to produce an approximation of the
amount of backpay due and that such formulas should be upheld unless arbitrary
or unreasonable in the circumstances involved. W. C. Nabors, d/bla W. C.
Nabors Company, 134 NLRB 1078, 1084-1085; N.L.R.B. v. Ozark Hardwood
Company, 282 F. 2d 1, 7 (C.A. 8); N.L.R.B. v. Brown & Root, Inc., 311 F. 2d,
447 (C.A .8); N.L.R.B. v. East Texas Steel Castings Company, Inc., 255 F. 2d
284 (C.A. 5). The Respondent, while not challenging the use of a reasonable'
formula, contends that the method contained in the specification is unreasonable.
The specification, in broad terms, adopts the average biweekly earnings of con-
trol groups of employees, selected primarily because they worked most of the
time during the backpay period, as giving the measure of what the employees in
the various classifications would have earned during each biweekly period in the
backpay period. The Respondent does not object to the use of the average earn-
ings of a control group of employees to provide the measure of the backpay due
the striking employees here involved. As discussed more fully below, what the
Respondent objects to is that the earnings of additional short-term employees were
not taken into consideration in computing the average, and that the average is
computed on a biweekly rather than an annual or a quarterly basis. The Respond-
ent contends that the method of selecting the control groups used in "the specifica-
tion resulted for the most part in the inclusion of only its better operators which
J. H. RUTTER-REX MANUFACTURING COMPANY 1427
has the effect of raising the average earnings. The.Respondent asserts further that
the biweekly method fails to reflect the extent that the average employee's annual
earnings were reduced by absences of 2 weeks or more and thus overstates what
the employees here involved actually would have earned in the Respondent's.
employ during the backpay period. The Respondent suggests as an alternative to
the biweekly method of obtaining the averages that earnings be averaged on an
annual basis or at least on a quarterly basis.
H. THE RESPONDENT'S OBLIGATION TO REINSTATE THE STRIKING EMPLOYEES
WITH BACKPAY
As indicated above, the Respondent contends that it is under no duty to rein-
state any of the employees here involved for the reason that none of them was
refused reinstatement after the entry of the Board's Order herein, which the
Respondent asserts is wholly prospective in operation. As to some of the employees
(an unspecified number), the Respondent asserts that it has additional grounds for
claiming that it is not in disobedience of the reinstatement and backpay provisions
of the Board's Order, such as that they failed to make bona fide applications for
reinstatement or that they were in fact reinstated within a reasonable time after
jobs became available. The Respondent asserts that if its contentions that none
of the employees here involved is entitled to reinstatement are sustained, this will
obviate the need for any further hearing to inquire into the specific amounts of
backpay due individual employees. • Accordingly, the Respondent requests that a
further preliminary hearing be held on the question of the employees ' entitlement
to reinstatement.
The principal ground on which the Respondent relies in support of its contention
that it has fully satisfied its reinstatement and backpay obligation under the Board's
Order is that the reinstatement and backpay provisions of the Board's Order are
prospective in operation only, and that no finding of a violation of the Board's
Order can be based on "applications for reinstatement, which precede, the order
itself." 1 In other words, the Respondent is contending that any application for
reinstatement made prior to the entry of the Board's Order on February 13, 1956,
was premature and did not create any liability on its part to reinstate such an
applicant. Since the specification alleges that each of the employees here involved
made application for reinstatement prior to February 13, 1956, this contention,
if sustained, would eliminate all backpay in this case.
I find no merit in this contention. It ignores the fundamental and long settled
legal proposition that the Board, in the exercise of its power to remedy unfair
labor practices, may require the discharge of employees hired to replace unfair
labor practice strikers where necessary to make room for the strikers who apply
for reinstatement. The Board in one of its early decisions involving, as here, a
strike caused by a refusal to bargain, stated that it was providing for this remedy
"In order to restore the status quo as it existed prior to the time the Respondent
committed the unfair labor practices and in order to enable the processes of collec-
tive bargaining to function." Black Diamond Steamship Corporation, 3 NLRB 84,
93. The Court of Appeals for the Second Circuit affirmed, stating that "From
the date of the Respondent's first unfair labor practice, its ordinary right to select
its employees became vulnerable. Accordingly, it was proper for the Board to
order it to discharge all engineers hired for the first time since December 14, 1936
[the date of the first refusal to bargain]," Black Diamond S.S. Corporation v.
N.L.R.B., 94 F. 2d 875, 879, cert. denied 304 U.S. 579.
This decision makes it clear that the, duty to reinstate, which flows from the
Board's determination that the reinstatement of unfair labor practice strikers, upon
application, is an appropriate means of remedying the unfair labor practice causing
the strike, comes into being when the unfair labor practice is committed and con-
tinues until the unfair labor practice is remedied. Indeed, only by requiring the
reinstatement of unfair labor practice strikers upon their giving up the strike and
seeking to go back to work can the Board accomplish its objective in such situa-
tions of "restor[ing] the status quo" and "enabl[ing] the process of collective
bargaining to function." 1 '
Since the time of the Black Diamond decision the Board and the courts -have
uniformly upheld the right of unfair labor practice strikers to reinstatement, upon
application, whether they apply before the entry of the' Board's Order or-not.
See Mastro Plastics Corp'., et at. v. N.L:R.B., 350 U.S. 270, 278, and cases cited
i This is a quotation from p. 20'of'the Respondent 's memorandum to*the Trial Examiner:'
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in footnote 9 thereof. The decision of the court of appeals in the instant case
when it was before the court on the Board's petition for enforcement of its order
gave full recognition to this basic proposition when it stated (245 F. 2d 594), that
"the employer is compelled under the Act, to reinstate strikers upon application
even though it means discharging replacements hired during the strike." It would
appear that an employer would not be under a duty to discharge replacements
unless the unfair labor practice strikers had a right to reinstatement at the time
the replacements were hired. This duty, as stated above, flows from the employer's
duty to remedy the unfair labor practice causing the strike, and does not come
into being on the issuance of the Board's Order of reinstatement, as the Respondent
argues.
The Respondent asserts that all the cases of which it is aware dealing with the
reinstatement of unfair labor practice strikers involved allegations and findings
of violations of Section 8(a)(3), and suggests that a different rule should apply in
this case which involves reinstatement and backpay provisions which were ordered
to remedy a refusal to bargain in violation of Section 8(a) (5).2 The Respondent's
distinction, in my opinion, is without merit. The underlying right to reinstatement
of the strikers involved in all those cases stemmed from the fact that the Board
has determined that the appropriate remedy in situations involving strikes caused
by unfair labor practices is to require the reinstatement of the strikers, upon
application. In none of the cases to which the Respondent refers were the 8(a)
(3) violations estiblishad in the manner in which such allegations normally are;
i.e., by proving the antiunion motivation behind each refusal to reinstate. Rather,
the only questions litigated were whether the strike was an unfair labor practice
strike and whether the strikers had applied for, and had been denied, reinstate-
ment. Thus, the reinstatement with backpay of the strikers involved in those cases
was attributable not to the fact that they had been denied reinstatement for anti-
union reasons, in violation of Section 8(a)(3), but to the circumstance that they
had been forced out on strike by unfair labor practices and that their reinstatement
was essential to remedy these unfair labor practices .3 The fact that a violation of
Section 8(a)(3) of the Act was found in these cases does not affect the applica-
bility of this basic principle to this case. Such a finding was made in those cases
only because the applications for reinstatement had been made prior to the hearing
and the Board had an opportunity to pass on the propriety of the applications.
The Respondent will have an opportunity to present its remaining contentions con-
cerning the validity of the employees' applications at the forthcoming hearing in
this case. For the foregoing reasons I conclude that the absence of 8(a)(3) al-
legations in this case is immaterial and that the Respondent's contention that the
Board's Order operates prospectively, only, must be rejected. The Respondent's
request for a further preliminary hearing in this case is therefore denied.
III. THE REASONABLENESS OF THE BOARD'S METHOD OF COMPUTATION
A. Introductory statement
The backpay specification states for each employee the various items involved
in computing the net backpay due him. The principal item is gross backpay which
is the term used to refer to the sum of money which an employee would normally
have earned had he been on the Respondent's payroll during the backpay period.
The backpay period is the period commencing 5 days after the employee made an
unconditional application for reinstatement and continuing until the employee was
offered reinstatement. The specification alleges the dates on which each of the
207 employees here involved made an application for reinstatement. As of July 8,
1961, the end of the period covered by the specification, about 137 employees had
been reinstated by the Respondent, and the rest had not. In this case gross back-
pay for each employee includes not only the sum of the average biweekly wage in
the appropriate job classification for each biweekly period in the entire backpay
period, determined as described below, but also, where applicable, such additional
'For a Board decision which makes it clear in an 8(a )(5) strike situation that the
obligation to reinstate the strikers upon application antedates the entry of the Board's
Order, see Washington Coca-Cola Bottling Works, Inc., 122 NLRB 7, 8-9. See also
DuBois Chemicals, Inc., 140 NLRB 103.
sI have considered Republic Steel Corporation v. N.L.R.B., 114 F. 2d 820, 621 (C.A. 3),
and N.L.R.B. v. Express Publishing Company, 312 U.S. 426 , on which the Respondent also
relies , and conclude that neither of these decisions calls for a contrary result in this case.
J. H. RUTTER-REX MANUFACTURING COMPANY 1429
sums as an employee would have received under the Respondent 's vacation bonus
plan. Since the Respondent does not contest the method utilized by the Board to
determine such bonus payments, this aspect of the computation will not be discussed
further in this report.
Other items covered in the specification are the employees ' interim earnings
from other employers or from self-employment during the backpay period and
their unusual expenses incurred in obtaining and holding such interim employment.
As set forth in the specification , interim earnings minus the unusual expenses
incurred in obtaining and holding such employment constitute net interim earnings.
It should be noted that although the specification contains figures as to the
interim earnings of the employees here involved, the Respondent has the burden
of proof with respect to interim earnings or any other items which go to mitigation
of the amount of backpay due. The Board includes allegations concerning interim
earnings in backpay specifications as a public service because of its belief that it
is better equipped to ascertain such matters than the average employer or other
person charged with unfair labor practices. But the Board , by including such
allegations as to interim earnings in the specification , does not assume any responsi-
bility for establishing the fact that the employees had such earnings . It merely
sets forth the results of its investigation of such matters for the benefit of the
employer , and admits that the gross backpay due each employee may be reduced
by the amount of the net interim earnings set forth for each employee in the
specification . See N.L.R.B. v . Brown & Root, Inc., et al., 311 F . 2d 447 (C.A. 8).
The final item covered in the specification is net backpay, which is simply an
arithmetical computation of the difference between an employee's gross backpay
and his net interim earnings.
B. The Board's method of computation 4
Explanation of the method of computation adopted in the specification is neces-
sarily somewhat complicated. It perhaps may best be understood if set out on a
step-by-step basis. The first step taken was to divide the employees into five
categories according to the operations performed by them immediately before the
strike. The first four categories consist solely of male employees who are divided
into separate groups according to their respective operations, as follows: (1)
cutters, spreaders, and clicking machine operators, (2) porters, (3) utility
employees, and (4) truckdrivers and warehouse utility employees. The fifth
category of employees consists of female production employees which include the
great bulk of the Respondent's employees. These are mainly sewing machine opera-
tors, pressers, etc. In the specification, the same method of computation of the
gross backpay was used for the seven employees in the first four groups. A
slightly different method was used to compute the gross backpay of the employees
in the fifth group.
As to the seven employees in the first four groups, the Board ascertained from
the Respondent's records the average biweekly earnings of a control group of
employees who were employed during the backpay period for 6 months or longer
in each of the four operations or classifications involved. The resulting average
biweekly earnings figure was taken as the measure of what the employees in each
of these four classifications would have earned during each biweekly period in
the backpay period.
As to the employees in group 5, the female operators, the specification adopted
the average biweekly earnings of another control group of employees as giving the
measure of what these employees would have earned during the same biweekly
periods. The control group for this group consisted both of older employees who
worked for the Respondent, before, during, and after the strike (although not
necessarily without interruption), called the incumbent group, and a second group
consisting of employees who for the most part had not been on the Respondent's
payroll before, called the replacement group. Included in the incumbent group
were all employees who were employed by the Respondent during the first quarter
of 1954 (before the strike), the third quarter of 1954 (during the strike), and the
first quarter of 1961 (long after the strike). Included in the replacement group
were all those hired by the Respondent between the time the strike began (April 21,
* For convenience, the method of computing backpay incorporated in the specification is
referred as the Board's method of computation, although, in accordance with the usual
procedure , the specification was prepared by employees under the supervision of the Gen-
eral Counsel in the New Orleans Regional Office of the Board.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1954 ) and the end of 1955 and who were also working for the Respondent in
the first quarter of 1961. The total control group which was used to ascertain
the measure of backpay of the employees in group 5 consisted of 95 incumbents
and 64 replacements.
The specification sets forth the wages received by each of the 159 employees in
the control group during each of the biweekly pay periods in the backpay period.
If any of these 159 employees did not work at all during a biweekly pay period
they were excluded in determining the average weekly wage in that period. How-
ever, if any one of the 159 employees worked as much as an hour within the 2-
week period , their wages were included in computing the average biweekly wage
for that period. The total gross backpay for each of the employees in group 5,
as stated in the specification , was the arithmetical total of the average biweekly
wages for each biweekly period in the backpay period.
C. The Respondent 's objections to the Board's method of computation;
its alternate proposals; conclusions
The Respondent raises various objections to the Board 's method of computation,
some of which are common to the employees in all five groups . The Respondent
makes other objections which are applicable only to specific groups. Since group 5
(the female operators ) contains all but seven of the employees with whom we are
here concerned , these objections ,, together with the objections which are common to
all groups, will be considered first.
1. The group 5 employees
As noted above, the Respondent contends that the Board's method of selecting
the control group of employees to furnish the measure of what the group 5
employees would have earned resulted in including only the most experienced and
productive operators , and therefore the operators with the best earnings. As stated
above, the Board included among the incumbents only those who were on the Re-
spondent 's payrolls during the first and third quarters of 1954 'and the first quarter
of 1961. The replacement portion of the control group included those who were
hired between April 21, 1954, and December 31, 1955 , and who were also on the
payroll during the first quarter of 1961. While this method of selection resulted
in long-term employees largely used to give the measure of gross backpay of the
employees here,involved, such a method was dictated by the law of the case. The
Board, with court approval, has held that the striking employees are entitled to
backpay commencing within 5 days after any refusal of their unconditional appli-
cation for reinstatement and ending when they are offered reinstatement . Accord-
ing to the allegations of the specification, the applications of some 70 of the em-
ployees here involved have never been granted . Under the law, it is presumed as
to all employees whose applications for reinstatement were turned down that they
would have remained on the payroll for the entire backpay period since it was the
Respondent's failure to remedy the unfair labor practices causing the strike which
made it impossible to determine how long these employees would have remained
on the Respondent 's payroll To furnish the fair measure of the earnings such
employees would have had during the long backpay period it was therefore neces-
sary to take the earnings of long-term employees into consideration.
Recognizing that among the employees here involved were a comparative few,
about 20, who were learners and who only had a short period of employment with
the Respondent before the strike, the Board included among the control group
for the operators, the replacements-employees who, generally speaking, were new
to the Respondent's employ-and whose earnings could be expected to lower the
average of the entire control group. That this is in fact true is demonstrated by
General Counsel's Exhibit 2 which is a graphic presentation of what the figures
in the specification show with respect to the average quarterly earnings of all the
replacement and incumbent employees. This exhibit shows that the replace-
ments consistently earned less than the incumbents throughout the backpay period,
but that the gap in their earnings, which amounted to almost $ 100 per quarter at
the start of the backpay period, steadily narrowed during the backpay period until,
at the end of the backpay period, the gap was between $20 and $25.
It is true, as the Respondent points out, that some of the operators included
among the replacements were experienced employees who were not on the pre-
strike payroll and who were rehired during the strike. However, as Compliance
Officer Jones credibly testified , his examination of the Respondent 's records showed
J. H. RUTTER-REX MANUFACTURING COMPANY 1431
that there were many more learners among the replacement group than there
were among the striking employees here involved . In my opinion , the specification
adequately takes into account the fact that a small number of the employees here
involved were relatively new employees at the time of the strike.
The Respondent 's other principal objection to the Board 's method of computa-
tion for the group 5 operators is to the averaging of earnings on a biweekly basis.
The Respondent asserts that this method of averaging earnings fails to reflect the
extent to which a typical employee's annual earnings are reduced by absences of
more than 2 weeks at a time. The Board 's method takes into account absences of
up to 2 weeks, for an employee is counted in computing the average if he had any
earnings at all in a 2-week period. The low biweekly earnings set forth in the
specification for many employees , including one as low as 73 cents, shows that the
Board's method fully takes into consideration absences of up to 2 weeks.
With regard to absences of 2 weeks or longer, Eugene J. Rutter, the president of
the Respondent , testified that it would be the exceptional case where an employee
worked for 5 or 6 years without interruptions. He testified further that it was
common for the employment of the operators to be interrupted because of preg-
nancy, operations , illness, either their own or that of someone in their family, or
because of business problems, such as leaving town to settle an estate . Examina-
tion of Appendix E-1 of the specification which sets forth the earnings of the in-
cumbents and replacements in each of the biweekly periods in the backpay period
shows sufficient blanks for 1 or more biweekly periods (a blank reflects no earnings
and therefore an absence) to confirm President Rutter's testimony that such
. absences are not uncommon.
The General Counsel points out that in part III of the specification dealing with
'net backpay , allowance has been made for absences longer than 2 weeks by
excepting from the period for which backpay is claimed various periods of time
,during which the employee was unavailable for employment for various reasons,
such as "attending school," "pregnant ," "illness," and "vacation." Part HI shows
numerous excepted periods for reasons of pregnancy and illness . The General
Counsel urges that these excepted periods adequately compensate for, the failure
of the biweekly method to take into consideration absences of more than 2 weeks
at a time. This contention will be disposed of later , after the discussion of the
Respondent 's proposals as to a fair method of computing backpay in this case.
As an alternative to the biweekly method of computation adopted in the speci-
fication, the Respondent in its memorandum proposes first that the earnings of all
employees who worked for it any time during a year in the classifications included
in groups 1 through 5 should be averaged by classifications on an annual basis.
The resulting figure for any given year would be taken as representing what the
employees here involved in that particular classification would have earned during
that year's portion of the backpay period. Alternatively, the Respondent proposes
that the earnings of all the employees in the particular classification involved be
.averaged on a quarterly basis.
The Respondent shows that checks of its records disclose considerable disparity
'between the figures reached using the Board's method of computation and those
reached under its annual or quarterly methods of computation One check made
for the year 1956 revealed annual average earnings of $1,491 .47 as compared with
$1,788.36 under the Board's biweekly basis, including sums for the vacation bonus.
The Respondent checked the average earnings of all its operators by quarters and
found with respect to the third quarter of 1955, an average of $340.31 as compared
with the figure of $410 which was reached by the Board using its biweekly method
,of computation. For the third quarter of 1957, the Respondent's figure reached by
-averaging the quarterly earnings of all the employees who did any work during the
quarter was $391 63. The Board's comparable figure was $449.21.
It thus appears that there is a considerable difference in the results between the
figures reached using the Board's biweekly method and the figures obtained by using
the Respondent's annual or quarterly methods. However, in view of the facts set
forth below I do not believe that either of the Respondent's proposed methods give
the fair measure of the gross backpay due the employees here involved . As Presi-
dent Rutter testified , because of "turnover , discharges , quits, leaves of absence" it is
necessary for the Respondent regularly to hire new employees and rehire former
employees. Otherwise according to Rutter, "your factory will dwindle; you just
won't make the production you are supposed to make for the number of machines
you have." To solve this problem, the Respondent operates a training program
continuously, and all employees hired, except those having previous experience in
its factory, are put through this training program . In the training period, the
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent culls out a number of newly hired employees who are unable to make
satisfactory progress in the training program . Under the Respondent 's proposed
annual method of computation the annual earnings of these culled -out employees,
and also of those who quit the Respondent's employ after working only a short
time, are included in computing the annual average earnings . In addition , although
the Respondent because of turnover may have to hire as many as three or even
more employees in the course of a year to keep one sewing machine regularly in
operation, the part-year earnings of all three employees are included as full-year
earnings of each employee under the Respondent's proposed annual average formula.
Since the problem in this proceeding is to ascertain the measure of earnings of
employees who presumably worked as steadily as the Respondent's regular em-
ployees customarily worked during the various years of the backpay period, there
is no reason whatever to take into consideration the part -year earnings of the
numerous employees who are culled out or quit during the training period or who
quit for any other reason during the year. Nor is there logical basis to include
in computing the annual average the part-year earnings of all those hired to replace
the employees who are discharged or quit during the year. The inclusion in the
average of the part-year earnings of all such employees , some of whom worked
only a -few weeks during the year, greatly reduces the annual average, and the
result is not at all representative of what the employees here involved would have
earned each year during the backpay period. For these reasons I conclude that
the annual basis of computation proposed by the Respondent does not give a fair
measure of what . the employees here involved would have earned during the back-
pay period . Accordingly, this proposal is rejected.
The Respondent's proposed quarterly earnings method of computation is subject
to the same defects as its annual earnings proposal except to a much lesser degree.
However , in my opinion , these defects result in a sufficiently serious under-
statement of the earnings of the employees here involved to preclude the
acceptance of this method of computation . As indicated above, it is not
an infrequent occurrence for employees to leave the Respondent 's employ after
working a week or two. As President Rutter testified , in a plant the size of
Respondent 's, it is impossible to hire a sufficient number of experienced employees
to make up for normal turnover . Consequently , it regularly has to hire persons
without experience who may or may not develop into experienced operators in,
its training program . The inclusion in the quarterly average of the earnings of
employees who are culled out or quit after working but a week or two in a quarter
is bound to pull down the average to an extent where it cannot be said to be fairly
representative of the earnings of a group who are presumed to work throughout
the quarter., For this reason, I am impelled to reject the Respondent's quarterly
earnings proposal.
However, I am not satisfied that the Board's biweekly method of computation,
although it reflects absences of less than 2 weeks and also longer absences because
of pregnancy, etc., fully takes into consideration all of the absences that a typical
employee has during a normal year. The Respondent points out in its memoran-
dum, and the General Counsel does not challenge this assertion , that 80, percent
of the 159 of the incumbent and replacement employees used as the control group
for the operators in group 5 earned less in the backpay period than the sum which
is the total of the biweekly figures for each of the 2-week periods covered in the
specification. Since the specification itself shows that absences of 3 or 4 weeks are
not uncommon ,5 it appears that the failure of the earnings of this high percentage
of the employees in the control group for the operators to come up to the total
indicated in the specification may be due to the failure of the biweekly formula
used by the Board fully to reflect the normal incidence of absences longer than
2 weeks.
While the General Counsel in the course of his investigation has endeavored'
to uncover all periods of unavailability for employment for all of the employees
sWhile the specification also shows 'that certain employees did not appear on the payroll,
for periods ranging from 2 weeks to well over a year, on the present record I cannot assume
as to employees who did not appear on the payroll for periods longer than 3 months that
they were on a leave of absence . It is more likely that the failure of such employees to
appear on the payroll was the result of their quitting the Respondent ' s employ, and that
their reappearance on the payroll was due to the Respondent ' s rehiring of them. The
3 months' dividing line is based on my conclusion that 3 months is the maximum period,
that employees of the economic level of the Respondent 's operators are likely to take off
from work due to pregnancy.
J. H. RUTTER-REX MANUFACTURING COMPANY 1433
here involved, where the investigation is carried on 5 or 6 years after the event,
employees are very likely to be unable to recall all of the periods during which
they were unavailable for employment. No excepted periods of employment
appear in the specification for slightly over half of the employees who allegedly
have never been offered reinstatement. The further fact that, with a very few
exceptions, pregnancies and illness were the only reasons given in the specification
for excepted periods of employment also tends to confirm my conclusion that the
General Counsel, despite his best efforts, probably has been unable to uncover all
of the periods of unavailability which should have been excepted.
Another factor which causes me to question whether the Board's biweekly
formula fully takes into account absences of more than 2 weeks is the testimony of
Compliance Officer Jones concerning the results of a comparison which he made
for the last two quarters of 1955 between the average actual quarterly earnings
of strikers after they had returned to work and the figure given in the specification
as the measure of backpay for strikers during these periods. The comparison was
made for the operators in group 5 only, and for the purpose of making the com-
parison the General Counsel included the earnings of the employees who worked
throughout the respective quarters. These comparisons showed that for the third
quarter of 1955 the average earnings of 48 returned strikers was $375.68. The
comparable figure given in the specification for the gross backpay during that
quarter was $410. Thus it appears that the figure for the gross backpay given
in the specification overstates the actual earnings of the 48 returned strikers who
worked throughout the quarter by about 9 percent. In the fourth quarter of 1955,
'79 returned strikers worked throughout the quarter. Their average earnings;dur-
ing this quarter were .$323.71. The gross backpay stated. in the specification for
that quarter is $355.05. According to my arithmetic, the gross backpay figure con-
tained in the specification overstates the actual earnings of these 79 returned strikers
by .3.5 percent.
Under all the circumstances I am convinced that some adjustment in the backpay
specification is necessary to compensate for the fact that the biweekly, method of
'computation used in the specification, although it takes into consideration some
.absences, does not fully reflect the extent of absences longer than 2 weeks.. The
question remains as to the extent of an adjustment, which would be fair to. all
concerned.
The comparisons made by Compliance Officer Jones indicate that for the .last
two quarters of 1955 the Board's biweekly method of computation overstates actual
earnings of 9 percent and 3.5 percent, respectively. The Respondent's comparisons
'between the total quarterly earnings of the employees in the control group for
the operators (the incumbents and the replacements) computed on the biweekly
basis adopted in the specification and the average quarterly earnings of all the
employees who did any work during the quarter show a larger variation .6 The
figures stated in section III, C, 1, supra, with respect to the earnings for the third
quarters of 1955 and 1957 show, according to my calculations, that the Board's
biweekly method results in a figure 20 percent higher for the third quarter of 1955,
and about 10 percent higher for the third quarter of 1957, than when the Respond-
ent's quarterly method is used.
However, I have found that the Respondent's quarterly method does not give
the fair measure of the backpay to which the employees here involved are entitled
because it understates the earnings of employees who worked with normal regularity
during the backpay period. In view of this fact the further fact that the specification
takes into account longer absences because of pregnancy and illness, etc., I cannot
accept the Respondent's suggestion that the Board's biweekly method of computation
is high by about 20 percent.
The comparisons made by Compliance Officer Jones indicate that for the last
two quarters of 1955 the Board's biweekly method of computation overstates
actual earnings by 9 percent and 3.5 percent, respectively, in these quarters. Presi-
dent Rutter testified that normal absenteeism in the plant averaged approximately
1 day per employee per month. Assuming that there are 22 working days per
month, this would suggest that employees were absent 4.5 percent of the time
each month on an average.
Upon consideration of all the evidence adduced in this case, I conclude that an
adjustment factor of 6 percent fairly reflects the extent to which the Board's method
9 The Respondent in its memorandum offers other comparisons based on facts not of
record in this proceeding. I have limited my consideration to the facts which are in the
record in this case.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of computation overstates the gross backpay due because it fails fully to reflect the
absences which a typical employee has in a normal year. Accordingly, it will be
directed that in computing the net backpay of each of the employees in group 5
(operators), the figures appearing in the total gross column shall each be reduced
by 6 percent .7
2. The employees in groups 1 through 4
The Respondent asserts that by including in the control groups for the employees
in groups I through 4 only employees who had worked for the Respondent '6
months 6r-longer the Board computed its average on the basis of the most experi-
enced and capable employees in the four groups, thus raising the average. How-
ever, six out of the seven employees in groups I through 4 had more than 6 months'
experience, arid, in view of the length of the backpay period, any overstatement
of the seventh employee's earnings would be very slight, indeed.
With respect to the four employees in group 1, the Respondent contends that
the Board improperly lumped cutters , clicking machine operators , and spreaders in
one group. It appears, however, that this grouping worked to the Respondent's
advantage. Three of the four employees in this group, Breaud, Cerf, and Lewis,
were in a high -pay category , each being paid at the rate of $1 .45 per hour the last
week before the strike, and the fourth, Lotten, was being paid at the rate of $1.23
per hour. Since more than one-third of the employees in the control group for
the cutters ' and clicking machine operators were lower paid employees, the inclu-
sion of their wages in the average would tend to lower the biweekly average used
as the measure of the biweekly earnings of the three high-pay employees.
The Respondent argues with respect to the one employee in group 4 , Freddie
Harris, that it is inequitable to take as the measure of his gross backpay the aver-
age earnings of those in both the truckdrivers and warehouse utility employees
categories for the reason that the pay of the former is considerably higher than
that of the latter . Since there does appear to be more than a 25-percent differential
between the rates of the lower paid employees and the two higher paid employees
who make up the control group for Freddie Harris , the Respondent 's point is well
taken, assuming , of course , that the Respondent establishes at the forthcoming
hearing that Freddie Harris at the time of the strike was in the warehouse utility
employee category rather than that of truckdriver . If this is properly established,
the earnings of Ernest Cooley appearing on Appendix D-1 of the specification will
be taken as the measure of Harris ' gross backpay , rather than the combined earn-
ings of Cooley, Bayard , and Woodward (see p . 58 of the specification).
3. Conclusions
For the reasons stated above , I conclude that the method of computation used
in the Board 's backpay specification herein is a reasonable one under all the cir-
cumstances of the case , subject to the modification stated in the Order below.
ORDER
1. The method of computation adopted in the backpay specification heretofore
issued herein is hereby approved subject to the modification that as to each of
employees in group 5, the figures in the total gross column shall each be reduced
by 6 percent.
2. As previously notified, the Respondent, within 5 days from the receipt of
this Preliminary Intermediate Report and Order in Backpay Proceeding, shall file
an answer to the backpay specification, as provided in Section 102.54 of the Board's
Rules and Regulations , Series 8, as amended.
'r This determination , in effect, settles the question of the extent to which the employees
here involved would have been absent during the backpay period ( in addition to the extent
taken into consideration in the specification ). Accordingly , it will not be pertinent here-
inafter to inquire into actual additional periods of unavailability for employment on the
part of the employees here involved . By not objecting to the use of some formula, the
Respondent is in effect agreeing that proof of unavailability with respect to specific em-
ployees is inadmissible . Such unavailability in individual cases is necessarily subsumed
in the use of the formula. The only alternative would be to abandon the formula and put
the Respondent to its proof in each case. See N L R B v. Brown & Root, Inc, et al , 311.
F. 2d 447 (C.A. 8).
J. H. RUTTER-REX MANUFACTURING COMPANY 1435
TABLE OF CONTENTS
Statement of the Proceedings________________________________________ 1436
Findings and Conclusions___________________________________________ 1437
I. Preliminary statement; conclusions concerning the Company's rein-
statement and backpay obligations flowing from its unfair labor
practices during the strike__________________________________ 1437
H. The applications of the strikers for reinstatement--------------- 1438
III. The Company's reinstatement of the strikers and its retention of re-
placement employees in the months after the strike was called off___ 1440.
IV. The Company's general contentions regarding its fulfillment of its
reinstatement and backpay obligations________________________ 1441
A. The Company's burden-of-proof contentions--------------- 1441
B. The Company's contentions based upon the General Counsel's
delay in issuing the specification, the nature of the General Coun-
sel's investigation, and the General Counsel's alleged failure to
cooperate with the Company in the course of the investigation__ 1442
C. The Company's contention that it attempted in good faith to
reinstate the strikers____________________________________ 1444
V. The specific defenses pleaded in the Company's amended answer
regarding individual strikers_________________________________ 1446
A. General discussion of the willful-losses question------------- 1446
B. The misconduct defenses (applicable to employees listed in
schedule 6(a))---------------------------------------- 1448
1. General discussion ---------------------------------- 1448
2. The October 21, 1954, incident----------------------- 1449
3. Discussion of the individual cases_________ ____________ 1450
C. The failure to apply after the strike defense (schedule 6(b)) --- 1460
1. General discussion---------------------------------- 1460
2. The individual cases--------------- ----------------- 1461
D. The reinstated within 5 days defense (schedule 6(c)) -------- 1480
1. General discussion---------------------------------- 1480
2. The individual cases__________ ______________________ 1480
E. The no-vacancy defense (schedules 6(d), (e), and (h)) ------ 1482
1. The nature of the Company's operations ---------------- 1482
2. The evidence generally as to a lack of vacancies ---------- 1483
3. The evidence regarding the Company's practice of trans-
ferring and retraining workers________________________ 1485
4. The individual cases_________________ _______________ 1485
F. The failure-to-report-as-requested defense (schedule 6(e))____ 1524
1. Preliminary statement_______________________________ 1524
2. The Company's duty to communicate to the employees the
offers of reinstatement _______________________________ 1524
3. The evidence relied upon by the Company to show an offer
of reinstatement and failure to respond________________ 1524
4. The individual cases ________________________________ 1526
• G. The "not interested" or "not available" defense (schedule 6(f)) - 1541
1. General discussion__________________________________ 1541
2. The individual cases______________ __________________ 1541
H. The unreasonable delay in applying defense (schedule 6(g))__ 1543
1. General discussion__________________________________ 1543
2. The individual cases________________________________ 1544
1. The reinstated-and-discharged-for - unsatisfactory - performance
defense (schedule 6(h))_________________________________ 1550
1. General discussion___________________________________ 1550
2. The individual cases_________________________________ 1551
J. The not-on-strike-payroll defense (schedule 6(i))----------- 1557
1. General discussion__________________________________ 1557
2. The individual cases________________________________ 1557
VI. Miscellaneous conclusions__________________________________ 1560
A. The arithmetical method of computation used in the Appendix__ 1560
B. Procedure with respect to deceased, incompetent, and miss-
ing employees----------------------------------------- 1560
C. Interest on backpay_____________________________________ 1561
Recommended Supplemental Order___________________________________ 1561
Appendix -------------------------------------------------------- 1562
(In the Appendix the employees are listed alphabetically by the names used
in the specification.)
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
IN BACKPAY PROCEEDING 1
STATEMENT OF THE PROCEEDINGS
This Decision supplements and is to be considered together with the Preliminary
Intermediate Report and Order in Backpay Proceeding issued herein by Trial Exam-
iner Owsley Vose on January 23, 1963, after a hearing in November 1962 In my
Preliminary Intermediate Report I considered the method of computation of backpay
adopted by the General Counsel in the specification and concluded that it was an
appropriate method of computation, subject to certain minor modifications 2 The
backpay specification, it will be recalled, raised issues growing out of the Company s
alleged delay in reinstating 137 employees and its failure , in the period covered by
the specification, to reinstate 70 additional strikers It covers the backpay accruing
up to the end of the second quarter of 1961 and the evidence received in this proceed
mg in 1963 covers only the backpay accrued up to this date Any backpay accruing
after June 30, 1961, is subject to a later determination
In the course of the proceedings in November 1962, I granted in part and denied
in part the General Counsel's motion to strike the Company's answer in its entirety
because of its alleged lack of specificity and noncompliance with Section 102 54(b)
of the Board 's Rules and Regulations , Series 8, as amended , and granted the Com-
pany leave to file an amended answer In my opinion issued at that time, I stated
that the Company's amended answer should conform to the Boards Rules At the
hearing in November 1962, I emphasized my view that Section 102 54(b) of the
Board 's Rules requires the filing of a meaningful answer apprising me and the Board
of the Company's position with respect to each of the employees named in the
specification On January 29, 1963, the Company filed an amended answer to the
backpay specification Thereafter, on various dates between February 12 and Sep-
tember 30, 1963, a hearing was held on the issues raised by the backpay specification
and the Company's amended answer thereto
During the hearing motions were made by the General Counsel and the Amal-
gamated (hereinafter referred to as the Union> to amend the specification, and by
the Company to amend its amended answer Where the effect of granting such
motions when made by the General Counsel was to increase the liability of the Com-
pany, such motions were denied, absent excusable error, newly available evidence,
and like considerations When motions to amend the Company's amended answer
were made, and the effect of granting such motion was to open up new defenses to
litigation, defenses of which the Company had knowledge or reasonably should have
had knowledge at the time its amended answer was prepared, these motions were
denied, absent special considerations Other motions to amend the specification and
the amended answer , were granted 3
I The Board's original decision herein is reported at 115 NLRB 388
2In section IV, B fourth paragraph infra, the figure should be $335 05 instead of
$355 05
S In my opinion I was obliged to require strict observance of Section 102 54(b) of the
Board's Rules which deals with the contents of answers to backpay specifications This
section requires specific and detailed answers to all allegations of the specification and
specifically states, as to matters within the knowledge of the Respondent , that "a general
denial shall not suffice " In my view , one of the primary purposes of the Board in adopt
ing the specialized procedure for handling backpay cases was to narrow the issues to be
litigated and to simplify the decisional process This objective would be largely frustrated
if the Company were to be permitted to adduce evidence concerning every possible defense
which occurred to it in the course of a long trial See W C Nabors, d/b/a W C Nabors
Company 134 NLRB 1078, 182, and footnote 6 enfd 323 F 2d 686 (CA 5) cert denied
376 U S 911 Cf United States Air Conditioning Corporation 141 NLRB 1278 1281-
82 Liquid Carbonic Corporation, 116 NLRB 795
The same considerations which render it essential that the Company file specific and
meaningful answers require that the General Counsel also be bound by his specification
Particularly in the circumstances of this case , with the General Counsel be ving had access
to the Company's records for years I can see no reason to permit the General Counsel to
enlarge the issues to be litigated in this proceeding while at the same time holding the
Company to be bound by its amended answer Accordingly I have attempted throughout
this proceeding to hold the parties to their pleadings except in the case of excusable error
newly available evidence and the like
J. H. RUTTER-REX MANUFACTURING COMPANY 1437
Repeatedly during the hearing the Company sought to cross-examine witnesses
concerning the nature of the investigation conducted by the General Counsel in
preparing the specification, to adduce evidence concerning the General Counsel's
alleged failure to cooperate with the Company in resolving its reinstatement and
backpay problems, and the reasons for the delay in issuing the specification. Evi-
dence was received at the hearing concerning the fact of the delay in issuing the.
specification, but evidence as to the reasons for the delay was for the most part ex-
cluded. I did offer to receive evidence of any wrongdoing or unlawful conduct on_
the part of representatives of the General Counsel which may have contributed to.
the delay, but no such evidence was proffered. Evidence as to the General Counsel's
alleged lack of objectiveness in investigating the matter and his alleged failure to.
cooperate with the Company in resolving the differences between them was also,
excluded in the absence of any offer to prove that wrongdoing or unlawful conduct
on the part of representatives of the General Counsel was involved.
On December 9, 1963, the General Counsel and the Amalgamated filed briefs deal-
ing with both the broad issues here involved and the specific cases of the 207
employees named in the specification. The Company on the same day filed a mem-
orandum covering its general contentions regarding its backpay obligation and not
treating any of the individual cases. These documents have been carefully considered.
Upon consideration of the specification , the pleadings as amended, my observation
of the witnesses , my review of the testimony and the exhibits, and the entire record
in the case, I make the following:
FINDINGS AND CONCLUSIONS
1. PRELIMINARY STATEMENT; CONCLUSIONS CONCERNING THE COMPANY'S REINSTATE-
MENT AND BACKPAY OBLIGATIONS FLOWING FROM ITS UNFAIR LABOR PRACTICES
DURING THE STRIKE
As found in the Board's original decision in this case (115 NLRB 388), on April 21,
1954, the Company's employees went out on a strike called by the Union, their
duly certified bargaining representative. As I construe the Board's original decision,
the Board determined that although the differences between the parties during the
negotiations preceding the strike which caused the Union to decide on strike action
may have been economic in nature, because of the Company's conduct "[flrom the
moment of the strike," which evidenced a "rejection of the very principle of collective
bargaining," the strike was to be deemed an unfair labor practice strike from its
inception.
Accordingly, the Board in its original decision provided for the conventional
remedy usually entered in unfair labor practice strike situations, as follows:
(b) Upon application, offer immediate and full reinstatement to their former
or substantially equivalent positions to all those employees who went on strike
on April 21, 1954, or thereafter, without prejudice to their seniority or other
rights and privileges, dismissing if necessary all persons hired on or after that
date, and make such applicants whole for any loss of pay suffered by reason of
the Respondent's refusal, if any, to reinstate them, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
The Remedy section of the Intermediate Report, insofar as it is pertinent here,
omitting footnotes, is as follows:
The Company shall also make whole such strikers for any loss of pay they
may have suffered by reason of the Company' s refusal , if any, to reinstate them,
by payment to each of them of a sum of money equal to that which he would
normally have earned, less his net earnings , during the period from 5 days after
the date on which he applies for reinstatement to the date of the Company's
offer of reinstatement . Loss of pay shall be computed on a quarterly basis.4
' In the specification gross backpay is computed , not on a strict calendar quarterly basis,
but on the basis used by the Company in its records. Under the Company's biweekly pay-
roll system, the quarters consist of an even number of weeks, ranging from 10 weeks in
some quarters to 16 weeks in other quarters . In view of the fact that the Board 's Order
requires that backpay shall be computed on a quarterly basis and the further fact that the
social security records give Interim earnings by calendar quarters , it has been found nec-
essary to recompute gross backpay on a strict calendar quarterly basis . This accounts for
the differences in the amounts of gross backpay given in the specification and those appear-
ing in the Appendix below.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE APPLICATIONS OF THE STRIKERS FOR REINSTATEMENT
On April 5, 1955, the Union mailed a registered letter to the Company which was
admittedly received by it on April 6, 1955. The letter stated that the employees had
voted to terminate the strike and continued as follows:
Please be advised that each of the employees whose names are listed on the
attached sheets hereby offers to return to work for your company unconditionally
and immediately. Kindly inform us when and where these employees should
return to work.
Attached to the letter was a list containing the names of 113 striking employees.
The Union supplemented its April 5 letter with another letter, mailed on April 8,
1955, on behalf of 25 additional employees who, as the letter stated, were offering
"to return to work for your company unconditionally and immediately." This letter
was received by the Company on April 11, 1955.
Following the receipt of the Union's April 5 letter the Company telephoned
Phillip Lampert, regional counsel for the Union, and told him to send the employees
to the plant. Employees started coming in to the plant "in droves" at this time, as
Eugene Rutter, the Company's president, testified, and consequently the Company
called Lampert back and requested him to send the employees in at the rate of 20
a day. Lampert agreed to do so.
On April 11 the Company replied to the Union's letters of April 5 and 8, as
follows:
We acknowledge receipt of your recent letters of April 5th and 8th, advising
us that the strike has been officially terminated and that certain persons who
participated in the strike are desirous of returning to their former employment
with this company.,
We suggest that such persons as desire to return to work with us file ap-
plication with our Personnel Office as soon as possible.
Since we cannot process all applications at one time, we would suggest that
you have the applicants come in at the rate of no more than 20 per day.
Commencing on April 14, 1955, the Union started notifying employees named in
its April 5 and 8 letters to make personal applications for reinstatement. The Union
gave these employees a form letter to give to the Company, the text of which is as
follows:
In reference to our correspondence of recent date, M
is applying for employment. She would prefer the job she had prior to the strike.
However, she is willing to accept any available employment if her former posi-
tion is unavailable.
The Union, in compliance with the Company's request to send the employees in at
the rate of 20 a day, notified the employees to go to the plant at intervals. A num-
ber of employees testified that they did not attempt to make a personal application for
reinstatement until they were notified by the Union to do so. I find that the ex-
perience of these employees is typical of that of the strikers as a whole who made
personal applications for reinstatement shortly after the strike ended.5
Thereafter, on April 22 and May 13, 1955, the Union sent the Company the names
and addresses of certain additional employees who were offering to return to work
for the Company "unconditionally and immediately." These letters were received
by the Company on April 25 and May 14, respectively. In the Union's three letters,
it requested immediate reinstatement on behalf of a total of 153 employees. Of
these 147 are named in the specification, the General Counsel having satisfied himself
after his investigation that the Company had either reinstated the others or that they
were not entitled to any relief herein. In its April 22 letter, the Union stated as
follows:
In response to your letter of April 11, 1955, we wish to point out that although
we have sent your employees, who participated in the strike, to your Personnel
In making this finding, I am relying not only on the testimony of the above-mentioned
employees to this effect, but also have considered offers of proof, made in question-and-
answer form through various witnesses, such as Veoila Gibson Hamilton and Zearlee
Franklin. I have reconsidered my rulings excluding testimony on this point, and hereby
reverse it, concluding that the testimony of these witnesses that the Union had told them
to go to the plant and file a personal application for reinstatement was relevant and inate-
rial to the question whether the Union had acquiesced in the abandonment of its original
requests for reinstatement on behalf of the employees named in its April 5 and 8 letters.
J. H. RUTTER-REX MANUFACTURING COMPANY 1439
-Office in groups of 20 per day, as you requested, we consider those employees
as having unconditionally applied for employment on the date you received our
registered letters along with lists of names attached thereto.
In addition to the striking employees in whose behalf the Union submitted applica-
tions for reinstatement in one or more of the Union's letters of application, a total of
11 more striking employees made personal applications for reinstatement during the
strike. In the period between the end of the strike on April 5, 1955, and March 9,
1956, an additional 52 strikers not named in any of the Union's letters of applica-
tions also personally applied for reinstatement at the plant. As appears more fully
below, of the total of 207 strikers named in the specification, I have found that 199
made valid, timely applications for reinstatement, either personally or through the
Union. The specific dates on which the various strikers applied for reinstatement
and whether the General Counsel is relying on a union letter or a personal applica-
tion at the plant are set forth below in the discussion of the individual cases.
The Company contends that the Union agreed, in effect, not to rely on its original
applications on behalf of the 153 strikers named in its letters, but rather to rely solely
on the personal applications thereafter made.6 In support of this contention the
Company relies on various facts, including the exchange of letters between the Com-
pany and the Union, the Union's compliance with the Company's request that it send
the strikers to the plant at the rate of 20 a day, and the testimony of some of the
employees that they did not personally apply at the plant until the Union told them
to. In my opinion, this contention is not meritorious.
The Company's letter of April 11, 1955, as stated above, contained the following
paragraph:
We suggest that such persons as desire to return to work with us file applica.
tions with our Personnel Office as soon as possible. [Emphasis supplied.]
The italicized portion of the above quotation, by indicating that only those em-
ployees who personally applied at the plant would be given consideration, treats the
Union's blanket applications for reinstatement on behalf of the employees named in
its two letters in being ineffectual insofar as creating any reinstatement obligation is
concerned. As President Eugene Rutter admitted, it was in fact the Company's posi-
tion after the strike that it would consider only the employees filing personal applica-
tions. Indeed, this is still the Company's position, as its amended answer is premised
on the assumption that the union letters of application were not valid applications
for reinstatement on behalf of the employees named therein.
By insisting in its April 11 letter on a personal application by the striking employees
named in the Union's first two letters of application, the Company was exceeding its
rights in the situation in which its unfair labor practices had placed it. In effect the
Company was rejecting the Union's applications for reinstatement for the employees
named in the letters. In such circumstances it appears unlikely that the Union would
voluntarily waive the rights created by its letters of application, and clear proof of
such a waiver would be required before I could sustain the Company's contention
in this regard. The record in this case is lacking in such proof. Indeed, the Union's
letter of April 22, 1955, makes it explicit that the Union was not abandoning its
earlier blanket applications for reinstatement made on behalf of the employees.
The facts on which the Company relies in support of its contention in this regard-
the fact that the Union complied with the Company's request that it send strikers into
the plant at the rate of 20 a day, that it notified the employees to go to the plant and
make personal applications, and that it gave the employees the mimeographed letters
of application to give to the Company when they personally applied-are not' in-
consistent with reliance on the Union's original blanket letters of application. These
facts are just as consistent with the inference that the Union desired to be helpful in
assisting the Company in handling the problem of restoring a large number of strikers
to work in a short period of time. Particularly since the Union was under no legal
obligation to facilitate the Company's reinstatement task, its efforts to cooperate
a The Company apparently no longer contends that the Union, unless it had been in-
dividually authorized to do so by each of the, individual striker's named in its letters of
application, lacked the authority to wake applications for reinstatement on behalf of these
strikers. It has long been settled that the statutory bargaining representative h,)9 the
authority to apply for reinstatement on behalf of employees whom it represents regardless
of whether individually authorized to do so or not. Brown & Root, Inc,-et at.. doing busi-
ness as a joint venture sander the name of Ozark Dame Constructors, 99 NLRB 1031, 1041`
1043, enfd. 203 F. 2d 139, 147 (C.A. 8) ; Efco Manufacturing, Inc,' 108 NLRB 245;456,
•enfd. without contest by Efco on this point 227 F. 2d 675 (C:A 1). - -
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should not be construed as indicating an abandonment of its earlier blanket applica-
tions, absent clear proof of a meeting of the minds in this regard. Such proof, I
conclude, is lacking in this case.
Under all the circumstances, I reject the Company's contention that the Union in
effect withdrew its original applications for reinstatement set forth in its April letters
to the Company. Compare N.L.R.B. v. Brown and Root, Inc., 203 F. 2d 139, 147
(C.A. 8), enfg. 99 NLRB 1031, 1087, which involved a similar response from an
employer to a union's blanket letter of application.? I conclude that the employees
named in the three union letters of application made valid applications for reinstate-
ment on the day that these letters were received by the Company. In view of this
conclusion, in the cases of the employees named in any of the Union's letters of
application, I have not included any discussion of the application other than to in-
dicate in the heading of the individual case discussions that the employee is covered
by a union letter of application. This is done by the insertion of a "U" in pa-
renthesis following the date of application relied on by the General Counsel.
III. THE COMPANY'S REINSTATEMENT OF STRIKERS AND ITS RETENTION OF RE-
PLACEMENT EMPLOYEES IN THE MONTHS AFTER THE STRIKE WAS CALLED OFF
During the strike the Company hired back a number of strikers who filed written
applications for reinstatement with it. It also hired a number of additional employ-
ees who were not working for it at the time the strike was called. As a result of its
hiring and rehiring during the strike, the Company had on its payrolls at the time
the strike ended 241 reinstated strikers and about 145 replacements, including 135
female replacements .8 As used in this Decision, the term replacement is used to
refer to an employee hired during the strike and who was not on the Company's
payroll when the strike began. These replacements were vulnerable to discharge to
make room for returning strikers under the remedial provisions customarily entered
by the Board in unfair labor practice strike situations .9 As shown in the table be-
low, after the strike was called off, the Company gradually reinstated additional
strikers who had personally applied for reinstatement. 10 During the months follow-
7 I concede, as the Company points out, that a union may "agree to modify an uncondi-
tional group request so as to require individual applications " ( Efco Manufacturing, Inc.,
108 NLRB 245, cited in the Company's memorandum). However, as indicated above, the
record fails to establish that such a modification was agreed upon by the Union in this case.
8 This figure and the subsequent figures given concerning the number of female replace-
ments are not represented to be exact. The information concerning the number of replace-
ments on the Company's payroll at various times has been obtained from the specification
and from General Counsel's Exhibit 47. The specification states the earnings of a control
group of replacements for female operators for each 2 weeks in the backpay period. There
has been no challenge in this proceeding of the accuracy of these figures, which were
obtained from the Company's records. General Counsel's Exhibit 47 is an exhibit, compiled
by the General Counsel from the Company's records, consisting of lists of all employees
hired by the Company from the beginning of the strike to the end of the period covered
by the specification, giving the periods of their employment These lists exclude all those
used as replacements in the specification and all employees appearing on the Company's
prestrike payroll. As the General Counsel concedes, there are certain deficiencies in this
exhibit It includes old employees ; i.e., supervisors, office clericals, and others who may not
be in the appropriate unit It excludes others who do not appear on the Company's
April 17, 1954, payroll (the last payroll before the beginning of the strike on April 21,
1954), who conceivably may nevertheless be entitled to employee status, for example, be-
cause of being on a leave of absence due to pregnancy. In view of the fact that nonunit
employees constitute a very small percentage of the Respondent's employees as a whole
and that a relatively small percentage of the Respondent's employees were likely to have
been on a formal leave of absence at the time the strike was called, the overstatement of
the number of female replacements at any time necessarily is relatively small . Such over-
statement , in may opinion , does not destroy the usefulness of the exhibit . The Company
did not challenge the reliability of the information contained in the exhibit , but objected
on the grounds that the admitted deficiencies in the exhibit Impaired its usefulness.
e At the time the strike terminated, the hearing had already been held before a Trial
Examiner of the Board on charges that the Company had by its unfair labor practices
caused or prolonged the strike , and the Company was therefore apprised that its treat-
ment of the returning strikers would be closely scrutinized by the Board.
10 In general , the Company did not reinstate any striker solely on the basis of a union
letter of application . As Rutter testified , unless a striker personally applied at the plant
the Company had no knowledge of her availability.
J. H. RUTTER-REX MANUFACTURING COMPANY 1441
ing the strike , replacements became separated from the payroll at a much slower
rate. With few exceptions , the reason for the separation of a replacement from the
payroll does not appear on the record . Consequently , in most cases it cannot be
assumed that the replacements separated represented dismissals to make room for
returning strikers . Such separations may have resulted from voluntary quits, dis-
charges for cause, or for other reasons.
The figures given in the tables below show the cumulative total numbers of strikers
reinstated in each of the first , second , and third months after the strike was called
off, and at the end of 1955. The table also shows the cumulative total number of
separations of replacements occurring during the same periods."
Total number I Total number Total number Total number
By- strikers having
applied for
strikers
reinstated I
replacements
separated
replacements
retained
reinstatement
May 5---------- 180 (13) 30 ( 5) 11 128
June 5__________ 189 (17) 57 (10) 25 113
July 5---------- 193 (18) 62 (11) 32 104
Dec 24_________ 222 (28) 132 (12) 59 86
i This figure includes both strikers named in the specification and those not named. The number of the
latter is given in parenthesis.
During the first 3 months after the end of the strike the Company hired nine
female employees who were not on the payroll when the strike began. Between
April 6 and December 24, 1955, the Company hired a total of 27 new female
employees.12
IV. THE COMPANY'S GENERAL CONTENTIONS REGARDING ITS FULFILLMENT OF ITS
REINSTATEMENT AND BACKPAY OBLIGATIONS
A. The Company's burden-of-proof contentions
First, the Company objects to my holding, in cases where the General Counsel has
established a prima facie case of an application for reinstatement and a refusal of
the application by the Company, that the Company has the burden of showing the
nonavailability of a comparable job at the time of the application or other similar
matters of defense. The cases, however, support my ruling in this regard. Mastro
Plastics Corporation, 136 NLRB 1342, 1357-58. N.L.R.B. v. Cambria Clay Prod-
ucts Company, 215 F. 2d 48, 56 (C.A. 6); Fred Snow, et al., d/bla Snow & Sons v.
N.L.R.B., 308 F. 2d 687, 695 (C.A. 9).
Secondly, the Company strenuously challenges my ruling that it has the burden
of establishing matters in diminution of damages, such as proving the amounts of
interim earnings of employees and developing the facts regarding the efforts of the
employees to mitigate damages. As to the broad principle that the burden in this
regard is the employer's, the authorities sustain me . Phelps Dodge Corp. v. N.L.R.B.,
313 U.S. 177, 199-200; W. C. Nabors Co. v. N.L.R.B., 323 F. 2d 686, 692 (C.A. 5);
N.L.R.B. v. Brown and Root, Inc., 311 F. 2d 447, 454 (C.A. 8); Fisher Construc-
tion Co. v. Lerche, 232 F. 2d 508, 509 (C.A. 9); Mastro Plastics Corporation, 136
NLRB 1342, 1346; Williston on Contracts, § 1360.
I recognize that the law's imposing the burden of proof regarding such matters on
the employer places me in a very difficult position. In the nature of things, evidence
concerning an employee's search for work is something peculiarly within the knowl-
edge of the employee. It would be a rare case, indeed, where an employer would
have an independent means of ascertaining the facts concerning an employee's search
for work years before.13 And to develop the facts the employer has to rely on the
n The figures given are for female replacements only. It is only as to the female opera-
tors that the Company pleads a lack of a vacancy in their classification as a defense. Other
defenses are pleaded as a defense in the case of the seven male strikers here Involved.
19 These figures are ascertained from the specification and from General Counsel's
Exhibit 47.
18Even in the cases which are handled most expeditiously ( assuming that the case Is
litigated in the courts ), several years elapse between the events in controversy and the
holding of a backpay hearing.
221-731-67-vol. 188-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee whose interests are wholly adverse to those of the employer. Even if
the employee exhibits the utmost good faith, memories dim with the passage of time,
and if the employee is simply unable to recall the facts as to his search for work
during his periods of unemployment, as some of the employees whose cases discussed
below were unable to do, the employer has no real opportunity to develop an offset
against the backpay claimed in the specification.
On the other hand, however, it should be borne in mind that the law obliges em-
ployers to reinstate unfair labor practice strikers, upon application, dismissing replace-
ments, if necessary. In over half of the cases here involved the Company defended
its delay or its refusal to reinstate on the grounds that it had no vacancy for the
particular striker in her former operation. As found hereinafter, excepting in a very
few cases, the Company did not even attempt to offer proof supporting this defense.
In many of these cases, such proof as was adduced refuted the very contention being
made . In other words, it established that a replacement was still working on the
operation which the striker had done before the strike at the time of the striker's
application for reinstatement. Thus the problems of proof concerning which the
Company complains in this case were largely of its own making. As found above,
the Company simply refused to dismiss replacements to make a place for the return-
ing strikers.
To illustrate how the Company's failure to comply with its obligations under the
Act compounded its problems, it may be helpful to consider the case of one of the
employees, Dorothy B. Rubit, a trim-and-turn collar operator. The Company's
records indicate that she applied for reinstatement during the strike, on February 2,
1955, but was not hired. Rubit was also named in the Union's letter of applica-
tion dated April 5, 1955. Rubit was not reinstated to her old job until August 1956.
However, Rubit was discharged 1 week later under circumstances indicating that her
production was low. A replacement in Rubit's operation-trim-and-turn collar-
worked almost continuously throughout the backpay period. Had the Company
fulfilled its statutory duty in February or April 1955, which it readily could have
done, not only would it not have been confronted with the problem of Rubit's loss
of memory concerning her search for work, but also it probably would not have been
faced with such a serious problem of Rubit's loss of skill during her long period away
from the plant.
Thus, while the law works a hardship on the Company in imposing upon it the
burden of proof with respect to matters in diminution of damages, also to be con-
sidered is the hardship upon an employee such as Rubit, who, as a result of the Com-
pany's unlawful conduct in refusing her application for reinstatement, has lost not
only her steady job, but also her skill in the operation which she had performed for
many years before the strike. As between the Company, whose unlawful conduct
gave rise to the problem in the first instance, and the employee victim of this wrong-
doing, it seems to me not unreasonable that the Company rather than the innocent
employee should bear the consequences of its own unlawful conduct.
B. The Company's contentions based upon the General Counsel's delay in issuing
the specification, the nature of the General Counsel's investigation, and the General
Counsel's alleged failure to cooperate with the Company in the course of the
investigation
The Company contends that the General Counsel unduly delayed in completing
his investigation of the matters here involved, that he failed to be objective in his
investigation of the facts concerning the Company's obligations flowing from its
unfair labor practices during the strike, and that he failed to fulfill his obligation to
cooperate with the Company in an effort informally to dispose of the differences be-
tween the parties. , The General Counsel's alleged derelicitions in this regard, the
Company contends, all contributed to a denial of a fair hearing in this case.
These contentions must be rejected because the record is without the factual basis
upon which such contentions of necessity must be predicated, I having ultimately
ruled (albeit not without first receiving some evidence bearing upon these issues)
that none of these issues were properly before me for disposition and, in accordance
with this ruling having refused, absent the proffer of evidence of wrongful or un-
lawful conduct on the part of the General Counsel which was not forthcoming, to
permit the parties fully to develop the facts concerning these issues. The propriety
of my ruling in this regard is indicated by the decision of the fifth circuit in W. C.
Nabors Co. v.,N.L.R.B., 323 F. 2d 686, 688-689, cert. denied 376 U.S. 911, discussed
more fully below.
It cannot be denied that there was a considerable lapse of time between the deci-
sion of the Court of Appeals for the Fifth Circuit enforcing the, Board's Order herein
J. H. RUTTER-REX MANUFACTURING COMPANY 1443
involved and the issuance of the specification herein. The opinion of the court was
handed down on June 10, 1957. The court's decree, which, like the Board's Order,
directed the reinstatement upon application of the striking employees, was entered
on August 19, 1957. The specification was issued on November 16, 1961. For
convenience, I refer to this lapse of time as a delay, without intending to suggest one
way or another that the General Counsel is subject to criticism for the lapse of time
involved.
To complete the factual picture on this point it should be stated that on Novem-
ber 7, 1957, Henry J. Read, Company's attorney, mailed a letter to the Board, stating,
in part, as follows:
As you know, we are handling the matter of complying with the decree of the
United States Court of Appeals for the Fifth Circuit enforcing the order of the
National Labor Relations Board in the subject cases. Our client has already
complied with some of the provisions of the decree, and is presently engaged in
bargaining with the representatives of the Amalgamated Clothing Workers of
America. If any instance of a failure to fully comply with the order is brought
to your attention, we would appreciate your contacting us promptly so that such
corrective measures as may be necessary can be immediately taken in order to
assure full compliance with the decree.
Between November 7, 1957, and March 22, 1960, when the General Counsel's repre-
sentative requested that the Company make available to him records for analysis in
connection with the compliance investigation in this case, there were no communica-
tions between the General Counsel and the Company either orally or in writing. The
General Counsel never replied to the Company's letter of November 7, 1957, apart
from the letter of March 22, 1960, which I do not regard as responsive to the Com-
pany's letter of November 7, 1957.14
The Nabors case clearly holds that the mere fact of delay alone does not defeat
backpay claims. As the court stated (323 F. 2d 686, 689), "the claims set forth in
the backpay specifications are not barred by limitations or laches, and . the
evidence offered by the petitioner to show irreparable injury caused by the delay was
irrelevant." The General Counsel's investigation in the Nabors case, in which the
delay was almost 4 years, involved only 21 employees, whereas the General Coun-
sel's investigation in the present case involved well over 400 employees.
The Company's assertions that the General Counsel failed to be objective in his
investigation of the case and sought to build up a case of liability on the part of the
Company is not documented in the Company's memorandum and is wholly without
foundation in the record, since, as stated above, this issue also was not litigated at
the hearing. The contention is apparently based on the Company's suspicions grow-
ing out of the General Counsel's refusal in advance to turn over to the Company its
complete investigative files on the case. While declining to require any such sweep-
ing disclosures, I did require the General Counsel to produce, with respect to all
employees named in the specification regardless of whether they were called as
witnesses by the General Counsel or the Company, all statements and other material
falling within the scope of the Jencks rule, as applied to Board cases.15 As a result
of my refusal to permit an inquiry into the nature of the General Counsel's investiga-
tion, the record does not afford a factual basis for the critical comments about the
General Counsel's investigation which are contained in the Company's memorandum.
As to the General Counsel's alleged failure to cooperate with the Company in
resolving the reinstatement and backpay problems with which it was faced, this con-
tention is based almost entirely on the absence of communications between the Com-
pany and the General Counsel between November 1957 and March 1961. As in-
dicated above, I cannot rule on this contention because it was not fully litigated at
the hearing. It may be noted in passing that, contrary to the assertion in the Com-
pany's memorandum (p. 22), that Compliance Officer Loren Jones did not admit the
General Counsel's lack of cooperation at all times prior to the filing of the specifica-
tion. Jones testified that after sending a letter about October 1961 requesting a
statement of the Company's position with respect to the employees as to whom there
if From the facts set out in the text above it may not be assumed, however, that the Cen-
eral Counsel had not investigated in the meantime the Company ' s reinstatement and back-
pay obligations. The General Counsel's letter to Company Attorney Read, which is
attached as Exhibit F to the Company's amended answer, indicates the General Counsel
had ascertained by this time that there were some 470 individuals as to whom there were
reinstatement and backpay questions pending.
u Jencks v. United 'States, 353 U:S. 657 ; Ra-Rich' Manufacturing Corporation, 121
NLRB 700.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained reinstatement or backpay problems and receiving a reply from the Coin-
pany, he did not attempt to discuss these problems with the Company or its repre-
sentatives before the specification was issued. In this same portion of his testimony
Compliance Officer Jones testified that normally an employer gives some indication
that he desires assistance about such problems and that no such indication was forth-
coming from the Company.16
Furthermore it may be observed that the great bulk of the Company's asserted
reinstatement problems arose in the period after the strike was called off in 1955,
long before the Company was in contact with the Regional Office, and most of the
questions which the Company stresses in its memorandum came up, as found herein,
because the Company failed to recognize the Union's letters of application as con-
stituting valid applications on behalf of the strikers named therein, and because the
Company for the most part refused promptly to dismiss replacements to make room
for strikers. As found below, there were only a relative handful of operators who
presented reinstatement problems. Out of the 129 strikers as to whom the Company
raised the "no vacancy" defense, the Company could have reinstated 113 of them
at least by the time they personally applied at the plant by simply putting them back
on their old operations, dismissing the replacements who were performing their
former operations at that time. But the Company failed to do so, and much of the
hearing was devoted to taking up the cases of such strikers. In view of the Com-
pany's widespread failure to fulfill its statutory obligation to the returning strikers
it comes with ill grace from the Company to charge the General Counsel with a
failure to cooperate in the investigation phase of the case.
In sum, I reject the procedural bars which the Company seeks to raise as a barrier
to consideration of the merits of the General Counsel's claim for backpay. I con-
clude that it is inconsistent with the effectuation of the broad public policies of the
Act to permit a hearing for the purpose of determining the extent of the Company's
fulfillment of its reinstatement and backpay obligations to be converted into a trial
of the General Counsel's conduct of the investigation leading up to the issuance
of the specification.
C. The Company's contention that it attempted in good faith
to reinstate the strikers
The Company contends that it attempted in good faith to fulfill its reinstatement
and backpay obligations in the period after the strike was called off. The Company
points out that it reinstated a substantial number of strikers during the strike and
urges that its progress in putting the strikers back to work after the strike was called
off demonstrates that it made a good-faith effort to fulfill its reinstatement and back-
pay obligations. For this reason, the Company argues, it should be relieved of all
further reinstatement and backpay liability.
In considering this contention it should be borne in mind the Company was in
need of experienced workers after the strike was called off. The fact that well over
100 replacements were retained in the first few months after the strike was called off
attests to the Company's need for workers. And, as Rutter testified concerning the
Company's recurring need for workers, ". . whether there has been a strike or
not . . You can never get enough experienced operators to maintain the normal
turnover that you experience in running a plant the size of the Company's." The
Company had over 600 employees when the strike began. Trained operators, ac-
cording to Rutter, were one of the Company's valuable assets, the Company having
an investment of between $500 and $600 in each operator by the time she attains
the desired speed of operation. For this reason, Rutter testified, the Company was
eager to have its experienced operators return to work after the strike.17
During the strike, with the exception of the period from May 11 to July 14, 1954,
the Company was operating under a learner's certificate issued by the Wage and
Hour and Public Contracts Division of the U.S. Department of Labor. To obtain
a learner's certificate, which entitles an employer facing a shortage of experienced
help to hire learners for a 480-hour training period of subminimum wage rates, the
employer must certify that experienced workers are not available for employment.
1e Jones testified that in 1961 he no longer regarded the Company's November 1957 letter
as presenting a current request for assistance.
17 Other circumstances evidence the Company's need for workers in this period after the
strike. Commencing in July 1955 , the Company placed advertisements for workers in the
New Orleans papers. In October 1955 , the Company ran an ad seven times in the Times-
Picayune for "Experienced Power Sewing Machine Operators on Shirts and Pants 11
J. H. RUTTER-REX MANUFACTURING COMPANY 1445
The learner's certificate became ineffective on April 7, 1955, a few days after the
strike was called off. On November 7, 1955, the Company filed an application for
a learner's certificate with the Department of Labor in which it stated, in answer to
a question concerning its efforts to obtain experienced workers, as follows: "We have
standing requests with all our employees to bring in experienced acquaintances. We
now have difficulty finding experienced persons who are now ready to work again."
On the basis of this application a learner's certificate was issued to the Company on
December 6, 1955, which was to remain effective until December 7, 1956.18
Despite the Company's need for workers after the strike was called off, the Com-
pany made relatively slow progress in reinstating strikers. It made even less progress
in getting rid of replacements who were filling the strikers' job. As the figures in
the table in part III above show, although there were about 135 female replace-
ments on the payroll when the strike ended, and the Company thus had numerous
positions which could be vacated to make room for returning strikers, in the first
3 months after the strike was over, the Company reinstated but 62 strikers.19 There
were 65 workdays in this period. Notwithstanding all the available vacancies, the
Company restored strikers to their jobs at the rate of less than one a workday. Only
32 replacements left the payroll during this 3-month period.
By the end of 1955, 132 strikers had been reinstated, including 12 for whom no
claim is made in this case. By this time 64 female strikers still had not been rein-
stated. Approximately 86 female replacements still remained on the payroll. Only
59 female replacements had left the payroll since the end of the strike. Thus more
than half of the replacements who were on the payroll when the strike ended were
still on the payroll at the end of 1955. As of June 24, 1961, the end of the period
covered by the specification, 53 replacements were still on the payroll.
The Company's slowness in reinstating strikers and its failure promptly to dismiss
the numerous replacements in order to make room for the returning strikers, in my,
view, evidences that the Company was not seeking.,in good faith to. restore the
strikers totheir jobs.20 r
Another circumstance indicating a lack of good faith in the Company's treatment
of returning strikers is its failure to substantiate its principal, defense 1. With respect
to the, 129 employees listed on schedules 6(d), (e), and. (h) 'of the Company's
amended answer,' the Company defended, its delay in reinstating or its failure to
reinstate these employees on the grounds that it,had no'vacancies in,their -classifica-
tions,when they applied for their jobs. Rutter was called to' the stand. to give'testi.i
mony, in support, of this defense. Rutter was questioned about . these cases, in
alphabetical order and, after covering the first seven in the' alphabet, -this line, of
examination was discontinued. In each of the seven cases, it was brought out either
on direct or cross-examination that at least one replacement was working at the
particular operation of the particular striker involved up, until the date the striker
was reinstated, if not longer. As to the 20 employees in all, concerning whom the
Company pleaded no vacancy as a full or partial defense, Rutter's own testimony
18 Rutter 's testimony when originally examined about 'this subject matter was that the
Company definitely had no learner 's certificate between May 1954 and December 1957:
However, when confronted with records obtained from the U.S. Department of Labor, Rutter
admitted that he had been in error in his original testimony . Rutter explained his error
by saying that he had been basing his testimony on information in a certain file, and that
through a filing error pertinent material had been placed in another file which he had
not seen.
10 This figure includes not only the strikers here involved, but also others as to whom
no claim is made in this case.
"0 I have considered the testimony of Karl Striegle , a management engineer specializing
in the needle trades industry , who was called by the Company to give his opinion of the
Company's efforts to solve 'the reinstatement problem after the strike was called off After
studying the Company 's records giving the time lag between applications and reinstatement
for the employees who were put back to work, Striegle concluded , in view of the problems
connected with maintaining a balanced flow of work through the plant, that the Com-
pany had done an "above average" job of coping with the reinstatement problem with which
it was faced at the end of the strike . Striegle's opinion, however , did not take into
consideration the Company 's failure to displace replacements to make room for return-
ing strikers . Nor did Striegle 's conclusion consider the cases of the approximately 70
employees here involved who were never reinstated In my opinion , both of these are
factors which go to the heart of the matter about which Striegle was asked to give his
judgment . For these reasons I do not regard Striegle 's opinion about the Company 's rein-
statement efforts after the strike as being too persuasive
1446 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD
establishes the availability of a vacancy at the time of the employees' application for
reinstatement Evidence tending to support the allegations of the amended answer
was adduced as to only 16 of the 129 employees named in schedules 6(d), (e),
and (h) No evidence whatever was offered in support of this defense in the case
of the 93 other employees as to whom this defense was pleaded Since it was the
Company's burden to establish the lack of vacancies it must be assumed that
vacancies were available in the case of these 93 other returning strikers in this
category Ii
As to a number of other strikers the Company has offered no valid excuse for its
failure to comply with their requests for reinstatement This applies to 26 out of
the 34 strikers listed in schedule 6(b) of the amended answer as to whom the Com
pany claimed that they had not made applications at anytime after the strike
terminated' either because of their having applied during the strike or because they
were covered only by a union letter of application after the strike was called off,
which the Company refused to recognize as a valid application In the same
category as the latter group are all those listed in schedule 6(c) Schedule 6(c) also
proceeds on the erroneous premise that union applications were invalid
The procedure adopted by the Company for restaffing its plant after the strike was
called off further evidences the failure of the Company to recognize its special obliga-
tions to the returning strikers After consulting the Company's attorney, it was
decided to contact the employees as they had done in the past Even where certain
operators were badly needed to fill gaps in its production lines, the Company, con-
sistent with its practice before the strike, in some cases merely sought to reach them
by telephone In some instances, as will appear in the discussion of the individual
cases below , the Company , on failing to reach the striker personally on the telephone,
let the matter drop there In other instances the Company merely left messages for
employees and did not follow up with registered or certified letters The Company's
records of these telephone calls were handwritten notes on scraps of paper which
were undated and unsigned in most instances
In July the Company sent post cards and mimeographed letters to certain strikers
inquiring about their availability for work and requesting them to call at the plant,
but the Company kept no copies of the these post cards or letters Admittedly, at
no time prior to the hearing did the Company seek to contact strikers by registered
or certified mail Nor did the Company ever request the Union to assist it in
locating a needed employee All these circumstances indicate to me that the Com-
pany did not recognize its special obligations to the strikers growing out of its unfair
labor practices during the strike
Under all the circumstances , including the Company 's slowness in reinstating
strikers and its failure to dismiss replacements to make room for strikers , the Com
pany 's failure in a large majority of the cases to substantiate its principal defense of
"no vacancy," its failure to recognize the Union 's letters as constituting valid ap-
plications for reinstatement , and the circumstances indicating a lack of recognition
on the Company 's part of any special obligation to returning strikers , I conclude that
the Company did not attempt in good faith to reinstate the strikers after the strike
was called off
V THE SPECIFIC DEFENSES PLEADED IN THE COMPANY'S AMENDED ANSWER
REGARDING INDIVIDUAL STRIKERS
A General discussion of the willful-losses question
Before discussing the cases of the individual strikers it may be helpful to treat
the "willful losses" question which is involved in the case of each of the individual
strikers The question concerns the extent of the duty an employee, whom the em-
ployer because of his unfair labor practices is obligated to reinstate to seek interim
employment in order to minimize his wage loss
The scope of the employee's duty to attempt to minimize his wage loss was first
authoritatively defined in Phelps Dodge Corp v N L R B 313 U S 177, 197-198,
in which the Court spoke in terms of having deductions from gross backpay made
..not only for actual lmterim] earnings by the worker and also for losses which he
willfully incurred " The Court in this same opinion went on to say that the Board,
in passing on employer contentions regarding employee failure to mitigate damages,
should consider "a clearly unjustifiable refusal to take desirable new employment"
(313 U S at 199-200)
z In view of Rutter 's testimony establishing the existence of vacancies In a
majority of the cases which were specifically discussed by him I cannot give Rutter s
general testimony as to the lack of vacancies any great weight This point is more fully
treated hereinafter in the discussion of the schedule 6(d) defense
J H RUTTER-REX MANUFACTURING COMPANY 1447
The Board , construing the Phelps Dodge decision , has held that the employee must
make a good faith effort to obtain interim employment to minimize his wage loss
However, this does not mean that the employee's search for work must meet with
"success it only requires an honest good faith effort N L R B v Cashman Auto
Company and Red Cab Company, 223 F 2d 832, 836 (CA 1) What constitutes
a good-faith effort necessarily depends on the facts and circumstances in each case
However, the following general guides are available As stated in the Trial Exam
iner's report which was adopted by the Board in Mastro Plastics Corporation, 136
NLRB 1342, 1359
it can be said that in broad terms a good faith effort requires conduct
consistent with an inclination to work and to be self supporting and that such
inclination is best evidenced not by a purely mechanical examination of the
number or kind of applications for work which have been made, but rather by
the sincerity and reasonableness of the efforts made by an individual in his
circumstances to relieve his unemployment Circumstances include the eco-
nomic climate in which the individual operates , his skill and qualifications, his
age and his personal limitations
With these considerations in mind I will discuss some recurring questions which
have arisen in passing on the "willful losses" issue Several of the employees here
involved instead of attempting to find outside jobs, became self employed, such as
operating home laundries , beauty parlors, or furnishing a home sewing service The
Board has consistently held that such self employment does not terminate an em-
ployer's backpay liability Harvest Queen Mill & Elevator Company 90 NLRB
320, 323, L B Hosiery Co , Incorporated, 99 NLRB 630 , 634, Mastro Plastics Cor-
poration 136 NLRB 1342 , 1350 The courts have agreed that self-employment does
not terminate an employer 's backpay liability N L R B v Armstrong Tire and
Rubber Company, the Test Fleet Branch , 263 F 2d 680, 683 (C A 5), N L R B v
Efco Manufacturing, Inc, 227 F 2d 675, 676 (C A 1), N L R B v Cashman Auto
Company, 223 F 2d 832,836 (C A 1)
Other employees found employment during the backpay period as maids in private
homes and did not seek work in sewing factories or other like estatblishments Their
earnings as maids were less than they would have earned working for the Company
Such situations , I conclude , do not warrant a finding of a willful loss of earnings on
the part of the employees simply because they have not looked for factory work
It should be borne in mind that the employees here involved, with two exceptions,
are all Negroes All but seven were women Their educational advantages were
limited It was the exceptional employee who had finished high school They were
presumably not trained in job seeking A considerably greater number of job op-
portunities were presumably open to these Negro women as maids than as factory
workers, if the normal ratio prevailed To judge by the work histories of the em
ployees here involved during and after the strike , housework was the kind of work
to which many of the employees here involved automatically turned when they lost
their jobs in factories In my opinion , this cannot be explained by the inherent at-
tractiveness of domestic work So it is reasonable to attribute the employees ' choice
of such work to the feeling that it was the best solution they could find for their
joblessness Under all the circumstances , failure to seek factory work, in my opinion,
does not constitute willfully incurring a loss in earnings Cf East Texas Steel Cast-
ings Company, Inc, 116 NLRB 1336, 1344-45, enfd 255 F 2d 284 (C A 5)
(welder 's acceptance of lower paying job as a cabdriver)
A few of the strikers , upon obtaining 1 to 3 days ' work a week as a maid, did not
seek additional work , either as a maid or otherwise These employees were not
completely idle, yet they were not doing their utmost to minimize their losses Should
the Company be relieved of all its obligation to these women because they apparently
were content to work less than a full week ? I conclude that a reasonable solution to
this problem is to hold that these employees were incurring a partial willful loss of
earnings and to measure their gross wages by the ratio of the number of the days
they were working to the number of days in a full workweek (the Company worked
5 days a week ) For example , for a woman working 2 days a week as a maid in
any quarter , her gross wages would be two fifths of the full gross wages of an em-
ployee working full time or seeking full time work in that quarter
Another question relates to the obligation of the employee who obtains interim
employment in another sewing factory or similar establishment but who only works a
short workweek Must this employee seek other full-time employment on her days
off or must she seek some sort of day's work on her days off In my opinion, both
of these questions should be answered in the negative It does not seem reasonable
to expect an employee who has worked fairly steadily 3 or 4 days a week to look
1448 DECISIONS OF NATIONAL LABOh, RELATIONS BOARD
for a S day a-week job in which either the employee may not work out satisfactorily
or the job may turn out to be of short duration
A more difficult problem concerns the situation of an employee who obtains in-
terim employment in a sewing factory which works steadily some weeks, but which
may regularly have periodic layoffs of weeks, or occasionally months, in duration
Regarding layoffs of a few weeks' duration, and it is not shown that the employee has
no reasonable expectation of returning to work for this employer, I conclude that a
failure to seek other work during this period does not constitute willful idleness As
to the layoffs of a month or more, even though the employee may anticipate being
called back to work momentarily, it would appear incumbent upon her to seek other
employment and, upon a showing that the employee had not looked for other work
during such a layoff, I would find a willfully incurred loss of earnings
However, in case it appeared that the employee was regularly registering for un-
employment compensation benefits, a different result would be reached The record
in this case shows that under the Louisiana Employment Security Act in order to be
eligible to receive unemployment compensation, the individual must register for work
and continue an active application for work The record also shows that register-
ing for employment was one of the procedural steps taken each week when the em-
ployees reported to the office of the State employment service in connection with
drawing their unemployment compensation In these circumstances, absent a show-
ing that the employee failed to accept a referral to a job, where it appears that an
employee was registering for or drawing unemployment compensation, I would not
be warranted in concluding that the employee by not making other efforts to obtain
work was willfully incurring a loss in earnings during such periods 22 This latter
comment applies only to employees having regular jobs who are temporarily laid off
The Louisiana Employment Security Act contains a provision for employees draw-
ing partial unemployment compensation where their employers can only offer them
short workweeks or irregular employment To draw partial unemployment com-
pensation the employee registers , not at the office of the State employment service,
but at his employer's establishment The employee is not considered for referral
to a job by the State employment service as the employee is regarded as bound to his
part-time eiliployer, and under the law it is regarded as desirable that this relation-
ship be fgstezed Even though the employee is not considered for referral by the
State employment service while drawing partial unemployment compensation, in
view of the policy embodied in the State law, I find it inappropriate to hold such
employees to be willfully incurring a loss of earnings while thus temporarily idle
B The misconduct defense (applicable to the employees listed in schedule 6(a) ),
of the Company's amended answer
1 General discussion
For misconduct of strikers to constitute a defense to their reinstatement it must be
"so flagrant or violent as to render him unfit for further service " Trumbull Asphalt
Company of Delaware, 1391NLRB 1221, 1222 In such situations the Board nor-
mally withholds its normal "reinstatement remedy, deeming such relief in such cir-
cumstances to be inconsistent with the effectuation of the policies of the Act In
determining during a strike whether alleged misconduct is of such a serious character
as to warrant withholding the conventional remedy, consideration must be given not
only to the provocation inherent in the Company's unfair labor practices which caused
the continuation of the strike, but also to the realities of strike situations See Local
833, Automobile Workers (Kohler Co) v N L R B, 300 F 2d 699, 702 (CAD C ),
and cases therein cited It is with these principles in mind that I have considered
the incidents of alleged misconduct which are apparently relied on as disqualifying
from reinstatement the employees listed in schedule 6(a) of the Company's amended
answer 23
The Company asserts in its memorandum that it believed in good faith that the
employees listed in schedule 6(a) were guilty of serious acts of misconduct during
the strike and, relying on Rubin Bros Footwear Inc v NLRB, 203 F 2d 486
m This is my general conclusion in this regard As stated below there are one or two
cases which I have found employees to have willfully incurred a loss in earnings during
periods they were drawing unemployment compensation In these cases I conclude on the
facts of their cases despite the fact that the employees were receiving unemployment com
pensation , that they were not genuinely interested in finding work
23 In view of the Company's failure to treat the employees cases individually in its
memorandum I cannot ascertain precisely what conduct the Company is relying on in each
of the individual cases in which the misconduct defense is raised
J. H. RUTTER-REX MANUFACTURING COMPANY 1449
(C.A. 5), argues that although it may have failed in part to prove that the employees
listed in schedule 6(a) actually engaged in serious misconduct , since the record shows
it believed in good faith that they had engaged in such misconduct, this is sufficient
basis for denying reinstatement. While the Board has not acquiesced in the principle
of the Rubin decision on the Fifth Circuit and the question is now pending before
the Supreme Court in N.L.R.B. v. Burnup & Sinis, Inc., cert. granted 375 U.S. 983
[379 U.S. 21 (November 9, 1964), reversing 322 F. 2d 57 (C.A. 5)] even if the
Supreme Court should ultimately sustain the Rubin principle on which the Company
relies, it would not be applicable in the present situation, which involves purely a
question of remedy, and not the question whether an unfair labor practice has been
committed.
Reinstatement of the strikers, upon application, was ordered in this case to remedy
the Company's refusal to bargain collectively in violation of Section 8(a)(5), which
the Board found prolonged the strike. , In the Rubin case, unlike this case, the Board
was considering the employer's refusal to reinstate economic strikers which was
alleged to violate Section 8(a)(3) and (1) of the Act. In such situations, the em-
ployer's motivation for refusing reinstatement is in issue and the employer's belief
as to misconduct may throw light on this issue. In the instant case, which involves
the reinstatement of unfair labor practice strikers, upon application, the only ques-
tion, as indicated above, is whether the employee has so seriously misconducted
himself to render him unfit for further employment. In a case like the present, the
employer's motivation at the time he refuses reinstatement is immaterial. Miscon-
duct of a striker which is unknown to the employer at the time he refuses reinstate-
ment might be the basis of the Board's withholding the reinstatement remedy. It is
the nature and seriousness of the employee's conduct rather, than the employer's
belief in this regard which is determinative. It would be highly illogical and con-
trary to commonsense to have the remedy for an employer's antecedent unfair prac-
tices to return on the employer 's belief, no matter how mistaken he may be in fact,
as to employees ' subsequent conduct during a strike.
Before coming to the specific incidents of alleged misconduct which are appar-
ently relied on as disqualifying from reinstatement the employees listed in schedule
6(a) of the Company's amended answer, it should be noted, in accordance with
Rutter's testimony, that the Company during the strike adopted the policy of not
reinstating the strikers who, in Rutter 's words, "were judged in our opinion to be
the hard core that had repeated acts of violence." These strikers, company witnesses
testified, were informed when they personally applied for reinstatement of the reason
for the Company's refusal.
Since 8 of the 15 striking employees listed in schedule 6(a) of the Company's
amended answer are implicated by the testimony to a greater or a lesser degree in a
disturbance occurring outside the Company's plant on October 21, 1954, it may be
helpful if I set forth at the outset the salient facts concerning this incident.
2. The October'21, 1954, incident
Piecing together the testimony of the various witnesses concerning this incident,
I find as follows: A group of workers in the plant, tired of the harassments they had
received at the hands of the strikers going to and from work, decided to do something
about it on October 21, 1954. Among the group of about 12 who planned to take
action that day was Hazel Tate, who was still employed by the Company at the time
of the hearing. Tate, called as a witness by the Union, testified that this group
decided to provoke a fight with the pickets during the lunch hour. It appears that,
pursuant to the plans of the group, empty Coke bottles were lined up along the walls
just inside the front door of the plant.
On this occasion two strikers were walking as usual, with their umbrellas. On
the Pauline Street side of the plant, Lorraine Lyons was patrolling and Louella John-
son was walking in front of the building on Dauphine Street. At the strike head-
quarters, which was in the rear of a store at the corner of Dauphine and Independence
Streets, across Independence from some houses which were then adjacent to the
factory, about eight or more strikers were hanging around waiting to take their turn
doing picket duty. A large number of workers were eating their lunches in front
of the Company's warehouse (then being built) across Dauphine Street from the
main plant.
Between 11 : 50 and 12 noon that day (the lunch hour ended at noon ), Tate and
others in the doorway of the plant started taunting the pickets with epithets, and
"droves" of workers started coming out of the plant. One of these pushed Louise
Gordon (also a worker) into Louella Johnson, who was walking with a picket um-
brella in front of the plant. Louella called to Lula Mae Washington, a picket
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
captain, who was preparing to commence picket duty. Lula Mae approached run-
ning, with other strikers following her. Tate challenged Washington to fight. About
this time bottles started flying from the plant. Mary Fland ran from the large group
of workers eating their lunch across the street to see what was happening to Louise
Gordon, her niece. Fland was carrying a tree branch about 18 inches long Fland
got into an argument with Washington. While this was going on bottles and
brickbats were flying back and forth thick and fast. A number of windows in the
plant were broken, as was the door glass. In the melee Marion Randall was cut on
the head with a broken bottle. When Fland retreated inside the plant, she discovered
that she had been cut on the back. Fland and Janie Kirk testified that they saw
Washington with a penknife in her hand. It is undisputed that thereafter Fland and
Washington "tangled," and then Fland discovered that she had been cut. Washing-
ton denied having a knife on any occasion during the strike. Washington's denial is
not credited. In my opinion, Washington was too sweeping in her denials of striker
harassment of workers during the strike to be believed. I find that Washington was
guilty of the stabbing. After the Fland-Washington altercation, the workers were
ordered back into the factory. The whole incident lasted about 5 minutes. Work
began on schedule when the second bell rang.
Tate, who was one of the ringleaders in the action against the strikers on Octo-
ber 21, 1954, was not discharged or laid off because of her participation in this affair,
as the specification shows. Fland also remained on the payroll despite her aggressive
acts on this occasion. The record does not reveal what discipline, if any, was given
to the workers who engaged in the bottle-throwing incident.
In view of the Company's failure to get rid of the workers who were guilty of the
same conduct as the Company argues disqualifies the strikers from reinstatement and
the further fact that the disturbance occurred in the course of a bitter strike which
was prolonged by the Company's serious unfair labor practices, I find that, with
the exception of Lula Mae Washington, none of the participants in the October 21,
1954, disturbance has so misconducted herself by participating in this incident alone,
as to render her unsuitable for further service with the Company.
3. Discussion of the individual cases
AMANDA BICKHAM
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------ 4-5-55 (U) 1--------- 4-14-552 . ...................-14-55 2- ------------------- Begins 4-14-55
Reinstated-- - _ --- _- ---- No- ------- No --------------------------No-------------------------- Ends Still accruing 3
I As indicated above, the notation "(U )" indicates that the General Counsel is relying on a union letter
of application. Otherwise a personal application at the plant is relied on.
2 Unless otherwise specified, the dates here appearing are the dates stated in the Company's amended
answer to the backpay specification
3 The term "Still accruing" iefeis to the situation as of June 30, 1961, the end of the period covered by the
specification , and does not necessarily mean that backpay is still accruing as of the date this Decision issues.
In some cases this terminology is used even though the iecord indicates that the employee has accepted, or
at least has been offered, reinstatement after June 30, 1961 For the information of the parties, I have
attempted to indicate such facts where they have come to my attention, but in so doing does not purport
to make buiding findings as to such matters, which I regaid as outside the scope of this proceeding.
Evidence adduced by the Company regarding misconduct: The only testimony
concerning alleged misconduct on Bickham's part is that of Supervisor Drake to the
effect that he saw her throwing bottles and brickbats during the October 21, 1954,
disturbance. Bickham testified that she did not arrive in the vicinity of the factory
until after the disturbance was over. In view of the fact that Drake's memory about
many events during the strike was very hazy at the time of the hearing, I credit
Bickham's testimony. In any event, as found above, Bickham's offense, if it in fact
occurred, was not' sufficiently serious to disqualify her from reinstatement.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Bickham worked for the New Orleans Laundry in 1955-2 224 and the
211955-2 refers to the second quarter of 1955 For the sake of brevity throughout this
Decision the various years and quarters will be referred to in this manner.
J. H. RUTTER-REX MANUFACTURING COMPANY ' 1451
first half of 1955-3, after which she was laid off for lack of work. After that Bick-
ham was referred for 2 days' work as a dishwasher for which she was paid $8. For
the rest of the backpay period and up until the time of the hearing, Bickham's only
income was approximately $7 a week (admitted to be $360 a year in the specification)
which she received doing ironing in her own home.
Bickham's testimony about looking for other work while doing ironing at home
is rather vague. She testified that after leaving the New Orleans Laundry she
looked around at different places for work, but with a few exceptions could not
remember where and when. When asked whether she sought employment at any
sewing factory since she left the New Orleans Laundry, Bickham answered, "Yes,
I did. I went to very few places." She could not recall the names of any such
places where she applied for work in 1955. However, Bickham did remember that
at some time or other she had applied for work at B. Bennett's sewing factory.
When asked whether she could tell the name of any place she looked for a job in
1956 or 1957, Bickham answered that she could not remember. Bickham did recall
that she had been sick for 1 month in 1957, and the General Counsel in his mem-
orandum accordingly has eliminated all claim for February 1957. Regarding 1958,
Bickham testified that she went to a few places looking for work, but that she could
not remember the names . Bickman added that it was a number of places that she
went to, and that all they would say was, "Don't call me, but I'll call you." When
asked about the names of companies at which she looked for work in 1959, Bickham
replied, "I didn't go to any. I don't remember going to any company because I was
still doing ironing at home." Bickham testified that she had a tonsil operation,
which I find caused her to lose 2 weeks' work in the second half of Febru-
ary 1959. 25 Bickham admittedly did not look for work in 1960 because she was
pregnant.
As I read the foregoing testimony, the Company has not established that Bick-
ham was not looking for work during the times in 1955 through 1958 when she was
not occupied doing pressing work in her home. While Bickham's testimony by no
means unequivocally shows affirmatively that she was attempting to find other or
additional work in 1955 through 1958, in view of the fact that the "willful loss" de-
fense is an affirmative defense, it was the Company's duty to clarify matters and
establish that Bickham did not look for work in the years 1955-58. Having failed
to do so, I have no alternative but to conclude that the Company has not sustained
its burden of proof with respect to the "willful loss" issue.26
Conclusions: The Company's misconduct defense in the case of Bickham is rejected.
Bickham willfully incurred a loss of earnings in the year 1959 by not seeking other
or additional work in that year. Bickham's gross backpay for the year 1959 will
be computed on the basis of what she would have earned working 2 days a week for
the Company. Bickham was not available in the labor market from the first of 1960
for the remainder of the backpay period. Amanda Bickham is entitled to backpay
as set forth in the Appendix, which takes into consideration all of the adjustments
summarized above.
ELVERA BROWN
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------
Reinstated ---------------
4-5-55 (U )------------
No--------------------
4-20-55---------------------- No backpay
25 No deduction is made for this period of unavailability because the 6-percent deduction
takes care of such periods.
201 recognize that the Company's burden in this respect, like that of all employers in
backpay cases, is a heavy one, indeed But the applicable law, as I understand it, places
this burden on employers. I have attempted throughout this proceeding to grasp the true
meaning of the employees' testimony. If, when an employee testifies, for example, that she
"cannot recall looking for work during that period," I conclude that the employee meant
to convey that she did not look for work during that period, I have so found. On the other
hand, if I conclude from the language used, considered in its context, that the employee
meant to convey that she simply does not remember whether she looked for work, that she
might have or she might not, I have found accordingly.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the Company regarding misconduct: Brown was identified
by Daisy Ray as having participated, together with Octavia Smith and Anita Craft
(not here involved), in an assault on Ray in May 1954. While Ray's identification
of Brown as being a participant in this incident in the 1963 hearing was uncertain, to
say the least, Ray's testimony in the 1955 proceeding, when the events were much
more fresh in her mind, leaves no doubt in my mind that Ray knew who Elvera
Brown was at the time of the incident. Brown denied taking any part in the incident
and testified that at the time it occurred she was waiting outside a police station for
the release of one of the union representatives being held there. For reasons more
fully stated hereinafter, I do not credit Brown's testimony in this regard.
Resolving the somewhat conflicting versions of the testimony concerning this
incident given by Daisy Ray and Octavia Smith, who admittedly was involved, I
find that the following occurred on the occasion in question: 27 After Ray got off
the bus on arriving near her home (which is 52 blocks from the plant), a car stopped
behind her containing a man and about six girls.28 Octavia Smith got out of the
car and approached Ray. Ray, who had worked at the plant before the strike and
who had stayed out on strike for only 3 days, became visibly frightened when she
saw Smith approaching, although Smith was a very tiny person compared with Ray.
Thereupon Ray pulled a pair of scissors from her purse and started jabbing at Smith.
Smith almost simultaneously started hitting Ray. What next must have happened
was that Smith started getting the worst of the affair. Whereupon she called for help
and at least two other girls got out of the car. Ray ran back to the front steps of
a house where a friend was sitting, with the girls from the car chasing her. One of
the girls hit her with an umbrella and Ray fell on her back across the steps. There
Anita Craft beat her with a stick, and Elvera Brown punched her in the stomach
with an umbrella. Ray was beaten about the face and various places on her body
on this occasion. She made her way home in the next block and called the police.
The police came and found Ray still bleeding, so they took her to the hospital for
treatment.29
As a result of this incident Elvera Brown, Octavia Smith, and Anita Craft were
identified to the police by Ray as having been her attackers, and they were all charged
with aggravated battery against Ray. A year later, in May 1955, the three women,
Elvers Brown, Octavia Smith, and Anita Craft pleaded guilty in court, through their
attorney, to simple battery upon Daisy Ray.
Elvera Brown impressed me as being a credible witness on the whole and some
testimony was adduced supporting her alibi. However, after considering all the
evidence bearing on this point, I conclude that I cannot accept Brown's denials that
she attacked Ray, in view of her plea of guilty to this charge. Brown's plea of
guilty was made just 2 months after she testified in the first hearing and just a few
weeks after she applied for and had been refused reinstatement. Consequently
Brown must have known at the time she made the plea (or at least her attorney did)
that her conduct during the strike had become an issue in the case. Making a plea
of guilty under such circumstances cannot be dismissed as being merely in the nature
of a settlement to avoid a trial of the issue, as the General Counsel and the Union
suggest . Under all the circumstances, this was not a step to be taken lightly. The
fact that such a plea was made at this time convinces me that Elvera Brown feared
going to trial on the charge with which she had been booked. For these reasons
I have resolved the credibility problems in this case as I have done, and find that
Elvera Brown was one of a group which followed Ray after leaving work and made
a severe physical attack on Ray. Brown's conduct, in my opinion, was sufficiently
serious to warrant her nonreinstatement.
Conclusions: The Company's misconduct defense is sustained in the case of
Elvera Brown.
m I am relying on the testimony given at both the 1955 and the 1963 hearings in making
the findings which follow.
Is While Smith testified that on this occasion she was on foot and alone, her explanation
as to her destination at this time was very unconvincing, and her testimony as a whole
left me with serious doubts about her credibility.
21 The foregoing account is based largely on Ray's testimony While the General Counsel
points to certain discrepancies between Ray's 1955 testimony and that given by her in
1963, 1 find none of sufficient significance to raise serious doubt concerning Ray's credibility.
J. H. RUTTER-REX MANUFACTURING COMPANY
DOROTHY DANDRIDGE
Applied------------------
Reinstated ---------------
As alleged in
specification
4-5-55 (U )------------
No--------------------
As admitted
by Company
1453
Backpay period
As found by
Trial Examiner
No backpay.
Evidence adduced by the Company regarding misconduct: The testimony of var-
ious workers during the strike implicates Dandridge in a number of incidents of mis-
conduct. However, in view of my conclusion regarding one incident, it is not nec-
essary to review the testimony in detail. Regarding the most serious incident, it
appears that early in the strike Dandridge and some other girls, together with Union
Representative Dorsey, followed Marian Randall Giles, Mercedes Simmons, and
Dorothy Washington in a car as they went home on a bus from the plant. When
these women got off the bus at a transfer point, Dandridge accosted them. Brandish-
ing a pistol in front of her, Dandridge berated Giles for working during the strike.
Although Dandridge was recalled to the stand after Simmons and Washington testi-
fied about Dandridge having a pistol, Dandridge was not questioned about this
incident. Consequently Simmons' and Washington's testimony in this regard stands
undenied in the record and I credit it.
Mildred Johnson gave credible testimony about another incident involving Dan-
dridge. On this occasion a half-ton truck was behind the bus on which she was
traveling from the plant to her home. When Johnson got off the bus, the truck
continued on one-half block and parked. When she came near, several strikers, in-
cluding Dorothy Dandridge and Veoila Gibson Hamilton, got out of the truck and
Dandridge hit Johnson on the shoulder with her hand A fight ensued, in the course
of which the shoulder strap of her purse became broken. Unidentified girls picked
up her purse and ran with it. Later Dorothy Dandridge, Veoila Gibson Hamilton,
and Ed Reader were charged with simple robbery and with battery on Mildred John-
son. Thereafter, each of the defendants pleaded guilty to the battery charge and
the robbery charge was dismissed.
Two other incidents merit mention. Superintendent Drake testified at the original
hearing in 1955 that Dandridge, Doris Lewis, and three or four others chased Joe
Lee Congress one morning as she was walking toward the plant from the bus, and
that he saw Dandridge throwing bricks and a garbage can cover at Congress on this
occasion. Superintendent Drake further testified at the 1955 hearing that Dorothy
Dandridge, Audrey Griffin, Anita (Pinky) Craft, Elmarie Lanier, and about 15 others
were involved in an incident with Rosalie Smith, who worked in the plant during the
strike. Smith had entered a bakery shop about a block from the plant. The group
of strikers was standing outside the shop. Drake went in his car to the bakery. When
Drake parked his car in front of the bakery, the group walked up to the car with
bricks in their hands and said, "You better not get her out of there, she is not going
to get out of there alive." I conclude that Dandridge was not frank in her general
testimony that she observed no incidents between workers and strikers during the
strike, and have resolved questions of credibility adversely to Dandridge.
Conclusions: In my opinion, Dandridge's conduct as a whole during the strike
renders her unfit for further employment. Accordingly, the Company was justified
in refusing to reinstate Dandridge.
JIMMIE LOU GREEN
Applied------------------
Reinstated ---------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)------------
No--------------------
Reinstatement
4-15-55 (R-220) 1-7 ---------- Begins 4-14-55.
Ends. Still accruing
i This-is a reference to Company' s Exhibit 220.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the Company regarding misconduct : The only incident of
misconduct attributed to Green occurred at the time the strike began on the morning
of April 21, 1954 . Superintendent Drake testified , concerning his observations that
morning as follows: "There was a large gathering of employees immediately in front
of the plant . . . There were groups forming a chain line , zig-zagging back and
forth in front of the main entrance . . . . [Green] seemed to be one of the leaders
of the group who was preventing employees from entering the building , and she told
me that I couldn't get in the building and proceeded to push me toward the street
away from the door." Green testified that Drake "came out and he pushed me from
the side, and I grabbed him to keep from falling." Green denied blocking the
door . It appears from the record in the main case that Drake was able to push his
way through the massed strikers on this occasion and that after the arrival of the
police later that morning the number of pickets was reduced to two at each plant
door . I find that Green understated the extent of her activities on the morning in
question and accept Drake's version of the incident . I conclude , however, that
Green's conduct was not sufficiently serious to warrant withholding the normal -rein-
statement remedy. See Stewart Hog Ring Company, Inc., 131 NLRB 310, 312.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: With the exception of two periods during which Green was not available
for employment and for which no backpay is claimed in the specification, Green
worked throughout the backpay period as a maid in a private home. For the first
few months she worked only 3 days a week, but Green looked for other work on her
days off. Thereafter , Green worked 5 days a week and did not look for other work
during this time . The record shows that Green was not available for work due to
pregnancy in 1957 rather than in 1956, as stated in the specification : These same
portions of 1957 will be eliminated in lieu of those portions excepted in '1956 be-
cause of pregnancy . Her interim earnings will be handled similarly based on $25
per week earning base. Her interim earnings throughout her work with Mrs. Victor
Hess will also be recomputed based on earnings of $25 per week to reflect the change
in the gross backpay to a standard 13-week quarter . See footnote 1 in table, supra.
The total amount of interim earnings, thus redistributed , equals the amount reported
in the specification.
Conclusions : The Company 's misconduct defense is rejected in Green's case. No
willful loss of earnings has been proven. Green is entitled to backpay as set forth
in the Appendix.
AUDREY MAE GRIFFIN
Applied-------------------
Reinstated----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
5-13-55 (U.)-------------
No----------------------
No backpay.
Evidence adduced by the Company regarding misconduct : Griffin participated in
the disturbance in front of the plant on October 21, 1954, which I find, for the reasons
above stated , does not by itself disqualify Griffin from reinstatement . In addition
to testimony about this incident , the Company adduced the testimony of three other
witnesses regarding incidents allegedly involving Griffin.
Rose Leonard credibly testified that on several occasions during the strike, after
she got off the bus and was walking toward the plant, suddenly "a whole gang of
people" would start "throwing bricks and bottles, sticks, anything they got their hands
on in the street " Leonard identified Griffin, Elmarie Lanier, and Ernestine Lanier
as being in the group engaging in such activity . Leonard further testified that "a
lot of time I took different routes, you know, get off the bus, you know, a couple
of stops back and go another way to keep from being run to work " Mary Hender-
son testified that she "used to see one girl in particular , Audrey Griffin. She used
to try to stop the people from going in . she had a stick sometimes She
would just chase after. I never did see her hit anybody . . . . Some of [the peo-
ple] would run ." Henderson added that Griffin at the same time would curse the
employees who were going to work. Henderson's testimony is credited . Griffin
was also involved in the Rosalie Smith-bakery shop incident discussed in the case
of Dorothy Dandridge . Griffin had died prior to the hearing in this case , and con-
sequently her version of these incidents is unavailable.
J. H. RUTTER-REX MANUFACTURING COMPANY 1455
Joe Lee Congress testified' that one morning during the strike while she was walk-
ing from the bus stop to the plant, Griffin came across the street and struck her
across the back with an umbrella. Congress added that Superintendent Drake came
up at this time and stopped the fight. For reasons set forth more fully below in the
case of Doris Lewis, I find, on the basis of the testimony of Superintendent Drake,
that Congress was mistaken in her identification of Griffin as being involved in this
incident.
Conclusions: Upon the credited testimony of Rose Leonard, Mary Henderson, .and
Superintendent Drake, I conclude that Griffin's conduct during the strike was such
as to render her unsuitable for further employment The Company was therefore
justified in refusing to reinstate her.
GUSTAVIA HAYNES (GALE) -
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied- ------------------ 4-5-55 (U.)------------ 4-15-55 (exh. C) ------------- Begins : 4-14-55
Reinstated---------------- No-------------------- ----------------------------- Ends: Still accruing
Evidence adduced by the Company regarding misconduct. Since the Company did
not brief the cases individually, it is not known what evidence the Company is relying
on in the case of Gale. The General Counsel in his brief refers to the testimony
of Edith Green in his discussion of this case, but contends that it does not implicate
Gale. I agree. Green testified concerning one occasion during the strike when she
was returning home from paying some bills on which two girls approached and one,
"Pinky" (Anita Craft, not involved in this case), hit her with a branch, and the other,
whom she variously referred to as "Anastasia and Ernestine," hit her with a stick.
When asked "Pinky's" real name, Green replied, "I think they. told me her name was
Gustavia Hanley." Haynes denied being involved in any fights or going to the homes
of any workers during the strike. In my opinion, the testimony above summarized
falls short of establishing that it was Gale who was involved in this incident.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: With the exception of brief intervals during the first part of the backpay
period, Gale was employed throughout the backpay period. From November 1955
until November 1962 Gale worked for Schram Bros , another sewing factory At
times during her employment by Schram Bros. Gale was drawing partial unemploy-
ment compensation because full-time work was not available. The record estab-
lishes Gale's search for work during her intervals of unemployment, either by personal
application or by registration at the State employment service, or both Haynes
earned $20 working as a maid 1 day a week for 5 weeks during 1955-2, which is not
shown in the specification.
Conclusions: . The Company has not shown that Gale engaged in misconduct dur-
ing the strike. No willful loss of earnings has been proven. Gustavia Haynes Gale
is entitled to backpay as set forth in the Appendix, which reflects the deduction of
Gale's additional earnings as a maid.
ROSE MARIE HICKS
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied------------------- 4-5-65 (U.)------------ 4-18-55 (exh. C)------------- Begins: 4-14-55.
Reinstated---------------- No-----------c----"-- No------------ -------------- Ends: Still accruing.
Evidence adduced by the Company regarding misconduct: Ida Fleming, when
questioned as to whether she had seen "Rose Marie" at the scene of the disturbance
outside the plant on October 21, 1954; answered, "Yeah, she was there." When
asked on cross-examination about knowing "Rose Marie Hicks by sight," Fleming
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied, "Rose Marie Hicks, I guess I know her but I don't know her by name. I
couldn't place who that is." This is the only evidence, which I am aware possibly
links Hicks with misconduct during the strike.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: With the exception of the year 1955 and a 6- or 7-month period in the
first part of 1959, Hicks worked fairly steadily in sewing factories in the backpay
period, although she did not regularly have full-time work. Hicks could not recall
whether or not she looked for work during her longest period of unemployment,
which was from the end of the strike to some time early in 1956, when she got a job
with E. H. Blum. With regard to this period, I conclude that the Company has not
sustained its burden of proving that Hicks was not looking for work at this time. As
to the other period of unemployment, the record shows that Hicks searched for work
both by making personal applications and by registering for unemployment com-
pensation with the State employment service. The specification inadvertently fails
to include backpay for Hicks for 1956-2, during which she earned $399.70 working
for Blum's (as shown by the social security records). I find that Hicks had addi-
tional interim earnings not set forth in the specification of $8 for 1 day's work at
Excel in 1959-1 and that Hicks earned $3 per week doing dressmaking at home
during 1959-1 and 1959-2.
Conclusions: The Company has not shown that Hicks engaged in misconduct
during the strike. No willful loss of earnings has been proven. Rose Marie Hicks
is entitled to backpay as set forth in the Appendix, which reflects the inclusion of
1956-2 and the additional interim earnings found above.
ELMARIE LANIER
Applied-------------------
Reinstated----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)------------
No--------------------
4-20-55 (R-220)--------------
No-------------------------
No backpay.
Evidence adduced by the Company regarding misconduct: Elmarie Lanier was
one of the participants in the October 21, 1954, disturbance outside the plant which
I have found, for the reasons explained above, not to disqualify her from reinstate-
ment. Elmarie Lanier was also involved with her sister, Ernestine, Audrey Griffin,
and others in chasing Rose Leonard as she walked to the plant from the bus stop
and pitching bricks, bottles, and sticks at Leonard. Mary Fland testified that "a
couple of times Elmarie and Ernestine Lanier and their brother drove by her house
and pitched rocks at it."
Elmarie Lanier was also involved in the incident witnessed by Superintendent Drake
in which a group of strikers was awaiting the departure of Rosalie Smith from a
bakery shop with bricks in their hands. This incident is more fully discussed in the
case of Dorothy Dandridge. Elmarie Lanier was not called as a witness and con-
sequently the testimony of Leonard, Fland, and Drake is undenied. It is credited.
Conclusions: In my opinion, Elmarie Lanier's conduct during the strike renders
her unsuitable for further service, and the Company was justified in refusing to rein-
state her.
Applied--_2 -------------pplied-`-- 2------------
Reinstated----------------d --------
ERNESTINE LANIER
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
6-7-55--- --------------
No--------------------
5-7-55 (R-220)---------------
No--------------------------
No backpay.
'Evidence adduced by the Company regarding misconduct: Aside from her par-
ticipation in the October 21, 1954, melee; Ernestine Lanier was one 'of the group,
J. fl. RUTTkR-ttEX'1VIAN`UFAt 'tJRtNO'COllft"ANY 145'"
including her sister, Elmaric,, who chased'ROse Leonard and threw bottles and sticks
at her as she walked to the plant from the bus stop. As Leonard credibly testified,
this chasing occurred "about every day when the strike was really on."
As found above, Ernestine Lanier also was engaged with her sister and brother in
pitching rocks at the home of Mary Fland. This happened on two occasions.
Ernestine Lanier was not called as a witness in this proceeding.
Conclusions: Ernestine Lanier's conduct during the strike renders her unsuitable
for further employment, and the Company was justified in refusing to reinstate her.
LOUIS LARRIEU
Applied----- ------------.
Reinstated----------------nstated --
Reinstatement Backti9y period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-18-66----------------
No--------------------
4-18-66 (Tr. 1187)1----------- No backpay.
1 This-is a reference to the page number of the typewritten transcript of testimony in this cast.
Evidence adduced by the Company regarding misconduct: Superintendent Drake
testified as to Larrieu's participation in the October 21, 1954, disturbance outside the
plant, which I have found, under all the circumstances of the case, not to warrant
disqualification from reinstatement. When questioned about ' any othei incidents
involving Larrieu, Drake testified that he saw Larrieu hit Louis Perrin, a mechanic,
over the head ,from behind with some sort of an object like an umbrella or a stick,
which caused Perritl's head to bleed. • Lartieu was not called to deny Dra'ke's testi-
mony. While the General Counsel contends that Drake's testimony regarding the
assault on Larrieu was too vague both as to the nature of the weapon used and regard-
ing the timing of the attack, I conclude, in view of the 81/2 years-intervening between
the incident and the giving of Drake's testimony ,and all the other circumstances of
the case, that Drake's testimony is entitled to, credit.
Conclusions: Larrieu's attack on Perrin is sufficiently serious ,, in my opinion,
to disqualify hirtii from reinstatement.
DORIS LEWIS
Reinstatement Backpay period
As alleged in As admitted As found by
specification by company Trial Examiner
Applied------- 2-----------
Reinstated----------------
4-8-66 (U.)------------
No--------------------
5-23-65 (exh. C)-------------
No--------------------------
No backpay.
Evidence adduced by the Company regarding misconduct: Superintehtient Drake
testified that during the strike he observed Joe Lee Congress walking down Independ-
ence Street toward the plant, and that when she reached a point opposite the strike
headquarters' at Independence and Dauphine' Streets, he saw Doris Lewis come run-
ning across the street and punch Congress in the back two or three times with an
umbrella. Drake emphasized that he was certain in his identification of Lewis as
being involved in this incident. At the original hearing Drake credibly testified
that Lewis was one of a group of five or six strikers who chased Congress on this
occasion.30 At the hearing Lewis was not questioned about this incident 31
Conclusions: In my opinion, the conduct of Lewis in chasing Congress and punch-
ing her on the back with an umbrella renders her unfit for further employment, and
the Company was justified in refusing to reinstate her.
80I do not agree with the General Counsel's contention that Trial Examiner Buchanan
discredited Superintendent Drake's testimony about this incident ( 115 NLRB 388, 402).
81 This is the attack which Congress erroneously attributed to Audrey Griffin.
221-731-67-vol. 1518-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LEONARD LEWIS
Reinstatement
Applied
Reinstated
As alleged in
specification
4-5-65 (U)
No
As admitted
by Company
4-21-55 (R-220)
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends Still accrumg
Evidence adduced by the Company regarding misconduct Theodore Batiste, one
of the Company's foremen, testified regarding a scuffle between Lewis and one Turner,
as Turner was entering the Company's uptown plant one morning during the strike
Batiste's testimony is as follows
Well, Leonard was walking right by the entrance of the driveway and he would
walk no further than from one end or the other of the driveway in the morning,
so when he saw me coming he got out of the way, but Turner was coming
walking, and I passed Turner lust before I got to the driveway, and by the time
I parked my car I heard this slushing and slashing and water and mud, and I
couldn't figure out what happened, I thought Leonard had gone and Turner had
gone around the comer, did, so I got out of my automobile and I went back and
there they were fighting right in the ditch of mud and water So I turned and
made Turner go inside And Leonard, he got up and he went to the corner
where he was stationed at the corner of Danneel, I think
While Batiste further testified that Lewis had the habit of twirling his umbrella when
a worker passed in such a manner as to nick the cheek of the worker, he admitted
that he had not seen the fight between Turner and Lewis start, had not heard what
the two men were saying to one another, and did not know who was responsible for
starting the fight
Lewis' testimony about the fight is as follows
I was picketing back and forward in front of this gate and to the corner
which was nearly a half block distance and all the workers had passed and gone
into the gate and I passed many of them in the same spot where I passed hm
and when he (Turner) got there he bumped into me and before he said anything
he hit me and that's when I grabbed him and when I grabbed him we fell And
one of the foremen who was watching the gate at the time, they locked it after
the employees went in , he came out and grabbed me and pulled me off and
that's when he started hitting me under the eye and he turned me loose and
pulled this fellow in and that was the end of it
Lewis further testified that both he and Turner were charged in court with disturbing
the peace and that the charges were dismissed
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Lewis worked throughout the backpay period at Haspel s except for short
periods during which he drew unemployment compensation
Conclusions In view of the fact that there is no evidence that Lewis was responsi
ble for starting the fight with Turner-in fact the only evidence is to the contrary-I
find that the Company has not sustained its burden of proof with respect to Lewis'
alleged misconduct No willful loss of earnings has been proven Leonard Lewis
is entitled to backpay as set forth in the Appendix Due to the change to the
calendar quarter system of computation, backpay is included for 1955-4 which is not
listed in the specification Backpay for other quarters listed in the specification has
been reduced for the same reason The net effect of the change to calendar quarters
in the case of Lewis is to reduce the net amount of backpay due
LEONARDINE SMITH
Reinstatement
As alleged in
specification
As admitted
by Company
Backpay period
As found by
Trial Examiner
Applied 1 4-5-55 (U) I I No backpay
Reinstated No
J H RUTTER-REX MANUFACTURING COMPANY 1459
Evidence adduced by the Company regarding misconduct Smith participated in
the October 21, 1954, disturbance outside the plant , which I have found not to justify
nonremstatement Besides this , Smith is implicated in one other incident during the
strike involving Josephine Hunter Superintendent Drake testified that Hunter called
him on this occasion and asked him to meet her at the bus stop , as she would be late
for work Drake was waiting at the bus stop when Hunter arrived As Hunter
got off the bus, Drake saw three strikers , including Leonardine Smith and Manny Mae
Gross, running toward the bus When they reached Hunter, according to Drake
they "started beating her about the back with an umbrella and a purse, ' and then
Manny Gross "got ahold of her hair and started swinging her around by her hair
they finally stopped because it got to be a standoff She had done got one of the
other girl's hair and they were just gripped there in a deadlock " The General Coun
sel cites Drake 's testimony at the 1955 hearing, but I do not read it as he does This
testimony indicates that toward the end of the fight Smith was also trying to separate
Hunter and Gross, but it does not absolve Smith of hitting Hunter 32 At the time of
the hearing, Leonardine Smith was confined to the State hospital at Jackson and was
unavailable to testify Drake 's testimony is credited
Conclusions Leonardme Smith's attack on Josephine Hunter, in my opinion, is
sufficiently serious to disqualify her from reinstatement
OCTAVIA SMITH
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-6 66 (U )
No
4-14-55 No backpay
Evidence adduced by the Company regarding misconduct Octavia Smith was in-
volved in the attack on Daisy Ray in May 1954 The facts concerning this incident
have been discussed in the case of Elvera Brown I have found that Brown s conduct
on this occasion was such as to disqualify her from reinstatement
The General Counsel urges with respect to Smith that in view of the fact that Daisy
Ray started the fight by jabbing at Smith with her scissors , Smith was justified in
defending herself in the manner in which she did I would certainly agree if it had
simply been a fight between the two women with no others involved But here a
group of strikers followed Ray as she got off the bus some miles from the plant
where she was employed This was not an infrequent occurrence during the strike
Ray's reaction to being followed in this manner by a group presumably hostile to her
because of her abandonment of the strike was not surprising, and hence Ray s jabbing
at Smith with the scissors is not to be regarded as provocation in the ordinary sense
which justified Smith and the others acting as they did For these reasons I con-
clude that Smith's actions are not to be regarded as justifiable self-defense
Conclusions By participating with the group of strikers who followed Ray on her
way home from the plant and by taking part in the attack on Ray which followed,
Octavia Smith has so misconducted herself as to warrant the Board in withholding
the normal reinstatement remedy in her case
LULA MAE WASHINGTON
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-6-66 (U )
No
4-14-66 (exh C) No backpay
32 Contrary to the General Counsel s contention , I conclude that Trial Examiner Buchanan
in the earlier proceeding credited Drake s testimony concerning this incident but inled that
union responsibility had not been established
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the Company regarding misconduct As found above, Wash-
ington stabbed Mary Fland in the back,dultpg the October 21, 1954, disturbance
The General Counsel concedes that if Washington was guilty of such conduct, the
Company would be justified in refusing to reinstate her I agree
Conclusions The Company has sustained its misconduct defense in the case of
Lula Mae Washington
C The failure to apply after the strike defense (schedule 6(b))
1 General discussion
The employees listed in schedule 6(b) of the Company's amended answer fall into
three categories The largest group is composed of those who were named in one
of the Union's April 1955 letters requesting reinstatement of strikers and who did
not apply personally at the plant at any time Consistent with the position taken
by it in the period after the strike in 1955, the Company contended in its amended
answer filed in January 1963 that the 16 employees in this category had not validly
applied for reinstatement My holding that the Union's letter of applications con-
stitute valid application for reinstatement on behalf of the employees named therein
disposes of the Company's contention regarding the employees in this category
The second category included in schedule 6(b) consists of strikers who admittedly
applied for reinstatement during the strike and did not again apply either during or
after the termination of the strike As to these employees, it apparently is the Com-
pany's position that they were obligee( to apply again and again to demonstrate their
continued interest in reinstatement I believe that the Company's reinstatement and
backpay obligations cannot be so lightly shrugged aside In my opinion, a rein-
statement application made by an unfair labor practice striker, whether made during
or after the strike, creates a continuing obligation upon the employer to offer to take
the employee back, an obligation which, absent special circumstances, can be ter-
minated only by an unconditional offer of reinstatement
The third category of employees listed in schedule 6(b) consists of those as to
whom there is a genuine controversy as to the fact of the employee's application for
reinstatement As appears more fully below in the discussion of the individual cases,
there were originally eight employeeg in this category The case of one, Eloise Epps
Morrison, I in effect dismissed at the hearing In two other cases, Irene Alexcee
Burrell and Dorothy Weathersby, I have resolved the conflicting testimony in favor
of the Company's witnesses In one of the five remaining cases, Sonora Barnes
Rochon, there was no effective denial of the employee's testimony concerning her
application
In two of the remaining four cages of controverted applications the employees
testified that they filled out written applications and left them at the plant The Com-
pany in these two cases relies on the fact that no such applications were found in its
files as establishing that no application had been made This raises the question
of reliability of the Company's record-keeping system
Rutter testified generally that the Company was systematic about taking care of
and filing all applications from returning strikers The fact that there is no dispute
about the filing of written applications in all but a very few cases suggests that on
the whole the Company's records were quite complete On the other hand there
are sufficient indications of weaknesses in the Company's record-keeping system to
lead me to conclude that the absence of an application in the Company 's files cannot
be regarded as conclusive of the fact that none was filed <
During the hearing, the Company requested leave to amend its answer in the case
of various employees because of the belated discovery of information which was in-
consistent with that pleaded iri its amended answer which was filed in January 1963
See the cases of Eunice Johnson, Marion Banks Kennedy, and Lorraine Lyons The
case of Lyons perhaps best illustrates the weaknesses of the Company's record-
keeping system In its amended answer the Company alleges that Lyons did not
apply for reinstatement until May 11, 1956 Rutter was questioned about Lyon's
applications for reinstatement as follows
Q (By Mr READ) Now, Mr Rutter, would you tell me the first application
you have in the file for this witness, following the strike9
A. Mr Read, the first one I have in her file is dated May 11, 1956
Q This was for Lorraine Lyons9
A For Lorraine Lyons, but there is a part of her file, production file, em-
ployment record that is not here The notations in our Respondent's 220
indicate Lorraine Lyons applied pregnant and now can work two and a half
months, 4-15-55 1 don't have that application and apparently there was an
J. H. RUTTER'1 EX MANUFACTURING COMPANY 1461
application of 4-15-55. The original portion of this girl's record, production
card, and apparently that application are not here. I think we can make a
further search of the files and find it. You will notice this notation-incidentally,
she was then sent a lr,cter, on Respondent's Exhibit 219, to report to work on
Thursday, July 21, 1955.
Q. Now, you said something about part of this file being lost. Can you tell
us what you know about that?
A. I didn't know anything about it until I looked in her file just now, and
I note that we have. a segment of her employment record dated 60, 61, 62, and
we have additional parts of her record, absentee forms, separation notice, daily
tardy report dated back to 1952, 1953, 1959, which indicate that somewhere
along the line, either my secretary did not pull the entire record or that is filed
separately and was not put together for some reason or another.
Similarly, in this case of Alma Wallace, as to whom the Company in its amended
answer pleaded that it had received no application at any time after the strike ter-
minated, the Company's file contained no application from Wallace, although in
Exhibit C to the amended answer it is stated that Wallace applied on November 28,
1955. When questioned as to the basis for the inclusion of the information concern-
ing Wallace, counsel for the Company stated that "there is apparently nothing in
neither the Board's files or our own which throws any light on it, . . . other than
the notation to the effect there was an application sometime in November, although
there is no written application in the file." Another employee as to whom the
Company pleaded no application received after the strike is Bessie Cooper Lee. Yet
Exhibit C attached to the Company's amended answer shows that an application for
reinstatement was received from Cooper on April 20, 1955. This discrepancy was
not explained at the hearing. Similarly in the case of Yvonne Parnell, as to whom
the Company pleaded an application dated of "9/ /55" and whom the Company
had previously listed in Exhibit C as having applied on September 13, 1955, the
Company was apparently unable to produce the application.33
Further light on the adequacy of the Company's filing and record-keeping system
is cast by Rutter's testimony regarding the Company's possession of a learner's cer-
tificate during and after the strike. As stated above, at first Rutter testified that
the Company positively did not have a learner's certificate from May 1954 to Decem-
ber 1957. Later on, confronted with undisputable proof as to the error in this
testimony, Rutter testified that he had been relying on his study of certain files, and
that inadvertently material which should have been included in the files which he
had reviewed had been omitted, causing him to misstate the facts.
For these reasons I cannot rely on the absence of a written application in the
Company's files as conclusive evidence that no such application was filed.
2. The individual cases
ESTRELLA ALEXANDER
Applied -------------------
Reinstated ________________
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
1-24-55---- ------------
5-30-65----------------
1-24-55 (exh. C)_____________ Begins: 2-1-55.
Ends: 5-30-65.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Alexander was employed throughout the backpay period at Excel Mfg. Co.
She earned $217.99 in 1955-1 and $246.93 in 1955-2.
Conclusions: No willful loss of earnings has been proven . Estrella Alexander is
entitled to back -ay as set forth in the Appendix, which reflects the deduction of
Alexander's earnings at Excel.
as I draw this inference from the fact that the Company did not respond to my request
to produce the application and from the fact that the Company did not state in its
amended answer the dete in September 1955 on which Parnell applied.
1462 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
Applied-------------------
Reinstated----------------
IRENE ALEXCEE, (BURRELL)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
6-7-55-----------------
No--------------------
No backpay.
Evidence adduced by the General Counsel regarding Burrell's application for rein-
statement: Burrell testified that each June in 1955, 1956, 1957, and 1958, upon com-
pleting her school year at Southern University and A & M College at Baton Rouge,
she returned to New Orleans and filled out 'written applications for employment at
the Company's plant. Burrell testified about her first application in detail. She
gave her completed application to the personnel clerk who left with it and went
toward the back of the plant. Upon the personnel clerk's return, Burrell was in-
formed that there were no openings , and that she would be notified if an opening
occurred. Burrell testified that the same thing happened each time she applied.
When questioned about the Company 's employment application form, Burrell was
able to-recall in'some detail the nature of questions thereon.
- Rutter testified generally that the Company was systematic about taking care of
and filing all applications from returning strikers and that the Company's files con-
tained no applications from Burrell whatever. It was stipulated that if Johanna
Schwab Hurley, the personnel clerk, were called to the'stand, she would testify, that
she had no recollection , one way or another , about events occurring ` after the strike
was called off.
On this phase of the case , I must decide between Burrell 's,testimony that she re-
peatedly filed written applications for reinstatement with the Company and the fact
that the Company's files contain no such applications. This is a difficult chore be-
cause on the one hand , there was nothing in Burrell's demeanor on the stand to in-
dicate she was not being accurate in her testimony, and, on the other hand, the
Company's records of applications filed, at least those filed after the strike was
called off , were quite complete. Indeed , in only three other cases is there any
controversy about the filing of written applications and these all involved written
applications filed in 1954 In all the other cases where employees credibly testified
that they had filed written applications, the Company was able to produce these
applications, or at least admitted that such applications had been filed. However,
this does not mean that I regard the Company's records as being conclusive on this
score. See the discussion in part 1, above.
However, there are aspects of Burrell's testimony which raise serious questions
concerning the accuracy of her testimony that she repeatedly filed written applica-
tions with the Company. Thus, Burrell, upon being questioned about places she had
applied for work in July and August 1955, replied, "It is possible that I applied for
work at the Meal-a-Minit Restaurant in 1955." Later, Burrell definitely stated that it
was in 1955 that she applied and was hired by Meal-a-Minit. Thus it appears that
Burrell in her mind was linking her employment by Meal-a-Minit with the year of her
first application for reinstatement.
The record establishes, however, that Burrell first worked for Meal-a-Minit in
1958. This is seen in the social security records which show that Burrell worked for
two concerns doine.business at 1000 Canal Street, New Orleans, during 1958-3 and
1959-3. This is the address of Meal-a-Minit.
With respect to 1958 and 1959 Burrell first testified that she did not look for work
in 1958 and 1959,,other than-the part-time work for Orleans Parish School Board.
Subsequently, after the General Counsel questioned Burrell about working for two
employers whose names were-unfamiliar to her, and as to whether it was possible
that these, other employers-were the same as Meal-a-Minit, .the General, Counsel
asked Burrell` whether she recal1ed'whether she might'have worked for Meal-a-Minit
in July, August,' or September '1959. From this 'point on, Burrell placed the dates
of her employment by Meal-a-Minit as being during the summers of 1958 and 1959,
which is in accordance with the facts stated in the social security records. ,
After weighing all of the' factors casting light on the accuracy, of Burrell''s testi-
mony regarding her applications for reinstatement, I conclude that in this`case the
absence of any application in the"Coiilpan'y's' files is more 'persuasive than Burrell's
testimony that she filed written applications in 1955, 1956, 1957, and 1958. As
above noted, Burrell was inaccurate in her original testimony that she worked at
J. H. RUTTER-REX MANUFACTURING COMPANY 1463
Meal-a-Minit in 1955, after filing an application with the Company. Burrell im-
pressed me as being shrewd enough to sense , from counsel's questioning, that there
was a discrepancy between her testimony and information in the records before the
General Counsel. From that point on, Burrell stated that her employment by Meal-
a-Minit was in 1958 and 1959. This unexplained changing of her testimony leads
me to conclude that I cannot rely on Burrell's testimony about her repeated applica-
tions to the Company for reinstatement.
Conclusions: The General Counsel has failed to sustain his burden of proof regard-
ing Burrell's applications, for reinstatement. While Burrell may have filed an
application for reinstatement in June 1958, I find it unnecessary to resolve this prob-
lem for, in my opinion, such an application, even if made, was untimely.
VICTORIA ALLEN
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied ------------------- 4-6-55 (U.)------------ Begins : 4-14-55.
Remstated---------------- No-------------------- Ends: Still accruing.'
' Allen was offered and accepted reinstatement during the hearing.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: With the exception of 1957-2 and 1957-3, Allen had some employment
in each of the quarters for which backpay is claimed in the specification. In 1956-i
and 1956-2 Allen worked only about a week in each period, and this was for Schram
Bros. While Allen showed a tendency to overstate her efforts to find work, from
her work record as a whole I conclude in accordance with Allen's testimony that she
needed a job and looked for work whenever she was unemployed. The specifica-
tion inadvertently fails to state earnings of $15.75 at Haspel's in 1959-1. This sum
will be added to Allen's interim earnings. Due to the change to the calendar quarter
method of computation Allen is entitled to backpay for 1959-4, which is not included
in the specification.
Conclusions: No willful loss of earnings has been proven. Victoria Allen is en-
titled to backpay as set forth in the Appendix, which reflects the adjustments stated
above.
SONORA BARNES (ROCHON)
Reinstatement
Applied-------------------
Reinstated------ ---------
As alleged in
specification
As admitted
by Company
5-6-65---- -------------
No--------------------
Backpay period
As found by
Trial Examiner
Begins: 5-16-55.
Ends: Still accruing.'
' During the hearing the Company sent Barnes a letter offering her reinstatement. Barnes apparently
was ill at the time and later filed an application for reinstatement.
Evidence adduced by the General Counsel regarding Rochon's application for
reinstatement : Rochon testified that in October or November 1954, before her mother
died (her mother died on May 7, 1955), she filled out an application for employ-
ment at the Company's plant, that the girl in the office took the application and left,
and that she returned a while later and informed Rochon that she would call her.
Rochon's testimony in this regard is not denied. As stated above, Johanna Schwab
Hurley, the Company's personnel clerk during and after the strike, was not called
as a witness anti it was stipulated that she had no recollection of these events, one
way or another.34
a* Ru`_ter was questioned concerning Rochon's application for reinstatement as follows :
Q. Did the company receive any application for employment from this claimant at
any time after the strike ended?
A. No sir, none in her fle. [Emphasis supplied.]
This is not a denial of Rochon 's testimony that she filled out an application in 1954.
1464 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Evidence adduced by the Company regarding interim earnings, and willful loss of
earnings: Rochon was employed at Interstate Electric at the beginning of,the back-
pay period on May 16, ,1955, 'and worked' there until July 20, 1955,35 when she was
discharged. At that time Interstate replaced its female order fillers with men.
From her discharge by Interstate until her employment by Xavier University on
December 5, 1955, Rochon did not look for other work. After working for Xavier
University for 3 months, Rochon was discharged to make a job available for a needy
student. About the first of April 1956, Rochon obtained a job with B. F. Davis as
a facing front pockets operator, the same operation she had performed at the Com-
pany. Rochon continued to work for B. F. Davis until December, 6, 1958, when she
quit because she was required to do three girls' work and also because her boss cursed
her several times After leaving B. F. Davis, Rochon did not look for employment
until she obtained a job with Bonck's on October 3, 1960.36 Rochon continued to
work for Bonck's for the remainder of the backpay period, and was still working for
Bonck's at the time of the hearing.
Conclusions: The General Counsel has sustained his burden of proof with respect
to Rochon's application for reinstatement. The Company has proven that Rochon
willfully incurred losses in earnings in the following periods: July 21 to December 5,
1955, and December 6, 1958, to October 3, 1960. No other willful loss of earnings
has been established. Sonora Barnes Rochon is entitled to backpay as set forth in
the Appendix, which reflects the deductions for Rochon's two periods of willful
idleness.
Applied-------------------
Reinstated----------------
IRA BERRY (PATTERSON)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
3-28-55 ----------------
No--------------------
3-28-55 (exh. C) ------------ Begins: 4-5-55.
Ends: 9-1-55.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Commencing on September 1, 1955, Patterson attended Southern University
and obtained her degree in August 1958. No backpay is claimed in the specifica-
tion for the period Patterson was attending college. Thereafter Patterson obtained
part-time work as a substitute teacher in the Orleans Parish schools. Patterson testi-
fied that after she had obtained her degree she decided that she did not desire to
return to work for the Company.37 I conclude that Patterson, by her decision,
withdrew from the sewing factory labor market. Accordingly, Berry's backpay pe-
riod terminates on September 1, 1955. See Mastro Plastics Corporation, 136 NLRB
1342, 1345 (Pellay), 1387. Patterson named a number of employers' establish-
ments at which she had applied unsuccessfully for jobs either during or after the
strike but she was not able to recall for sure whether these applications were made
during the 5-month period after she applied for reinstatement.
Conclusions: No willful loss of earnings has been proven. Ira Berry Patterson is
entitled to backpay as set forth in the Appendix, which reflects the September 1,
1955, termination date.
LEONCE BREAUD, deceased , Estate of
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-5-55 (U.) ------------ Begins: 4-14-55.
Reinstated---------------- No, died 12-4-58------- Ends: 12-4-58.
sa The social security records show that Rochon had $96 in earnings from Interstate in
1955-3.
86 The dates given herein are estimated dates based in part on the earnings ,figures shown
in the social security records and in part on the testimony of Rochon.
87I permitted an inquiry into this subject matter after the Company had offered Patter-
son reinstatement at the hearing.
J H RUTTER-REX MANUFACTURING COMPANY 1465
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings In all quarters for which backpay is claimed in the specification Breaud
had earnings and they were substantial in all quarters except one
Conclusions No willful loss of earnings has been proven The estate of Leonce
Breaud is entitled to backpay as set forth in the Appendix
JUANITA COLUMBUS
Reinstatement
Applied
Reinstatement (offered)
As alleged in
specification
4-5-55 (U )
As admitted
by Company
7-15-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 7-15-55
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Columbus was employed throughout the backpay period at Haspel's
Conclusions No willful loss of earnings has been proven, Juanita Columbus is
entitled to backpay as set forth in the Appendix
BESSIJ9 COOPER (LEE)
Applied a. -
Reinstated - -
Reihstaterhent aackpay period
As alleged in
specification
As admitted
by Company
4s found by
Trial Examiner
4-5-55 (U)
NO -
4-20-55 (exh C) Begins 4-14-45,
Ends Still acoYdtng
Evidence adduced by the Company regarding interim employment and willful foss
of earnings With the exception of 1955-2 and two periods during which Lee was
unavailable due to pregnancy, Lee had earnings in each quarter covered by`the
specification In 1955-2 Lee unsuccessfully sought work at various sewing factories
For about 2 years commencing in he last half of 1958 Lee worked for another sew-
mg factory At all other times, Let thd housework While Lee did not work a
full 8-hour day every day at housework, she testified coticerning her efforts to obtain
more remunerative work by applying at sewing factories, restaurants, 10-cent stores,
department stores, a hotel , and hospitals Lee was quite vague as to the dates on
which she made these applications However, in view of Lee's work record as a
whole and her testimony that she was in need of and repeatedly looked for work, I
conclude that the Company has not shown that Lee failed in her obligation to
mitigate damages
Conclusions No willful loss of earnings has been proven Bessie Cooper is en-
titled to backpay as set forth in the Appendix
ESTELLE CORNISH (DAVIS)
Reinstatement Batfkpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied 7-15-65 Begins 10-1-55
Reinstated No Ends Still accruing I
I The Company offered Davis reinstatement during the hearing
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the General Counsel regarding Davis ' application for rein-
statement Cornish testified that "anywhere between three and six months " after the
strike she called the Company, talked to the receptionist over the telephone, and
the following conversation ensued
And I told my name, and she wanted to know whether or not I had worked
before, and if so, had I worked at Rex, and I told her yes, and she wanted to
know when did I quit, and I told her I was out since the strike, and she told me
to hold on for a minute, and then when she returned to the phone she said, she
asked what operation, I said side seamen, and when she did come back to the
phone she told me there was no need for side seamer that they didn't have any
vacancy
The Company has had the same receptionist or personnel clerk, Johanna Schwab
Hurley, throughout the period involved in this case Hurley was not called to the
stand It was stipulated that Hurley had no recollection of the events testified to
by the various witnesses for the General Counsel and that consequently she would
not be able to testify whether or not they occurred I credit Davis' undenied testa
mony concerning application for reinstatement, but in view of Davis' uncertainty as
to the date of the telephone call, find the date thereof to be September 23 1955 38
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings The backpay period begins October 1, 1955 Davis obtained a job at
Nolan Marshall Photographers at $25 per week in November 1955 and was em-
ployed there up until about May 1, 1956, when she ceased working, due to the
closing up of the studio and also the fact that she was expecting a baby in July In
lieu of the earnings stated in the specification to have been earned at Nolan Marshall
Photographers, I find, in accordance with Davis' testimony and with the General
Counsel's admissions in this regard, that Davis' earnings with this employer were
as follows (adjusting for calendar quarters ) 1955-4, $225 , 1956-1, $325,
1956-2, $100 3e
Davis testified that she believed that she started looking for work after the baby
was born about October 1, 1956 This eliminates 1956-3 from the specification
Davis stated that she went to the State employment service, that she was registered
for both factory and secretarial work, and that the employment service checked the
factories for her, but did not give her any referrals According to Davis, she needed
work and, generally speaking, was looking for work all the time However, as I
construe Davis' testimony, she did not actively seek employment in 1957 and the
first part of 1958 As she testified, "After my going around to,these diffei;ent places,
well, I just found I couldn't get any I would leave my name and number
and whatnot , and I just waited , and time passed and then I reapplied in 1958,' just
before the schools let out for the summer On the basis of Davis testimony as a
whole, I eliminate all four quarters in 1957 and 1958-1 from the specification
Thereafter in 1958 Davis repeatedly consulted the State employment service about
jobs, and also called the Company about work She was told by the Company's
receptionist that she would have one of the foremen call her if there were any open-
ings Davis, however, was unsuccessful in obtaining employment anywhere On
February 1, 1959, Davis became unavailable for work because of her second
pregnancy
Conclusions The General Counsel has established that Davis applied for rein-
statement at least by September 23, 1955 Aside from the quarters mentioned above,
which will be eliminated from the specification, no other willful loss of earnings has
been proven Davis is entitled to backpay as set forth in the Appendix which reflects
Davis' additional interim earnings at Marshall Nolan Photographers
81 Rutter testified that Davis was such an outstandingly productive worker that had
Davis applied , she would certainly have been hired There is no showing that at the time
of Davis ' telephone call Davis was known to Superintendent Drake to be such a productive
operator Other needed operators were not recalled In view of these facts and the fur
ther fact the Company was very slow in discharging replacements to make room for
returning strikers, I do not regard Rutter 's argumentative testimony as outweighing Davis'
testimony about her application , which was in convincing detail and reflected the procedure
which the Company normally followed in handling applications for reinstatement
31 Since Davis ' earnings at the YWCA during these quarters were supplemental earnings-
for Saturday and Sunday work at a job which Davis held while working full time for Nolan
Marshall Photographers I sustain the General Counsel 's exclusion of Davis' YWCA earn-
ings from her interim earnings
J H RUTTER-REX MANUFACTURING COMPANY
Applied
Reinstated
Begins 3-25-55
Ends Still accruing
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Davis went to work for L Frank & Co on April 11 , 1955 , and has worked
for that Company ever since
Conclusions No willful loss of earnings has been proven Lenora Davis is en-
titled to backpay as set forth in the Appendix
SHIRLEY EDGERSON
1467
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
3-17-55
No
LENORA DAVIS
3-17-55 (exh C)
Reinstatement
Applied
Reinstated
As alleged in
specification
1-11-55
3-7-61
As admitted
by Company
1-11-55 (exh C)
3-7-61
Backpay period
As found by
Trial Examiner
Begins 1-17-55
Ends 3-7-61
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Edgerson obtained employment at Schram s shortly after she applied for
reinstatement at the Company in January 1955 This was irregular employment and
during one of her periods of layoff at the end of 1955-2 and the beginning of 1955-3
Edgerson worked a short while at Bonck 's 40 At this job Edger-on earned $24 in
1955-2 and $12 in 1955-3 These earnings are not set forth in the specification
Edgerson quit this job, and went back to Schram s Again laid off by Schram's near
the end of 1955-4, Edgerson was unemployed for over two quarters This is Edger-
son's most substantial period of unemployment in the entire backpay period In
1956-3 Edgerson obtained a job at Bennett's which she quit after about a week be-
cause she did not like it 41 Edgerson was again hired by Schram's in 1956-4 and
worked throughout this quarter, the following quarter 1957-1, and part of 1957-2,
at which time she was again laid off by Schram's After this layoff Edgerson was
unemployed until about the middle of 1957-4 After both of these layoffs by
Schram's, Edgerson looked for work, as she testified, because she could not afford to
wait to receive her unemployment compensation One of the places Edgerson applied
during her 1956-2 layoff by Schram s was the Company About the middle of
1957-4 Edgerson obtained a job as a maid in a private home which she kept until
about the middle of 1960-4, at which time she quit in order to accept what she hoped
would be a better job at Bonck 's After about a week Edgerson quit because she did
not like the people working at Bonck 's Edgerson then obtained a job with Schram s
which she kept for about 3 weeks until she was again laid off The next employ-
ment obtained by Edgerson was as a maid for Father Dummett I find that )3dgerson
earned $25 per week for 9 weeks in 1961 -1 working for Father Dummett In lieu of
10 Edgerson placed this employment by Bonel s as being in 1956 I believe that Edger
son was mistalen in this regard and that the social security records which show that
Edgerson was employed by Boncl ' s in 1955-2 and 1955-3 are moie reliable than Edgerson s
hazy recollection
41 While Edgerson 's quitting of this job probably was unjustified Lnd would have war
ranted a projecting forward of her earnings at Bennett 's until she obtained her next job
pursuant to the Mastro Plastics principle the record contains an insufficient evidentiary
basis for doing so in this case Thus it fails to show when Edgerson quit her job at
Bennett's As far as the record shows Edgerson may hace quit her job at Bennett s in
the final week of 1956-3 and then started working for Schram s at the beginning of 1956-4
in which event there would be no time during which earnings could be projected torward
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the $45 shown to have been earned at Tulane Shirt 1961-1,42 there will be substituted
as Edgerson's 1961-1 interim earnings the $225 which Edgerson earned working for
Father Dummett Edgerson left working for Father Dummett to return to the plant
on March 7, 1961
Conclusions No willful loss of earnings has been proven Shirley Edgerson is
entitled to backpay as set forth in the Appendix which reflects the substituted interim
earnings for 1961-1, and her additional interim earnings at Bonck's in 1955-2 and
1955-3 48
VERA FULTON
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied 4-8-55 (U ) Begins 4-19-55
Reinstated No Ends Still securing
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Fulton was employed throughout the backpay period in the food service
department of the Orleans Parish School Board Fulton worked only during the
school year, which left her without employment during the summer Fulton did not
look for other work during the school year Fulton testified that except for the past
two summers ( 1961 and 1962 ) she had tried to obtain summer work or any work
which paid more than her job with the school board, but that she had been unsuccess-
ful in this regard While Fulton could not remember the dates on which she applied
for work during the summer , she did name various places where she had sought work
summers , including sewing factories , hospitals, and a hotel I credit Fulton 's testi-
mony concerning her search for work
Conclusions No willful loss of earnings has been proven Vera Fulton is entitled
to backpay as set forth in the Appendix
INDIANA PLUMMER GAMBLE
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied
Reinstated
4-5-55 (U )
No
Begins 4-14-55
Ends Still accruing
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings From the time the strike was over until the end of 1960 Gamble worked
part time for the Costume Center for which she was paid $20 per week Thereafter
she commenced operating a variety store at the same address The specification
credits Gamble with earnings of $20 per week throughout the backpay period At
the hearing the Company did not go into the question of Gamble s earnings while
operating the variety store from 1961-1 on, and consequently I accept the figures
stated in the specification
With respect to a possible contention that Gamble has willfully incurred a loss of
earnings by working only part time for the Costume Center, it may be noted that
Gamble's earnings were not insubstantial and that she worked regularly throughout
the backpay period There is no showing as to the exact number of hours that
Gamble worked for the Costume Center Under all the circumstances I conclude
that the record fails to establish that Gamble willfully incurred a loss of earnings
u S conclude that the specification erroneously includes $45 in earnings at Tulane Shirt
in 1961-1 Tulane is the same as Bonck 's and the specification shows earnings of $35 20
at Bonck 's in 1960-4 Edgerson credibly testified that she went from Bonck s to Schram's
in 1960-4 and did not thereafter return to Bonck's (or Tulane)
15 Due to the change to the calendar quarter method of computation , Edgerson is en
titled to backpay for 1955-4 and 1959-4
J H RUTTER-REX MANUFACTURING COMPANY 1469
Conclusions Indiana Plummer Gamble is entitled to baekpay3 as set forth in the
Appendix
IDA HAYNES
Applied 4-22-66 (U ) Bepms 5-3-55
Reinstated No hnds Still accruing i
I Haynes was offered reinstatement during the hearing and apparently did not accept
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Haynes operated a beauty parlor in her home throughout the backpay
period, but her net earnings were relatively small Haynes testified as to her efforts
to find other work in 1955-57, which include visits to garment factories and hotels
There is no evidence that Haynes failed to seek other work in the rest of the back-
pay period Haynes was ill thioughout 1955-2, and no backpay will be awarded
for that quarter
Conclusions No willful loss of earnings has been proven Ida Haynes is entitled
to backpay as set forth in the Appendix 44
BERTHA HILL
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Reinstatement
_Applied -
Reinstated -
As alleged in
specification
12-2-54
9-19-56
As admitted
by Company
12-2-64 (exh C)
9-19-55
Baekpay period
As found by
Trial Examiner
No backpay
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Hill neither obtained any employment , nor looked for employment during
the backpay period Whether this is due to the fact that Hill was unavailable for
work because of the fact that she was taking care of her sick grandmother or be-
cause she did not want other work is not clear in the record However, in either
event Hill would not be entitled to backpay
HELEN HOLDEN
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Exanuner
4-5-55 (U )
No
t No backpay
At the hearing I granted the General Counsel's motion to eliminate all claim for
backpay in the quarters covered by the specification At the same time the General
Counsel stated his position that the Company was obligated to offer Holden rein-
statement and that he was not waiving any claim for backpay for subsequent quarters
"At the hearing the General Counsel moved to amend the specification to set forth
additional expenses in operating Haynes' beauty parlor Consistent with my practice of
permitting the parties , absent extraordinary circumstances to litigate only the issues
raised by the specification and the Company s amended answer I denied the General
Counsel 's motion to amend
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I hold that the General Counsel has preserved his point. The determination of the
amounts of backpay due Holden, if any, for subsequent quarters will be left to
negotiations between the parties or to further proceedings, if necessary.
RUTH HUBBARD
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------ 4-5-55 (U )------------ Begins * 4-14-55.
Reinstated---------------- 1-1-56- ---------------- Ends : 1-1-56.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Hubbard worked 6 half days a week as a maid for Patricia Frank through-
out the backpay period. She was paid $20 a week. During the strike Hubbard
had unsuccessfully sought work at sewing factories, and after obtaining the job with
Frank did not look for other work, The record does not show the hours which
Hubbard worked for Frank. They may have been such that it would have been
difficult for Hubbard to find another part-time job which would fill out the rest of
her days. I do not believe that it was incumbent upon Hubbard to attempt to locate
another full-time job. Hubbard had a job which, judging by her earnings of $20
per week, must have occupied her for about two-thirds of each week. While it is
possible that Hubbard might have obtained a full-time job, it might not have turned
out to be a steady job, and any period of unemployment would have contributed
toward her loss of earnings. Under all the circumstances, I conclude that Hubbard
was justified in not looking for a full-time job while working for Frank.
Conclusions: No willful loss of earnings has been proven. Ruth Hubbard is en-
titled to backpay as set forth in the Appendix.
OLIVIA JOHNSON
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied----------------------- ---- ------- -- - 3-29-55- --------------- Begins: 4-6-55.
Reinstated---------------- --------- 4-26-55-- -------------- Ends 4-26-55.
Evidence adduced by the General Counsel regarding Johnson's application for re-
instatement: The General Counsel introduced into ev;dence General Counsel's Ex-
hibit 27, an application for employment signed by Olivia Johnson dated March 29,
1955, which bore the notation on the back that Johnson had been reinstated on
April 26, 1955. This application was produced at the hearing by the Company at
the request of the General Counsel. In this proceeding the Company did not chal-
lenge the facts set forth in the specification concerning the dates of Johnson's ap-
plication and of her reinstatement. On the witness stand, however, Johnson testified
that she did not remember when she applied but that she was told to report for work
the next day after she applied for reinstatement, and that that is what she did. I
conclude that Johnson's application form which was produced by the Company is
more reliable than Johnson's faulty recollection, and find the facts concerning the
date of Johnson's application and the date of her reinstatement to be as set forth in
the specification 45
Evidenr.: adduced by the Company regarding interim employment and willful loss
of earnings: Under Johnson's recollection of the circumstances of her reinstatement
there was no occasion for her to seek other employment since, as she recalled it, she
45 Although the General Counsel tried this case under the assumption that the Company
had stipulated as to the dates of Johnson's application and reinstatement-and I believe
this to have been the Company's intention-the record does not show that the Company
actually accepted the General Counsel's proposed stipulation in this regard.
J. H. RUTTER-RRX MANUFACTURING COMPANY 1471
reported for work the day after she first applied at the Company . Accordingly,
Johnson testified that she did not look for other work after applying for reinstatement
at the plant . In my opinion , Johnson's recollection concerning the events in ques-
tion is so poor and so contrary to the undisputed facts of the matter , that no reliance
can be placed upon her testimony in this regard.
Conclusions: No willful loss of earnings has been proven . Olivia Johnson is en-
titled to backpay as set forth in the Appendix.
LELA MAE COSTON LANDRY
Applied ------------------- 4-5-544 (U) i----------- Begins: 4-14-55.
Reinstated________________ No-------------------- Ends . Still accruing.
I While Rutter testified that accoiding to his iecords Landry was known as Lela Mae Thompson, Re-
spondent's Exhibit 232, the Company's Apul 17, 1954, payroll shows that she was carried as Lela Mae
Coaston (sheet No. 5). As she was listed in the Union's letter as Lela Caston, with her correct address, it
does not appear that the Company had any reason to be confused by the slight misspelling of her name in the
Union's letter.
Evidence adduced by the General Counsel regarding Landry's interim expenses:
Landry's credible testimony establishes that she spent considerably more than the
$18 per quarter deducted for interim expenses buying the special shoes, stockings,
and uniforms required in her work as a nurse's aide at Mercy Hospital.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: With the exception stated below, Landry worked without interruption
throughout the backpay period and had substantial earnings. After working the first
2 years of the backpay period as a nurse's aide at Mercy Hospital, Landry worked
for the rest of the time at B. F. Davis. While working full time at Mercy Hospital,
Landry did not look for other work. Landry took maternity leave about the middle
of 1959 because of the birth of her second child who was born, on July 3, 1959.
The specification excepts 1959-2 because of this pregnancy. Landry testified that
she took 5 or 6 months off when she had a baby. Landry's earnings at B. F. Davis
in 1959-1 and 1959-3, as shown in the social security records, indicate that Landry
was still on maternity leave the first half of 1959-3 (her earnings amounting to
about one-half of her usual quarterly earnings at B. F. Davis) and because of this
fact, Landry's gross wages figure for 1959-3 will be reduced by one-half.
Conclusions: No willful loss of earnings has been proven. Lela Mae Coston
Landry is entitled to backpay as set forth in the Appendix, which reflects the adjust-
ment of Landry's backpay for 1959-3.
SOPHIE LA ROCHE
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Reinstatement
Applied---- --------------
Reinstated--------- ______
As alleged in
specification
1-10-55---------------
7-26-55________________
As admitted
by Company
1-10-55 (exh. C)-------------____________
7-26-55 ----------------------7-26-55----------------------
Backpay period
As found by
Trial Examiner
No backpay.
La Roche was properly served with a subpena issued at the request of the Com-
pany in this case. She refused to comply with it, indicating that she would not
appear even if ?:. meant the dismissal of the General Counsel's claim in her behalf.
With respect to situations like this, I stated at the hearing as follows:
In any event I am holding as to any witness who was thus properly subpoenaed
and for whom no valid excuse for her non-appearance appears in the record that
I will dismiss the claim on behalf of that employee, unless that employee is some-
how brought into the proceeding before the hearing closes. This does not rule
out the voluntary appearance hereafter. It does not rule out General Counsel
1472 DECISIONS OF NATIONAL LAIR RELATIONS BOARD
enforcing the subpoena to insure her presence here I am doing that -partly
because I think that in a case like this, where the claimants stand to benefit
materially from their non-appearduce that they owe the government a minimum
of cooperation so that the government can, resolve the issues insofar as it involves
them , and that I hold that it is reasonable to hold their nonappearance suf-
ficient grounds for dismissal of their claim
While my action has the effect of shifting the burden of enforcing the subpena from
the Company to the General Counsel ( although it is not a significant burden since
the General Counsel has to initiate the enforcement proceeding in any case ), I con-
clude that in backpay proceedings this is a reasonable and practical solution of the
problem It appears to be an imposition on the district court to ask it to enforce
such a subpena In my opinion , the public policy which the Board is attempting to
effectuate by conducting this backpay proceeding will not be frustrated in any
significant way by omitting any remedy in the case of noncooperatmg witnesses like
La Roche Since the General Counsel has declined to seek enforcement of the
subpena issued to La Roche, I adhere to the position indicated above, and dismiss
the General Counsel 's claim made on behalf of Sophie La Roche Cf Efco Manu-
facturing, Inc, 111 NLRB 1032 , 1035 , Brown & Root, Inc, 132 NLRB 486, 496,
footnote 32
AMELIA LESENE
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U )
No
No backpay
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Lesene was not available for employment during the backpay period due
to illness
KATHLEEN LODGE
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-66 (U )
No
Begins 4-14-55
Ends Still accruing
Evidence adduced by the Company regarding interim employment and willful loss
of earnings None Lodge, whose address was unknown at the time of the hearing,
did not testify See discussion of the procedure with respect to missing claimants in
section VI, below
Conclusions No willful loss of earnings has been proven Kathleen Lodge is en-
titled to backpay as set forth in the Appendix
ELISKA MARTIN
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied - 4-5-55 (U) Begins 4-14-56
Reinstated 11-15-56 Ends 11-15-56
J H RUTTER-REX MANUFACTURING COMPANY ^ 1473
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Except for 1955-2, Martin was employed throughout the backpay pe-
riod by Seg-Mar and had substantial earnings Martin credibly testified that she had
looked for other work before she obtained her job at Seg-Mar in July 1955 Due to
the change to the calendar quarter method of computatioiai Martin is entitled to
backpay for 1955-4, which is not claimed in the specification
Conclusions No willful loss of earnings has been proven Eliska Martin is en-
titled to backpay as set forth in the Appendix
NOEL MARTIN
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied 12-7-54 Begins 12-15-54
Reinstated No Ends Still accruing
Evidence adduced by the General Counsel concerning Martin s application for rein-
statement Martin, who was employed as a porter at the Company's uptown plant
on Delachaise Street , testified that about 7 or 8 months after the strike commenced
he went to the main plant on Dauphine Street with a friend of his and asked the
receptionist if he could fill out an application She gave both men applications
After filling them out, they returned them to the receptionist, who informed them
that they would be called, if needed It was stipulated that the receptionist, Johanna
Schwab Hurley, would be unable either to admit or to deny the testimony given in
this proceeding because she had no recollection of the events during and after the
strike Rutter testified that the Company's file on Noel Martin contained no ap-
plication for employment from Martin during or after the strike For the reasons
stated above, I do not regard the absence of an employment application from Mar-
tin's files as determinative of the fact that Martin did not apply Martin testified
-frankly and openly at the hearing and impressed me as telling the truth Under all
the circumstances , I credit Martin's testimony about making a written application 7
or 8 months after the beginning of the strike
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Martin had substantial earnings as a bricklayer in every quarter of the
backpay period Martin worked first as an apprentice bricklayer, and from 1959
on worked as a journeyman bricklayer
Conclusions No willful loss of earnings has been proven Noel Martin is en-
titled to backpay as set forth in the Appendix
ELOUISE MORRISON
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
a-7-55
No
No backpay
Evidence adduced by the General Counsel regarding Morrison s application for
reinstatement Morrison testified that while working steadily for National Food at
$1 40 per hour she filed ah application for reinstatement at the Company When
asked whether she had informed the receptionist that she was a striker, Morrison
answered, "All I did was file, put in the claim " Morrison placed the time of her
application as being about a month after the strike was called off Morrison was a
learner at the time of the strike and was entitled to be paid but 65 cents per hour
221-781-67-vol 158-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if she were reinstated Counsel for the Company stated that the Company had no
applications from Morrison and that her file contained no indications that she had
ever applied for reinstatement after the strike was over
Morrison was very vague in her testimony as to how she learned the strike was
over, and was vague about other matters as well Mornson's positive manner on the
stand was inconsistent with the vagueness of her recollection Morrison impressed
me as attempting to cover up with glibness the absence of a present recollection of
the facts as to which she was testifying Having observed Morrison carefully on the
stand, I conclude, primarily on the basis of her demeanor, that Morrison was not
telling the truth when she testified as to her application for reinstatement This was
my impression at the time Morrison testified, as I indicated on the record, and, after
rereading Mornson's testimony, I adhere to this conclusion
Conclusions The General Counsel has not sustained his burden of proof regard
mg Morrison s application
MANDY MYERS (THOMAS) (KING)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied 2-4-55 2-4-55 (exh C) Begins 2-14-55
Reinstated 4-5-55 4-5-55 Ends 4-5-55
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings King worked throughout the backpay period at Bonck's
Conclusions No willful loss of earnings has been proven Mandy Myers Thomas
King is entitled to backpay as set forth in the Appendix
DESIDERIA OCAMPO
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied 7-15-54 Begins 7-23-54
Reinstated No Ends Still accruing i
I The Company mailed an offer of reinstatement to Ocampo during the hearing but received no response
from her
Evidence adduced by the General Counsel regarding Ocampo s application for rein-
statement Ocampo credibly testified that 2 or 3 months after the strike began she
went to the office of the plant and asked Ernest Hingle, admittedly a supervisor, for
work Hingle instructed Ocampo to fill out an application When she completed
it, Hingle told Ocampo that the Company did not have anything open at the time
Rutter testified that there was no indication in Ocampo's file that she had applied for
reinstatement during or after the strike Hingle was not called on to testify in this
proceeding Ocampo impressed me as being a very sincere witness and I credit her
testimony As I have heretofore commented, the Company s files were by no means
always complete
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Ocampo had some earnings in every quarter of the backpay period and
her credible testimony establishes that she was diligent in seeking jobs in her rela
tively short periods of unemployment
Conclusions The General Counsel has established that Ocampo applied for rein-
statement on July 15, 1954 No willful loss of earnings has been proven Desideria
Ocampo is entitled to backpay as set forth in the Appendix
J H RUTTER-REX MANUFACTURING COMPANY 1475
Applied
Reinstated
As alleged in
specification
3-18-55
5-26-55
EDNA RANDALL
Reinstatement
As admitted
by Company
3-18-55 (exh C)
5-26-55
Evidence adduced by the Company regarding interim employment and willful loss
of earnings None Edna Randall was not called as a witness
Conclusions No willful loss of earnings has been proven Edna Randall is en-
titled to backpay as set forth in the Appendix
DOROTHY B RUBIT
Reinstatement
Applied
Reinstated
As alleged in
specification
4-5-55 (U
No'
As admitted
by Company
2-2-55 (R-220)
Backpay period
As found by
Trial Examiner
Begins 3-28-55
Ends 5-26-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends Still accruing
1 Rubit was reinstated about August 1956 and after a week was discharged The General Counsel con
tends that Rubit s reinstatement was improper and did not fulfill the Company s obligations to her under
the Act
Evidence regarding the General Counsels allegations of improper reinstatement
Rubit was reinstated to her old job of trim and turn operator on August 23, 1956
She was discharged on August 28, 1956 Rubit testified that she left in August 1956
because the Company ran out of work The General Counsel introduced into evi-
dence a "separation notice alleging disqualification ' stating as follows Discharged-
not enough work to train on new operation I can find no other evidence bearing
on the reason for Rubit's separation on this occasion The separation form suggests
that Rubit was discharged for cause, and the smallness of her earnings-$26 56-
suggests that Rubit's production was low If this was the reason, I find that 1 week s
trial, after not having done sewing work for over 2 years, is an insufficient trial and
that such a reinstatement does not fulfill the Company s obligations under the Act
On the other hand, if the reason for Rubit's layoff is contended to be a lack of
work, the record establishes that this simply is not so As Rutter testified, Dorothy
B Rubit like Dorothy P Rubit, was a trim and turn collar operator She had done
this work for the Company about 8 years at the time of the strike Rutter testified
that Rowena Elbert was a replacement working at this operation at the time Dorothy
P Rubit was reinstated on July 13, 1955 The specification, which is prepared from
the Company's own records, shows that Rowena Elbert commenced working in Octo
ber 1954, and that she continued on the payroll throughout the period covered by
the specification, with the exception of a 10-month period in 1957 and 1958 Thus,
it cannot be contended that the Company did not have work for Dorothy B Rubit as
a trim and turn operator in 1956 when she was discharged The record fails to show
valid grounds for Dorothy B Rubit's discharge after working I week in August 1956
Upon all of the facts of the case, I conclude that the Company has not fulfilled its
reinstatement obligations to Dorothy B Rubit 46
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Rubit was unemployed during 1955-2, but she was regularly registering
for employment with the State employment service in connection with her obtaining
+d Were there not trim and turn work available to Rubit at the time she was terminated,
I would find for the reasons heretofore stated , that the Company was obligated to retrain
Rubit on another operation ; dismissing a replacement, if necessary to make room for her
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unemployment compensation benefits, W1ieA questioned regarding 1956-3 and
1956-4, the next quarters for which backpay is claimed, Rubit testified that she knew
that she was looking for work and had looked several places It was in August 1956
that Rubit worked 1 week for the Company Rubit testified further that she knew
she had looked for work at Bennett's and Schram's, but that she did not know exactly
what month 47 Rubit testified that she was ill the first 6 months of 1957 and, con-
sistent with this, the General Counsel requests in his beef that 1957-1 and 1957-2 be
eliminated from the specification In the latter half of 1957 Rubit asked a friend to
look out for a job for her at the St Charles Hotel and she also filled out an applica-
tion at Haspel's During 1958 Rubit worked irregularly for Seg Mar, and drew un-
employment compensation throughout 1958-4, after her final layoff by Seg Mar
Rubit was unemployed during 1959-1 and 1959-2 and the record does not disclose
what efforts Rubit made during this period to obtain employment The Company
has adduced no evidence showing that Rubit was not trying to find work at this time 48
For the remaining quarters for which backpay is claimed in the specification, Rubit
had employment, first at Schram's, and later, after taking a practical nursing course
(which period is excepted), at the Flint Goodridge Hospital
Conclusions Dorothy B Rubit was not properly reinstated by the Company in
August 1955 No willful loss of earnings has been proven Dorothy B Rubit is
entitled to backpay as set forth in the Appendix, which excludes 1957-1 and 1957-2
Since Rubit was reinstated to her old job in August 1956, the period of her reinstate-
ment from August 23 to 28, inclusive, will be excluded from the backpay period
ROSALIE THORNTON
Reinstatement
Applied
Reinstated
As alleged in
specification
4-15-55
As admitted
by Company
Backpay period
As found by
Trial Examiner
Begins 5-6-55
Ends Still accruing I
I During the hearing the Company sent a letter to Thornton offering her reinstatement she did not
respond
Evidence adduced by the General Counsel regarding Thornton s application for
reinstatement Thornton's testimony concerning her application is as follows
Q (By Mr HECTOR) Do you recall about when this was that you tried to
go back to work for Rutter9
A I went back, it was around March or April in 1955
A I had gotten a call from the union that everybody was marching in, and
I couldn't go the day they marched in, but I went the following week and I went
n The specification excepts about 8 months in 1956-8 and 1956-4 because of pregnancy
At the hearing It developed that the baby in question had been born the year before and
that Rubit had had no children between 1955 and 1962 The General Counsel moved to
amend the specification to include backpay for the excepted period Adhering to my posi-
tion that the parties were bound by their pleadings in this case , I denied the General
Counsel's motion to amend
48 I recognize that the burden on an employer to prove that an employee failed to meet
her obligation to mitigate damages by looking for work is a very heavy one But at the
same time it should not be forgotten that had the Company reinstated Rubit when she
first applied on February 2, 1955 ( Respondent's Exhibit 220), over 18 months before it
took Rubit back temporarily in August 1956, none of the problems of proof with which it is
confronted in this case would have arisen The Company had a replacement in Rubit's old
Job when she applied in February 1955 ( Rowena Elbert was hired in October 1954) and
accordingly could readily have put Rubit back immediately, and thus fulfilled its legal
obligations to her hinder the Act And the Cbmpany 's additional problem of Rubit's loss
of skill in 28 months since the strike began probably would have been greatly reduced had.
the Company reinstated her when she first applied 18 months earlier
J. H. RUTTER-REX MANUFACTURING 'COMPANY 1477
into the personnel office and I asked the secretary could I speak with Johnny
Drake, who was my foreman when I was there, so she called Johnny and I told
Johnny I wanted to put in an application or either came back to work.
He said, "Rosalie, you were closing cuts [cuffs] on long sleeves and now we
are making short slee,,es, and we don't have anything in your field."
So I just walked off.
Q. You did not fill out a written application?
A. No, I did not.
Drake testified that he did not remember having any such conversation with Thorn-
ton. Drake added that the Company was making long sleeve shirts in April 1955
and that the Company did not start making short sleeved shirts until about 2 years
after the strike. The Company introduced into evidence a statement given by
Thornton to a Board investigator in January 1961, in which she stated that when
she applied in 1955, Drake said that he did not have anything for her, and that when
she applied about 2 years later, during the summer, Drake had told her that they
were just making short sleeves and did not need cuff closers. After observing Thorn-
ton on the stand and considering her testimony as a whole, I am convinced that,
while Thornton was confused in some respects , she was telling the truth about her
attempt in 1955 to regain her job at the plant. I find that Thornton's application
was made on April 21, 1955, which is the Thursday of the week following the week
in which the greatest number of employees personally applied for reinstatement in
a short period of time. I believe that this is what Thornton had reference to in
speaking of "the day-they marched in."
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Thornton had some earnings in every quarter for which any claim is made
for backpay. During the whole period Thornton worked for Murphy's Wholesale
Tailors, excepting in 1959-1 and 1959-2, Thornton's earnings were fairly substantial.
However, the job which Thornton held throughout the backpay period, with inter-
ruptions for pregnancies and temporary layoffs, was a part-time job. Thornton
testified that she would work 2 or 3 days a week, and that the only times she might
work full time was 3 weeks before Christmas and 3 weeks before Easter. During
periods of layoff by Murphy's it was customary for her to draw either partial or full
unemployment compensation, and she was drawing full compensation during 1959-1
and 1959-2, the period of her longest layoff by Murphy's. Excepting for attempting
to go back to work at the Company, Thornton did not seek to find other work during
slack times.
Conclusions: The General Counsel has established that Thornton applied for
reinstatement on April 21, 1955. No willful loss of earnings has been shown.
Rosalie Thornton is entitled to,backpay as set forth in the Appendix.
HATTIE WALKER
Reinstatement
Applied-------------------
Reinstated----------------
As alleged in
specification
4-8-55 (U.)------------
No--------------------
As admitted
by Company
3-25-55 (exh. C) -------------
Backpay period
As found by
Trial Examiner
Begins- 4-19-55.
Ends: Still accruing.,
, During the hearing the Company sent Walker a letter offering her reinstatement. Walker declined.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: None. Walker resided in California and was not called as a witness
by the Company for this reason. Due to the change to the calendar quarter method
of computation, Walker is entitled to backpay for 1955-4 which is not claimed in the
specification.
Conclusions: No willful loss of earnings has been proven . Hattie Walker is en-
titlea to backpay as set forth in the Appendix.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MARJORIE WALKER
Reinstatement
Applied
Reinstated
As alleged in
specification
3-22-55
No
As admitted
by Company
3-22-55 (exh C)
Backpay period
As found by
Trial Examiner
Begins 3-30-55
Ends Still accruing i
i During the hearing Walker was offered, and accepted, reinstatement
Evidence adduced by the Company regarding interim employment and willful loss
of earnings In the latter part of August 1955 Walker obtained a job with Louisiana
Garment and worked there throughout the backpay period With the exception of
1958-2, during which Walker was laid off most of the quarter, Walker worked steadily
for Louisiana Garment, although she did not always work full weeks During her
off times , Walker drew either full or partial unemployment compensation In 1955-3,
before obtaining her job at Louisiana Garment, Walker applied for a job at Bonnie
Francis Walker named several other sewing factories at which she applied for jobs
but could not specify the quarters in which such applications were made Due to
the change to the calendar quarter method of computation Walker is entitled to back-
pay for 1955-4 which is not claimed in the specification
Conclusions No willful loss of earnings has been proven Marjorie Walker is
entitled to backpay as set forth in the Appendix
ALMA WALLACE
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
11-28-55
No
11-28-55 (exh C) - Begins 12-6-55
Ends Still accruing i
i During the hearing the Company sent Wallace a letter offering her reinstatement She did not respond
The record indicates that Wallace retired on a pension in September 1961
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Wallace had substantial earnings in every quarter during which I find she
is entitled to backpay No backpay will be allowed for 1956-3 and the first month
of 1956-4 Wallace was unavailable for work during these 4 months because of
illness
Conclusions No willful loss of earnings has been proven Alma Wallace is
entitled to backpay as set forth in the Appendix, which reflects the elimination of
4 months in 1956-3 and 1956-4 because of Wallace's illness
DOROTHY WASHINGTON
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
2-16-55
Not properly
2-16-55 (exh C) Begins 2-24-55
Ends 6-3-55
Evidence adduced by the General Counsel supporting his claim of improper rein-
statement Before the strike the only operation Washington had performed was
serging front pants When Washington was ieinstated she was assigned to setting
flies and later on to setting watch pockets Washington did not make production on
these operations A replacement named Adeline was performing the serging front
J. H. RUTTER-REX MANUFACTURING COMPANY 1479
pants operation at the tilne Washington was reinstated . Rutter , while not denying
that a replacement was doing front serging work when Washington returned , testi-
fied that the Company needed operators on set flies and watch pockets, operations
which precede and feed the front serging operation , and that there was not enough
work for the front sergcrs. As I construe Rutter's testimony, Rutter meant that
with Washington added to those performing front serging, including the replacement,
operations would have been unbalanced, with too many front sergers and not enough
fly and watch pocket setters. In my opinion, this is no defense. As stated above,
under the Act it was the Company's obligation to dismiss replacements to make room
for returning strikers .'.. See The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 NLRB 827. The General Counsel's contention that
Washington was not properly reinstated is sustained. Washington's earnings setting
flies and watch pockets will be treated as interim earnings. In accordance with the
General Counsel's contention, the backpay period ends on June 3, 1955, when Wash-
ington took a week off without permission, for which she was laid off by the Com-
pany. Subsequently, Washington returned to work and was assigned to front serging,
and was performing this operation at the time of the hearing.
Evidence adduced by-the Company regarding interim employment and willful loss
of earnings: Washington applied for reinstatement at the plant on February 16,
1955, and went back to the plant again on April 4, 1955, on which occasion she was
hired. Washington did not apply for work elsewhere in the meantime.
Conclusions: No willful loss of earnings has been proven. Dorothy Washington
is entitled to backpay as set forth in the Appendix.
DOROTHY WEATHERSBY
Applied -------------------
Reinstated ________________
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
4-15-55----------------
No--------------------
No backpay.
Evidence adduced by the General Counsel regarding Weathersby's application for
reinstatement: The record shows the following in regard to Weathersby's application
for reinstatement:
Q. At any time after you went out on strike did you ever attempt to go back
to work for Rutter-Rex?
A. Yes, I did.. .
Q. When was this?
A. The first attempt was in April of 1956.
Q. 1956?
A. 1955, excuse me.
Mr. READ: I would ask that you not lead the witness, Mr. Hector.
TRiAi. ExAMiNER: Yes. . .
Q. Yes. What did you do in trying to go back to work for Rutter-Rex?
A. I went into the factory, and I met Johnny Drake at the door, and he asked
me what I wanted. I told him I came in to put an application for a job and
he asked me wasn't I Rosalie Thornton's sister and I told him yes, and so he
told me, he said, "Oh, now you want your job," and I said yes. He said, "Didn't
I tell you not to strike in the beginning?" I said, "You did tell me that," but
said, "can I still put in an application now"
He told me no, they wasn't taking applications that day. So I asked him when
could I come back. He said any other time but not today.
On cross-examination the following ensued:
Q. Whe*i you went back to apply and talked to Mr. Drake, did you go at the
suggestion of the union or was that your own idea?
The WITNESS: It was my own idea.
Q. (By Mr. READ.) You had had no contact with the union?
A. I had not
Q. And this was right after the strike terminated?
A. No. This was in 1956.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consideration of the entire record leads me to conclude that Weathersby was not
misspeaking when she stated that the year was 1956 when she applied for reinstate-
ment, rather than 1955, and that if Weathersby went to the plant after the strike at
all it was no sooner than May 1956 Such an application,. I conclude, would be
too late
Throughout her testimony Weathersby displayed a tendency to overstate matters
and to build up just as strong a case against the Company as possible Weathersby
attributed to Superintendent Drake a statement indicating hostility to strikers (denied
by Drake), which is inconsistent with the testimony of the overwhelming majority
of the strikers concerning Drake's remarks to them upon )applying for reinstatement
Weathersby testified that she was sure she applied for reinstatement in April 1955
because it was 3 months after her baby was born However, twice Weathersby
testified that she was pregnant the latter part of 1955 She later testified that she lost
only two babies, one in 1951 and the other in 1958 From this it would appear that
Weathersby had a child born in 1956 rather than 1955
In her statement Weathersby stated that she never again applied after her April
1955 application Despite the General Counsel's efforts to rehabilitate Weathers-
by, I am not convinced There is a very serious inconsistency between Weathersby s
statement and that of her sister, Rosalie Thornton, concerning a rock-throwing in-
cident during the strike, which further indicates Weathersby's unreliability After
observing Weathersby on the stand and considering the record as a whole, I find that
the General Counsel has not established a timely application for reinstatement by
Weathersby after the strike
D The reinstated within 5 days defense (schedule 6(c))
I General discussion
All of the employees named on schedule 6(d) of the Company's amended answer,
excepting Raymond Cerf, w}iose case has been dismissed, were named in one or the
other of the Union's April letters requesting reinstatement of the striking employees
Treating the Union's April letters of application as having no force and effect, the
Company pleads in its amended answer with respect to these employees that they
were reinstated within 5 days of their application It is true that these employees
were reinstated within 5 days of their personal application at the plant However,
this is no defense whatever to the claim in the specification for backpay beginning
5 days after the Union's letters of application in April, which I have found constituted
valid applications for reinstatement on behalf of the employees named in these
letters
2 The individual cases
MARY CARTER
Reinstatement
Applied -
Reinstated
As alleged in
specification
4-11-56 (U i
4-25-56
4-20-55
4-25-55
As admitted
by Company
Backpay period
As found by
Trial Examiner
Begins 4-20-55
Ends 4-25-55
i Carter was named in the Union s letter of application dated April 8 1955 which was received by the
Company on April 11, 1955
Evidence adduced by the Company regarding Carters nonavailability for work at
the time of the Union's application in her behalf Carter testified that she went back
to work for the Company as soon as she was ready for work after the birth of her
child in December 1954 The Company admits however, that Carter personally
applied for reinstatement on April 20, 1955 In view of the fact that Carter actually
went back to work on April 25, I find that Carter was available when she personally
applied on April 20 and that she is entitled to backpay for the 3 working days com-
mencing with the date of her personal application and ending on the date of her
reinstatement on April 25
Conclusions Mary Carter is entitled to backpay as set forth in the Appendix
J H RUTTER-REX MANUFACTURING COMPANY 1481
RAYMOND CERF '
The claim on behalf of Raymond Cerf was dismissed on motion of the General
Counsel
HELEN CLAY
Applied 4-5-55 (U 9-20-55 Begins 4-14-55
Reinstated 9-70-65 - 9-20-55- Emds $-1-55
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Clay was employed by Haspel's from April 1955 until the end of July 1955,
when she quit because of illness 49 Thereafter Clay was unavailable for employment
until she went back to work for the Company on September 20, 1955
Conclusions No willful loss of earnings has been proven Helen Clay is entitled
to backpay as set forth in the Appendix, which reflects the termination of her back-
pay period on August 1, 1955
FRED HARRIS
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Reinstatement
Applied
Reinstated
As alleged in
specification
4-5-55 (U )
5-10-55
As admitted
by Company
5-9-56 -
5-10-55
Backpay period
AS found by
Trial Examiner
Begins 4-14-55
Ends 5-10-55
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Harris credibly testified that he did day work during the 31/2-week backpay
period While Harris' recollection of the extent of his daywork was not altogether
clear, I find that Harris had 11 days of work at $6 per day during the backpay
period Harris sought to draw unemployment compensation during this period
Conclusions No willful loss of the earnings has been proven Fred Harris is
entitled to backpay as set forth in the Appendix, which includes deductions for interim
earnings not stated in the specification
GENNIE HOLLINGSHED
Applied -
Reinstated _
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U) - -
10-10-55 - .
10-10-55
10-10-55
No backpay
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Hollingshed did not look for work at all during the backpay period
Conclusions Gennie Holhngshed willfully incurred a loss of earnings and is not
entitled to backpay
ELNORA PATTERSON
All claim on behalf of Patterson was dismissed on motion of the General Counsel
Y The amount or Clay 's earnings at Ilaspel s in 1955-3 indicate that she worked there
the full month of July
1482 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
Applied -------------------
Remstated ----------------
Begins: 4-19-55.
Ends: 8-3-55.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Washington- worked at Haspel's during both quarters of the backpay
period. However, the work was irregular, particularly in 1955-3, and when laid off
by Haspel's, Washington drew partial unemployment compensation. She also looked
for -full-time jobs, but, could not recall the names of the places at which'she applied.
Conclusions: No willful loss of earnings has been proven. Beatrice Washington
is entitled to backpay as set forth in the Appendix.
HELEN WILLIAMS
All claim on behalf of Helen Williams was dismissed on motion of the General
Counsel.
- MARION WILLIAMS
As alleged in
specification
BEATRICE WASHINGTON
Reinstatement
As admitted
by Company
Backpay period
As found by
Trial Examiner
4-8-55 (U.)------------
8-3-55------- ----------
8-3-55-- ---------------------
8-3-55-----------------------
Reinstatement
Applied -------------------
Remstated----------------
As alleged in
specification
4-5-55 (U )------------
1-24-56---------------
As admitted
by Company
1-24-56----------------------
1-24-56----------------------
Backpay period
As found by
Trial Examiner
Begins : 4-14-55.
Ends- 1-24-56.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Williams worked in an antique shop commencing in June 1955 and con-
tinued working there until a few days before her reinstatement by the Company.
Prior to obtaining this job Williams had unsuccessfully looked elsewhere for
employment.
Conclusions: No willful loss of earnings has been proven. Marion Williams is
-entitled to backpay as set forth in the Appendix 50
E. The no-vacancy defense (schedules 6(d), (e), and (h))
1. The nature of the Company's operations
A brief discussion of the nature of the Company's operations is essential to an
understanding of the Company's contentions regarding a lack of vacancies for re-
turning strikers. The discussion which follows pertains not only to the employees
listed in schedule 6(d) but also to those listed in schedules 6(e) and (h).
In its manufacture of shirts and pants 51 the Company maintains a highly engineered
and thoroughly integrated operation. Some 46 different operations are involved in
the manufacture of pants, and 57 operations in the manufacture of shirts. The
w The Company brought out at the hearing that at the time the Company received the
Union's April 5, 1955 , letter of application naming Williams , she no longer lived at the
address given for Williams in the letter. What the Company' s position is at this time
regarding this point is not clear since the Company did not brief the individual cases. In
case the Company is contending that the union letter is invalid as to Williams for lack of
a proper address , I will state my conclusions . This defense is outside the issues framed by
the specification and the Company 's amended answer, and hence not properly before me.
In any event, in the absence of evidence of an unsuccessful attempt to reach Williams at
the address given in the Union 's letter, which was not forthcoming , I find no merit in this
argument. ' • '
m Primarily the Company makes work shirts and work pants for commercial customers.
It also fills Government contracts for substantial quantities of shirts and pants.
J. H. RUTTER-REX MANUFACTURING COMPANY t 1483
Company's whole manufacturing process is carefully, designed to insure that the cut
pieces move from the cutting room through'the numerous-operations at a rate,which
will achieve the desired daily production (100 dozens of shirts and pants a day when
operating at full capacity), keeping all operators occupied as nearly full time as
possible without overproducing some parts and underproducing others. This is
difficult to accomplish even under normal circumstances because it is not possible
to hire a sufficient number of trained operators with efficiency equal to that of the
Company's best operators, and also because of absences and turnover which inevitably
occur in a large-scale operation such as the Company's which employs women almost
exclusively.
2. The evidence generally as to a lack of vacancies
The Company relies primarily on the general testimony of Rutter in support of
its contention that a lack of vacancies in the classifications of the returning strikers
was responsible for its delay in reinstating, or its failure to reinstate, the employees
listed in schedules 6(d), (e), and (h). The lack of vacancies was attributable to
several things, Rutter testified. The'Company's production requirements after the
strike were lower due to loss of business during the strike, which resulted in fewer
openings for returning strikers. As of the close of the hearing in this case in 1963,
the Company's business still had not returned to its prestrike level. Changes in the
product mix during the strike resulted in the discontinuance of a few operations, and
the commencement of other new operations in which the strikers lacked experience.
Rutter's testimony as to the general lack of vacancies after the strike, irrespective
of the job classifications involved, is not borne out by the record as a whole in. this
case. The figures as to the number of replacements still on the payroll at various
intervals after the strike show that there were at least as many replacements on the
payroll at all times as there were unreinstated strikers who had applied for rein-
statement. This resulted in part from the turnover at the Company's plant, which
is considerable,52 and in part from the Company's relative slowness in dismissing re-
placements to make room for returning strikers. Take, for example, the figures for
the end of 1955 (using information from the Company's December 24, 1955, payroll).
As of this time, the Company had reinstated 120 of the female employees here in-
volved. Subtracting these 120 employees from the total number of female employees
whom I have found the Company was required to reinstate, 184, leaves 64 strikers,
at most, whom the Company was still obliged to reinstate as of December 24, 1955.53
As of this date there were approximately 86 female replacements still on the Com-
pany's payroll.54 The Company still had 53 replacements on the payroll as of
June 24, 1961, which is the end of the period covered by the specification.
Regarding the lack of vacancies in specific jobs, Rutter testified that the available
vacancies were filled either by returning strikers or by replacements whom the Com-
pany was not obligated to dismiss because they were filling jobs which nonreturning
strikers had formerly occupied. Some of the nonreturning strikers had occupied key
positions which had to be filled before a balanced flow of work through the plant
could be established and maintained. Other strikers who had applied for reinstate-
ment, according to Rutter, could not be located when needed and this caused delays
for other returning strikers whose operations were related to and subsequent to the
missing strikers' operations. '
Rutter further testified that the Company could not indiscriminately dismiss re-
placements but had to do so gradually so as to avoid a "complete upheaval" in pro-
duction In other words, according to Rutter, the Company had to try to fit the
strikers into slots in which they could perform with reasonable efficiency and dis-
patch and avoid becoming a bottleneck in the production system. Otherwise there
would be a loss of work for other employees at more advanced stages of the produc-
tion process. It is not clear from Rutter's testimony in this regard, whether he in-
tended to convey the idea that even where a replacement was working at the very
52 A glance at General Counsel's Exhibit 47 gives some indication of the large amount
of hiring and firing which regularly goes on at the Company ' s plant in an effort to main-
tain a work force of the size and competence required.
5' Consideration may be limited to the female strikers, of whom there are 200 named in
the specification , since the defense of a lack of vacancies Is raised only In connection with
the female operators.
54 The figure of 86 female, replacements is ascertained from the lists contained in both the
specification and General Counsel's Exhibit'47. While this 86 figure is not precise in that,
as explained above, General Counsel's, Exhibit 47 includes a_ few nonunit'employees, the 86
figure appears sufficiently to exceed the number of nonreinstated striliers`to allow for any
overstatement contained in the 86 figure.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation upofr which a returning experienced striker had worked before the strike,
he could not promptly dismiss such a replacement because the returning striker's
loss of skill during her absence from the plant would disrupt production . If such
was the purport of Rutter 's testimony , I believe it to be based on misconception of
the Company's obligations to the strikers under the Act . As unfair labor practice
strikers , they were entitled to reinstatement, upon application . Consequently, in
my opinion , the Company was obliged promptly (within 5 days ) to dismiss all re-
placements still working in the operation of a returning striker, regardless of any
disruptive effect upon production due to the employee's loss of skill during the strike.
Any loss of skill thus occurring is attributable to the strike , and the Company, having
been responsible for the strike from the beginning , must bear the consequences of its
unlawful conduct.
While I recognize that the Company must have had serious problems in handling
the large number of strikers applying about the same time in April 1955, I conclude
that the Company 's difficulties were not nearly as great as Rutter 's testimony indi-
cates, The persuasive factor impelling me to reach this conclusion is the almost
complete lack of proof in specific cases that the Company faced the problems to
which Rutter testified. As indicated above, and as the following discussion of the
129 cases in which a lack of a vacancy is alleged as a complete or partial defense
shows, no evidence whatever was adduced as to the absence of a vacancy in 93 of
the' 129 cases. In 20 additional cases, the evidence brought out by the Company
established the contrary of the facts alleged by the Company in its amended answer;
i.e., that a replacement was working for the Company at the very operation the re-
turning striker had performed before the strike at the time the striker personally
applied for reinstatement . In only 16 of the 129 cases in these categories was
evidence presented even tending to support the allegations of the amended answer.
In only 10 of these 16 cases was a problem presented by the application for rein-
statement of the returning striker. Construing the testimony and evidence support-
ing this defense most favorably to the Company's position , the operations of 4 of
these 10 employees were discontinued (Pearl Ferguson , Dorothy Reed, Wilhelmina
Ray Blanchard, and Estelle Woodridge ), and only returned strikers were performing
the operations of the remaining 6 (Joyce Griffin, Helen Bentley , Minnie Fernandez,
Doris Bowles, Audrey Lewis, and Orelia Moore). As to these 10 employees-and
it is only 10 altogether out of the 129 employees regarding whom the Company
pleaded that it had no vacancy-that the Company did have a problem. There were
no replacements working on their prestrike operations and, as found below, a reassign-
ment was necessary. Regarding the remaining 6 of the 16 concerning whom evi-
dence was adduced tending to support the Company 's plea of no vacancy , 2 of these
(Georgiana Davis Deruisa and Marguerite Bozonier ) had been transferred to new
operations a few months before the strike began . While there were no replacements
working on the operations Deruisa and Bozonier had worked on immediately before
the strike when they applied, replacements were working on their former operations
in which they both had experience before the strike. The other four were learners,
who, as found below, could have been retrained on whatever operations the least
skilled replacements were performing (Gloria Delpit, Gloria Dixon, Eunice John-
son, and Alice Denley Gabriel). At the time the strike was called off on April 5,
1955, the Company had in its employ nine female employees who had been hired
since the beginning of 1955. Some of these were presumably beginners who could
readily be displaced to make room for the returning strikers who had not completed
their learning period.
In view of the Company's widespread failure to substantiate its no-vacancy defense
(as found herein , a problem was presented in the cases of only 10 out of the 129
employees listed in schedules 6(d), (e), and (h)), I do not credit Rutter's general
testimony as to the difficulties the Company faced in reinstating strikers after the
strike was called off. I must assume , in view of the Company 's failure to sustain its
burden of proving that there were no vacancies in specific cases, that with the ex-
ception of the few employees as to whom the record showed the absence of a vacancy
when they applied for reinstatement , that such vacancies did exist . Consequently,
as far as the record shows, the Company's problem when the strike was called off
was largely one dismissing replacements on the particular operations that the re-
turning stril -°rs had performed before the strike.
While 1(htter testified that the Company's problem was rendered more difficult by
the fact that the Company had no knowledge of the availability of strikers who were
named in the Union 's letters of application , the record shows that 102 of the 129
strikers listed by the Company in schedules 6(d), (e), and (h) had made personal
applications for reinstatement by the end of the first month after the strike was over.
J. H. RUTTER-REX MANUFACTURING, COMPANY 1485
The Company certainly cannot validly contend that it had no knowledge of the
availability of these employees who were inside its plant seeking to go to work.
3. The evidence regarding the Company's practice of transferring and
retraining workers
In view of the fact that there were a few employees as to whom the Company
established that there was no vacancy in the operation which they were performing
immediately before the strike it becomes necessary to consider whether, under the
circumstances of this case, the Company's reinstatement obligation included the
obligation to transfer and retrain employees in new operations.
Changes in the demand for the Company's products occasionally occur, causing a
complete shutdown of either the pants side or the shirt side for short periods, depend-
ing upon the orders the Company has received. At other times changes in the prod-
uct mix result in the discontinuance of some operations and the commencement of
other operations not previously performed in the plant. In these situations the Com-
pany customarily reassigns and retrains operators when they return to work after
absences due to pregnancy or for other reasons. Transferred employees, as Rutter
admitted, have an advantage over brand new employees of at least 20 percent. A
few of the operations on both pants and shirts are very similar and the transferred
operator has a much greater advantage in learning the new operations. The Com-
pany actually transferred and retrained a number of the strikers who were rein-
stated during and after the strike.
The Company maintains a training program and all employees hired, unless they
have previously worked in the Company's plant, are put through the training pro-
gram, which for certain operations lasts as long as 18 weeks. Some trainees fail to
make the grade and are dropped almost immediately. Others are let go before the
completion of the training program. Rutter explained the need for the training
program as follows:
the nature of our business is such that . . because of the turnover, dis-
charges, quits, leaves of absence, . if you don't hire new people to train or
get old people back, your factory will dwindle; you just won't make the produc-
tion you are supposed to make for the number of machines you have.
In view of the Company's need for experienced operators after the strike, the
advantage which experienced operators have over new employees in learning new
operations, the availability of the training program, and the company practice, when
necessary, of transferring and retraining operators, I conclude that it is reasonable to
hold that the Company's reinstatement obligation to those few operators whose old
operations were no longer available and to the learners embraced the duty to trans-
fer and retrain them on new operations which were still being performed by
replacements.
I recognize that retraining involves some loss of efficiency for the Company for
the reason that it takes time for an operator to achieve the speed on a new operation
which the operator had been able to maintain on her old operation. But the Com-
pany cannot expect to fulfill its obligations to the returning strikers completely with-
out disruption of its business. As the Board found, it was the Company's unfair
labor practices which prolonged the strike and created the problems with which
the Company was confronted at the end of the strike. As between the Company
and the returning strikers, I have no hesitancy in concluding that it is more equitable
to require the Company rather than the strikers to suffer the loss involved.
4. The individual cases
IWORNER ALEXANDER
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-5-55(U.)------------- 4-19-55---------------------- Begins 4-14-55
Reinstated---------------- 4-25-55---------------- 4-25-55--- ------------------- Ends, 4-25-55.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific, evidence adduced by the Company as to the lack of a vacancy: None.
Rutter's testimony establishes the contrary; namely, that the Company had two re-
placements on the payroll at the time of Alexander's application.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Alexander applied for work at Bonck's during the short backpay period.
Conclusions: No willful loss of earnings has been proven. Iworner Alexander is
entitled to backpay as set forth in the Appendix.
CALEDONIE ALONZO
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied---------- --------- 4-5-55 (U )------------ 4-20-55----------------------
Begins, 4-14-55
Reinstated ---------------- 5-14-551--- ------------ 5-4-55-- --------------------- Ends 5-4-55
i The specification alleges May 14, 1955, as the date of Alonzo's reinstatement, but the General Counsel
in his brief states, in accordance with the allegations of the Company's amended answer, that Alonzo was
reinstated on May 4, 1955
Specific evidence adduced by the Company as to the lack of a vacancy: None.
The contrary is shown by Rutter's testimony that a replacement was discharged to
make room for Alonzo when she was reinstated on May 4, 1955. Rutter was unable
to explain the delay from-April 20, 1955, when-Alonzo admittedly applied in person;
to May 4, 1955.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Besides personally applying for reinstatement at the company plant on
April 20, 1955, Alonzo did not look elsewhere for employment during the backpay
period. As I construe Alonzo's testimony, she was informed when she applied per-
sonally at the plant that the Company would let her know when to report for work.
Conclusions: In view of the fact that Alonzo was told she would be notified when
to report for `wbrk, it has not been, established that she willfully incurred a loss in
earnings by 'not ' looking elsewhere for work in the,2 weeks' period 'following her
personal application at the Company's plant on May 4, 1955. See Monroe .Feed
Store, 122 NLRB 1479, 1481. Alonzo is entitled to backpay as set forth in the
Appendix.
BEATRICE ANDERSON
Applied-------------------
Reinstated ----------------
Reinstatement Backpay period
As alleged in, As admitted As found by-
specification by Company Trial Examiner
4-18-55------ ----------
7-12-55----------------
4-18-55- ---------------------
7-12-55----------------------
No backpay.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Upon cross-examination, Rutter admitted that a replacement, Laverne Handy, con-
tinued to work on Anderson's job as a side and end seamer on pants after Anderson's
reinstatement on July 12, 1955.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Anderson did not look for work elsewhere between the time she personally
applied at the Company on April 18, 1955, and the date of her reinstatement in July
Anderson was told when she filled out her application on April 18 that she would be
called when there was an opening on her operation.
Conclusions: Anderson was justified in waiting a reasonable time to be called back
to the plant. However, in my opinion, almost 3 months is too long. Beatrice
Anderson willfully incurred a loss of earnings and is not entitled to any backpay.
J. H. RUTTER-REX MANUFACTURING COMPANY 1487
CARRIE ANDERSON
Applied-------------------
Reinstated----------------
i I have considered Rutter's testimony that the Company on June 29,1955. notified Anderson to report for
work on July 12, 1955, but that she was not put to work until July 18. 1955, because of the unavailability of
Mary Gant, a rocap operator, whose operation fed Anderson's operation as a ticket and loop tacker. How-
ever, in view of the fact, as found below, that both Andersoi4 and Gant, by personally applying at the
plant, the former on April 22, 1955, and the latter on April 15,1955, had demonstrated their availability at a
time when the Company had replacements on both operations, and the further fact that the Company
chose to retain the replacements for about 2 more months, at least, I find it inequitable to penalize Anderson
for the subsequent temporary failure of communication between the Company and Gant. Accordingly, I
find that the backpay period should end on July 18, 1955, rathei than on July 12, as is suggested in Rutter's
testimony.
Specific evidence adduced by the Company as to the lack of a vacancy- None.
Rutter testified on cross-examination that a replacement, Anita Morris, continued
working on Anderson's job as ticket and loop tacker after July 18, 1955, the date
upon which Anderson was reinstated.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Carrie Anderson credibly testified that during the backpay period she
applied for work at various sewing factories, at a laundry, and that` she also tried to
get housework.
Conclusions: No willful loss of earnings has been proven. Carrie Anderson is
entitled to backpay as set forth in the Appendix.
-DORA ANDERSON
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-22-55----------------
7-18-55----------------
4-22-55----------------------
7-18-55----------------------
Begins 4-28-55
Ends 7-18-55 i
Reinstatement
Applied-------------------
Reinstated----------------
As alleged in
specification
4-5-55 (U )---------=--
5-2-55-- ---------------
As admitted
by Company
4-18-55---------------------
5-2-55-----------------------
Backpay period
As found by
Trial Examiner
Begins 4-14-55.
Ends 5-2-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Rutter's testimony establishes the contrary, i.e., a "new-hire," Doretha Turner, was
discharged to make room for Dora Anderson. '
Evidence adduced by the. Company , egarding interim employment and willful loss
of earnings: Apart from personally applying for reinstatement at the Company's
plant on April 18, 1955, Anderson did not look elsewhere for employment during
the backpay period. When Anderson filled out her application on April 18, 1955,
she was informed that she would be called when work picked up.
Conclusions: For the reasons set forth in Alonzo's case, no willful loss of earnings
has been proven. Dora Anderson is entitled to backpay as set forth in the Appendix.
IDA ANGRUM
Reinstatement
As alleged in
specification
As admitted
by Company
Backpay period
As found by
Trial Examiner
Begins 8-23-55.Applied------------------ 8-15-55- --------------- 8-15-55------- ---------------
Reinstated---------------- 10-3-55---------------- 10-3-55- --------------------- Ends 10-3-55.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Coinpany as to the lack of a vacancy None
On cross-examination Rutter admitted that on October 3, 1955, when Angrum was
reinstated, three replacements were still working on Angrum's job as a corner maker
on pants
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Angrum worked throughout the backpay period at the Ochsner Foundation
Hospital in Metairie, Louisiana
Conclusions No willful loss of earnings has been proven Ida Angrum is en-
titled to backpay as set forth in the Appendix
GLORIA BROWN AUGUST
Reinstatement
Applied
Reinstated
As allegedin
speciflcat n
As admitted
by Company
As found by
Trial Examiner
4-5-55 (U ) 4-15-55 - - - Begins 4-14-55
7-25-55 7-25-56 Ends 7-25-55 1
i Rutter testified that August was sent a letter in July 1955 notifying her to report on July 19 1955 but
that she did not come in until July 25, 1955 The Company apparently contends that the backpay period
should end on July 19 rather than July 25 However, as found below in connection with the cases of the
employees listed in schedule 6(e) the letters upon which Rutter was relying in his testimony did not con
tain specific offers of reinstatement In effect these letters constituted requests to the employees to contact
the personnel office to furnish information about their availability (infra) In several instances when
the employees (Doris Bowles, Katie Carr, and Mary Guidry, for example) repotted at the plant after re-
ceiving these letters they were not put to work right away Carr was called back about a week later,
Bowles 2 weeks later, and Guidry over a month later Under all the circumstances I do not regard Rutter's
testimony about sending the letters as justifying the earlier ci}tgif date
Specific evidence adduced by the Company as to the lack of a vacancy None
Rutter admitted on cross-examination that two replacements, Lorraine Barton and
Martha Johnson, were on August's operation of fly stitcher when August applied for
reinstatement
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings None As indicated above, August was not called as a witness in this pro-
ceeding Sotfal security recgicds introduced into evidence by the General Counsel
show that August worked for a short time at the end of June and the first part of
July 1955, for another sewing factory, Southern Manhattan Sportswear
Conclusions No willful loss of earnings has been proven Gloria Brown August
is entitled to backpay as set forth in the Appendix
CLARINDA AULTMAN
Backpay period
Reinstatement
Applied
Reinstated __ _ _ _ _
As alleged in
specification
41545 (U )^ - -- -
7-25-55
As admitted
by Company
4-19-56
7-25-55_ _
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 7-25-551
I Rutter testified that Aultman was sent a inter in July 1955 notifying her to report on July 19 1955
Aultman did not report until July 25, 1965 The Company apparently contends that Aultman s backpay
should terminate on July 19 For the reasons given in the case of Gloria Brown August this contention
is rejected
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Aultman testified that throughout the backpay period she worked between
3 and 4 days a week as a maid during the day and about 3 or 4 nights a week as a
babysitter She received $4 a day for her maid's work and 50 cents per hour for
her night's work, which was of unspecified duration I find it reasonable to infer
that Aultman worked 4 days a week as a maid and 3 nights a week for 3 hours a
night, babysitting, netting her a total weekly income of $20 50
J. H. RUTTER-REX MANUFACTURING COMPANY 1489
Conclusions: No willful loss of earnings has been proven. Clarinda Aultman is
entitled to backpay as set forth in the Appendix, which reflects the adjustments stated
herein.
BELL BRIMMER
Reinstatement
Applied -------------------
Reinstated ________________
As alleged in
specification
1-5-55 (U.)------------
5-26-55----- -----------
As admitted
by Company
4-11-55----------------------
5-26-55----------------------
Backpay period
As found by
Trial Examiner
Begins: 4-14-55.
Ends: 5-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by thl' Company on the willful loss of earnings issue: Brimmer
credibly testified that she looked for work at Haspel's and Famous-Sternberg's during
the 6-week backpay period. Brimmer further testified that she had previously filed
applications at numerous other establishments, but could not recall whether she went
back to these places during the backpay period.
Conclusions: No willful loss of earnings has been proven. Bell Brimmer is en-
-titled to backpay as set forth in the Appendix.
MILLIE BROOKS
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-5-55 (U.)------------ 4-20-55- --------------------- Begins: 4-14-56.
Reinstated---------------- 7-26-55---------------- 7-26-55---------------------- Ends: 7-26-55.1
i Rutter testified that Brooks was sent a letter earlier in July notifying her to report for work on July 19,
1955. Brooks did not report until July 26, 1955. The Company apparently contends that the backpay
period should terminate on July 26, 1955. For the reasons given in the case of Glona Brown August, this
contention is rejected.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company on the willful loss of earnings issue: Brooks
credibly testified that during the backpay period she applied for work at Haspel's and
other places the names of which she could not remember. Brooks earned $9 during
the backpay period doing domestic work, which is not stated in the specification.
Conclusions: No willful loss of earnings has been proven. Millie Brooks is entitled
to backpay as set forth in the Appendix, which reflects the adjustment stated above.
IDELE BROWN
Reinstatement Baekpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied -------------------
Reinstated________________
4-5-55 (U) ------------
7-25-55----------------
4-21-55----------------------
7-25-55----------------------
Begins: 4-14-55.
Ends: 7-25-55.1
i While Rutter to 'fled that Idele Brown was one of a group who was sent a letter notifying her to report
to work on July 19, 1955, Brown credibly testified that she did not remember receiving a letter, that she
received a telephone call calling her back, and that she went back when she was called.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: During th° backpay period Brown worked for the National Linen Service
,and at Bonck's, a sewing factory, for a short period, and also unsuccessfully looked
for work at two hospitals.
221-731-67-vol. 158-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions: No willful loss of earnings has been proven. Idele,Brown, is-.en-
titled to backpay as set forth in the Appendix.
MARGUERITE BROWN
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied ------------------- 4-5-55 (U.)------------ 4-14-55---------------------- Begin- 4-14-55.
Reinstated________________ 7-19-55---------------- 7-19-55---------------------- Ends: 7-19-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Brown worked days throughout the backpay period as a maid at the St.
Charles Hotel. Brown worked nights during the backpay period and for a year
thereafter on the steamer "President." Brown did not look for other employment
during the backpay period.
Conclusions: No willful loss of earnings has been proven. As set forth in the
specification, Brown's earnings at the St. Charles Hotel are deductible from her gross
backpay, but her earnings on the steamer "President" are not, as this was sup-
plementary employment which Brown held outside her working hours for the Com-
pany and which she continued to hold after her return to work for the Company.55
Brown is entitled to backpay as set forth in the Appendix.
MIRIAM BRYANT
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
.'Applied------------------- 4-27-55---------------- 4-27-55----------------------
Begins 5-5-55
' Reinstated__________ 5-12-55---------------- 5-12-55---------------------- Ends: 5-12-55.
Specific evidence adduced by the Company as to lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Bryant was employed throughout the backpay period at the Asher
Laundry 56
Conclusions: No willful loss of earnings has been proven. Miriam Bryant is en-
-titled to backpay as set forth in the Appendix.
OLA MAE BURKHALTER
Applied-------------------
Reinstated ----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U )i-----------
4-28-55-------- --------
4-14-552 .....................
-14-55 Z---------------------
4-28-55 ----------------------4-28-55----------------------
Begins. 4-14-55.
Ends. 4-28-55.
i As amended at the hearing.
2 The Company's amended answer originally alleged an April 4, 1955, application date. At the hearing
it was further amended to show the April 14 date, which is the date on Burkhalter's application in the
Company's files
ss See Phelps Dodge Corp. v. N.L.R B., 313 U.S. 177, 198, footnote 7, citing Pusey, Haynes
& Brei8h Company, 1 NLRB 482, 486-487. See also Link-Belt Company, 12 NLRB 854,
872; Acme Mattress Company, Inc., 97 NLRB 1439, 1443.
ee The General Counsel's motion to amend the specification to show interim earnings of
$21.43 was granted.
J. H. BUTTER-REX MANUFACTURING COMPANY : - 1491
Specific evidence adduced by the Company as to the lack of a vacancy : - None.
Evidence adduced by the Company , regarding interim earnings and willful -loss of
earnings: When Burkhalter personally applied for employment on April 14, 1955,
Rutter told her she would be notified when to report . Within 2 weeks Rutter did so.
Burkhalter also testified as to two places she applied for employment during the
backpay period , but her memory was so poor that I do not rely on this testimony-
Conclusions: In view of Rutter's informing Burkhalter that she would be notified
when to report , she was justified in waiting 2 weeks to hear from the Company,
without looking for work elsewhere in the meantime , if such is the case . On these
facts, in my opinion , no willful loss of earnings has been established . Burkhalter is
entitled to backpay as set forth in the Appendix.
ELIZABETH BURNS
Applied -------- -----------
Reinstated________________
Specific evidence adduced by the Company as to the lack of a vacancy None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Burns worked 2 days a week throughout the backpay period for Dr. Cherrie
and was paid $4 per day: Burns could not recall looking for work at any sewing
factory during the backpay period. However, according to Burns' credited testi-
moriy, she frequently went to the Louisiana State Employment Bureau looking for
work during the backpay period.
Conclusions : No willful loss of earnings proven. Burns is entitled to backpay on
the basis set forth in the Appendix, which reflects her earnings working for Dr.
Cherrie.
KATIE RUTH CARR
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)------------
7-12-55----------------
4-18-55----------------------
7-12-55----------------------
Begins 4-14-55.
Ends . 7-12-55.
Reinstatement
Applied-------------------
Reinstated _______________
As alleged in
specification
4-5-55 (U.)------------
7-25-55----------------
As admitted
by Company
4-15-55----------------------
7-25-55--- -------------------
Backpay period
As found by
Trial Examiner
Begins 4-14-55.
Ends 7-25-551
I Carr was one of the group sent a letter in July 1955, notifying them to contact the personnel office on
July 19, 1955 Upon receiving this letter, Carr quit her job at Haspel's. However, upon reporting at the
plant, Supervisor John Drake informed her that he was setting up a new line and that she would be called
in a couple of days. She reported the following Monday, July 25, 1955, as notified.
Specific evidence adduced by the Company as to the lack of a vacancy. None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Carr was employed by Haspel's throughout the backpay period
Conclusions: No willful loss of earnings has been proven. Katie Ruth Carr is
entitled to backpay as set forth in the Appendix.
LUCILLE COASTON
Reinstatement
As alleged in
specification
As admitted
by Company
Backpay period
As found by
Trial Examiner
Begins 4-14-55.Applied ------------------I 4-5-55 (U )------------- 4-27-55----------------------
Reinstated ---------------- 7-11-55_____----_-_---- 7-11-55-_____-_____---___---- Ends 7-11-55
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Coaston worked throughout the backpay period for National Service In-
dustrial Life Insurance Company and did not look elsewhere during this time
Conclusions No willful loss of earnings has been shown Coaston is entitled to
backpay as set forth in the Appendix
WILHELMINA COLEMAN (WOODS)
Reinstatement
As alleged in
specification
Applied
Reinstated
4-21-55
8-19-56
As admitted
by Company
4-21-55
8-19-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company on the willful losses issue Woods worked for
Masson-Blanche during the entire backpay period
Conclusions No willful loss of earnings has been shown At the hearing the
General Counsel did not have available the social security report on Woods' earnings
at Maison Blanche during the backpay period This report was subsequently re-
ceived and is included in General Counsel 's Exhibit 7 It shows that Woods earned
$268 67 at Masson Blanche in the whole of 1955-2 and that she earned $121 in
1955-3 Wilhelmina Coleman Woods is entitled to backpay as set forth in the
Appendix, which reflects the deduction of her interim earnings at Maison-Blanche
during the applicable periods
ETHEL COSTON (PICKENS)
Reinstatement
As alleged in
specification
Applied
Reinstated
4-6-55 (U )
5-23-55
As admitted
by Company
4-15-55
5-23-55
Backpay period
As found by
Trial Examiner
Begins 4-29-55
Ends 8-19-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 5-23-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings None
Conclusions No willful loss of earnings has been proven Ethel Coston Pickens
is entitled to backpay as set forth in the Appendix
SHIRLEY COURSEAULT (MERCADEL)
Applied -
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-8-55 (U )
5-18-55
4-19-55
5-16-55
Begins 4-19-55
Ends 5-16-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regrading interim earnings and willful loss of
earnings None
Conclusions No willful loss of earnings has been proven Mercadel is entitled
to backpay as set forth in the Appendix
J. H. BUTTER-REX MANUFACTURING COMPANY 1493
SHIRLEY CRAWFORD
Reinstatement
Applied-------------------
Reinstated----------------
As alleged in
specification
5-4-55-----------------
7-12-55-- --------------
As admitted
by Company
5-4-55-------- ---------------
7-12-55 ------ ----------------
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Crawford did not look for work anywhere else after personally applying for
work at the Company.
Conclusions: Crawford has willfully incurred a loss in earnings and is not entitled
to any backpay.
CLARA CROPPER
Applied------------------- 4-5-55 (U.)------------ 4-14-55 ---------------------- Begins. 4-14-55.
Remstated ---------------- 4-25-55---------------- 4-25-55---------------------- Ends: 4-25-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Cropper testified that she applied for work at Haspel's and the Tulane
Shirt Factory during the backpay period. While the Company questions Cropper's
credibility because of her omission of the names of these establishments on a 916
form filled out in 1955, I believe Cropper was telling the truth about these two at-
tempts to gain work in April 1955.
Conclusions: No willful loss of earnings has been proven. Clara Cropper is
entitled to backpay as set forth in the Appendix.
ELVERA DAVIS
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Backpay period
As found by
Trial Examiner
No backpay.
Reinstatement
Applied-------------------
Reinstated----------------
As alleged in
specification
4-5-55 (U.)------------
7-20-55--- -------------
As admitted
by Company
4-14-55 ----------------------
7-20-55----------------------
Backpay period
As found by
Trial Examiner
Begins: 4-14-55.
Ends: 7-20-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company on the willful losses issue: Davis testified that
she thought she had sought work at Haspel 's and Bonck's during the backpay period,
and, after applying several times at Southern Manhattan , that she was hired by that
concern . The social security report shows that Davis worked 2 or 3 weeks at South-
ern Manhattan about the end of June and the first part of July. While Davis also
testified that she worked 2 or 3 weeks for the Reuther Seafood Company during the
backpay period I am convinced, in view of the vagueness of Davis' memory for dates,
and the absence of any earnings from Reuther during the period in question on the
social security report, that Davis was mistaken in her testimony that she worked for
Reuther during the backpay period.
Conclusions: No willful loss of earnings has been proven . Elvera Davis is en-
titled to backpay as set forth in the Appendix.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GEORGIANA DAVIS (DERUISA)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 5-23-55 1--------------- 5-23-55 2--------------------
Begins. 5-31-55.
Reinstated ---------------- No-------------------- No-------------------------- Ends Still accruing'
I Deruisa was sent a letter offering her reinstatementtduring the hearing but did not respond.
2 As amended at the hearing.
3 As amended at the hearing.
Specific evidence adduced by the Company as to the lack of a vacancy: Deruisa
was hired on operation button up shirts and after 11/2 years on that operation was
transferred to operation blocking left and right sleeve facings, an operation which is
done only on Government shirts. This is the operation Deruisa was performing
when the strike began, according to Rutter. This operation, Rutter testified, had
been discontinued at the time Deruisa applied for reinstatement on May 23, 1955,
because of the completion of the Government contract for shirts. Rutter further
testified that there was no blocking on the continuous sleeve, facing-used on com-
mercial shirts. With respect to the availability of a position as button up operator,
Rutter testified that two of the Company's button up operators in the week ending
May 28, 1955, were hired during the strike.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Deruisa applied for work at Touro Hospital in 1955-2, in addition to filing
a written application for reinstatement with the Company. Deruisa did not look
for work at any other sewing factory during this quarter. The only other quarters
for which the General Counsel claims backpay for Deruisa (within the period cov-
ered by the specification) are 1959-3 and 1959-4. During these two quarters
Deruisa worked a little over 2 months at the Monteleone Hotel and thereafter
obtained a job at Mercy Hospital. Deruisa did not seek work at sewing factories
during these two quarters.
Conclusions: In view of the availability of Deurisa's old job as button up operator
on the day she applied for reinstatement and in view of the Company's obligation, as
found above, to transfer and retrain, if necessary, employees on operations other than
the ones they were performing before the strike, the Company's contention that there
was no vacancy for Deruisa is rejected. No willful loss of earnings has been proven.
Georgiana Davis Deruisa is entitled to backpay as set forth in the Appendix.
THELMA DAVIS (SMITH) (MATTHEWS)
Reinstatement Backpay period
As alleged in As admitted As found by_
specification by Company Trial Examiner
Applied ------------------- 4-1-55-----------------
4-15-55--- ------------------- Begins . 4-8-55.
Remstated--------------- 5-30-55 ---------------- 5-30-55----- -----------------
Ends 5-30-55.
Evidence adduced by the General Counsel regarding Davis' application for rein-
statement : General Counsel's Exhibit 25 is an application form filled out by Thelma
Smith dated April 1, 1955, which was produced by the Company from its files.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Upon learning that the strike was called off, Matthews quit her job at a
restaurant and bar and applied for reinstatement at the Company. When Davis was
informed on April 1 that the Company had nothing available for her at that time,
and' that she would be notified when to report, she went back to the restaurant and
bar and reapplied for work there. The job had been filled, however. Davis .filed
a second application with the Company on April 15,1955, and in May applied for
work at Bonck's. -
J. H. RUTTER-REX MANUFACTURING COMPANY
Conclusions: No willful loss of`barnings has been proven. Thelma Davis Smith
Matthews is entitled to backpay as set forth in the- Appendix.
GLORIA DELPIT
1495
Reinstatement
Applied-------------------
Reinstated----------------
As alleged in
specification
4-5-55 (U.)------------
No--------------------
As admitted
by Company
5-11-55-- --------------------
No-------------------------
i The Company mailed a letter to Delpit during the hearmg offering her reinstatement. It was returned
undelivered, marked "Moved."
Evidence adduced by the General Counsel regarding Delpit's expenses: No evi-
dence was adducd supporting the claim of $19.50 for expenses. This sum will be
disallowed as an expense.
Specific evidence adduced by the Company as to the lack of a vacancy: Delpit,
a learner on operation set front pocket facing, had been hired about a week before
the strike began. Rutter testified that when Delpit applied in person on May 11,
1955, one very productive replacement, Lovell Beckham, was on the operation set
front pocket facing and that she was let go in July 1955. Rutter further testified
that of the three or five operators on this operation since Delpit's personal applica-
tion, three have been returned strikers. Rutter's testimony indicates that for most of
the time three operators were all that were required on this operation. I recognize
the Company's problem in view of its balanced production system in having to dis-
miss a skilled replacement to make room for a learner on a difficult operation. How-
ever, the Company was in need of learners in the period after the strike was called
off, it in fact hired four female employees in the month of April 1955.
Evidence adduced by the Company on the willful loss issue: None. Delpit was
not called as a witness. The record indicates that her present address is unknown.
The social security records show earnings for Delpit at Fort Restaurant in 1955-4
and 1956-1, but not in 1956-2, as stated in the specification. Rather they show
earnings in 1956-2 of $16.70 working for Morris Latter.
Conclusions: The Company's defense in this case is rejected. As found above,
the Company was obligated to retrain returning strikers in other operations to make
room for them. No willful loss of earnings has been proven. Gloria Delpit is en-
titled to backpay as set forth in the Appendix, which reflects adjustments for unproven
expenses and for her correct interim earnings in 1956-2. See discussion below
regarding missing strikers.
MATHILDA DELPIT
Backpay period
As found by
Trial Examiner
Begins 4-14-55.
Ends Still accruing!
Reinstatement
Applied------------------
Reinstated----------------
As alleged in
specification
4-5-55 (U.)------------
8-15-55 ----------------
As admitted
by Company
4-14-55----------------------
8-15-55----------------------
Backpay period
As found by
Trial Examiner
Begins: 4-14-55.
Ends 8-15-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company on the willful loss issue: Although Delpit
had a very poor recollection of her efforts to obtain work the social security reports
indicate that she was working during most of the backpay period. Due to the
change to the calendar quarter basis of computation, Mathilda Delpit is entitled to
a small amount of backpay in 1955-3 which is not claimed in the specification.
Delpit's interim earnings of $148 in 1955-3 working for Finest Foods will be deducted.
Conclusions: No willful loss of earnings has been proven. Mathilda Delpit is
entitled to backpay as set forth in the Appendix, which gives the revised computation
for 1955-3.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GLORIA DIXON
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied- 4-22-65 (U) 5-10-55 (exh C) Begins 1-1-55
Reinstated No - - NO.. - - - Ends Still accruing 1
i The Company tendered Dixon reinstatement at the hearing on April 4, 1963
Specific evidence adduced by the Company as to the lack of a vacancy Dixon,
a learner on operation top pressing on pants, was originally hired on April 5, 1954
When she personally applied for reinstatement on May 10, 1955, a `new hire,"
Albedia Hunter, a productive operator, was on Dixon s operation The other two
on this operation were returned strikers Hunter worked at top pressing until
November 1956
Evidence adduced by the Company on the willful loss issue Dixon, as far as she
could recall, did not look for work in 1955 until she applied to, and was hired by
Baumer Foods in the latter part of December 1955 In 1956-1 Dixon went from
Baumer Foods to the New Orleans Recreation Department where she was employed
throughout the backpay period
Conclusions Dixon willfully incurred losses of earnings until she obtained the job
with Baumer Foods the last week in December 1955 Her earnings this week at
Baumer Foods were in excess of what she would have earned at the Company Con
sequently, the backpay period as to Dixon commences on January 1, 1956 Dixon is
entitled to backpay as set forth in the Appendix, which reflects the elimination of
all claim for backpay in 1955
ELIZABETH DRAKE
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied -- - - 4-6-65 (U) - 4-14-55 Begins 4-14-55
Reinstated _ - - -- - 4-25-66 - - - - 4-26-55 Ends 4-25-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Drake did not look for work any place but the Company's plant during the
backpay period There is no evidence as to what Drake was told when she applied
in person at the plant on April 14, 1955, and consequently the iecord does not show,
for example, either that she was told that she would be recalled shortly (which
appears likely in view of the fact that she was recalled in less than 2 weeks after she
applied in person ) or that she was told that her job had been discontinued and that
she would not be recalled at all In these circumstances it appears reasonable, as
to all those strikers recalled within about 2 weeks after their personal application,
to infer that they were given some indication when they personally applied at the
plant that they would be recalled soon, and to hold as to them that they did not incur
a willful loss of earnings by not looking elsewhere for work in the first 2 weeks or
so after they applied for reinstatement at the plant Cf Monroe Feed Store, 122
NLRB 1479, 1481
Conclusions No willful loss of earnings has been proven Elizabeth Drake is
entitled to backpay as set forth in the Appendix
J. H. RUTTER-REX MANUFACTURING COMPANY 1497
NORMA DUCKETT
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied------------------ 4-5-55 (U.)------------ 4-15-55---------------------- Begins: 4-14-55.
Reinstated--------------- 8-3-55----------------- 8-3-55----------------------- Ends: 8-3-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Duckett worked for Haspel's for 4 months but was laid off for lack of
work just about the time the strike was called off. For,a few months thereafter,
Duckett drew unemployment compensation and, pursuant to a provision in the
Louisiana law, reported at Haspel's to draw her benefits. In' the summer of 1955,
according to Duckett's credible testimony, she applied for work at various :sewing
factories. During the-backpay period Duckett worked for O'Reilly 2 days a week for
8 weeks at $5 a day. - '
Conclusions: No willful loss of earnings has been proven. Norma Duckett is
entitled to backpay as set fourth in the Appendix, which reflects Duckett's additional
interim earnings working for O'Reilly.
ARTHEMISE DUFAUCHARD
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied------------------ 4-8-55 (U.)------------ 4-15-55---------------------- Begins: 4-18-55.
Reinstated--------------- 4-28-55------ --------- 4-28-55---- ------------------ Ends: 4-28-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Dufauchard did not look for work any place but the Company's plant dur-
ing the backpay period. The record does not disclose what Dufauchard was told
when she personally applied for reinstatement.
Conclusions: For the reasons stated in the case of Elizabeth Drake, no willful loss
of earnings has been proven . . Arthemise •Dufauchard is, entitled..to'backpay as set
forth in the Appendix.
ISABELLA EDDINGTON
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied------------------- ---------------- 4-5-55 (U.)------------ 4-15-55---------------------- Begns: 4-14-55.
Reinstated---------------d ------- 4-25-55---------------- 4-25-65---------------------- Ends: 4-25-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Eddington did not look for work any place but the Company's plant during
the backpay period. When Eddington personally applied at the plant for reinstate-
ment, she was told she would be called when the Company had an opening for her.
Conclusions: No willful loss of earnings has been proven. Isabella Eddington is
entitled to backpay as set forth in the Appendix.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. ALICE EVANS
Applied-------------------- ---------------
Reinstated---------------tated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)------------
7-12-55- ---------------
4-14-55 ----------------------
7-12-55----------------------
Begins 4-14-55.
Ends 7-12-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Evans was employed from about the middle of June until about the time
she was put back to work by the Company. As to her search for work prior to
that time, Evans could not recall the names of places where she applied, but she
testified convincingly that she looked for work during this period, explaining that she
needed work at this time.
Conclusions: No willful loss of earnings has been proven. Alice Evans. is en-
titled to backpay on the basis set forth in the Appendix.
VIVIAN FARRIA
Applied------------------
Reinstated---------------
Reinstatement Backpay penod
As alleged in As admitted As found by
specification by Company Trial Examiner
6-10-55 ----------------
8-8-55----- ------------
6-10-55----------------------
8-8-55-----------------------
Begins . 6-20-55.
Ends 8-8-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Farria worked 2 days a week as a maid throughout the backpay period and
did not look for other work. She was paid $5 per day for this work.
Conclusions: By not seeking work during the 3 days a week on which she was
idle, Farria willfully incurred a loss of earnings . Accordingly, Farria's total gross
backpay will be computed upon the basis of what she would have earned working for
the Company 4 days in each biweekly payroll period, or .4 times the average em-
ployee earnings for each biweekly payroll period in the backpay period. Farria is
entitled to backpay as set forth in the Appendix, which reflects the adjustment stated
above.
PEARL FERGUSON
Applied------------------
Reinstated---------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-8-55 (U.)------------
8-8-55- ----------------
4-11-55----------------------
8-8-55-----------------------
Begins 4-19-55.
Ends, 8-8-55.
Specific evidence adduced by the Company as to the lack of a vacancy: Ferguson's
operation before the strike was sewing on suspender buttons. After the strike this
operation had been discontinued. Upon her recall, Ferguson was retrained on the
pants seam pressing operation.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Ferguson worked at three different places during the less than 4 months'
backpay period and the record shows that she actively sought work when unemployed.
J H RUTTER-REX MANUFACTURING COMPANY 1499
Conclusions While the record shows that Ferguson s suspender button sewing
operation had been discontinued, in view of my finding that the Company was
obligated to retrain returning strikers, which the Company belatedly did in Ferguson's
case, this defense is rejected No willful loss of earnings has been proven Pearl
Ferguson is entitled to backpay as set forth in the Appendix
ETHEL FOREMAN (ASKINS)
Reinstatement
Applied
Reinstated
As alleged in
specification
7-11-55
No
7-11-55
As admitted
by Company
Backpay period
As found by
Trial Examiner
Begins 7-19-55
Ends Still accruing i
I On April 19 1963, while Foreman was on the witness stand the Company offered her reinstatement
Askins declined
Specific evidence adduced by the Company as to the lack of a vacancy None
The contrary is established by Rutter's testimony that a replacement, Odeal Stills,
continued on Askins old operations-button sew and buttonhole hip pocket-until
September 1955 Rutter admitted that Askins was experienced on several operations
and having been used as a utility operator must have had some degree of proficiency
above and beyond the average "
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings While Askins had substantial earnings in each quarter throughout the back-
pay period , they averaged between a third and a quarter less than Askins would have
earned at the plant During the backpay period Askins did day woik as a maid,
worked in a restaurant, and for the past 6 years had worked in a laundry During
the whole time Askins did not look for a job in a sewing factory She explained
that she "was looking for work that [she] could get' and that she was `satisfied with
the jobs she held
Conclusions In my opinion, an employee in the economic level of Askins who
works virtually full time during the backpay period, does not breach her duty to
mitigate damages by failing to seek a better paying job I have considered whether
Askins might be regarded as having removed herself from the sewing factory labor
market at some point during her tenure at the laundry because of her acceptance of
this "regular" job at the laundry I conclude that I cannot draw any such speculative
inference and that the effectuation of the policies of the Act requires that Askins be
made whole for her losses up until the time of the Company 's offer of reinstatement
to her See Mastro Plastics Corporation, 136 NLRB 1342, 1349-50, and footnote
20 Ethel Foreman Askins is entitled to backpay as set forth in the Appendix
GENEVER FOUNTAIN
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
rrial Examiner
Applied 4-5-55 (U ) 4-14-55 Begins 4-14-55
Reinstated 5-2-55 5-2-55 Ends 5-2-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings During the backpay period Fountain applied for work at Baspel's and one
other establishment she could not remember the name of
Conclusions No willful loss of earnings has been proven Genever Fountain is
entitled to backpay as set forth in the Appendix
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ZEARLEE FRANKLIN
Reinstatement
As alleged in
specification
Applied
Reinstated
4-5-55 (U )
5-10-55
As admitted
by Company
4-14-55
5.30-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 5-16-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Franklin testified that she "looked for a job" but that she could not recall
the names of the places or the dates when she applied On this state of my record
I conclude that the Company has not sustained its burden of proof on this issue
Conclusions No willful loss of earnings has been proven Zearlee Franklin is
entitled to backpay as set forth in the Appendix
GENEVA GABRIEL
Reinstatement
As alleged in
specification
Applied
Reinstated
4-5-55 (U )
7-25-55
As admitted
by Company
4-14-55
7-25-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 7-26-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Gabriel testified that she had gone to many places looking for work during
the backpay period and that she had made a note at the time of the names and
addresses of these places In his examination of Gabriel, counsel for the Company
suggested that this note was fabricated to buttress false testimony While I under-
stand the basis for Counsel's attack on Gabriel's credibility, I conclude, in view of
Gabriel s testimony as a whole and her demeanor while testifying, that Gabnel 's testi-
mony concerning her search for work was not false
Conclusions No willful loss of earnings has been proven Geneva Gabriel is
entitled to backpay as set forth in the Appendix
MARY GANT (WARD)
Reinstatement
As alleged in
specification
Applied
Reinstated
4-8-55 (U )
7-18-55
As admitted
by Company
4-8-55 - - --
7-18-55 - _ - -- - - - --
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 7-18-55
Specific evidence adduced by the Company as to the lack of a vacancy None
The contrary is shown by Rutter's testimony that on July 18, 1955, when Gant was
reinstated two replacements were still working on rocap, which was Gant's opera-
tion Rutter further testified that at the end of April, which was not long after Gant
had applied in person, the Company had two `brand new people" on rocap who were
not producing what one experienced operator could produce Yet the Company, by
its own admission did not even attempt to get in touch with Gant until the end of
June, at which time it purportedly sought to have Gant report on July 12 As I
construe Gant's testimony, Gant received a post card on Wednesday, July 13, telling
her to report for work, went to the plant on Thursday, July 14, and arranged to report
for work on Monday, July 18 Gant reported on July 18, as thus arranged
J. H. RUTTER-REX MANUFACTURING- COMPANY - 1501
Evidence adduced by.the Company, regarding interim employment and willful loss
.of earnings: Gant did housework 2 days a week, throughout the backpay period.
She did not seek work elsewhere.
Conclusions: By not seeking work during the 3 days a week'on which she-,was
idle, Gant willfully incurred a loss of earnings. Accordingly, Gant's total gross
backpay will be computed upon the basis of what she would have earned working for
the Company 4 days in each biweekly payroll period, or -.4 times the average em-
ployee earnings in each biweekly payroll period in the backpay period, to which
will be added the vacation bonus set forth in the specification. Gant is entitled to
backpay as set forth in the Appendix.
CATHERINE GIVENS
Reinstatement
Applied -------------------
Reinstated________________
As alleged in
- specification
4-22-55 (U.)-----------
6-3-55-----------------
As admitted
by Company
6-3-55-----------------------
June 1955____________________
Backpay period
As found by,
Trial Examiner
Begins: 5-3-55.
Ends. 6-3-55.
Specific evidence adduced by the Company as to the 'lack .of a vacancy: None.
The Company inadvertently included Givens in schedule (d), as Mr. Read stated'at
the hearing. Apparently she should have been included in schedule (c).
Evidence adduced by the Company regarding interim .earnings and willful loss of
earnings: Givens unsuccessfully applied for jobs at several garment factories during
the backpay period.
Conclusions: No willful loss of earnings has been proven. Catherine Givens is
entitled to backpay as set forth in the Appendix.
HERISE GREEN
Reinstatement Backpay period -
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied ------------------- 4-6-55 (U.)----------- 4-19-65--------------------- Begins: 4-14-55.
Reinstated________________ 6-20-55---------------- 6-20-55------- ----- ---------- Ends: 6-2045.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: During the pre-Easter season 1955, Green worked for Marlin Candies, Inc.
Good Friday was her last day of work there. Thereafter for some weeks she was
unemployed . During this period she registered with the State employment service,
and looked for work many places. She finally got a job in June with the New Orleans
Laundry.
Conclusions: No willful loss of earnings has been proven. Herise Green is en-
titled to backpay as set forth in the Appendix.
LOUISE GREEN
Reinstatement
As alleged in
specification
As admitted
by Company
Backpay period
As found by
Trial Examiner
Begins: 4-14-55.Applied------------------_I 4-5-55 (U.)------------I 4-15-55 ----------------------
Reinstated---------------- 4-28-51 ___°_--°----° 4-28-56______________________ Ends: 4-28-55.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Green did not look for work during the backpay period other than applying
in person at the Company's plant. The record does not disclose what Green was
told when she personally applied for reinstatement.
Conclusions: For the reasons stated in the case of Elizabeth Drake, no willful loss
of earnings has been proven. Louise Green is entitled to backpay as set forth in the
Appendix.
ETHEL GRIFFIN
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------ ------------- 4-5-55 (U.)------------ 4-14-55
(Ans.)--------------- Begins- 4-14-55.
Reinstated---------------- 4-26-55---------------- 4-26-55-- -------------------- Ends: 4-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Ethel Griffin did not look for work during the backpay period other than
applying in person at the Company's plant. The record does not disclose what
Griffin was told when she personally applied for reinstatement.
Conclusions: For the reasons stated in the case of Elizabeth Drake, no willful loss
of earnings has been proven . Ethel Griffin is entitled to backpay as set forth in the
Appendix.
JOYCE GRIFFIN
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied------ ------------- 4-8-55 (U.)------------ 5-11-55 ----------------------
Begins: 4-19-55.
Reinstated---------------- 5-23-55---------------- 5-23-55---------------------- Ends: 5-23-55.
Specific evidence adduced by the Company as to the lack of a vacancy: -When
Griffin was reinstated all of the girls on her operation were returned strikers.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Joyce Griffin worked throughout the backpay period for New Orleans
Laundry.
Conclusions: No willful loss of earnings has been proven. In view of the Com-
pany's obligation, hereinabove found, to transfer and retrain workers, the Company's
defense in this case is rejected. Joyce Griffin is entitled to backpay as set forth in the
Appendix.
MARY GUIDRY
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-5-55----------------- 4-14-55----------------------
Begins: 4-14-55.
-Reinstated---------------- 8-26-55 ---------------- 8-26-56----------------------
Ends: 8-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
When Guidry was reinstated, Asa Jackson, a replacement, was transferred to another
job to make room for her.
Evidence adduced by the Company regarding interim earnings and willful loss of
-earnings : Guidry was sent a letter in July instructing her to contact the Company
J. H. RUTTER-REX MANUFACTURING COMPANY , 1503
about reporting for work. When she did so, Supervisor Drake told her that he would
call her later . During the backpay period Guidry sought work at various establish-
ments, including sewing factories , but her only earnings were $6.50 for 1 day's work
as a maid in 1955-2.
Conclusions: No willful loss of earnings has been proven. Mary Guidry is en-
titled to backpay as set forth in the Appendix, which reflects her earnings as a maid.
CATHERINE HALL
Applied-- ---------------
Reinstated ---------------
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
4-20-55----------------
6-3-55-----------------
4-20-55----------------------
6-3-55- ----------------------
Begins: 4-28-55.
Ends: 6-3-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Although Hall could not remember where she applied for work during the
backpay period, I credit her testimony that she looked for work during this time.
There is no countervailing evidence.
Conclusions: No willful loss of earnings has been proven . Catherine Hall is en-
titled to backpay on the basis set forth in the Appendix.
VEOILA GIBSON HAMILTON
Applied------------------
Reinstated ---------------
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Hamilton did not look anywhere for employment during the backpay
period, except at the Company's plant. The record does not disclose what Hamilton
was told when she personally applied for reinstatement.
Conclusions: For the reasons stated in the case of Elizabeth Drake, no willful loss
of earnings has been proven. Veoila Gibson Hamilton is entitled to backpay as set
forth in the Appendix.
NINNIE HUGHES (JOHNSON)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.) -----------
5-2-55-------- ---------
I
4-18-55------------- ---------
5-2-55-----------------------
Begins: 4-14-55.
Ends: 5-2-55.
Reinstatement
Applied ------------------
Reinstated ---------------
As alleged in
specification
4-5-65 (U.) __-__------
7-26-55----------------
As admitted
by Company
5-12-55----------------------
7-26-55----------- -----------
Backpay period
As found by
Trial Examiner
Begins: 4-14-55.
Ends: 7-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Johnson worked throughout the backpay period at the New Orleans
Laundry.
Conclusions: No willful loss of earnings has been proven. Ninnie Hughes John-
son is entitled to backpay as set forth in the Appendix.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ELNORA JACKSON
Reinstatement
Applied -
Reinstated
As alleged in
specification
4-5-55 (U )
8-15-56
As admitted
by Company
7-12-65
8-15-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 8-15-55
Specific evidence adduced by the Company as to the lack of a vacancy None_
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Jackson worked 1 day a week doing housework throughout the backpay
period Jackson testified that she filled out an application for employment during
the backpay period at Louisiana Garment and one other factory Althou'h the Com-
pany makes a serious attack on Jackson 's credibility 57 I observed Jackson on the
stand, and am of the opinion that the record is insufficient to warrant the finding that
Jackson did not look for work during the backpay period
Conclusions No willful loss of earnings has been proven Elnora Jackson is en-
titled to backpay as set forth in the Appendix
EUNICE JOHNSON
Reinstatement
Applied
Reinstated
Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
8-15-54 4-11-55 (exh C) Begins 9-6-54
No No Ends Still accruing I
i The Company , without waiving its defenses in this proceeding offered Johnson reinstatement at the
hearing on February 15 1963 Johnson accepted
Evidence adduced by the General Counsel respecting Johnson s application for
reinstatement Johnson testified that in August 1954 she and a group of ladies talked
to Rutter about going back to work Rutter told her, according to Johnson, that
he had another girl on the machine on which she had been training, but that he
would call her as soon as he opened another training class She did not fill out
an application at this time Rutter testified that the Company did not have an
application from Johnson as of August 1954 58 Under all the circumstances I
credit Johnson's testimony about her August 1954 application for reinstatement
Absent more specific testimony concerning the precise date in August on which
Johnson made her application , I find that it was made on August 30, 1954
6'1 The Company introduced into evidence Respondent's Exhibit 130 a form 916 which
lists Jackson as being unemployed during the backpay period and does not indicate as
the instructions on the form direct the names of the places where she looked for work
during the period she was unemployed The record in this case indicates that the form
916's were not filled out by the Board representatives but by representatives of the Union
at the union office from information furnished by the employees The information was
obtained in 1958, almost 3 years after the strike was over The record does not fully dis
close the procedure utilized by the union representatives in eliciting the information which
was put down in the forms Under all the circumstances I do not regard Respondent's
Exhibit 130 as compelling the conclusion that Jackson was testifying falsely
58 The General Counsel states in his brief without referring to the transcript page that
Rutter denied having any recollection of this conversation with Johnson in 1954 I have
been unable to and in the record any such denial by Rutter Rutter's only testimony was
that the Company's files contained no August 1954 application which for the reasons stated
above is not conclusive of the fact of Johnson a not having applied in August 1954 If
I should be in error in my understanding of the record on this point it may be observed
that the Company 's failure to assist use by briefing the individual cases has handicapped
me throughout my consideration of the case
. J. H. RUTTER-REX MANUFACTURING COMPANY
Specific evidence adduced by the Company as to the lack of a vacancy: Johnson
who was first hired less than a month before the strike started, was a learner on
operation button and buttonhole hip pockets. Rutter credibly testified that on
August 15, 1954, two returned strikers, Dorothy Netter and Theresa Torregano,
were the only employees working on this operation. About a month later Odeal
Stills, a replacement , was hired to work on Johnson's operation. During August 1954
the Company hired 14 female employees.59 No evidence was adduced by the Com-
pany concerning the lack of vacancies thereafter on Johnson's operation.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Johnson testified at length concerning her efforts to obtain work after ,she
applied for reinstatement in August 1954. While she could not remember the
specific places she looked in 1954-3, she testified that she usually went to the down-
town stores, the hospitals, and the factories when she was looking for work., John-
son's subsequent work history indicates this to be true, as she worked for various
stores , restaurants , and private individuals, in addition to applying at various sewing
factories. In 1955, during the quarters for which a claim is made, Johnson had sub-
stantial earnings working for a newsdealer. From 1957 to 1958, during the per-
tinent quarters, Johnson had some work in each quarter except 1959-4. In addi-
tion, during this period Johnson answered ads in the newspapers for jobs, and made
the rounds of the stores, hospitals, and factories, and applied at sewing factories,
including the Company's. In both of the pertinent quarters of 1960, Johnson did
some work. After a short stint attending a school of practical nursing in 1960-3,
an excluded quarter, Johnson again made the.-rounds of the hospitals, but was un-
successful in obtaining work. Finally, after registering with the State Employment
Service, Johnson was referred to a restaurant where she worked about a month in
1960-4. Johnson could not recall what efforts she made to obtain work in the first
half of 1961. - -
Conclusions: The General Counsel has sustained his burden of proof with respect
to Eunice Johnson's application for reinstatement. In view of the Company's need
for trainees during the strike, its subsequent hiring of a replacement on her-operation
without recalling Johnson, and its obligation, as found above, to retrain returning
strikers, the Company's defense that there was no vacancy on her operation is rejected.
The Company has failed to sustain its burden of proving a willful' loss of earnings.
Eunice Johnson is entitled to backpay as set forth in the Appendix. The Appendix
reflects the following adjustments . The beginning of the backpay period on Sep-
tember 6 , 1954, and the elimination of all claims for 1957-3, 1960-1, and 1960-3.
The latter adjustments are made in accordance with the General Counsel's request in
his brief.
LOUELLA JOHNSON
1505
Reinstatement
Applied ------------------
Reinstated ---------------
As alleged in
specification
4-5-55 (U.) -----------
8-3-55-----------------
As admitted
by Company
4-20-55----------------------
8-3-55---- -------------------
Backpay. period
As found by
Trial Examiner
Begins: 4-14-55.
Ends: 8-3-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Johnson worked throughout the backpay period at the New Orleans
Laundry. It was not a full-time job, however. Johnson credibly testified that she
applied for work at quite a few places during the backpay period, including two sew-
ing factories. I do not regard Respondent's Exhibit 174, a form 916, as raising a
credibility question, for the form is designed to elicit facts concerning search for
work only during periods of unemployment, and Johnson had a job at the laundry
during the entire backpay period.
Conclusions: No willful loss of earnings has been proven. Louella Johnson is
entitled to backpay as set forth in the Appendix.60
W This figure is taken from General Counsel 's Exhibit 47.
ea The specification inadvertently fails to state that the period from June 7 through 20,
1955 , is excluded in computing gross backpay for 1955-2 because of illness . An adjust-
ment is also made in Johnson 's interim earnings because of this illness. Based upon all
Johnson ' s earnings at the laundry, these are estimated at $22 .50 per week.
221-731-67-vol . 158-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VIRGINIA JOHNSON
Reinstatement
Applied -
Reinstated _
As alleged in
specification
4-5-55 (U )
8-5-56
As admitted
by Company
4-29-55 (Ans)
8-5-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Johnson, who had a very poor memory for dates, testified that she made a
personal application for reinstatement after the strike but could not give the date on
which she made it Johnson further testified that she had applied for jobs many
times but could not say whether or not these applications were made after the strike
was called off
Conclusions No willful loss of earnings has been proven Virginia Johnson is
entitled to backpay on the basis set forth in the Appendix
EDNA JONES
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 8-5-55
Reinstatement
Applied
Reinstated
As alleged in
specification
4-5-55 (U )
4-28-56
As admitted
by Company
4-19-55
4-22-661
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 4-28-55
I This must be a typographical error for Respondent s Exhibit 176 contains the following notation "Date
to report 28 Apr 65 "
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Jones did not look for work during the backpay period aside from filing an
application at the plant on April 19 The record does not disclose what Jones was
told when she personally applied for reinstatement
Conclusions For the reasons stated in the case of Elizabeth Drake, no willful loss
of earnings has been proven Edna Jones is entitled to backpay as set forth in the
Appendix
SHIRLEY JONES (TAYLOR)
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-8-55 (U )
12-7-55
10-28-56
12-7-56
Begins 4-19-55
Ends 6-30-551
i Due to his failure to comprehend oven after interviewing Taylor that she had been unemployed up until
September, the General Counsel erroneously concluded that Taylor was not available for employment
after the end of 1965-2 and claimed no backpay for 1955-3 and 1955-4 At the hearing the General Counsel
moved to amend the specification to add backpay for 1955-3 and 1955-4 and to give the Company the de-
duction for her interim earnings at the nursery This motion to amend is denied The basic facts upon
which the motion is based were available to the General Counsel at the time the specification was issued,
and I, pursuant to my rulings in such situations decline to grant such motions to amend where the effect
of doing so is to increase the amount of backpay claimed for the employee
J H RUTTER-REX MANUFACTURING COMPANY 1507
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Taylor earned $25 a week working for a nursery from the end of the
strike until September 1955
Conclusions No willful loss of earnings has been proven Shirley Jones Taylor
is entitled to backpay as set forth in the Appendix, which reflects her earnings at
the nursery
OLIVIA JOSHUA
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied 5-10-55 6-10-55 Begins 5-18-55
Reinstated 6-8-55 6-6-55 Ends 6-6-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Joshua unsuccessfully sought work at two other sewing factories during the
backpay period
Conclusions No willful loss of earnings has been proven Olivia Joshua is en-
titled to backpay as set forth in the Appendix
JOHNNIE MAE KEELER
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied - - 4-8-55 (U ) 4-25-55 Begins 4-19-55
Reinstated 8-4-55 8-4-55 Ends 8-4-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings None Keeler, although subpenaed by the Company did not appear The
parties stipulated that she was confined to a mental institution The social security
records introduced into evidence by the General Counsel show that Keeler worked
a short time in 1955-2
Conclusions No willful loss of earnings has been proven Johnnie Mae Keeler is
entitled to backpay as set forth in the Appendix See the discussion in the Ap-
pendix concerning the procedure to be followed in the case of incompetent employees
DOROTHY KELLY
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied 4-25-561 4-25-551 - Begins 5-3-55
Reinstated 5-17-55 5-17-55 Ends 5-17-55
i As amended at the hearing
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Kelly worked for the Alamo Cleaners during the 2-week backpay period
Conclusions No willful loss of earnings has been proven Dorothy Kelly is en-
titled to backpay as set forth in the Appendix
1508 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
ALNETTA KIMBLE' r
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied ------------------ 4-5-55 (U.)----------------------- 4-21-55 --------------------- Begins. 4-14-55.
Reinstated --_____________ 10-1-551 --------------10-1-55 1-------------- 4-28-55 ---------------------- Ends: 4-28-55.
I The specification indicates that Kimble was rehired on 4-28-55. The General Counsel takes the position
that this was not for an equivalent job, and hence the backpay period continued until she was restored to
her regular job
The evidence adduced by the General Counsel regarding the nonequivalence of the
job to which Kimble was assigned on April 28, 1955: Before the strike Kimble was
a topstitcher ' of waistbands in one of the production lines. Upon being rehired, on
April 28, 1955, she was assigned to topstitching waistbands-on a machine which was
out of the line, where her earnings were substantially less'than they had been before
the strike. A replacement, Shirley Marrero,' who was hired in June 1954, con-
tinued on a job on the line as a topstitcher of waistbands until August 1955. The
General Counsel relies- on the following as establishing that Kimble was not properly
reinstated: The fact that a replacement filled a position 'on the line as a topstitcher
of waistbands and the further fact that Kimble's earnings after the strike were con-
siderably lower than her former earnings. However, after the strike Kimble was
assigned to the identical operation which she had performed before the strike, and
I am not persuaded that the reason for Kimble's lower earnings after the strike was
her assignment to a machine out of that line. The production records before and
after the strike, upon which the General Counsel relies, indicate to me that it was
Kimble's loss of skill during the strike which accounted for her lower production after
the strike. This is suggested by Kimble's gradually increasing production which al-
most reached her prestrike level before she was reassigned to a machine on the line.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
The contrary is established by the fact that the replacement, Shirley Marrero, filled a
job as topstitcher of waistbands until August 1955.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Kimble credibly testified as to her search for employment during the back-
pay period, which included efforts to obtain work at two other sewing factories be-
sides the Company's.
Conclusions: The General Counsel has failed to establish that Kimble was not
properly reinstated. The Company has failed to prove a willful loss of earnings.
Kimble is entitled to backpay as set forth in the Appendix, which reflects the ending
of the backpay period on April 28, 1955.
GERTRUDE LA ROSE
Reinstatement
Applied-------------------
Reinstated ________________
Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
4-5-55 (U.)------------ 4-15-55---------------------- Begins: 4-14-55.
6-9-55----------------- 6-9-55----------------------- Ends: 6-9-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: La Rose worked during most of the backpay period as a maid and earned
$132 working in this capacity. Also, La Rose looked for work at various sewing
factories during this time.
Conclusions: No willful loss of earnings has been proven. Gertrude La Rose is
entitled to backpay as set forth in the Appendix, which reflects the deduction of
La Rose's earnings as a maid.
J. H. RUTTER-REX MANUFACTURING, COMPANY • 1509
EDNA LE BEAU
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied ----- ---------------- - ---- --------- 4-5-55 (U.)------------ 4-18-55---------------------- Begins: 4-14-55.
Reinstated ---------------- 5-5-55 -----------`----- 5-5-55----------------------- Ends. 5-5-65.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: About the same time as Le Beau personally applied for reinstatement at the
plant, she placed an advertisement in the paper seeking work as a maid. The record
does not disclose whether or not Le Beau was seeking full time work . In response
to this advertisement Le Beau obtained a job on which she worked 2 days a week.
After working about 2 weeks on this job, Le Beau was reinstated by the Company.
Le Beau did not look for other work while working as a maid.
Conclusions: No willful loss of earnings has been proven . Edna Le Beau is en-
titled to backpay as set forth in the Appendix.
RUBY LEE
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied ------ ------------- 4-5-55 (U.)------------ 4-18-56 ---------------------- Begins . 4-14-55.
Reinstated _______________ 4-26-55---------------- 4-26-55------- •-------------- Ends . 4-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy- None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: During Lee's short backpay period she was registering weekly for, and
drawing, partial unemployment compensation Lee was not referred by the
Louisiana State Employment Service for any jobs during this period. Lee 'was
receiving partial benefits due to the fact that she was working 15 hours a week at
night on the steamer "President," an extra job which she continued to hold for about
a year after returning to work for the Company.
Conclusions: No willful loss of earnings'has been proven. Ruby Lee is entitled
to backpay as set forth in the Appendix.
LOETHA McKINNIE
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied ------------------ 4-28-551-------------- 4-28-55 1------------- ------- Begins 5-6-55.
Reinstated --- - - ------ -- - 5-12-55---------------- 5-12-55 z -------------------- Ends: 5-12-55.
1 As amended at the bearing.
2In the amended answer this date was inadvertently given as 12-5-55.
Specific evidence adduced by the Company as to the lack of avacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: McKinnie worked 3 days a week at a store during the short backpay period.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions: No willful loss of earnings has been proven . Loetha McKinnie is
entitled to backpay as set forth in the Appendix which reflects the deduction of $15'
interim earnings not shown in the specification.
VIVIAN MAGEE
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied------------------- 4-18-55---------------- 4-18-55---------------------- Begins: 4-26-55.
Reinstated________________ 12-5-55---------------- 12-5-55---------------------- Ends: 12-5-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Magee worked full time at Bonck's for about 4 months before being rein-
stated by the Company in December. Prior to that time she had previously applied
at Bonck's and other sewing factories, and had registered for employment at the
State Employment Service.
Conclusions: No willful loss of earnings has been proven. Vivian Magee is en-
titled to backpay as set forth in the Appendix.
ELEANOR MARGIN (COLEMAN)
Applied -------------------
Reinstated_______________
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)i_---------
8-8-55-----------------
4-11-55----------------------
8-8-55-----------------------
Begins: 4-14-55.
Ends- 8-8-55.
i As amended at the hearing.
Specific evidence adduced by the Company as to the lack of a vacancy- None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Coleman was employed throughout the backpay period at a hospital.
Conclusions: No willful loss of earnings has been proven. Eleanor Margin Cole-
man is entitled to backpay as set forth in the Appendix.
DOROTHY MARSHALL
Applied ------------------
Reinstated-__-____________
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.) -----------
4-28-55---- ------------
4-14-55----------------------
4-28-55----------------------
Begms.4-14-55.
Ends- 4-28-55.
Specific evidence adduced by the Company as to the lack of a vacancy. None.
Marshall was a fly stitcher. As stated in the case of Gloria August, two replace-
ments were -n Marshall's operation when she applied for reinstatement in April.
One remained with the Company until October 1955 and the other until Decem-
ber 1955.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Marshall looked for jobs at numerous places, including sewing factories,
after she filled out an application at the plant on April 14, 1955.
Conclusions: No willful loss of earnings has been proven. Dorothy Marshall is
entitled to backpay as set forth in the Appendix.
J. H. RUTTER-REX MANUFACTURING COMPANY 1511
GLORIA MATTHEWS
Applied -------------------
Reinstated._______________
1 Matthews was notified prior to July 18, 1955, to contact the personnel office on July 18. She did not re-
port until July 25, 1955. The Company apparently contends that backpay should terminate on July 18,
1955. For the reasons stated in the case of Gloria Brown, this contention is rejected.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Matthews was employed part time by Haspel's throughout the backpay
period. In his brief the General Counsel has supplied information concerning addi-
tional interim earnings, not shown in the specification, and not otherwise shown in
the record, as follows: 1955-2, $156.96 and 155-3, $33.90.
Conclusions: No willful loss of earnings has been proven. Gloria Matthews is
entitled to backpay as set forth in the Appendix.
ROBERTA MONETTE
Reinstatement Baekpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
b b -----------------
----------------
5-5-55----------------------
7-25-55----------------------
Begins 5-13-55.
Ends: 7-2b-55.i
Reinstatement
Applied -------------------
Reinstated________________
As alleged in
specification
4-5-55 (U.)------------
4-25-55- ---------------
As admitted
by Company
4-14-55----------------------
4-25-55---------------------
Backpay period
As found by
Trial Examiner
Begins: 4-14-55.
Ends: 4-25-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: None. The Company did not call Monette as a witness.
Conclusions: No willful loss of earnings has been proven. Roberta Monette is
entitled to backpay as set forth in the Appendix.
LEOLA MOORE
Applied -------------------
Rennstated________________
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
5-4-55-----------------
8-4-55-----------------
5-4-55-----------------------
8-4-55-----------------------
Begin, 5-12-55.
Ends: 8-4-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: After filing a written application for reinstatement with the Company on
May 4, 1955, Moore substituted for a friend at the U.S. Naval Station for 2 weeks,
while her friend was on vacation. At the end of this time, her employer asked Moore
to stay on but Moore declined, stating that she was expecting to go back to work for
the Company. Throughout the backpay period Moore worked part time selling
cosmetics and netted about $9 per week. As Moore testified, for much of her work-
ing life she "had been doing that type of work on the side along with any other type
of work [she] had been doing." Moore obtained 1 day's work at a seafood bar just
before she was reinstated for which she was paid $4. Moore admittedly sought no
other work in the backpay period than that set out above.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions: Moore willfully incurred a loss in earnings by declining to accept
further employment at the U.S. Naval Station and not seeking further employment
until about August 1, 1955. I regard Moore' s earnings on the cosmetics route as
being in the nature of supplemental earnings for work performed outside of normal
factory working hours which would not be deductible as interim earnings in any event.
Moore is entitled to backpay as set forth in the Appendix, omitting any remuneration
for the period from June 13, 1955, to July 29, 1955, during which time I find that
Leola Moore willfully incurred a loss of earnings.
LENA MOTEN
Reinstatement Backpay period
As alleged in As admitted, As found by
specification by Company Trial Examiner
Applied------------------- 4-5-55 (U.)------------ 4-18-55---------------------- Begins 4-14-55.
Reinstated---------------- 4-28-55---------------- 4-26-55---------------------- Ends: 4-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy- ' None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Apart from applying for work personally at one place and calling to in-
quire about a job at Haspel's, Moten did not look elsewhere for employment during
the 8 working day backpay period.
Conclusions: No willful loss of earnings has been proven. Lena Moten is en-
titled to backpay as set forth in the Appendix.
ROSIE LEE NEWTON
Reinstatement - Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-22-55 (U.)----------- 4-22-55--------- -----------=r
Begins: 5-3-55
Reinstated---------------- 7-12-55---- ------------ 7-12-55------- --------------- Ends: 7-12-55.
Specific evidence adduced by the Company as to the lack of asvacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: None. Newton resided in San Francisco at the time of the hearing and
was not called as a witness by the Company, although I offered to adjourn the hear-
ing to California to enable the parties to call as witnesses the employees residing
there. The specification shows interim earnings throughout the backpay period.
Conclusions: No willful loss of earnings has been proven. Rosie Lee Newton is
entitled to backpay as set forth in the Appendix.
CLOTHILDE NICHOLAS (MARTIN)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-5-55 (U )------------ 6-17-55--- -------------------
Begins: 6-29-55.
Reinstated---------------- 8-2-55----------------- 8-2-55------------- ---------- Ends. 8-2-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: The only place besides the Company where Martin looked for work in the
backpay period was Cute Togs (Southern Manhattan Infantswear), where she was im-
mediately hired about the end of June 1955.
J. H. BUTTER-REX MANUFACTURING COMPANY 1513
Conclusions: Martin v illfully incurred a loss in earnings from April 14, 1955,
to and including June 28, 1955. Martin is entitled to backpay as set forth in the
Appendix.
SHIRLEY PARKER
Applied----------------------------- --------
Reinstated----------------nstated --
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-2'x55 ----------------
7-14-55----------------
4-25-55----------------------
7-14-55----------------------
Begins: 5-4-55.
Ends: 7-14-65.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Parker worked throughout the backpay period at Bonck's.
Conclusions: No willful loss of earnings has been proven. Shirley Parker is en-
titled to backpay as set forth in the Appendix.
YVONNE PARNELL
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied----------------- 6-15-55---------------- 9-55------------------------- Begin, 6-23-55.
Reinstated---------------- No-------------------- No-------------------------- Ends : Still accruing.
Evidence adduced by the General Counsel concerning Parnell's application for re-
instatement: Parnell testified that she filled out a written application for employment
at the Company's plant "about June" 1955. Supervisor Drake told her he did not
have anything for her on that particular day. When asked to be more specific as to
the date on which she filed her written application, Parnell testified that she thought
it was about 4 months after she moved into a new house in January 1955. Parnell
further testified that she went back to the Company's plant looking for work several
more times in 1955. It was stipulated that if Drake were called as a witness he
would testify that he had no recollection of the incident as to which Parnell testified,
and accordingly, that he would neither be able to admit nor deny that such an in-
cident occurred. The Company adduced no other evidence either contradicting
Parnell's testimony about her applications or supporting the allegation in its answer
that Parnell had applied for reinstatement in September 1955.61
Specific evidence adduced by the Company as to the lack of a vacancy: Parnell,
who previously had sewn the flaps, straps, and collars for shirts, was transferred to
tacking sleeves on April 15, 1954, about a week before the strike began. Rutter
testified that on the week ending June 18, 1955, there were three operators on opera-
tion tack sleeve, including one "new hire," Betty Lee Mack. Mack remained on the
payroll until February 1957.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Except for the last week in June 1955, during every quarter in the entire
period for which backpay is claimed by the General Counsel, Parnell worked as a
maid, although from 1956 to 1958, she worked part time. However, during this pe-
riod she looked for work afternoons as a maid. On one occasion Parnell put an ad
611 have considered Respondent's Exhibit 81 upon which the Company apparently relies
as casting de--t on Parnell 's credibility . However , I conclude under all the circumstances
of the case , and particularly the Company 's failure to refute Parnell 's testimony concern-
ing her applications for reinstatement , that Respondent's E'rhibit 81 was sent to the Board
b;° Parnell under a misapprehension of the significance of what she was doing. Parnell's
testimony above set forth is credited.
1514 DECISIONS -OF; NATIONAL . LABOR . RELATIONS . BOARD
in the paper seeking such work. At no time after Parnell obtained work as a maid
did she look. for work in a sewing factory. She was satisfied .with her - work as a
maid.
Conclusions: Parnell made a written! application' for reinstatement on June 15,
1955, as alleged in the specification. No willful loss of earnings has been proven.
Yvonne Parnell is entitled to'backpay as set forth in the Appendix.
-GLORIA,PENN (SMITH)
Reinstatement
Applied -------------------
Reinstated________________
As.alleged in
specification
4-5-55 (U.)------------
5-2-55-----------------
As admitted
by Company
4-18-55----------------------
5-2-55-----------------------
Backpay period -
As found by
Trial Examiner
Begins: 4-14-65.
Ends: 5-2-55.
Specific evidence adduced by the Company as- to the lack of a vacancy' None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Smith worked full time throughout the short backpay period.
Conclusions: No willful loss of earnings has been proven. Gloria Penn Smith is
entitled to backpay as set forth in the Appendix.
LOUISE PHILLIPS (HEARNS)-
Applied---- --------------
Reinstated________________
-Reinstatement Backpay period
As alleged in
specification.
As admitted
-by Company
As found by
Trial Examiner
4-5-55 (U.)------------
7-26-55----------------
4-18-55----------------------
7-26-55----------------------
Begins * 4-14-55.
Ends 7-26-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Hearns was drawing unemployment benefits almost to the end of the back-
pay period, and registered weekly for work with the State Employment Service dur-
ing this time . The employment service referred Hearns for 1 day's work during
1955-2 for which she was paid $5.
Conclusions: No willful loss of earnings has been proven. Louise Phillips Hearns
is entitled to backpay as set forth in the Appendix, which reflects her earnings as a
maid.
Applied -------------------
Reinstated________________
MELVINA POWELL
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
6-6-55----- ------------
7-25-55----------------
6-6-55-----------------------
7-25-55----------------------
B'egms• 6-14-55.
'Ends. 7-25-55.
Specific evidence adduced by the Company as to the lack'of a vacaiicy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings : Powell obtained a job in another sewing factory about the end of June:and
worked the rest of the backpay period. The record is silent with respect to Powell,'s
efforts, if any, to obtain work on the first 2 weeks'in the .backpay period., ;;r
J. H. RUTTER-REX MANUFACTURING COMPANY 1515
Conclusions: No willful loss of earnings has been proven . Melvina Powell is
entitled to backpay as set forth in the Appendix.
GLORIA RAPP ( BENNETT)
Applied-'-----------------
Reinstated----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
5-8-55 (U.)------------
4-28-55----- -----------
4-20-55----------------------
4-28-55--- -------------------
Begins : 4-19-55.
Ends: 4-28-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: During the short backpay period Bennett registered for work at the State
Employment Service in connection with her application for unemployment benefits.
Conclusions: No willful loss of earnings has been proven . Gloria Rapp Bennett
is entitled to backpay as set forth in the Appendix.
WILHELMINA RAY (BLANCHARD)
Applied -------------------
Remstated----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)------------
No--------------------
4-21-55----------------------
No--------------------------
I The Company offered Blanchard reinstatement on May 28, 1963.
Begins* 4-14-55.
Ends: Still accruing!
Specific evidence adduced by the Company as to the lack of a vacancy: Rutter
testified that Blanchard was on the operation button sew shoulder straps at the time
the strike began . She had been working on army shirts covered by a Government
contract which was being completed at that time. At the end of the strike, accord-
ing to Rutter, this operation had been discontinued.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Blanchard did not look for work in 1955-2. Commencing early in July
1955, Blanchard worked steadily until July 1959. After working a short time at a
cleaning establishment, Blanchard then obtained a job working for two doctors as an
assistant to their technician. Blanchard was discharged by the doctors in July 1959,
and thereafter looked unsuccessfully for work until she g A a job at Haspel's in Sep-
tember 1959. Laid off by Haspel's in January 1960, Blanchard drew unemployment
compensation benefits until she obtained a temporary job with a life insurance com-
pany. Laid off by this employer, Blanchard again received unemployment compensa-
tion benefits from August to December 1960. During this time Blanchard also filed
an application with Schram's. In 1961-1 Blanchard attempted to obtain a job with
the cleaning establishment she previously had worked for. Thereafter she did not
look for work.
Conclusions: In view of my finding that the Company was obligated to retrain
.operators for whom it had no vacancy at the time of their application for reinstate-
ment, the Company's defense with regard to Blanchard is rejected. Blanchard will-
fully incurred a loss in earnings in 1955-2 and 1961-2 and is entitled to no backpay
for these two nuarters. No other willful loss of earnings has been established Wil-
helmina Ray Blanchard is entitled to backpay as set forth in the Appendix, which
reflects the adjustment for two quarters in which Blanchard willfully incurred a loss
of earnings. Due to the change to the calendar quarter method of computation
Blanchard is entitled to backpay for 1955-4.
1516
DOROTHY KEARNEY REED
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 8-16-551 --------------- 8-16-55 ----------------------
Begins . 8-24-55.
Reinstated --------------- No -------------------- No -------------------------- Ends: Still accruing.
1 At the hearing the specification was further amended to set forth August 16, 1955, as the date of Reed's
application.
Specific evidence adduced by the Company as to the lack of a vacancy: Rutter
testified that Reed was a collar block point operator and that when Reed applied for
reinstatement the shirts which the Company was then making did not require this
operation. When the Company subsequently made shirts requiring block pointing,
the operation was performed by one of the three trim and turn operators. No evi-
dence was adduced as to which of the trim and turn operators subsequently did block
pointing.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Reed did some work in each of the quarters during which I find she is
entitled to backpay. When Reed applied for reinstatement she was working in a
nursery where she was paid $22 a week. Reed stopped working at the nursery on
December 18, 1955, because she was pregnant with her first child, who was born
on February 5, 1956. Reed commenced working for the Denham Meat Company
on May 28, 1956, and worked there until December 8, 1956, at which time she quit
because she was again pregnant. Reed resumed working for the Denham Meat Com-
pany at $30 per week on April 1, 1957, and continued throughout 1957-3, at which
time the company went out of business.
Having been unable to find other work, thereafter for the remainder of the backpay
period Reed did housework exclusively, with substantial periods out while she had
four more babies (including twins). The following quarters will be excluded be-
cause of pregnancies: 1957-4, 1958-1, 1958-2, 1958-3, 1959-3, 1959-4, and that
portion of 1961-2 commencing on May 15. Reed continued working as a maid
until May 15, 1961, when she had to stop working because of the imminent arrival
of her sixth baby. Throughout this period Reed was paid $5.50 per day for her
services as a maid. As Reed testified, she was not satisfied with the amount of work
she was obtaining during the whole period she was doing housework, but she "was
picking what [she] could get at the time."
The specification credits Reed with interim earnings of 3 days a week at $5 per
day throughout the period Reed was doing housework, except for the period after
November 1960, during which the specification credits Reed with interim earnings
of 2 days a week at $5. Reed testified regarding the number of days per week she
worked doing housework, as follows: "Sometimes 5 days and sometimes I have
3 days or 2 days." Since the Company failed to clarify Reed's testimony in this
regard, I find in accordance with the allegations of the specification as to the number
of days each week during the backpay period Reed was working as a maid. How-
ever, I find, in accordance with Reed's testimony, that Reed received $5.50 per day
rather than the $5 figure used in the specification.
Conclusions: In view of my finding that the Company was obligated to retrain
operators for whom it had no vacancy at the time of this application for reinstate-
ment, the Company's defense with regard to Reed is rejected. No willful loss of
earnings has been proven. Dorothy Kearney Reed is entitled to backpay as set forth
in the Appendix.
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
NERLIE REEVES
Applied------------------- 4-8-65 (U.)------------ 427-65----------------------
Begins: 4-19-55.
Reinstated---------------- 6-15-55---------------- 6-15-55---------------------- Ends: 6-16-55.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Company as to the lack of a vacancy: None.
J. H. RUTTER-TIEX MANUFACTURING COMPANY 1517
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Reeves looked for work at various sewing factories, including the Com-
pany's, during the 2 months' backpay period. I find that Reeves earned $96 doing
daywork during this time.
Conclusions: No willful loss of earnings has been proven. Nerlie Reeves is en-
titled to backpay on the basis set forth in the Appendix, which reflects her earnings
doing daywork.
PEARL RICHARD (deceased)
Reinstatement
Applied -------------------
Reinstated________________
As alleged in
specification
4-12-551 ----------------12-55 1---------------
6-6-55----------------- -------
As admitted
by Company
4-12-55--------------- -------
6-6-55-----------------------
I As amended at the hearing.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: None.
Conclusions: No willful loss of earnings has been proven. The estate of Pearl
Richard, deceased, is entitled to backpay as set forth in the Appendix.
ROSE RICHARDSON
Applied -------------------
Reinstated________________
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: None. Richardson was not called as a witness.
Conclusions: No willful loss of earnings has been proven. Rose Richardson is
entitled to backpay as set forth in the Appendix.
DOROTHY P. RUBIT
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U.)------------
7-12-55----------------
4-15-56----------------------
7-12-56----------------------
Begins: 4-14-55.
Ends: 7-12-55.
Backpay period
As found by
Trial Examiner
Begins* 4-25-55.
Ends- 6-6-55.
Reinstatement
Applied -------------------
Reinstated________________
As alleged in
specification
4-5-551----------------
7-13-55----------------
As admitted
by Company
4-22-55 (ans.)----------------
3-31-55 (exh. C)
7-13-65----------------------
Backpay period
As found by
Trial Examiner
Begins: 4-14-65.
Ends: 7-13-55.
1 This is the date alleged in the specification originally. Dorothy P. Rubit's name was not included on
the Union's Aprils, 1955, application. At the hearing the General Counsel ascertained that the Company
had in its files relating to this employee two applications, one dated March 31, 1955, and the other dated
April22,1955. Thereupon the General Counsel moved to amend the specification to provide for a March 31,
1955, application date. I denied the motion. My ruling was consistent with my position that I would not
grant the General Counsel leave to amend where the effect of the amendment would be to enlarge the Com-
pany's backpay obligation, if the factual basis for the motion to amend was within the General Counsel's
knowledge, or i-easonably should have been, at the time the specification was issued. Upon this motion
being denied, the General Counsel moved to amend the specification to set forth an April 22, 1955, applica-
tion date. This motion was granted. The General Counsel in his Inef has requested me to reconsider
my rulings with regard to the date of application of Dorothy P. Rubit. Upon reconsideration, I conclude
that it is unfair to penalize Rubit for the errors or oversights of the General Counsel in connection with her
case. I will consider the specification as it was originally written. The record shows that Dorothy P.
Rubit filed an application on March 31, 1965, and I find it reasonable under the circumstances to hold that
the backpay period for Rubit commences on Apii 14, 1955, as stated in the specification originally.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Company as to the lack of a vacancy None
Before the strike Dorothy P Rubit was on the operation trimming and turning
collars with Dorothy B Rubit They were the only two employees on this opera-
tion before the strike As stated in the case of Dorothy B Rubit, a replacement
remained on this operation throughout the period covered by the specification, with
one 10 month break in service
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Rubit at first testified that she applied for work at Alice Padell's after
the strike was over and before she went back to work for the Company Sub-
sequently, she indicated that she was not sure whether she applied at Padell's dur-
ing or after the strike
Conclusions No willful loss of earnings has been proven Dorothy P Rubit is
entitled to backpay as set forth in the Appendix, which is figured on the basis con-
tained in the specification prior to any amendment
ADA SANDERS (NEWSOM)
Reinstatement
Applied
Reinstated
As alleged in
specification
4-14-55
10-3-55
As admitted
by Company
4-14-55
10-3-55
Backpay period
As found by
Trial Examiner
Begins 4-22-55
Ends 10-3-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful toss of
earnings After unsuccessfully seeking work at other sewing factories, Newsom
obtained a job during the strike doing cleaning work at the St Bernard Parish Court
House where she was employed throughout the backpay period at $19 per week
Newsom did not look for work elsewhere while working at the court house Since
the specification computed Newsom s earnings at the rate of $78 a month, a slight
adjustment will be made in Newsom 's interim earnings
Conclusions No willful loss of earnings has been proven Ada Sanders New-
som is entitled to backpay as set forth in the Appendix
ELLEN SAWYER
Reinstatement
Applied
Reinstated
As alleged in
specification
4-8-55 (U) ___ - _ -
5-11-55 - _ _ _ _
As admitted
by Company
4-22-55
5-11-55
Backpay period
As found by
Trial Examiner
No backpay
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Sawyer did not look for work after the strike was over
Conclusions Sawyer willfully incurred a loss of earnings and is not entitled to
backpay
Applied
Reinstated
DELORES SCOTT
As alleged in
specification
Reinstatement
As admitted
by Company
Backpay period
As found by
Trial Examiner
4-5-55 (U )
4-28-55
4-18-55
4-28-55
Begins 4-14-55
Ends 4-28-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Two replacements continued working on Scott's job setting sleeves for months after
Scott was reinstated
J. H. RUTTER-REX. MANUFACTURING - COMPANY-
Evidence adduced by the, Company-regarding interim earnings and willful loss of
earnings: Scott did not look for work during the backpay' period. The record does
not 'disclose what Scott was told when she personally applied for reinstatement.
Conclusions: For the reasons stated in the case of Elizabeth Drake, no willful
loss of earnings has been proven. Delores Scott is entitled to backpay as set forth
in the Appendix.
REBECCA "SEATON.
1519
Reinstatement
Applied--------------------
Reinstated----------------
As alleged in
specification
4-22-55----------------
5-16-55----------------
As admitted
by Company
4-19-55----------------------
5-16-55----------------------
Backpay period
As found by
Trial Examiner
No backpay.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Audrey Bourgeois, a replacement on Seaton's taping crotch operation, continued on
the payroll throughout 1955.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Aside from registering for employment on April 27, 1955, in connection with
obtaining her check for unemployment compensation benefits, Seaton did not make
any effort to obtain employment in the backpay period. During the strike Seaton
did only 2 or 3 days work as a maid, and this was at the beginning of the strike.
I infer from this fact that Seaton was not seriously looking for work during most
of the strike.
Conclusions: The Company has shown that Seaton made no serious efforts to
gain' employment for at least a year prior to her reinstatement, and that she reg-
istered for employment- with the State Employment Service only as a part of her
effort to collect unemployment compensation benefits. In my opinion such regis-
tration, in the circumstances of this case, does not fulfill Seaton's obligation to
mitigate damages. Having -thus willfully incurred losses in earnings during the
whole alleged backpay period, Rebecca Seaton is not entitled to backpay.
CLARA SHELTON (PATTERSON)
Reinstatement Backpay period
As alleged in As admitted As found by
. specification by Company Trial Examiner
Applied ------------------- 4-5-55 (U )------------ 4-14-55 (exh. C)------------- Begins , 4-14-55.
Remstated---------------- 7-25-55---------------- 7-25-55---------------------- Ends , 7-25-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None
of sufficient specificity to be meaningful.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: In - 1955-2 Patterson unsuccessfully applied for work at several sewing
factories, looked for work as a maid, and in the following quarter obtained work at
Southern Manhattan, an infantswear sewing factory.
Conclusions: No willful loss of earnings has been proven. Clara Shelton Pat-
terson is entitled to backpay as set forth in the Appendix, which reallocates interim
earnings to the quarters shown in the social security records.
LILLIE MAE SIMPSON
Reinstatement Backpay period
As alleged in As admitted As found by
specification -by Company Trial Examiner
No backpay.Applied------------------- I 4-8-55 (U ) ------------ I 5-2-55-----------------------
Remstated---------------- 8-1-55----------------- 8-1-55- ----------------------
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Aside from her personal application for work at the company plant on
May 2 , 1955, Simpson did not look for work during the backpay period
Conclusions Simpson willfully incurred a loss of earnings and is not entitled to
any backpay
ROSEMARY SOMA (VANTRY)
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
6--6-55
7-29-55
6-6-55
7-29-551
No backpay
i As amended at the hearing
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Aside from her personal application for work at the Company's plant on
June 6, 1955, Vantry did not look for work during the backpay period
Conclusions Rosemary Sonia Vantry willfully incurred a loss of earnings and
is not entitled to any backpay
MILLIE STEWART (BATES)
Reinstatement
Applied
Reinstated
Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
4-6-55 (U) _ 4-21-55 Begins 4-14-55
7-25-65 - 7-25-55 Ends 7-25-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings While Bates at first testified that she had made no effort to obtain work
after the strike other than applying at the Company and making a few telephone
calls seeking work as a maid, when shown a form 916 filled out in February 1958,
Bates testified that it was true that she had applied for work during the backpay
period at various sewing factories, stores, and a canning factory I credit Bates'
latter testimony
Conclusions No willful loss of earnings has been proven Millie Stewart Bates
is entitled to backpay as set forth in the Appendix
DOROTHY TAPLIN (DUNCAN)
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied 4-18-551 4-18-55 Begins 4-26-56
Reinstated _ 6-3-55 - 5-3-65 Ends 5-3-55
i The specification alleged an April 22, 1955, application date but backpay was alleged to commence on
April 26 1965, which is consistent with an April 18 application and inconsistent with the later application
At the hearing I denied the General Counsel s request to amend the specification to show an April 18 1955
application for Duncan Pursuant to the request made in the General Counsel s brief I have reconsidered
my ruling denying the General Counsel s motion to amend the specification and hereby grant said motion,
it appearing that only a clerical error was involved and that the amending of the specification does not
enlarge the Company's backpay obligation
J. 'H. RUTTER-REX MANUFACTURING COMPANY 1521
Specific evidence adduced by the Company as'to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Duncan did housework 3 days a week in the 1-week backpay period.
Conclusions: No willful loss of earnings has been proven. Dorothy Taplin
Duncan is entitled to backpay as set forth in the Appendix.
LUVENIA THOMAS (WASHINGTON)
Reinstatement
Applied------------------
Reinstated---------------
As alleged in
specification
4-5-55 (U )------------
7-13-55 ----------------
As admitted
by Company
4-25-55----------------------
7-13-55----------------------
Backpay period
As found by
Trial Examiner
Begins 4-14-55.
Ends. 7-13-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: It was stipulated that Washington was doing part-time work at the post
exchange at Camp LeRoy Johnson at the end of the strike and that she was em-
ployed at a sewing factory in Dallas for a short time in June 1955 and received
$16.58 in compensation which is not shown in the specification. Washington
credibly testified that she looked for work in May 1955 but could not recall where.
Conclusions: No willful loss of earnings has been proven. Luvenia Thomas
Washington is entitled to backpay as set forth in the Appendix, which reflects
Washington's additional interim earnings in Dallas.
MARY THOMAS
Applied ------------------
Reinstated---------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U )------------
6-13-55----------------
4-15-55----------------------
6-13-55----------------------
No backpay.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Aside from personally applying for reinstatement on April 15, 1955,
Thomas did not make any other application for work during the backpay period. Nor
for months prior to the end of the strike had she looked for work. However, Thomas
did draw unemployment compensation for some weeks after the strike was over.
She could not recall for what length of time she drew such benefits. Although the
Company subpenaed the unemployment compensation records of all the employees
here involved, these records had been destroyed for years prior to 1957 and hence
were not available from the Division of Employment Security of the State of
Louisiana, the official custodian of the records.
Conclusions: The Company has established that Thomas made no efforts to
obtain work for the better part of a year prior to her reinstatement and that she
registered for employment with the State Employment Service only as a part of
her effort to obtain unemployment compensation benefits. Under all the circum-
stances, I conclude that Mary Thomas has willfully incurred a loss in earnings and
is not entitled to any backpay. See discussion of the case of Rebecca Seaton.
221-731-67-vol. 158-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MIGNONETTE THOMAS
Reinstatement
Applied
Reinstatement (offered)
As alleged in
specification
4-7-55
6-15-57
As admitted
by Company
8-5-55
No
Backpay period
As found by
Trial Examiner
Begins 8-15-55
Ends 6-1-56
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim employment and willful loss
of earnings The General Counsel seeks backpay for Thomas only for the period be-
ginning 5 days after her admitted application for reinstatement on August 5, 1955,
and ending June 1, 1956 Thomas credibly testified concerning job seeking efforts
in both 1955 and 1956, but she was unable to "pinpoint' the specific months in
each year that she applied Among the places during the backpay period where
Thomas applied for work were several sewing factories and Baumer Foods
Conclusions No willful loss of earnings has been proven Mignonette Thomas
is entitled to backpay as set forth in the Appendix
JESENU THORNTON
Reinstatement
Applied
Reinstated
As alleged in
specification
4-5-55 (U )
8-15-55
As admitted
by Company
4-16-55
8-15-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 8-15-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Thornton testified that she was desperately looking for work during the
backpay period, and named the airport and Baumer Foods, as places where she had
applied Thornton also testified that she answered ads in the paper for house-
workers Confronted with a form 916 filled out in 1958 with information furnished
by her, which listed only Louisiana Garment and LSU College as places where she
had sought work, Thornton could explain the discrepancy between her testimony
and the information on the form 916 only by saying that she gave the information
which she remembered at the time I am not convinced from observing Thornton
on the stand and considering her testimony as a whole that Thornton had a positive
recollection at the hearing of having applied for work at Baumer Foods and the air-
port during the backpay period On the other hand, I am not persuaded that the
opposite is true, that Thornton did not look for work during the backpay period
Conclusions No willful loss of earnings has been proven Jesenu Thornton is
entitled to backpay as set forth in the Appendix
HILDA VALENTINE
Reinstatement
Applied
Reinstated
As alleged in
specification
4-5-44 (U )
7-13-55
As admitted
by Company
4-14-55
7-13-55
Backpay period
As found by
Trial Examiner
Begins 4-14-55
Ends 7-13-55
Specific evidence adduced by the Company as to the lack of a vacancy None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings While Valentine could not recall the names of specific places where she
J. H. RUTTER-REX MANUFACTURING COMPANY 1523
applied for work in the 3-month backpay period, with theexceptioh of the Chalmette
Laundry, she did testify convincingly concerning her persistent and repeated efforts
to obtain work during the backpay period.
Conclusions: No willful loss of earnings has been proven. Hilda Valentine is
entitled to backpay as set forth in the Appendix.
MABEL WATSON
Applied-- ----------------
Reinstated ________________
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-27-55---------------
7-25-55----------------
4-27-55----------------------
7-25-55----------------------
No backpay.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Watson did not look for other work during the backpay period; she was
waiting for the Company to recall her.
Conclusions: Watson willfully incurred a loss in earnings and is not entitled to
any backpay.
Applied- -----------------
Reinstated...............
ALICE WILLIAMS
As alleged in
specification
4-5-55 (U.)------------
5-30-55----------------
Reinstatement
As admitted
by Company
4-19-55----------------------
5-30-55---------------:------
Backpay period
As found by
Trial Examiner
Begins 4-14-55.
Ends : 5-30-55.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: While Williams' testimony is not wholly consistent in this regard, I find
that aside from working Wednesdays for Robbins for which she was paid $4.14
per day, Williams was not looking for additional work during the backpay period.
Accordingly, Williams' gross backpay will be computed on the basis of what she
would have earned working for the Company I day a week in the backpay period.
Conclusions: Williams willfully incurred a loss of earnings during every day
except Wednesdays in the backpay period. Alice Williams is entitled to backpay
as set forth in the Appendix, adjusted to reflect her willful loss of earnings.
YVONNE WOODFORK
Applied------ ------------
Reinstated________________
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
4-5-55 (U.)------------
7-25-55----------------
5-9-55-----------------------
7-25-55----------------------
No backpay.
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Woodfork testified that her last application for work before returning to
the Company was the one which she made to the Company on May 9, 1955, and
that her other attempts to gain employment were made before the strike was
called off.
Conclusions: Woodfork has willfully incurred a loss of earnings and is not entitled
to any backpay.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F The failure-to-report-as-requested defense (schedule 6(e))
1 Preliminary statement
The Company contends as to the 20 employees in this schedule that it in one
way or another sought to notify them to report for work but that with few excep-
tions, the employees failed to report as requested With one exception, the Com-
pany delayed at least 3 months after the application relied upon by the General
Counsel was made before attempting to get in touch with the employees The
Company excuses its delay on the grounds that it had no vacancies in the classifica-
tions of these employees until the dates of its efforts to communicate with them
Consequently, it is necessary to consider in each of the cases of the employees in
this category whether the Company has sustained its burden of proof with respect
to the absence of vacancies from the date of the application to the date of the
alleged request to report
2 The Company's duty to communicate to the employees the offers
of reinstatement
The Company s duty under the Act, as later articulated in the Boards Order
and the courts decree, was to offer immediate and full reinstatement' to the
striking employees, upon application In my view, offering reinstatement involves
giving the striking employees the opportunity to decide whether or not to return
to work, and an uncommunicated offer of reinstatement does not satisfy an em
ployer s obligation to employees seeking to return to work after having been forced
and on strike because of the employers unfair labor practices Thus, to fulfill
the reinstatement obligation to returning unfair labor practice strikers the employer
must communicate to the striking employee the offer and give him a chance to
decide whether to accept To establish this fact in a backpay proceeding the em
ployer must present probative evidence showing a good-faith effort to communicate
such an offer to the employee Of course there will be situations in which the
communication of such an offer to the striking employee may be difficult or im
possible In such cases, in my opinion, the employer must show that he has taken
all measures reasonably available to him to make known to the striker that he is
being invited to return to work I do not regard either the sending to a striker
of an ordinary mail letter which is not shown to have been received by him, or the
telephoning of the residence of a striker and leaving a message for him, which is
not shown to have been communicated to the striker, as fulfilling the employer s
obligation to take all reasonable steps to see to it that his offer of reinstatement is
communicated to the striker Cf Monroe Feed Store, 122 NLRB 1479, 1480-81
In this connection it is relevant to point out that as to all of the strikers who
personally applied for reinstatement at the plant, the Company was in communica
tion with them when they presented themselves at the plant, and that any difficul
ties of communication thereafter encountered were due solely to the Company's
failure promptly to reinstate them, as it was legally obligated to do With respect
to the few strikers whose only application was one made in their behalf in a union
letter, proof that a letter was received by the Union offering reinstatement to such
strikers would have satisfied the Company's reinstatement obligations This is also
true of all the strikers who applied for reinstatement, since the Union was their
authorized bargaining representative But at no time was any such letter sent to
the Union, as Rutter admitted
3 The evidence relied upon by the Company to show an offer of
reinstatement and failure to respond
Two lists prepared by the Company are the source of much of the information
upon which the Company relies with respect to the employees listed in schedule
6(e) Rutter testified that the first list was a list prepared by the personnel clerk
sometime in May or June 1955 containing in alphabetical order the names of all
the strikers named in the Union's letters of application for reinstatement The
first list was received in evidence as Respondent's Exhibit 220 Rutter further testi-
fied that he used Respondent's Exhibit 220 as a checklist or master list of the Com
pany's contacts with the employees named thereon Examination of the names on
the list indicates that it includes most of those listed on the Unions letters of ap
plication and that it includes a few whose only application were personal ones, such
as Ernestine Lanier, who applied at the plant on June 7, 1955
J. H. RUTTER-REX MANUFACTURING COMPANY 1525
The second list contains a listing of successive dates in the week beginning Mon-
day, July 18, 1955, with a group of approximately seven to nine names listed under
each date. This second list was received in evidence as Respondent's Exhibit 219.
Rutter testified that he indicated on Respondent's Exhibit 220 the names of the
employees to be sent letters requesting them to report for work and the dates they
were to report, and gave Respondent's Exhibit 220 to the personnel clerk with in-
structions that the designated employees be sent letters to report pursuant to his
instructions. Thus, Respondent's Exhibit 219 is a summary of the instructions
given the personnel clerk regarding the sending of letters to the employees.
The letter which was sent out pursuant to these instructions was a mimeographed
one and was dated July 15, 1955. Although by this time the Company had been
served with a copy of an unfair labor practice charge alleging that its refusal to
reinstate the strikers was violative of Section 8(a)(3) and (1) of the Act (the
charge was filed on June 29, 1955), the Company did not keep completed copies
of these letters, and they were not sent by certified or registered mail, but by
ordinary mail.
The text of the letter is as follows:
Dear Madam:
Since the termination of the strike, we have been making the adjustments in
our operation necessary to rehire all strikers who desire to return to work.
However, in contacting the former strikers, we have found that many who
applied for work are not interested in returning to work, or, for some personal
reason, cannot work at this time.
Accordingly, in order to assist us in rehiring strikers who want to return to
work, it would be appreciated if you will contact the personnel office
on 1955, and advise whether you are available for work at
this time. We will be able to place you on the payroll on that date, or shortly
thereafter, depending on the response to this letter.
After the sending of these letters longhand notations were made on both Respond-
ent's Exhibits 219 and 220, such as "DID NOT ANSWER LETTER" or "Called in
to J. Duroux," or "Called E. J. R." The dates of making these notations do not
appear. For the most part the original source material for these' notations was not
available. The personnel clerk was not called upon to testify concerning the send-
ing of the letters. Nor was Superintendent Drake, who had made some of the
notations on Respondent's Exhibit 220.
Another source of information about the employees listed in schedule 6(e) is
notations on various papers in the employee's personnel folders. In some instances
the notations are contained on, literally speaking, torn scraps of paper. Only in
rare instances is the date the notation was made shown. Rutter testified concerning
the identity of the person making the notation.. Although in numerous cases it
appears that the notation is transcribed from some other source, with few exceptions,
that source material was not available. In many cases the notations were in
Superintendent Drake's or the personnel clerk's handwriting, but neither was called
by the Company to testify about them.
From the foregoing discussion it is apparent that much of the evidence relied
upon by the Company with respect to the employees in schedule 6(e) would not have
been admissible had this proceeding been conducted strictly in accordance with the
rules of evidence. Particularly with respect to the question of the mailing of the
letters dated July 15, 1955, is the record lacking in evidence of substantial probative
value. Furthermore, in only comparatively few of the cases discussed below does
the evidence relied upon by the Company purport to show that the Company reached
the employee the Company was attempting to notify. In most cases, the most that
the record shows is that a "card was sent," "letter sent," or "message left." The
Company's obligation to take all steps reasonably necessary to reach the employees
with their offers of reinstatement has been discussed above.
The absence of evidence of significant probative value establishing that the Com-
pany communicated to the employees listed in schedule 6(e). the offers of reinstate-
ment alleged in the Company's amended answer simplifies, somewhat my problem
in ascertaining the facts regarding this phase of the case. For where an employee
swears under oath that she has received no card, letter, call, or message from the
Company regarding reinstatement and the employee impresses me as testifying truth-
fully, this evidence, in my opinion, is entitled to greater weight than the secondhand
evidence adduced by the Company relating to alleged offer of reinstatement
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The individual cases
MARION BANKS (KENNEDY)
Reinstatement
Applied
Requested to report
Reinstated
Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
4-5-55 (U )_ 5-16-551 _ Begins 4-14-55
7-19-55 Ends 3-14-57
3-14-57 Never repoited
i As amended at the hearing
Evidence adduced by the General Counsel as to interim expenses Kennedy s
testimony supports the allegations of the specification as to her expenses for um
forms and shoes while working at Hotel Dieu and D H Holmes
Evidence adduced by the parties concerning the request to report for work Rutter
testified upon the basis of Respondent's Exhibits 219 and 220 that Kennedy was sent
a letter by ordinary mail prior to July 19, 1955, directing her to report to work on
that date Rutter further testified that a note in Kennedy s personnel file in the
handwriting of the Company's personnel clerk indicated that Kennedy had been called
in August, that a message had been left for her, and that she had not come in
Kennedy credibly testified that she neither received a letter nor a telephone call nor
any message from the Company at any time after the strike was terminated
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings With the exception of very brief intervals between jobs and with the ex
ception of a 2 week period in 1956-2 during which she was ill, Kennedy woiked
throughout the backpay period 62 Kenredy did housework for a short time, worked
for two hospitals, a sewing factory, and for almost a year worked in the alteration
department of D H Holmes While employed at housework and at the hospitals,
Kennedy also frequently made the rounds of the sewing factories looking for work
Conclusions The Company has failed to establish that it has taken the steps
reasonably necessary to communicate an offer of reinstatement to Kennedy No
willful loss of earnings has been proven Marion Banks Kennedy is entitled to
backpay as set forth in the Appendix
HELEN BENTLEY
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 8-8-55 8-8-55 Begins 8-16-55
Requested to report 9-19-55 9-19-55 Ends 9-19-50 i
Reinstated No 9-18-61
'Had Bentley accepted the offer of reinstatement it would have been reasonable to allow her 5 days to
report for work Not having accepted the offer I cannot accept the General Counsels contention that
Harris should receive backpay up to September 24
Evidence adduced by the parties concerning the request to report for work
The General Counsel stated at the hearing that the Company had mailed Bentley a
card on September 19, 1955, stating that it had an opening for her and inquired if
she was interested in returning to work Bentley did not reply The General Coun-
sel s motion to amend the specification in accordance with the foregoing statement
was granted
62 No deduction is made for Kennedy's 2 week illness because the 6 percent deduction
allows for such periods of unavailability
J. H. RUTTER-REX MANUFACTURING COMPANY' 1527
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: Bentley was an experienced back pocket set and close
operator. When she applied for reinstatement only returned strikers were perform-
ing this operation.
Conclusions: No willful loss of earnings has been proven . In view of the Com-
pany's obligation to retrain workers on other operations the Company's lack-of-
vacancy defense is rejected . Helen Bentley is entitled to backpay as set forth in the
Appendix.
BESSIE BROWN (HARRIS)
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied ------------------ 4-5-55 (U)------------ 4-19-55- --------------------- Begins 4-14-55.
Requested to report------- ------------------------ 7-11-55--------------------- Ends 7-18-55.
Reinstatement (offered) _ _ 7-18-55---------------- ------------------------------
Evidence adduced by the parties concerning the request to report for, work:
The specification is drawn on the premise that Harris was offered reinstatement on
July 18, 1955, a week after the date alleged in the Company's answer. Con-
sequently the only question here is whether she was requested to report on July 11,
1955. The only testimony which I have been able to find bearing on this question
is Rutter 's testimony , as follows: "You see, this was a system we used if we couldn't
reach them by phone. We would send a card stating that there is a job available or
would soon be one available . If interested, contact the personnel office or call the
factory, and it would either have Mr. Drake's name or my name, either one. And
if that didn't work, and when that didn't work at this time after the strike, we then
sent a letter , we made a listing and sent the letters' out inviting them back . So it is
possible she [ Harris] was sent a card on July 11, and hearing nothing from that, she
was then sent a letter with this other list of names to report on Monday, July 18,
1955." Brown is listed -upon Respondent 's 'Exhibit 219 as having been, sent a letter
notifying her to report on July 18, 1955. Under all the circumstances, I regard
Rutter 's testimony as being too vague to be 'relied upon to support a finding of a re-
quest to Harris to report on July 11, 1955.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful
loss of earnings: Harris was self-employed as a beauty operator throughout the back-
pay period , and I find, in view of the General Counsel 's failure to establish her ex-
penses in any greater detail , that she netted $25 a week at this work ( allowing $9
per week for booth rental and $1 per week for supplies ). Harris credibly testified
that she sought to obtain work at two sewing factories during the backpay period.
Conclusions: The Company has failed to prove that it communicated an offer of
reinstatement to Harris on July 11, 1955 . No willful loss of earnings has been
proven. Bessie Brown Harris is entitled to backpay as set forth in the Appendix,
which reflects Harris' adjusted net profits in her beauty shop operation.
RUTH, BRUMFIELD.
Reinstatement . Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------ 4-5-55 (U.)------------ 4-15-55 ---------------------- Begins 4-14-55.
Requested to report------ ------------------------ 7-55------------------------- Ends Still accruing.
Reinstated --------------- No-------------------- N ever reported -- - - ---- - ----
Evidence adduced by the parties concerning the request to report for work:
Rutter testified on the basis of Respondent's Exhibits 219 and 220 that Brumfield
was sent a letter to report for work on Tuesday, July 19, 1955. Rutter testified
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
variously about conversations with Brumfield after she had filed her application for
reinstatement. At one point he testified that he talked with Brumfield and her sister,
Geraldine Merridith, and that "they both told us when we talked to them that they
had fought a hard fight. They were for the Union They had lost their strike, and
just couldn't come back, couldn't face the others " Later on Rutter testified that
he talked with both Brumfield and Merridith and was told by them that they were
operating a home laundry and that they were not interested- in going back to work
for the Company.63 Brumfield denied receiving any letters, post cards, telephone
calls, telegrams, messages, or any communications from the Company after apply-
ing for reinstatement. It appears that Rutter's recollection of his telephone con-
versations with Brumfield is not altogether clear. His first two accounts do not jibe
with one another. Rutter's testimony regarding the reasons given by Brumfield's sis-
ter, Merridith, for not returning to work is inconsistent with the information in the
Company's files about Merndith's call to Superintendent Drake. I conclude that
Rutter was confused about his conversations with Brumfield and Merridith after the
strike, and that Brumfield's testimony is entitled to credit.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Brumfield did laundry work for others, mostly in her own home, through-
out the backpay period. She did not look for other work during this time. Brum-
field did all the laundry work she could obtain but this did not keep her occupied full
time. During 1957-1 and 1957-2 when her home laundry work was quite slack,
Brimfield did housework for a little over 3 months, in addition to doing home laun-
dry work on her days off. I find that Brumfield's interim earnings for 1957-1, should
be computed on the basis of $20 per week (housework) plus $7.50 per week (home
laundry). For the period ending April 13, 1957 in 1957-2, Brumfield should be
credited with interim earnings at the rate of $20 plus $7.50 per week. The rest of
1957-2 shall be computed as set forth in the specification, i.e., at $15 per week. The
remainder of the quarters were also recomputed to the 13-week basis at $15 per
week in order to match the change in gross backpay.
Conclusions: The Company has failed to establish that it has taken the steps rea-
sonably necessary to communicate an offer of reinstatement to Brumfield. No will-
ful loss of earnings has been proven. Brumfield is entitled to backpay on the basis
set forth in the Appendix, which reflects the modifications found above with respect
to 1957-1 and 1957-2.
MIRIAM CHERI
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 5-3-55----------------- 5-3-55-----------------------
Begins 5-11-55.
Requested to report ------ ------------------------ 3-29-56---------------------- Ends Still accruing I
Remstated--------------- No-------------------- Never reported--------------
I The record indicates that Cheri turned down an offer of reinstatement made during the hearing
Evidence adduced by the parties concerning the request to report for work:
Rutter testified that there was a notation in the file that Cheri was sent a card on
March 29, 1956, stating that the Company had, or would have shortly, an opening,
and to please contact the personnel office immediately. Rutter further testified that
the Company "had no results" from this card. Cheri credibly testified that she
never received a card, letter, or telephone call from the Company after she applied
for reinstatement and that she had not been contacted by the Company in any
other way.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
e3 Still later on Rutter testified regarding Merridith that there was a penciled notation
in her file stating that Merridith had called in on July .12 and had told Superintendent
Drake that she had a job in a baby clothes shop making over $30 a week and was not
interested in returning to the Company.
J H RUTTER-REX MANUFACTURING COMPANY 1529
Evidence adduced by the Company regarding interim employment and willful
loss of earnings Cheri obtained a job at Seg Mar in July 1955 and was still working
for Seg Mar at the time of the hearing Cheri credibly testified about her efforts to
gain employment in 1955-2 These included visits to a bag factory, a cookie fac
tory, and numerous other places In February and March of 1960 Cheri took 2
months off from work at Seg-Mar to take care of her sick sister These 2 months
will be excluded from the backpay period
Conclusions The Company has failed to establish that it has taken the steps rea
sonably necessary to communicate an offer of reinstatement to Cheri No willful
loss of earnings has been proven Cheri is entitled to backpay as set forth in the
Appendix, which reflects the adjustment stated above for 1960-1 64
LILLIE CLEMENTS
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 4-5-55 (U ) 5-15-55 Begins 4-14-55
Requested to report 7-19-55 Ends 3-29-56
Reinstated 3-29-56 3-29-56
Evidence adduced by the parties concerning the request to report for work
Rutter testified upon the basis of Respondents Exhibits 219 and 220 that Clements
was sent a letter by ordinary mail prior to July 19, 1955, directing her to report for
work on that date Rutter was unable to state the date upon which this letter was
sent Clements credibly testified that she had never received any word from the
Company to return to work until her mother received a telephone call in March
1956, at which time she went back to work
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report None
Evidence adduced by the Company regarding interim employment and willful
loss of earnings Although Clements had a very poor memory about specific places
she looked for work during the backpay period she insisted that she had unsuccess
fully looked for work throughout the backpay period No countervailing evidence
was offered
Conclusions The Company has failed to establish that it has taken the steps rea
sonably necessary to communicate an offer of reinstatement to Clements No willful
loss of earnings has been proven Clements is entitled to backpay as set forth in
the Appendix
Applied
Requested to report
Reinstated
ALICE DENLEY (GABRIEL)
As alleged in
specification
7-25-55
No
Reinstatement
As alleged in
answer
7-25-55 1
4-3-56
Never reported
Backpay period
As found by
Trial Examiner
Begins 8-5-55
Ends Still accruing
i The Company's amended answer originally gave May 25 1955 as the date of Gabriel s application
At the hearing the Company's motion to amend its amended answer to show the July 25 1955 application
was granted
Evidence adduced by the parties concerning the request to report for work
Rutter testified that a note in the handwriting of the Company's personnel clerk on
the top of Gabriel s application dated July 25, 1955, indicated that Gabriel had been
sent a post card on April 3, 1956, stating as follows "We have now or will have very
94 Because of the change to the calendar quarter method of computation Cheri is en
titled to backpay for 1955-4 and 1959-4 which is not stated in the specification
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shortly an opening [at] the plant . If you wish to work at Rutter-Rex, please contact
the personnel officer immediately . Valley 2484." Gabriel credibly testified that at
no time after the strike did she ever receive a post card or any other notification from
the Company to return to work. Although it appears that there was no mail serv-
ice to 1726 Lemanche Street, the address given by Gabriel in her July 25, 1955,
application, Gabriel credibly testified, in effect, that Lemanche Street mail was for-
warded by the post office to her aunt's home at 1738 Caffin Avenue.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to'report: Rutter testified that Gabriel was a learner and because
of the fact that the Company gave preference to senior employees , an opening did
not become available until April 1956. Gabriel's application stated that she was
applying for work as a Berger, which was her operation before the strike. The record
fails to disclose the identity of the operators performing serging work at the time
Gabriel applied in July 1955.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Gabriel was employed during much of the backpay period. Gabriel's
testimony shows that when out of work she was registered for employment with the
State Employment Service and that she made an adequate search for work in all
quarters for which a backpay claim is asserted by the General Counsel.
Conclusions: The Company has failed to establish that it has taken the steps
reasonably necessary to communicate an offer of reinstatement to Gabriel. In view
of the Company's obligation to retrain returning strikers on new operations, the
Company's explanation for its delay in offering Gabriel reinstatement is rejected.
No willful loss of earnings has been proven. At the hearing I granted the General
Counsel's motion to amend the specification to eliminate all claim for the following
periods: 1957-3, 1957-4, 1958-1, 1958-2, 1960-4 from November 1 on, 1961-1,
and 1961-2 up to May 31. Gabriel is entitled to backpay as set forth in the Appendix,
.which reflects the adjustments stated above.
MINNIE FERNANDEZ
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied----- -------------- 4-5-55 (U.)------------ 4-18-55------------- -------- Begins 4-14-55.
Requested to report------ ------------------------ 1956------------------------- Ends: Still accruing.
Reinstated---------------- No-------------------- Did not report until
10-18-60 1
I No evidence was offered by the Company in support of this allegation . Fernandez testified that
she did not return to work at any time after the strike.
Evidence adduced by the parties concerning the request to report for work:
Rutter's testimony as to the alleged offer to Fernandez is as follows:
On Respondent 's Exhibit 219, Minnie Mae was sent a letter to report on Wednes-
day, July 20, 1955. There is a further notation in my handwriting that she came
in on that date. Her file contains a handwritten notation in Mr . Drake 's hand-
writing that she was called in July 20, 1955, came in and was apparently not
used because others in line did not arrive. Has been sent for since but did not
return. There is an additional notation that she was sent a letter on July 20
and sent cards in 1956 to which she did not respond.
To my question whether there was a separate notation for each card, Rutter replied,
"A separate notation, excuse me. That's in the handwriting of the personnel office
clerk . .'.'Schwab." When asked about dates of the notations, Rutter testified "I
read you whatever was on there." The documents from which Rutter was reading
were not introduced into evidence. Fernandez testified that she received a card
one of the years, either 1955 or 1956, but that she could not remember which year
it was. It was not brought out at the hearing whether Fernandez was referring to
the occasion in 1955 on which she reported at the plant and was sent home again,
or whether this was a second request to report which she received. The implication
from Fernandez' testimony as a whole is that she received but one request to report
to which she responded by going to the plant. In view of the fact that it was the
Company's burden to prove that Fernandez was requested to report in 1956, and
J. H. RUTTER-REX MANUFACTURING COMPANY 1531
that it failed to clarify Fernandez' testimony about the card which she received,
and that the evidence relied upon to show the alleged 1956 request is Rutter's vague
hearsay unsupported by any documentary evidence in the record, I conclude that the
Company has not sustained its burden of proof with respect to the alleged 1956 re-
quest to Fernandez to report for work.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: Rutter testified that Fernandez was on operation bar tack
pants and that when she applied in April 1955 there were "no new hires" on this
operation.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: From May 30, 1955, until September 23, 1955, Fernandez did house-
work an average of 2 half days a week for which she received $3.14 per half day.65
Fernandez' interim earnings will be adjusted upwards to reflect an additional half
day's work a week at $3.14 per week. Fernandez was registered with the State Em-
ployment Service during almost all of this period. From September 23, 1955, until
November 29, 1958, Fernandez worked for E. H. Blum and its successor the Shreve-
port Garment Co. From December 1, 1958, until Fernandez obtained a job with
B. F. Davis Garment Co. early in April of 1959, Fernandez stayed home taking care
of her deceased daughter's children.66 The gross backpay for 1958-4 will be adjusted
downward to eliminate all claim for December 1958. Due to the change to the
calendar quarter method of computation, Fernandez is entitled to backpay for 1959-4.
Fernandez testified that she worked for Louisiana Garment until July 11, 1960, at
which time she had to go to a hospital to have an operation and was not ready to
go back to work until October 1960. A social security report received after the
issuance of the specification reflects earnings of $92.10 at Louisiana Garment in
1960-3. Since Fernandez' gross backpay for the first 2 weeks in 1960-3 would only
have been $50.06, Fernandez is not entitled to any backpay for 1960-3. No claim
is made for 1960-4, 1961-1, and 1961-2.
Conclusions: The Company has failed to establish by competent evidence of proba-
tive value that it requested Fernandez to report for work in 1956. In view of the
Company's obligation to retrain returning strikers on new operations, the Company's
contention regarding the lack of a vacancy for Fernandez until 1956 is rejected. No
willful loss of earnings has been proven. Fernandez is entitled to backpay as set
forth in the Appendix.
DOROTHY GREEN
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-5-55 (U.)------------ 4-18-55----- ----------------- Begins: 4-14-55.
Requested to report------ ------------------------ 7-13-55---------------------- Ends: 12-5-66.
Reinstated---------------- 12-5-56 ---------------- 12-5-56-------------------
Evidence adduced by the parties concerning the request to report for won k:
Rutter testified about an undated torn slip of paper which was attached to Green's
April 18, 1955, application. It stated, in the personnel clerk's handwriting, in part,
as follows: "Dorothy Green-called several times on July 13-no answer-called
several times on July 14-still no answer (sent letter)." Rutter gave further testi-
mony based on Respondent's Exhibits 219 and 220 about Green's being sent a letter
to report on July 18, 1955, and that she did not answer the letter. Green credibly
testified that her only contact with the Company after her application in April 1955
occurred in December 1956 and after this conversation with a fellow employee who
inquired of Superintendent Drake about Green's returning to work, Green was put
back on her old operation.
61 Fernandez' exact testimony is as follows : "I worked Mondays and Wednesdays and
Saturdays, some weeks. But all of the weeks I didn't work all through the week."
80 While Fernandez testified that she remained at home until August 1959, the social
security records reflect the earnings of $262 58 in 1959-2 as compared with $262 25 in
1959-3, when she was working as full time as was available at Louisiana Garment. For
this reason I conclude that Fernandez was in error in her testimony that she stayed home
until August.
1532 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report None
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Although Green was unsuccessful in her efforts to obtain work during
the backpay period, she credibly testified as to her efforts in each quarter during the
backpay period Her efforts included visits to various sewing factories, department
stores, a drug store , a bar, hotels, and Charity Hospital
Conclusions The Company has failed to establish that it took the steps reasonably
necessary to communicate an offer of reinstatement to Green in July 1955 The
Company has failed to show a lack of a vacancy for Green at the time of her ap-
pltcation in April 1955 No willful loss of earnings has been proven Dorothy
Green is entitled to backpay as set forth in the Appendix
MARGUERITE HEAD
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 4-5-55 (U) 4-19-55 Begins 4-14-55
Requested to report 7-18-55 Ends 5-15-55
Reinstatement (offered) 5-15 55 1 Nevei reported
i Ruling was ieseived on the (,eneial Counsels motion to extend the backpay penod to July 18 1955
the date upon which the Company alleges an offer of reinstatement was made The General Counsel had
the Company's records under scrutiny for many years prior to the issuance of the specification in 1961 No
explanation has been given for the Genei al Counsel s not being aware of the facts regarding Head s reinstate-
ment at the time of the issuance of the specification Consistent with my rulings with respect to such
matters throughout this proceeding the Genial Counsels motion to amend is denied
Evidence adduced by the parties concerning the request to report for woik
The General Counsel in effect concedes that an offer of reinstatement was made at
least by July 18, 1955, and that it was refused
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report None
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Commencing about a week after she applied for reinstatement at the
Company's plant, Head looked for other work, but she could not name the specific
places where she applied
Conclusions The Company requested Head to report for work on July 18, 1955,
and she refused The Company has failed to establish the absence of a vacancy for
Head up until the July 18 offer No willful loss of earnings has been proven
Marguerite Head is entitled to backpay as set forth in the Appendix
VICTORIA HENDERSON
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 4-8-55 (U ) 5-17-55 Begins 4-19-55
Requested to iepoit 7-20--55 Ends Still accruing i
Reinstated No Never reported
i 1 he record indicates that during the hearing on May 21 1963 the Company mailed an offer of rein
statement to Victoria Henderson and that no response was received
Evidence adduced by the parties concerning the request to report for work
Rutter testified upon the basis of Respondents Exhibits 219 and 220 that Henderson
was sent a mimeographed lettei to report for work on July 20, 1955, and that she
J. H. RUTTER-REX MANUFACTURING COMPANY- 1533
did not answer the letter . Henderson credibly testified that after applying at the
Company she never received a card, letter, or call from the Company, "absolutely
nothing."
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Not long after applying for reinstatement at the Company , Henderson
obtained a job at Seg -Mar which she held with few interruptions up until 1961-1.
Henderson was laid off twice during this period , during which she was drawing un-
employment compensation ( except for a brief period during which she worked for
Blum's upon a referral from the State Employment Service ). During her periods of
layoff, Henderson also looked for work on her own initiative , and answered ads for
houseworkers, but was not hired. While working at Seg-Mar , Henderson became ill
about June 30 , 1959, and did not go back to work until the first of the following
year. The specification makes no claim for 1959-3 because of this illness. The
claim for 1959-4 should also be eliminated for this same reason , as the General
Counsel recommends in his brief . In the latter part of 1961- 1 Henderson was again
laid off by Seg-Mar and drew unemployment compensation during 1961 -2. Hender-
son credibly testified - that she was looking for work during this period but was un-
successful in this regard.
Conclusions : The Company has failed to establish that it has taken the steps rea-
sonably necessary to communicate an offer of reinstatement to Henderson. The
lack of a vacancy in Henderson 's operation has not been shown. No willful loss of
earnings has been proven . Henderson is entitled to backpay on the basis set forth
in the Appendix , which reflects the elimination of the claim for 1959-4.
LOUISE JACKSON
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-22-55 (U.)----------- 5-25-55 ---------------------- Begins 5-3-55.
Requested to repoit------ ------------------------ 8-55------------------------- Ends . Still accruing.
Reinstated---------------- No-------------------- Never reported --------------
Evidence adduced by the parties concerning the request to report for work:
Jackson testified that she received a letter after she applied for reinstatement request-
ing her to communicate with the Company about returning to work. At that time
Jackson called her foreman , John Duroux , and told him that she had recently ac-
cepted a job doing domestic work , that her employers had just left on a 2 weeks'
vacation, and that she could not return to the plant for 2 weeks. Duroux instructed
her to call him when she was ready to return . Two weeks later when Jackson did
so, Duroux told her that he did not have an opening then and to call him -back later.
When she called Duroux again , Jackson was given the same message , to try again,
later on. Duroux was unable to recall any conversations with Jackson after the strike.
Rutter testified , upon the basis of the "records" discussed above, that Jackson was
sent a letter to report to work on July 21, 1955, that , according to a notation in his
handwriting , she called in and wanted to come in on July 22 and that the record con-
tained the further notation in his handwriting, "did not answer letter." Rutter did
not testify as to which of his notations was made first . Rutter also testified concern-
ing a slip of paper in Jackson's file concerning the following notation in the hand-
writing of the Company ' s personnel clerk, "Louise Jackson, J. Dureaux called on-
numerous occasions and she didn 't come in , . 8-55." Respondent 's Exhibit 220
contains the following notation: "Called J. Drake told him she is taking care of
house for some people in Miami and cannot return for several weeks. J. D." As
indicated above, it was stipulated that Johanna Schwab Hurley, the Company's per-
sonnel clerk , and Superintendent John Drake had no recollection of the incident or
conversations testified to by the employees in this case and that consequently, they
would be unable either to admit or to deny that they took place.
While the record is not at all clear concerning the timing and the sequence of
events commencing with the sending of a letter to Jackson and her telephone calls
to the Company , I find, in view of the notation on Respondent's Exhibit 220 and
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jackson's testimony, that Jackson informed the Company in August 1955, the date
alleged in the amended answer, that she was unable to return to work immediately
because of her commitment to her absent employers, that she requested 2 weeks'
time in which to return, and that thereafter she repeatedly called the Company regard-
ing her return, but was told there were no openings.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: With the exception of 1955-2, 1956-2, and 1956-3, Jackson worked
throughout 'the backpay period, and for eight of the quarters involved, Jackson held
both daytime and nighttime jobs. Jackson did housework by day and nurse's aide
work at night. Jackson's recollection of the dates when she looked for work was
very uncertain, but she did name a number of sewing factories at which she applied
for work during the backpay period. In view of Jackson's work record as a whole
and the fact that there is no showing to the contrary, I find that-Jackson's search for
work was conducted in periods of unemployment rather than while she was working
full time.
The record shows that for reasons of her own, Jackson quit her full-time job doing
housework for Nastasi on March 30, 1956. She received $21 per week for this work.
Since it has been found that Jackson was looking for work in 1956-2,and 1956-3,
I find, in accordance with the Board's usual procedure in such situations 67 and in
accordance with the request made in the General Counsel's brief, that Jackson should
be credited with interim earnings during 1956-2, 1956-3, and the first 5 weeks of
1956-4 (the part during which she was unemployed), with earnings at the rate of
$21 per week. The specification inadvertently omits backpay for 1958-2, which is
included in the Appendix.
I sustain the position of the General Counsel that Jackson 's nighttime earnings as
a nurse's aide are not deductible as interim earnings.88
Conclusions: In view of the fact that the Company delayed at least 3 months in
offering Jackson reinstatement , Jackson was entitled to fulfill the commitments which
she had made to the Nastasis in an effort to mitigate damages. The Company has
not fulfilled its reinstatement obligation to Jackson by holding its offer to her open
but for a few days. Accordingly, the Company's principal defense in Jackson's case
is rejected. The Company has failed to show a lack of a vacancy for Jackson in
the period before the initial request to report in August. No willful loss of earnings
has been proven . Louise Jackson is entitled to backpay on the basis set forth in
the Appendix, which reflects to the adjustments for 1956-2, 1956-3, and 1956-4
mentioned above.
GERALDINE MERRIDITH
. Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied----------- -------- 4-5-55 (U.)------------ 4-15-55 ---------------------- Begins : 4-14-55.
Requested to report------ 7-18-55 ---------------------- Ends 7-18-55.
Reinstated ---------------- No-------------------- Never reported--------------
Evidence adduced by the parties concerning the request to report for work:
The parties stipulated at the hearing that the claim of Merridith be stricken, except
for the period from April 5 to July 18, 1955.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: The parties stipulated at the hearing with regard to Merridith that the
Company would raise only the specific defenses pleaded in its answer.
Conclusions: This case presents no question either as to the request to report for
work or the willful- losses issue. Geraldine Merridith is entitled to backpay as set
forth in the Appendix. -
67 Mastro Plastics Corporation , 136 NLRB 1342, 1352
68 See footnote 55, supra.
J. H. RUTTER-REX MANUFACTURING COMPANY
ADELE NASH, (HALL)
1535
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied----- -------------- 4-5-55 (U.)------.----- 4-21-55 ---------------------- Begins 4-14-55.
Requested to report------ ------------------------ 4-25-55 ---------------------- Ends Still accruing.'
Reinstated---------------- No-------------------- Never reported--------------
i Hall was offered reinstatement during the hearing. She accepted.
Evidence adduced by the parties concerning the request to report for work:
Rutter testified regarding a handwritten notation made by the personnel clerk, which
was not introduced into evidence, as follows: "Notation here, 4-28-55 covering .
Adele Nash, notation left message." Rutter further testified as to a notation on the
bottom of Hall's April 21, 1955, application in Superintendent Drake's handwriting
as follows: "Called in and told she could not come in now. Called again and she
said to forget about her. That is approximately May 1, 1955." Rutter also testi-
fied about a personal conversation with Hall, as follows: "I called Adele Nash.
Nash called, who was an experienced warehouse worker and order pulling and pack-
ing, and she related to me the same thing she related to "Mr. Duroux when he con-
tacted her. This was shortly after her application that even though she put in an
application she had a job. She was a nurse for some lovely people, and she wasn't
interested in returning to work, and the fact that the warehouse had since moved its
operation from Delachaise Street around where she lived clear across town to
Dauphine Street just made it impractical for her to use this job."
The Company introduced into evidence a mimeographed letter sent to Hall on
May 2, 1955 (which is shortly after her April 21, 1955, personal application), which
stated as follows:
Madam:
Your application is being processed. There may, be some delay in making
work assignment because of the large number of people we have to fit into a
balanced operation. We will call,you just as soon as your assignment is ready.
Duroux, the foreman at the warehouse, testified concerning a 'conversation with
Hall after the strike as follows: "Well, I can't remember the date or the circum-
stances but I do remember talking to her, because at the time I did talk to her she
advised me that she was working as a nurse, I believe it was either a nurse or some-
thing." When asked whether Hall had told him anything with regard to ,whether
she was able to return to the plant, Duroux replied, "I don't remember her saying
anything along those lines."
Rutter also gave testimony about a subsequent request to Hall to report for work.
Upon the basis of Respondent's Exhibit 219, Rutter testified that Hall was sent a
letter to report on Thursday, July 21, and that he noted on Respondent's Exhibit 219
that Hall did not answer the letter.
Hall testified that she received one letter from the Company, the one above quoted
mailed on May 2, 1955, stating that there would be a delay in making work assign-
ments, and that she could not recall receiving another letter. Hall further testified
that she received a message to call the plant and that when she did she was told it
would be all right for her to come in the following Monday. When Hall went to
the plant at that time, according to' her testimony, she was told she would have to
see Mr. Rutter, that he had left the plant, and that she would be called when Rutter
could see her. Hall testified that she never received such a call, and was not rein-
stated although she went back to the plant twice after her original personal applica-
tion. In view of the confused state of the record regarding the alleged April 28,
1955, request to report-the inconsistency between the testimony concerning this
alleged request to report and the Company's sending Hall a letter almost simul-
taneously stating that there would be a delay in making her work assignment-and
in view of Hall's testimony of the contrary, I find that the Company has failed to
sustain its burden of proof regarding this defense.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the Company regarding inteiim employment and willful loss
of earnings: With the exception of a short period between jobs in 1955-3, Hall was
employed in private homes taking care of children and doing housework throughout
the backpay period. Hall credibly testified that she was always trying to advance
herself by seeking jobs or better employment, including times when she was already
employed.
Conclusions: The Company has failed to establish that it has taken the steps rea-
sonably necessary to communicate offers of reinstatement to Hall either on April 28,
1955, as alleged in the amended answer, or on July 21, 1955, as indicated in Rutter's
testimony. No lack of vacancy for Hall has been shown. No willful loss of earn-
ings has been proven. Adele Nash Hall is entitled to backpay as set forth in the
Appendix.
MILDRED PROCTOR
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-15-55---------------- 4-15-55 (ongmally), 9-12-55 Begins: 4-25-55.
Requested to report ---.--
(as amended).
3-29-56---------------------- Ends 4-3-56.
Remstated---------------- 4-3-56--- -------------- 4-3-56-----------------------
Evidence adduced by the parties concerning Proctor's application for reinstate-
ment: It appearing that the Company may have made an inadvertent error in inter-
preting applications from Proctor in its files, I permitted this issue to be litigated at
the hearing although the Company's amended answer admitted the application date
of April 15, 1955, which was stated in the specification. The confusion arose out
of the fact that the Company had several applications from Proctor in its files, one
dated September 12, 1955, another dated April 3, 1956, another dated simply "April."
The Company contends that this application was submitted after 1955, and bases con-
tention mainly on the fact that in this application Proctor stated that the ages of her
children were 17, 18, and 20, whereas in the April 3, 1956, application Proctor had
stated their ages as 16, 17, and 18. When questioned about this discrepancy, Proc-
tor testified as follows: "As the ages of the children, I have two sons who used to
work there and they were under age, they shouldn't have been working, and that's
probably why I put this. When they filled the application, well, I made them fill
it, you know, older than what they was so they could get jobs." When asked whether
she had deliberately stated her children's ages incorrectly, Proctor replied, "Well, yes,
well, the kids needed a job."
Proctor further testified that it was "maybe about three months" that she drew
unemployment compensation after being laid off by Foster Awning Co. before she
filled out an application at the plant. From the amount of earnings shown by the
social security records from Foster it appears that Proctor was laid off by Foster in
January or very early in February at the latest. Three months later would place
the application as being made in April 1955.
The application itself contains indications that the year in which it was submitted
was 1955. There is a notation on the application in the space for listing present and
past employment "worked here last year." Below this appears, apparently in the
handwriting of Superintendent Drake, "Dated left month --------------- Yr. 54
Reason left Strike. Below this appears, also apparently in the handwriting of Super-
intendent Drake, "Employer Foster Awning. Type of work Sewing rings in tents.
Date left month 3 mos. Yr. ____ Reason left contract ran out." The foregoing
notation is consistent with an April 1955 application and inconsistent with a later
application because by 1956, Proctor had again worked for Foster Awning and had
been employed a total of 6 to 8 months. In the date-of-birth portion of the ap-
plication Proctor had written in "Nov. 25, 1955" which also suggests that it was in
1955 that Proctor's application was filed.
While Proctor had a very poor memory and there are indications in Proctor's
statement, Respondent's Exhibit 113, which tend to, support the Company's posi-
tion, I conclude under all the circumstances of the case, including the fact that the
J. H. RUTTER-REX MANUFACTURING COMPANY 1537
Company originally admitted that Proctor had applied in April 1955, that the Gen-
eral Counsel has sustained his burden of proof with respect to Proctor's April 15,
1955, application.69
Evidence adduced by the parties concerning the request to report for work:
There is no controversy about this issue.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: With the exception of 1955-2 and a few days in 1956-2, Proctor had
earnings in each of the quarters in the backpay period. In her periods of unemploy-
ment, Proctor was drawing unemployment compensation part of the time Proctor
testified generally as to her efforts to gain employment but was very uncertain as
to when she had applied at the various factories which she named.
Conclusions: The General Counsel has sustained his burden of proof with respect
to Proctor's April 15, 1955, application. The Company has failed to establish the
lack of a vacancy for Proctor. No willful loss of earnings has been proven. Mildred
Proctor is entitled to backpay as set forth in the Appendix.
ISABELLE RECASNER
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied ------------------- 4-5-55 (U.) i----------- 7-24-55______ ___- Begins 4-14-55.
Requested to report- ----- 12-25-55--------------------- Ends 1-2-56.
Reinstated________________ No-------------------- Never reported -------------
1 At the healing the Company was peimitted, over the objections of the General Counsel, to adduce
evidence suggesting that in view of the fact that the union application listed Recasner under her married
name of Recasner, rather than Jenkins, by which name she was known to the Company prior to the strike,
that the union letter of April 5, 1955, be deemed not valid as to her While, as Respondent's Exhibit 220
indicates, this listing did cause the Company some confusion, it also appears from Respondent's Exhibit
220 that the Company at some unstated time was able to straighten the matter out. It appears further
that theie was only one other striker having a similar first name, that Recasner had worked foi the.Coin-
pany for 5 years before the strike , and that she had informed the Company about the time of her marriage
of her marred name. In view of these facts , I find that the Company had means of ascertaining the identity
of Recasner, and accordingly reject the Company's contention that reliance should not be placed on the
Union 's April 5, 1955, lettei of application in this case.
Evidence adduced by the parties concerning the request to report for work-
Recasner's application dated July 24, 1955, contains at the top the following notations
in the personnel clerk's handwriting: "Called 12-28-55-asked if she wanted to
work, said she would let us know. 12-29-55-baby sick. Called 2-10-56 left
message for her to come in-called 2-13-56 someone said she had a job and didn't
want to quit." Recasner testified that "it must have been in the first of the year,
maybe January" that she spoke to Mr. Rutter and told him that she did not wish to
return because she was working at B. F. Davis. The social security records indicate
that Recasner had been working for B. F. Davis for over 2 months at this time. The
General Counsel's contention that Recasner should receive backpay until February 10
or 13, 1956, is rejected.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to repoit: None. Rutter testified that two replacements were work-
ing on Recasner's operation-fly stitch-when Recasner applied for reinstatement.
Evidence adduced by the Company regarding interim earnings and willful loss
of earnings: Recasner was unemployed up until she obtained the job at B. F. Davis,
which she still held at the time of the hearing. However, Recasner credibly testified
"I find that Proctor truthfully explained the overstatement of her children's ages in
the "April" application . Proctor impressed me as not having anywhere near the mental
alertness to be able to concoct such an explanation on the spur of the moment.
221-731-67-vol. 15'8-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she was regularly looking for work and named various sewing factories and other
establishments where she applied for work before she got the job at B F Davis
Conclusions The Company has sustained its burden of proof regarding an offer of
reinstatement made to Recasner on December 28, 1955 The Company s defense
that it had no vacancy for Recasner up until December 28, 1955, is refuted by
Rutter s testimony that two replacements were working on Recasner s operation when
she applied No willful loss of earnings has been proven Isabelle Jenkins Recasner
is entitled to backpay up to January 2, 1956, as set forth in the Appendix 70
FANNIE WATFORD
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 4-5-55 (U ) 4-19-55 Begins 4-14-55
Requested to report 8-3-55 Ends Still accruing
Reinstated No 12-4-61
Evidence adduced by the parties concerning the request to report for work
Rutter testified that a notation in the personnel clerk's handwriting on a slip of paper
which was attached to her application dated April 19, 1955, reads Fannie Watford
sent letter, 8-3-55, for her to enter on 8-5-55 ' Watford credibly testified that
after the strike she received no telephone calls, letters, or communications of any
kind from the Company requesting her to report for work
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report None
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Watford testified that at the end of the strike she was doing housework
2 days a week and was looking elsewhere during this period because she needed work
Watford named a number of sewing factories and other establishments at which she
sought work during this period Watford continued in this fashion until the begin-
ning of 1955-4, when she ceased working because of pregnancy Watford did not
look for work during 1956-1 and 1956-2 because of her desire to take care of her
new baby and her older child No backpay will be allowed for these two quarters
In 1956-3 Watford looked for work at various sewing factories Early in 1956-4
obtained a job as a seamstress in a dye house which she kept until the latter part of
February 1957, when she quit because of pregnancy No further backpay is claimed
in the period covered by the specification
Conclusions The Company has not established that it took the steps reasonably
necessary to communicate an offer of reinstatement to Watford on August 3, 1955
The Company has failed to show the lack of a vacancy for Watford prior to August 3,
1955 No willful loss of earnings has been proven Fannie Watford is entitled to
backpay as set forth in the Appendix, which reflects the adjustments stated above
BEATRICE WHITE (LANE)
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 4-5-55 (U ) 4-20-55 Begins 4-14-55
Requested to report 7-22-55 Ends Still accruing i
Reinstated No Never reported
I The record in this case shows that Lane accepted an offer of reinstatement made during the hearing
in this case
'+° Although the specification inadvertently failed so to allege Recasner is entitled to
backpay for 1955-4 a quarter during which she had substantial interim earnings
J. H. RUTTER-REX MANUFACTURING COMPANY 1539
Evidence adduced by the parties concerning the request to report for worn.
Rutter testified that Respondent's Exhibit 219 showed that Lane was sent a letter to
report to work on Friday, July 22, 1955, and that it contained a notation in Rutter's
handwriting that she "did not answer letter." Lane at first testified that she did not
recall receiving any cards, letters,- or calls from the Company after applying for
reinstatement. However, later on when shown a letter which she apparently had
furnished the General Counsel, she recalled receiving a letter postmarked May 2,
1955, stating that there would be a delay in making her work assignment. I do not
regard Lane's testimony in this respect as establishing Lane's unreliability. One
would be much more likely to remember receiving a letter offering reinstatement
than one containing no such offer. Under all the circumstances, including the sketchy
nature of the proof offered concerning the sending of the July 1955 letters, I find
that Lane did not receive a letter in July 1955 offering her reinstatement.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None. -
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Lane had some employment in each quarter during the backpay period'
up to the beginning of 1957-1 when she ceased looking for work because of pregnancy
While Lane had a very poor recollection as to the dates when she sought employ-
ment during her intervals of unemployment, I am persuaded that she registered for
employment with the State Employment Service and also independently looked for
work during these periods prior to 1957-1. At the hearing the specification was
amended to eliminate any deductions for pregnancy in 1956 and to add $334.23 in
earnings from Louisiana Industrial Life Insurance Company for 1956-1 71 Lane did
not seek work during 1957 at all because of her pregnancy and the birth of her child
in August. As I construe Lane's testimony, she did not look for work outside the
home after the birth of her second child in August 1957. Throughout the remainder
of the backpay period, which for unexplained reasons does not include the years 1959
and 1960, Lane did sewing at home so as to be able to take care of her children
Lane netted an average of $10 a week doing this sewing at home. I conclude that
Lane failed to earn more because she desired to stay home to take care of her chil-
dren. In this sense Lane willfully incurred a partial loss'of earnings, and for this
reason I conclude that Lane's gross backpay from 1958-1 on should be computed
upon the basis of what she would have earned working 2 days a week for the
Company.
Conclusions: The Company has failed'to establish that it took the steps reason-
ably necessary to communicate an offer of reinstatement to Lane on July 22, 1955.
The Company has failed to show the lack of a vacancy for Lane. The Company has
proven that Lane willfully incurred a partial loss of earnings commencing at the be-
ginning of 1958-1, and her backpay will be reduced as indicated above. No other
willful loss of earnings has been proven. Lane is entitled to backpay as set forth in
the Appendix, which reflects the adjustments stated above.
ESTELLA WOODRIDGE
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-15-55---------------- Unknown, 9-2-55 (exh. C)- - Begins. 9-29-55.
eport- -----Requested to r ---
Reinstated----------------ted ---- -8-58-----------------
Date of attempted contact
unknown.
------------------------------
Ends 1-8-58.
Evidence adduced by the parties concerning Woodridge's application for reinslate-
ment: The Company produced a Respondent's Exhibit 44, application of Woodridge
dated "Sept. 22." In view of the admission contained in Exhibit C of the Company's
amended answer that Woodridge filed an application on September 2, 1955, I find
that the year Woodridge filed Respondent's Exhibit 44 was 1955. In his brief, the
7 'While Lane quit her job as a debit agent for Louisiana Life early in 1956-2 because
that company cut her original compensation more than in half, this is not regarded as
incurring a willful loss in earnings because of the substantial extent of the reduction in
Lane's pay.
1540 DECISIONS , OF NATIONAL LABOR RELATIONS .BOARD
General Counsel concedes that Woodridge's first application for reinstatement was
made on September 22, 1955.
Evidence adduced by the parties concerning the request to, report for work:
Rutter testified as to the following notation in Superintendent Drake's handwriting in
Woodridge's personnel file: "692, Estella Woodridge, sent for but'was out of town."
Rutter further testified that there was no date as to when she was sent for but that
she was not on the union list. Rutter also testified that he personally went to her
apartment at some unstated time after the strike was called off in an effort to get
her to return to work, but she was not there, and that nobody knew of her. The
record shows that Woodridge was still living at the address given in her 1955 ap-
plication in 1958 at which time she received a card from the Company about re-
turning to work.
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: Rutter testified that before the strike Woodridge was oper-
ating a single pocket pressing machine and that there were several other machines
used for pocket pressing. After the strike one operator was handling all of the
pocket pressing. Rutter did not disclose who was doing the pocket pressing after the
strike. Rutter's testimony indicates that Woodridge was a skilled worker whose
services might readily be utilized.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Woodridge was an elderly appearing woman, 59 years old at the time of
the hearing in 1963. Except for $8 earned doing pressing, she had no earnings dur-
ing the approximately 2 years' backpay period. Woodridge could not state with
any degree of accuracy when she looked for work after the strike was called off.
She did name several sewing factories where she applied after the strike. Woodridge
also testified as to her efforts at unstated times during the backpay period to obtain
housework. A number of times she answered ads in the paper for houseworkers.
Woodridge related that she was turned down because she had no housework refer-
ences (Woodridge had worked for the Company for 12 to 13 years prior to the strike).
Woodridge's testimony as a whole indicates that she lived in more or less straightened
circumstances and that she needed work. There is no evidence showing any dis-
inclination to work on Woodridge's part.
Conclusions: The Company has failed to establish that it took the steps reasonably
necessary to communicate to Woodridge an offer of reinstatement after she applied
at the Company in September 1955. The Company has not shown the absence of
a vacancy for Woodridge at any time. No willful loss of earnings hale been proven.
Estella Woodridge is entitled to backpay as set forth in the Appendix, which reflects
the deduction, of $8 in 1955-4 for earnings made doing pressing,work.
AUDREY ZENO
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-5-55 (U )------------ 4-15-55---------------------- Begins 4-14-55.
Requested to report- ----- ------------------------ 7-12-55---------------------- Ends: 6-9-55.
Reinstatement (offered)- - 6-9-551 --------------- Never1 epoited-------------
1 According to the General Counsel , the date June 9, 1955 , was included in the specification as the date
on which Zeno was offered reinstatement because the General Counsel's information at the time the spec-
ification was issued was that this was the fact In view of the evidence discussed in the following paragraph
concerning the Company 's July 22 , 1955, request to report for work , the General Counsel in his buef moved
to enlarge the backpay period from April 14, 1955, to June 9, 1955 , as alleged in the specification, to from
April 14 , 1955 , to July 22, 1955 . Sufficient justification therefor not having been shown , the General
Counsel ' s motion is hereby denied.
Evidence adduced by the parties concerning the request to report for work:
Attached to Zeno's April 15, 1955, application form is a slip of paper stating as
follows: "Audrey Zeno-7-22-55-did not answer letter."
Specific evidence adduced by the Company as to the lack of a vacancy prior to the
alleged request to report: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Commencing on June 4, 1955, Zeno worked steadily for the New Orleans
Laundry. Zeno credibly testified that she was looking for work prior to that time
and after the strike's end.
J. H. RUTTER-REX MANUFACTURING COMPANY 1541
Conclusions: The Company has failed to show the lack of a vacancy for Zeno. No
willful loss of earnings has been proven. Zeno is entitled to backpay as set forth
in the Appendix.
G. The "not interested" or "not available" defense (schedule 6(f) )
1. General discussion
Because of my disposition of other aspects of the cases of two of the four employ-
ees listed in schedule 6(f), I did not reach the Company's defense in these cases. Of
the other two employees in this category I have in effect sustained the Company's
defense that she was not available in one case and have rejected it in another.
2. The individual cases
ROSE CAMPBELL
Applied -------------------
Reinstatement (offered) _ -
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
5-18-55 ----------------
4-15-56----------------
3-9-56 (exh. C)______________ Begins 3-19-56
Ends. 4-15-56
Evidence adduced by the parties regarding Campbell's application for reinstate-
ment: The Company produced an employment application from Campbell dated
"3/56." Campbell testified that when she applied for reinstatement she was accom-
panied by Dorothy Green who filled out an application at the same time. Campbell
further, testified that she went to the plant with Green to apply for work on only one
occasion. The Company introduced into evidence an employment application signed
by Green dated "3/ /56." I find, as the General Counsel concedes in his brief,
that Campbell did not apply for reinstatement until March 9, 1956, the date shown
on Exhibit C to the Company's amended answer.
Evidence adduced by the Company supporting its defense that Campbell was not
interested in returning to work for the Company: In view of the evidence discussed
above concerning the date of Campbell's application for reinstatement and the Gen-
eral Counsel's concession in regard thereto, there is no real controversy about the
Company's defense being supported by the'evidence. The only question relates to
the date in April 1956' on which Campbell was `offered and declined to accept rein-
statement. The specification gives April 15, 1956, as the date of the Company's
offer of reinstatement because of a notation in Drake's handwriting in the Company's
files dated "4/56" stating as follows: ". . this girl was later called back on several
instances by J. Drake-was told she was not interested, that she was dressmaking
& satisfied." The General Counsel stated in his brief that the specification adopted
April 15 rather than some other date in the month because it was the midpoint of
the month, and such a date seemed equitable- to all parties. I agree.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: The evidence concerning Campbell's search for work is unsatisfactory be-
cause she was testifying about her search for work in 1955 and the backpay period
does not begin until March 19, 1956. However, the Company has not shown that
Campbell did not look for work during the short backpay period. The record does
show that Campbell did some plain sewing, for which I find Campbell was paid an
average of $5 per week during the backpay period.
Conclusions: No willful loss of earnings has been proven. Rose Campbell is en-
titled to backpay as set forth in the Appendix, which reflects the greatly shortened
backpay period.
STELLA DUNN
Reinstatement Backpay period
As'alleged in As admitted As found by
specification by Company Trial Examiner
Begins 7-22-55- ---- 7-14-55 (exh C)____---------Applied-------------- 7-15-55--------- ------
Ends 12-22-58Reinstated 12-2-58-------- -----------------------------
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the Company supporting its defense that Dunn was not
available for work at the time of her application because she was pregnant Rutter
testified without objection concerning an undated, unsigned slip of paper in Dunn's
file in Drake's handwriting stating, `Faint recollection of pregnancy ' Dunn s testi-
mony establishes that she was not pregnant when she filled out an application on
July 14, 1955 The General Counsel in its brief urges not only that Rutter's testa
mony is too vague to support the Company's defense with respect to Dunn but also
that I should not consider Rutter's testimony because it is based solely on docu
ments which were subpenaed by the Union and which the Company refused to pro
duce While I find a certain appeal in the second point made by the General
Counsel, I am doubtful that the proposition of law on which the General Counsel is
apparently relying is applicable to a document which, as here, is not material to the
General Counsels affirmative case and relates solely to a matter of defense Cf
Bannon Mills Inc, 146 NLRB 611, footnote 4, I R pp 29-30 However consider-
ing the evidence as a whole I find that Dunn was not pregnant when she applied for
reinstatement on July 14, 1955
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Backpay is sought in the specification only for 1955-3 Dunn credibly
testified that she unsuccessfully applied for work at several sewing factories during this
quarter
Conclusions The Company's defense that Stella Dunn was unavailable when she
applied for reinstatement is rejected No willful loss of earnings has been proven
Stella Dunn is entitled to backpay as set forth in the Appendix
MAYBELLE JOHNSON
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
12-15-55
No
No backpay
Evidence adduced by the parties concerning Johnson's application for reinstate-
ment Johnson gave very confused testimony about applications made by her, as-
sertedly in 1955 Rutter testified that Johnson's first application was made in 1958
when she came in with mimeographed letters from the Union requesting reinstate-
ment Johnson was completely mixed up regarding the sequence of events mentioned
in her testimony and I conclude that her testimony as a whole is unreliable , not be-
cause of any intention to misstate but because of an inability to keep events straight
in her mind I find in accordance with Rutter 's testimony that Johnson did not apply
for reinstatement until 1958, which , in my opinion, is too late 72
ADELE ROBERTSON
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U
No
5-20-55 (R-31) Begins 7-1-56
Ends Still accruing i
i Robertson was offered and accepted reinstatement during the hearing
72 The General Counsel argues that Johnson must have applied in 1955 rather than in
1958 because the Company would not have included her in schedule 6(f) unless she h2d
made a timely application Rather according to the General Counsel the Company would
have placed Johnson in schedule 6(g) naming those who unduly delayed in appl31ng for
reinstatement While the General Counsel' s argument is plausible enough I conclude
that it attributes greater logic and consistency to the Company 's amended answer than the
document is entitled to I have encountered a number of other im onsistencfeq in the
Company's pleading and cannot give the fact of the inconsistency the weight which the
General Counsel does
J. H. RUTTER-REX MANUFACTURING COMPANY 1543
Evidence adduced by the Company supporting its defense that Robertson was not
available for work at the time of her application because she was pregnant: Rutter
testified concerning two longhand notations, one on the reverse side of Robertson's
application dated May 20, 1955, and the other on Respondent's Exhibit 220, as
follows: "Came in pregnant, going to have baby on 5-21-55." Robertson was re-
peatedly questioned about whether she was pregnant in 1955. She first answered,
"No, I was not. I don't think I was pregnant during that year. If I was pregnant
I don't remember." Almost every time Robertson answered this question, she
qualified her denial by saying that she did not think she had been pregnant in 1955.
The record indicates that Robertson did not give birth to a child in 1955. Robert-
son did testify that she had had a miscarriage in October 1956 . Robertson 's May 20,
1955, application contains checkmarks in both the "married" and "pregnant" boxes.
In view of this fact and Robertson's uncertainty about whether she had been pregnant
when she applied in 1955 (a matter concerning which I feel a woman would not
likely be in doubt, even after 8 years) and I do not credit Robertson's testimony, and
find that Robertson came in pregnant on May 20. 1955, and was not put to work for
that reason.
However, the record shows that Robertson filed another application for reinstate-
ment on November 28, 1955. The record does not reveal why Robertson was not
reinstated pursuant to this, application, which I find to have been timely under all
the circumstances of the case.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: The specification claims backpay only for 1955-2 and 1956-3. My finding
with respect to Robertson's unavailability at the time of her May 20, 1955, applica-
tion eliminates the -first of these two quarters. Robertson was employed at the
DeVille Motel during the 1956-3 quarter. Robertson's earnings at the DeVille
Motel, as the General Counsel states in his brief, were $54.41 rather than $47 as
stated in the specification.73
Conclusions: The Company's "not available" defense is rejected. No willful loss
of earnings has been proven. Adele Robertson is entitled to backpay, as set forth
in the Appendix , which reflects the adjustments stated above.
H. The unreasonable delay in applying defense (schedule 6(g))
1. General discussion
With respect to the 11 employees listed in schedule 6 ( g) the Company pleaded
that they did not apply for' reinstatement within a reasonable time after the strike
was called off.. In the cases ' of all but three of the employees in this category, there
was no controversy as to.the date of the application . In one of these three con-
troverted cases, that of Anna Parker, I have resolved the conflicting testimony favor-
ably to the Company, finding that Parker's application was not filed until October 1957,
at the earliest . , In 9 of the 10 remaining cases, the applications for reinstatement
were made , I find , within 7 months of the strike 's end . The 10th employee in this
category applied . less than 10 months after the strike was called off. In my opinion,
applications -made within such a time cannot be said to be unreasonably -delayed
applications in the circumstances of-this case :- In fact delayed applications presented
less -of a reinstatement problem than the early applications which were made in
large numbers in a short period of time.
As to the application for reinstatement of Anna Parker, which was made about
21h years after the , strike was called off, this presents a much more difficult problem.
The General Counsel's position apparently is that of a delay of 1 year in applying
for reinstatement is not unreasonable , and that an even longer period might be
justified under special circumstances. I agree. Compare Crosby Chemicals, Inc.,
105 NLRB 152, 154, with E. A. Laboratories, Inc., 86 NLRB 711, 714. But these
cases do not tell us precisely where the line should be drawn in determining what
constitutes an unreasonable delay. Under all the circumstances, including the fact
that Parker was in the New Orleans area and was available for employment the
entire 21/2 years preceding her first application and the further fact that Parker was
apparently in contact with the Union during this period, I conclude that Parker un-
duly delayed in applying for reinstatement.
78 For the reasons stated earlier, I adhere to my ruling at the hearing denying the Gen-
eral Counsel 's motion to amend the specification to claim backpay for additional quarters
during which Robertson was allegedly available for and seeking work.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 The individual cases
HAZEL BURNS
Applied
Reinstated
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
10-13-55
Not properly I
10-13-55 Begins 10-31-55
Ends Still accruing 2
i Burns worked but 15 minutes on October 13 1955 the day on which she filled out an application At
the end of this time Bums was told by Drake that the Company did not have an opening for her and that
as soon as one became available she would be called
2 Ilazel Burns was offered and accepted reinstatement during the hearing
Evidence adduced by the Company tegarding interim earnings and willful loss of
earnings Burns testified that she sought work at Bonck's and Schram s in 1955 but
was not sure that it was in the fourth quarter In 1956-1 and 1956-2 Burns looked
for work at Bonck's, Schram s, and Tulane Shirts At the end of May, Burns went
to Chicago and did not look for work in June, July, and August Up until the time
Burns went to Chicago, i e , during 1955-4, 1956-1, and the first 2 months in 1956-2,
Burns did babysitting an average of 27 hours a week for which she received 75 cents
per hour Burns testified that she could not recall looking for work in September
1956 and I construe her testimony in this regard to mean that she did not look for
work during this month Burns testified that in 1956-4 she looked for work at
Schram's but that she did not seek employment in 1957-1 In April 1957 Burns
obtained a 6 days a week job working irregular hours for Southern Produce Co and
remained there about a year She quit the middle of April 1958 because she was
pregnant and did not again look for work until the beginning of 1959-3 when she
regained her job at Southern Produce Burns remained at Southern Produce until
October 30, 1960 At this time she again quit because of pregnancy and did not
again seek work in the period covered by the specification Burns did not look for
other work at any time she was employed by Southern Produce Because of the
periods during which Burns was unavailable or not seeking work, the following pe
nods will be eliminated from the specification 1956-2 (June only), 1956-3, 1957-1,
1958-2 (excepting first half of April), 1958-3, 1958-4, 1959-1, 1959-2, 1960-4
(November and December only), 1961-1, 1961-2
Conclusions No unreasonable delay in applying for reinstatement has been estab
lished A partial willful loss of earnings has been shown, for which the deductions
indicated above will be made in computing Burns backpay Hazel Burns is en-
titled to backpay as set forth in the Appendix which reflects Burns additional interim
earnings babysitting
CLEO FONTENBERRY
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Applied 11-4-55 11-4-55 Begins 11-14-55
Reinstated 1-24-56 1-24-56 (exh C) Ends 11-19-55
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings Fontenberry worked the first part of the short backpay period at Founda-
tion Hospital She quit there before she was called back to work at the Company
because she did not like the work running an elevator Fontenberry did not look
for work anywhere else after quitting her job at the hospital A comparison of the
interim earnings shown in the specification for both quarters involved with those
shown in the social security records for Fontenberry indicates that those responsible
for preparing the specification misunderstood the available figures Under all the
T. H. RUTTER-REX MANUFACTURING COMPANY
circumstances I conclude that a recomputation of Fontenberry's backpay is appro-
priate in this case in order to show her correct interim earnings and to reflect the
fact that Fontenbeiry unjustifiably quit her hospital job. Fontenberry's social secu-
rity records show that she earned approximately The same amount at the hospital
in both 1955-2 and 1955-3. Dividing her earnings for these 26 weeks, $570 38, by
26, her weekly earnings at the hospital work out at $21 93. By dividing Fonten-
berry's earnings at the hospital in 1955-4, $153 16 by her weekly earnings, $21.93,
the approximate number of weeks Fontenberry worked at the hospital in 1955-4
can be ascertained. This works out at about 7 weeks. I conclude on the basis of
the foregoing that Fontenberry quit her job at the hospital at the end of the 7th
week in 1955-4, and that from that time on Fontenberry willfully incurred a loss in
earnings.
Conclusions: No reasonable delay in applying for reinstatement has been estab-
lished. Fontenberry has willfully incurred a loss of earnings from the end of the
7th week in 1955-4 to the end of the backpay period. Cleo Fontenberry is entitled
to backpay as set forth in the Appendix, which reflects the adjustments stated above.
GENEVIEVE GREEN (HILLIARD)
1545
Reinstatement
Applied -------------------
Reinstated-------------_-
As alleged in
specification
11-9-55---------------
8-28-56----------------
As admitted
by Company
11-9-55----------------------
Backpay period
As found by
Trial Examiner
Begins 11-17-55
Ends 5-1-56.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Hilliard unsuccessfully looked for work in 1955-4 at Tulane Shirt and
Schram's. Thereafter Hilliard did not work or look for work during the backpay
period, with the exception of the month of April 1956, during which she sewed on
May festival costumes for one classroom of school children, for which she was
paid $65.
Conclusions: No unreasonable delay in applying for reinstatement has been estab-
lished. Hilliard willfully incurred a loss of earnings during that portion of the back-
pay period in 1956, excepting for the month of April. Genevieve Green Hilliard is
entitled to backpay as set forth in the Appendix which reflects the adjustments stated
above.
CATHERINE JEFF (CLARK)
Reinstatement
Applied-------------------
Reinstated----------------
Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
1-28-56=--------------- 1-25-56 ---------------------- Begins 2-6-56
No-------------------- ------------------------------ Ends Still accruing
Evidence adduced by the, Company regarding interim earnings and willful loss of
earnings : Clark had earnings in all except three of the quarters for which backpay is
claimed in the specification:. Most of the time Clark worked for New Orleans Build-
ing Maintenance Corporation which had a contract for cleaning schools. However,
the job involved no more than 3 hours a day and was performed from.5^ to 7 or 8
p.m. Clark testified as to her efforts to obtain a-daytime job while working for the
building maintenance firm. However, she was unable to place the date when she
applied at various places, including several sewing factories. Regarding 1959-4,
1960-1, and 1960-2, the quarters during which Clark had no earnings, she simply
could not recall anything about her efforts to obtain work during this period. In fact,
Clark was under the impression that she had worked almost steadily for the building
maintenance firm. There is no evidence that Clark was not looking for work during
this period. Clark impressed me as being a very sincere witness who took pains
not to overstate matters.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions: No unreasonable delay in applying for reinstatement has been estab-
lished. No willful loss of earnings has been proven. Catherine Jeff Clark is entitled
to backpay as set forth in the Appendix.74
RUTH JOLLY (CAHN)
Applied-------------------
Reinstated ----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
11-7-55----------------
7-23-56 ----------------
11-7-55---------------------- Begins, 11-21-55.
Ends. 7-23-56
Evidence adduced by the Company regarding interim emnings and willful loss of
earnings: None. Cahn was not called as a witness in this proceeding. Although
Cahn was not available at the time the Company subpenaed her because she was due
to give birth to a child shortly after the return day of the subpena, the Company did
not thereafter seek to obtain her attendance at the hearing.
Conclusions: No unreasonable delay in applying for reinstatement has been estab-
lished. No willful loss of earnings has been proven. Ruth Jolly Cahn is entitled to
backpay as set forth in the Appendix.
DOROTHY WHITE LEARSON
Applied-------------------
Reinstated ----------------
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-15-55----------------
No--------------------
10-6-58----------------------
------------------------------
Begins 8-15-55
Ends Still acci•umg.i
i Learson was offered reinstatement during the hearing.
Evidence adduced by the General Counsel regarding Learson's application for rein-
statement: Learson credibly testified that when her first baby was a month or two
old the Union sent her a letter informing her that the 'strike was over and suggesting
that she apply for her job with the Company. Learson's first child was born on
June 21, 1955 When Learson applied on this occasion she was told she would be
sent for when work was available. Learson testified that she reapplied for work on
more than one occasion and that she filled out a written application each time she
went back to the plant. Rutter testified that the company files showed that Learson's
first application after the strike was over was filed on October 6, 1958. I find, in
accordance with Learson's testimony, that she applied for reinstatement when her
first baby was a month or two old. Adopting the midpoint, I find. that. Le arson's
application was made on August 5, 1955.75
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Only three quarters are involved in the backpay period covered by the
specification , 1957-4, 1961-1, and 1961-2.76 Learson did housework during these
periods, 2 days a week during 1957-4 and 1 day a week during 1961-1 and 1961-2:
Learson did not look for sewing factory work at any time during the backpay period,.
74 The specification inadvertently fails to allege backpay for 1956-4 and 1957-1, two
quarters during which Clark had substantial interim earnings.
75 In view of the fact that the Company 's records do not contain Learson 's August 1955
application , I have considered Learson 's testimony carefully in an effort to determine
whether in her testimony she might be confusing her 1955 application with her 1958 ap-
plication. However, in view of the fact that Learson did not give birth to any children
between 1957 and 1959, and the further fact that Learson was a cautious witness who
was not inclined to overstate matters, I conclude that Learson was not confused in her
testimony about her 1955 application.
76 The General Counsel's motion to amend the specification to include backpay for addi-
tional quarters is denied for reasons previously stated.
J. H. RUTTER-REX MANUFACTURING COMPANY 1547
While working in 1957-1, 2 days a week, Learson wanted other housework jobs but
did not find any. The record does not show what Learson did, if anything, to obtain
additional housework in 1961-1 and 1961-2.
Conclusions: The record establishes that Learson applied for reinstatement on
August 5, 1955. No willful loss of earnings has been proven. Dorothy White
Learson is entitled to backpay as set forth in the Appendix.
HERBERT LOTTEN
Applied------------------- ----------------
Reinstated ---------------ated
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
7-29-551---------------
No--------------------
11-7-55---------------------- Begins 11-15-55 .
Ends Still accruing 2
1 In view of the fact that the Company admits that Lotten filed a written application for reinstatement on
November 7, 1955, and that no backpay is claimed for 1955 because of Lotten's higher interim earnings, I
find it unnecessary to determine whether Lotten made an earlier application for reinstatement.
iLotten was offered and declined reinstatement during the hearing.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Lotten was employed throughout the backpay period by C & C Cleaners
which is owned by his father-in-law. Received in evidence as Respondent's Exhibit
62 was an undated longhand notation on a slip of paper in Superintendent Drake's
handwriting, as follows: "Note date of app-sent for in June 57 told Batiste not
interested-working in pressing shop for father in law-." Drake was not called
upon to testify concerning this notation and Batiste testified that he had no conversa-
tion with Lotten about returning to work after the strike was over. Lotten testified
that he had a conversation with Batiste sometime after the end of the strike in which
he informed Batiste that he was not interested in returning to work for the Company
but that he had no recollection whatever when this conversation took place. Under
all the circumstances,, including the fact that the Company did not allege in its
amended answer that Lotten had been offered and had refused reinstatement in June
1957, I can place no reliance on Respondent's Exhibit 62.
Since the Company has not briefed the cases individually, it is not known what the
Company's contentions regarding Lotten are. However, if it is contending that
Lotten's backpay, should be cut off as of sometime that Lotten accepted a permanent
job with C & C Cleaners; the Company has- not sustained its burden with respect to
showing what the cutoff date should be.. In any event, acceptance of- 'a permanent
job elsewhere does not automatically terminate backpay. As the Board stated in
Mastro Plastics Corporation, 136 NLRB 1342, 1349, "Even if a claimant obtains a
so-called permanent job, he is, still entitled to the difference between what he earns
at the new job and what he would have earned-at Respondent's plant."
Conclusions: No willful loss of earnings has been proven. Herbert -Lotten is
entitled to backpay as set forth in the Appendix.77 -
,,
Applied------------------
Reinstated---------------
LORRAINE LYONS
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-5-55 (U )------------
5-11-56---------------
4-15-55 (eth. C) ------------- Begins, 4-14-55
Ends 5-11-56
Evidence adduced by the Company regarding, interim employment and willful loss
of earnings: At the time the strike was called off Lyons was in her 6th month of preg-
nancy. Lyons had filed applications for jobs at various sewing factories earlier in
77 Due to the change to the calendar quarter method of computation Lotten is entitled
to backpay for 1956-2, 1957-2, and 1958-3, which is not alleged in the specification
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her pregnancy and did not look elsewhere after personally applying at the Company's
plant on April 15, 1955. The Company's records indicate that at this time Lyons
informed the Company that she could work 2 or 21/2 months ( the baby was born on
July 21 , 1955 ). In view of the fact that other employers would be unlikely to hire
for the first time a woman in advanced stages of pregnancy , I find that Lyons did not
willfully incur a loss of earnings by not looking elsewhere in that part of 1955-2
covered by the specification.
Lyons did not look for work after the baby was born until about the time she
obtained a job with Cute -Togs ( Southern Manhattan ) which I find occurred on
February 13, 1956. That portion of 1956-1 prior to February 13 and all of 1955-4
will be eliminated from the specification because of Lyons' unavailability for work
during this period . After being laid off by Cute -Togs because of the ending of the
night shift near the end of 1956-1, Lyons made the rounds of the sewing factories
looking for jobs, but was unsuccessful in obtaining work.
Conclusions : No willful loss of earnings has been proven . Lorraine Lyons is en-
titled to backpay as set forth in the Appendix which reflects the adjustments stated
above.
BESSIE MONTGOMERY
Reinstatement
Applied------------------- - ---------------
Reinstated ---------------
As alleged in
specification
8-5-55----------------
No--------------------
As admitted
by Company
1957- -----------------------
Backpay period
As found by
Trial Examiner
Begins 8-15-55
Ends Still accruing I
I Montgomery was offered and accepted reinstatement during the hearing
Evidence adduced by the General Counsel regarding Montgomery 's application for
reinstatement Montgomery testified that she received word from the Union for the
striking employees "to go back and put in our applications at Rex because they were
taking the strikers back "; that after working a half-day at Haspel's she went down
to the plant and sought to fill out an application; that Johanna asked , "Have you
worked here before"; that she answered , "Yes" and gave Johanna her name; that
Johanna then went to get Superintendent Drake ; and that Drake told her that "he
didn 't have anything open right then. When he would get something he would call
[ her]." Montgomery testified that she did not fill out an application on this occasion.
Montgomery further testified that about 3 or 4 months after the first time she applied'
after the strike , she again went to the plant and asked to fiil'out an application, that
much the same thing , happened as on the first occasion, and that Drake told Mont-
gomery that he still did not have anything open. Jeanette Johnson's testimony infer-
entially corroborates that of Montgomery about going to the plant in the summer of-
1955 and applying for work . It was stipulated that both Drake and Johanna' could
neither admit nor deny Montgomery 's testimony concerning her visits to the plant in
1955. Based upon his examination of an application in Montgomery 's file, Rutter
testified that Montgomery 's first application after the'strike was filed in 1957. I
credit Montgomery 's testimony and find that she sought reinstatement at least by
the August 5, 1955 , date stated in the ' specification.
Evidence adduced by the General Counsel concerning his claim that Montgomery's
union dues at Haspel's were a deductible expense: None . Counsel for the Com-
pany brought out that Montgomery thought that her union dues while at Haspel's
were $2.50 a month. The General Counsel urges that if union dues are compelled
as a condition of employment , they are a valid deductible expense. The General
Counsel, however , has not shown that Montgomery 's union dues were required as a
condition of employment . Accordingly , Montgomery 's union dues while at Haspel's
will not be allowed as a deduction from interim earnings.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Montgomery was employed by Haspel's from January 1955 until May 1959
at which time she quit to join her husband in Germany . The work was irregular.
She frequently did not work full weeks and sometimes she did not work full days.
Montgomery drew partial unemployment at times while laid off by Haspel's. Mont-
gomery did not look for other work while working at Haspel 's. Montgomery re-
turned from Germany early in March 1960 , but did not succeed in obtaining em-
ployment until the first of October, when she obtained a job at Bonck's, which she-
continued to hold for the rest of the backpay period.
J. H. RUTTER-REX MANUFACTURING COMPANY 1549
From the standpoint of fulfilling her obligation to mitigate damages Montgomery
willfully incurred a loss in earnings when she quit her job at Haspel's which she had
held for almost 31/2 years, to join her husband in Germany. For this 'reason, Mont-
gomery's average quarterly earnings for the last four full quarters that she worked for
Haspel 's as shown by social security records , i.e., during 1958-2 , 1958-3 , 1958-4,
1959-1, will be projected forward until the beginning of 1960-4, when Montgomery
obtained the job with Bonck's. Montgomery's average quarterly earnings during
this period were $400.55. See Mastro Plastics Corporation, 136 NLRB 1342, 1350,
citing Knickerbocker Plastic Co.,•Inc., 132 NLRB 1209, 1215.
Conclusions: No willful loss of earnings has been proven. Bessie Montgomery is
entitled to backpay as set forth in the Appendix, which reflects the adjustments stated
hereinabove.
MARIETTA NEWMAN
Reinstatement
Applied ------------------
Reinstated---------------
As alleged in
specification
4-5-55 (U)------------
6-15-581-- ------------
As admitted
by Company
3-12-58 ----------------------
Backpay period
As found by
Trial Examiner
Begins 4-14-55.
Eiids 6-15-58
i Newman was reinstated to her old job as corner maker on parts on March 24, 1958 Although Newman
was an experienced corner maker, she was given the learner's rate. The General Coubsel contends that this
did not constitute proper reinstatement and that until Newman was given the experienced rate on her
operation on June 15, 1958, her earnings at Rutter-Rex should be treated as interim earnings Rutter
testified that because of the 4-year period during which she had done no sewing factory work Newman had
to be given the learner's rate. I uphold the General Counsel's contention. Any loss of skill suffered by
Newman is largely due to the Company's failure to take seriously the Union's application for reinstate-
ment made in Newman's behalf in April 1955. Newman's earnings at the Company in 1958-2, as shown in
the social security records (the specification erroneously understates these earnings ), will be treated as
interim earnings . These will be computed on a 14-week quarter basis since the 13-week figures are not
available.
Evidence adduced by the Company regarding interim earnings and willful loss of
earnings: Although she was unable to pinpoint the months in which she applied for
work in sewing factories during 1955, Newman's testimony establishes that she was
genuinely seeking work during this period. From October 1, 1955, until July 20,
1957, Newman was employed as a nurse taking care of a child iii a private home.
During 1955 , Newman was paid $6 per day for 3 days a week. Commencing on
January 1, 1956, and for the remainder of the time that Newman took care of the
child, she worked 5 days a week for $6 per day. Newman became ill on July 20,
1957, and did not seek employment for the rest of 1957-3. The record adequately
establishes Newman's search for work in 1957-4 at sewing factories and depart-
ment stores
Conclusions: No willful loss of earnings has been proven. Marietta Newman is
entitled to backpay as set forth in the Appendix which reflects Newman's revised
earnings as a nurse and shows the elimination of any claim for backpay for 1957-3
from July 20 on.
Applied ------------------
Remstated-- -------------
ANNA PARKER
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
4-15-55---------------
10-9-58 1--------------
10-6-58---------------------- No backpay.
i The General Counsel contends that Parker was improperly reinstated on this date, but in view of my
finding that Parker unreasonably delayed in applying for reinstatement, it is not necessary to consider this
contention. '
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Evidence adduced-by the parties regarding Parker's application for reinstatement:
Careful consideration of Parker's testimony has not persuaded me that Parker applied
for reinstatement at any time prior to the latter part of 1957. In her versions of her
first application for reinstatement she repeatedly switched back and forth. In her
first version Parker related that she had gone to the plant a week after the strike was
over with a statement from the Union asking for reinstatement. Drake looked it
over and said there were no openings. Parker testified that she did not fill out an
application on this occasion . The next month , Parker testified , she thought she
filled out an application at the plant. This time, according to Parker she talked with
Johanna. When asked about filing a written application in 1956, Parker replied
that she had filled out a written application every time she went to the plant. Then
Parker related that Ruby Caliste, the union organizer, had taken out a group in 1957
and again in 1958. On cross-examination Parker testified that Ruby Caliste gave
her a paper to apply for her job a week after the strike ended. When asked where
she was working at the time, Parker answered that she was working for Mrs. Behr-
man. The first time Parker worked for Behrman was in 1958-3. In her statement
given to the Board investigator, Parker stated, with respect to her first application
after the strike, that Ruby Caliste and a group of strikers were with her when she
applied.
Ruby Caliste testified that in October 1957 she took Anna Parker, Adele Robert-
son, Estella Woodridge , and Stella Dunn in her car to the plant , and that in Septem-
ber 1958 she took Anna Parker and Adele Robertson again. The record shows that
when these women applied in 1957 and 1958 they had been furnished statements by
the Union applying for reinstatement.
Rutter testified concerning an application which he received from Parker on Octo-
ber 6, 1958, on which he noted in his handwriting that "she didn't think we would
hire her so she has not applied since strike." Rutter testified that this was what
Parker had told him on this occasion. Rutter elaborated to this effect: Parker, hav-
ing known Rutter and his father, the Company's chairman of the board, for so many
years, feared that she would be in their disfavor for having gone out on strike. Rutter
testified that the only other application which the Company had in its files from
Parker was one dated March 17, 1953.
In view of the shifting nature of Parker's testimony, the failure of Caliste to sub-
stantiate Parker's testimony about her 1955 application, the inconsistency between
Parker's testimony and the statement given to a Board investigator, and my impres-
sions as to Parker's confused state of mind, I do not credit Parker's testimony about
her 1955 applications, and find that the earliest Parker applied for reinstatement was
in 1957, which for the reasons stated above I regard as untimely.
Conclusions: Anna Parker is not entitled to backpay.
1. The reinstated-and-discharge-for-unsatisfactory -performance defense
(schedule 6(h))
1. General discussion
The employees listed in schedule 6(h) or the Company's amended answer, with
one exception, were all strikers who were belatedly reinstated and thereafter dis-
charged, assertedly for poor production or poor quality work, after a brief trial pe-
riod of 6 weeks or less.78 These employees fall into three categories.
The first category includes the employees who, despite the fact that replacements
were working on their former operation at the time of their application for reinstate-
ment, were not reinstated on their former operation but on some new operation with
which they were not familiar, and on which they did not perform satisfactorily, ac-
cording to the Company. As to the employees in this category, the General Coun-
sel, citing the Chase National Bank of the City of New York , San Juan, Puerto Rico,
Branch, 65 NLRB 827, 828-829, contends that the Company was obliged to rein-
state them on their old operations and did not have the option of transferring them
and retraining them on new operations . The Chase National Bank case is diaposi-
tive of this issue. Accordingly, I sustain the General Counsel's contention in this
regard.
The second category of employees included in schedule 6(h) includes those hav-
ing experience on more than one operation whose operation immediately before the
strike was no longer available (either because of the discontinuance of the operation
78 The one exception , Willie Marshall , who was kept on the payroll 4 months, was never
reinstated to her former operation , although the Company had five replacements working
on her former operation at the time of her application for reinstatement.
J. H. RUTTER-REX MANUFACTURING COMPANY, 1551
or because only returned strikers were performing the operation at the time of the
application for reinstatement), who were reassigned to new operations although re-
placements were still filling positions on which they had had previous experience.
Regarding these, I conclude that a reasonable solution of the problem was the dis-
missal of the replacement to make room for the experienced returning strikers. The
two strikers in this category had at least 9 months' experience on other operations
which replacements were still filling at the time of the strikers' applications for
reinstatement.
The third category consists of employees whose former operations were no longer
available and who were belatedly transferred to new operations. As to these em-
ployees, I have concluded, either that they were or were not given an adequate trial
on the new operation, depending on my view of the facts involved in the various in-
dividual cases.
2. The individual cases
DORIS BOWLES
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied - ---------------- 4-5-55 (U )------------ 4-27-55---------------------- Begins . 4-14-55
Reinstated---------------- 1955-31 --------- -------1955-3 i--------- ------- 8-3-55- --------------------- Ends : Still accruing 2
Discharged--------------- ------------------------------------------------ 9-2-55-----------------------
I The specification alleges "No proper reinstatement."
2 Bowles declined an offer of reinstatement made during the hearing.
Specific evidence adduced by the Company as to the lack of a vacancy prior to rein-
statement: On April 5, 1955, Dorothy Bean, a returned striker, was the only em-
ployee performing Bowles' old job of setting zippers.
Evidence adduced by the General Counsel supporting his claim of improper rein-
statement: On August 3, 1955, Bowles was reinstated on her old job of setting zippers.
Bowles had been setting zippers for 3 or 4 years at least. As stated above, Dorothy
Bean, a returned striker, was also setting zippers. Because of a change in the process
during the strike from setting individual precut zippers to setting chain zippers, which
come in a large continuous roll, the Company did not any longer require the serv-
ices of two zipper setters. After setting zippers for almost 2 weeks,79 Bowles was
transferred first to cutting down pockets and then to running flies, an operation she
had sometimes performed before the strike. Before being assigned to this latter op-
eration, her supervisor, known to her only as "Buddy," had asked Bowles whether
she had run flies before. When Bowles answered in the affirmative, Buddy started
Bowles in running flies without giving her any instructions. The record is unclear
regarding the extent to which the Company assisted Bowles in relearning the running
flies operation. While at first Bowles testified that she received complaints from
Buddy about her work cutting down pockets and running flies, on rebuttal Bowles
testified that she was not given any special instruction on how to perform the running
flies operation. Buddy, who had not been in the Company's employ for some years,
was not called as a witness. On September 2, 1955, the day of Bowles' discharge,
Buddy brought a number of pairs of pants back to her, some of which had been ripped
open, told her that they were all done wrong, and that she had not followed the notch
in her sewing. Bowles replied that they had not used notches when she previously
had run flies. Buddy nevertheless told Bowles to go to the office, where she was dis-
charged. Rutter testified that it was Bowles' bad work which caused her discharge,
not her poor production. As best I can determine from Respondent's Exhibit 208A,
the learner's schedule for running flies provides for either a 10- or a 12-week training
period. As found above, Bowles was tried out on this operation 2 weeks, at most.
Under all the circumstances I find that the Company did not give Bowles an adequate
opportunity to learn the operation of running flies, to which she was transferred after
her reinstatement. The period of her reinstatement will be excluded from her back-
pay period.
Evidence adduced by the'Company regarding interim earnings and willful loss of
earnings: Bowles did some work in every quarter of the backpay period covered by
79 Judging by Bowles' higher earnings for the weeks ending August 6, 13, and 20, 1955.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the specification . For the most part she worked in sewing factories . But there were
three periods during which Bowles was doing daywork; namely , the periods before
and after her reinstatement by the Company in 1955 and a brief period between
working for Cute-Togs and Louisiana Garment in 1957 and 1958. While Bowles
was not occupied full time doing daywork , the record indicates that Bowles was
seeking other work during the time she was doing housework, and the Company has
adduced no evidence to the contrary. The specification does not reflect the full
extent of Bowles' earnings doing daywork . During 1955-3, 1955-4, 1956-1, 1956-2,
1956-3, and the first 11 weeks of 1956-4, Bowles was working 3 days a week as a
maid and received $4.14 per day for this work. During the last 2 weeks of 1957-4
and the first 3 weeks of 1958-1 , Bowles was working 2 days a week as a maid and
was paid the same daily rate.
Conclusions: The Company, having no vacancy for Bowles on her old operation,
was obliged to transfer her and retrain her on another operation , as it ultimately did.
However, the Company did not give Bowles an adequate opportunity to learn the
operation of running flies as it was being done after the strike . Accordingly, the
General Counsel has established that Bowles was not properly reinstated in 1955.
No willful loss of earnings has been proven. Doris Bowles is entitled to backpay
as set forth in the Appendix which reflects her revised interim earnings as a maid.
MARGUERITE BOZONIER
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-5-55 (U )----------------------- 4-18-55-- --------------------
Begins 4-14-55.
Reinstated---------------- 1955-31 ----------------3 1---------------- 8-5-55- ---------------------- Ends Still
accruing 2
Discharged --------------- ------------------------------------------------ 8-23-55----------------------
I The specification alleges "No proper reinstatement "
2 During the hearing Bozonier was offered and accepted reinstatement.
Specific evidence adduced by the Company as to the lack of a vacancy prior to re-
instatement: Immediately before the strike, Bozonier was boxing shoulder straps on
Government shirts. This operation was no longer being done after the strike. Be-
fore being transferred to boxing shoulder straps , Bozonier had been topstitching
collars, an operation on which she made production . Bozonier had had about 9
months' experience on this operation. On April 5, 1955 , when the Union applied
for reinstatement on behalf of Bozonier , the Company had in its employ three re-
placements on Bozonier 's former operation of topstitching collars. One of these,
Helen Shields, remained on the payroll throughout the backpay period with only
one interruption of any length.
Evidence adduced by the General Counsel supporting his claim of impioper, rein-
statement : When Bozonier was recalled to work August 3, 1955, she was assigned to
joining yokes on shirts, a job she had not done before. As Rutter admitted , -this is
a very difficult operation to learn. The training period for joining is 15 weeks.
After working on this new operation for less than 90 hours or a little over 9 working
days, Bozonier was discharged , assertedly because she failed to measure up to the
learner's schedule , and for bad work. As indicated above, a reasonable solution
of the problem presented by the nonavailability of work on the operation Bozonier
was performing immediately before the strike was to place her on the operation she
previously had done at the plant, and on which the Company was utilizing three
replacements who were vulnerable to discharge to make room for returning strikers.
Even if the Company were entitled to retain a replacement in Bozonier 's former
operation and retain her on a new one, I do not regard a trial period of a little over
2 weeks as being a sufficient trial on a very difficult operation for an operator who
had performed satisfactorily for the Company in the past . The Company's treat-
ment of Bozonier after the strike did not fulfill its reinstatement obligations to her.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Bozonier had only one substantial period of unemployment during the
backpay period and that began on September 1, 1956 , when she first commenced
looking for work after the birth of her baby, and continued until March 1, 1958,
J. H. RUTTER-REX MANUFACTURING COMPANY
when she obtained a job at a cigar factory.80 Bozonier continued to work at the
cigar factory for the remainder of the period covered by the specification. While
Bozonier was uncertain as to the dates in 1956 and 1957 on which she applied for
jobs, her testimony convinces me that Bozonier was regularly looking for work dur-
ing her periods of unemployment and that in an effort to obtain work she repeatedly
visited sewing factories, department stores, and also tried at various retail stores, a
hospital, and a motel. Due to the change to the calendar quarter system of com-
putation used in this Decision, Bozonier is entitled to backpay for 1955-4. Bozonier's
interim earnings in 1955-4 at Daste Shopping Center amounted to $390
Conclusions: The Company has not sustained its burden of proving the absence of
a vacancy prior to Bozonier's reinstatement. The General Counsel has established
that Bozonier was not properly reinstated in 1955. No willful loss of earnings has
been proven. Marguerite Bozonier is entitled to backpay, as set forth in the Ap-
pendix which includes backpay for 1955-4.
IRMA DARENSBOURG•
1553
Reinstatement
Applied-------------------
Reinstated ---------------
Discharged ---------------
As alleged in
specification
6 17 55 ---------------
9-1-55-----------------
As alleged in
answer
Not indicated in personnel
file 6-17-55 (exh Q.
9-1-55 (exh. C)______________
Quit 2.......................
Backpay period
As found by,
Trial Examiner
Begins 6-27-55.
I Unlike the other employees listed by the Company in schedule 6(h), the specification does not allege
improper reinstatement in Darensbourg's case
2 In view of this allegation it appears that Darensbourg was erroneously listed in schedule 6(h) which
includes those who were allegedly discharged for unsatisfactory performance
Specific evidence adduced by the Company as to the lack of a vacancy: None.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: None. Darensbourg was not called as a witness.
Conclusions: No willful loss of earnings has been proven. Irma Darensbourg is
entitled to backpay as set forth in the Appendix.
EDNA FRANCIS
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-5-55 (U.)----------------------- 4-14-55---------------------- Begins 4-14-55
Reinstated ---------------- 1955-31 ----------------3 i----------------
7-55 2 ....................... Ends Still accruing 3
Discharged_______________ ------------------------------------------------ 8-12-55----------------------
I The specification alleges "Not proper reinstatement."
2 At the hearing Rutter testified that Francis was reinstated on August 2, 1955.
3 Francis was again reinstated on May 27, 1963
Specific evidence adduced by the Company as to the lack of a vacancy prior to
reinstatement: None. The contrary is established by Rutter's testimony that Evelyn
Bourgeois, a replacement, remained on the payroll until the week ending October 8,
1955.
81 The March 1 date is based on the social security record of Bozonier's earnings in
1958-190- and Bozonier's testimony as to her rate of pay when first employed at the
cigar factory.
221-731-67-vol. 158-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the General Counsel supporting his claim of improper rein-
statement: Before the strike Francis was engaged in taping crotches. After the
strike she was assigned to hemming pants, an operation she had not previously done
at the plant. The training period for this operation is 12 weeks. When Francis
reported for work on August 2 Drake instructed her to watch the next girl in the
line for a half hour. At the end of this time Francis started in on a bundle of her
own. The girl next to her showed her how the operation was performed. Each
day Rutter spoke to Francis about her production and about the way she was doing
her work. After about 7 working days Francis was given a formal warning to im-
prove her production, and a day or so, later Francis was discharged "for lack of pro-
duction and poor quality." As found above, as long as a vacancy existed in Francis'
old operation of taping crotches, the Company was obligated to reinstate her to this
operation. It did not have the alternative of placing her in a substantially equivalent
position, assuming that hemming pants is substantially equivalent to taping crotches
In any event, in my opinion, Francis' trial period of 8 days was inadequate under
all the circumstances of the case.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: The General Counsel's claim for backpay on behalf of Francis, as revised
in his brief, requests backpay only during the brief period of Francis' reinstatement
in 1955, during the period Francis was doing housework for Mrs. Kussman in 1957
and 1958, and during the period after May 1959 when Francis allegedly was available
.for work following the birth of her baby. Because she was not properly reinstated,
Francis' earnings after her reinstatement by the Company will be treated as interim
earnings . I find that Francis commenced working for Kussman on October 1,
1957, and continued working for her until May 16, 1958, when she quit because she
was pregnant. During this period Francis worked 3 to 5 days a week and averaged
$20 per week. While working for Kussman, Francis did not look for work else-
where. Francis did not again become available for work until May 3, 1959. From
this time on until Francis obtained a job with B. F. Davis on August 26, 1960, the
record is unclear as to Francis' efforts to obtain employment, except with respect to
doing babysitting, and for 2 days' work which she obtained at Schram's in 1959-3.
'There is no showing that Francis was not looking for work during this period. The
record does support the General Counsel's contention that Francis earned an aver-
age of $9 per week babysitting from May 3, 1959, until August 26, 1960, which is
not stated in the specification. Francis continued working for B. F. Davis for the
remainder of the backpay period covered by the specification.
Conclusions: The evidence refutes the Company's contention that it had no
vacancy for Francis prior to her reinstatement in 1955. . The General Counsel has
established that Francis was not properly reinstated in 1955. No willful loss of
earnings has been proven during any period for which backpay is now claimed by
the General Counsel. Edna Francis is entitled to backpay as set forth in the Ap-
pendix, which reflects the elimination of all claim for backpay in 1955 except dur-
ing the brief period Francis was reinstated in 1955, for part of 1958-2, all of 1958-3,
1958-4, 1959-1, and part of 1959-2.
AUDREY LEWIS
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-5-55 (U)----------------------- 4-14-55 ---------------------- Begins 4-14-55.
Reinstated- -------------- 1955-31 - --------------- 1 --------------- 7-13-55 ---------------------- Ends 7-13-55.
Discharged--------------- ------------------------------------------------ 8-23-55----------------------
i The specification alleges "No proper reinstatement."
Specific evidence adduced by the Company as to the lack of a vacancy -prior -to
reinstatement: Lewis' lob before the strike was banding collars. On April 5, 1955,
according to Rutter's,credited testimony, only three operators were banding-collars
and they were all returned strikers.
Evidence adduced by the General Counsel supporting his claim-of improper rein-
statement: In view of the fact that only returned strikers were banding collars when
Lewis applied, the General Counsel apparently recognizes that Lewis was properly
J H RUTTER-REX MANUFACTURING COMPANY 1555
assigned to another operation-that of yoking shirts The General Counsel's posi-
tion is that the 6 week training period on yoking given Lewis after her reinstatement
was inadequate, particularly when compared with the training time given her to learn
banding collars when she was first hired I am not persuaded Banding collars was
an operation having a 15 week training period Yoking has a 12-week training pe-
riod Lewis was given a written warning to improve her production a week or two
before her discharge As I construe Respondents Exhibit 208B, Lewis production
at the end of the 7-week period was sufficiently behind that expected of a beginner
(Lewis was an experienced single needle machine operator), so that no inference
adverse to the Company can be drawn from its failure to give Lewis a longer trial
While it is true that the Company put up with Lewis' poor production for a much
longer period before the strike, this was on a more difficult operation and a number
of factors might have accounted for this, such as the Company s differing needs for
experienced workers before and after the strike, differing alternative solutions of the
problem In the absence of evidence concerning such factors, I cannot conclude that
the 6 week trial period accorded Lewis was inadequate Accordingly Lewis back-
pay period will terminate on July 13, 1955
Evidence adduced by the Company regarding interim employment and willful loss
of earnings Lewis was employed at the Town and Country Motel during both quar-
ters in the backpay period
Conclusions The Company has sustained its defense that it had no vacancy in
Lewis operation when an application was made in her behalf in April 1955 How-
ever, as found above, the Company was obliged to transfer Lewis to another opera-
tion, as it ultimately did in July 1955 The General Counsel has not shown that
Lewis was improperly reinstated Lewis is entitled to backpay from April 14, 1955,
to the date of her reinstatement on July 13, 1955, as set forth in the Appendix
MARIE LOCKETT
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied 4-5-55 (U ) 4-14-55 No backpay
Reinstated 1955-31 8-3-55
Dischaiged 8-17-55
i The specification alleges "No proper reinstatement
Specific evidence adduced by the Company as to the lack bf a vacancy prior to rein-
statement A replacement by the name of Lorraine was working on Lockett s opera-
tion of setting watch pockets and right and left flies at the time Lockett applied for
reinstatement 81
Evidence adduced by the General Counsel supporting his claim of improper rein
statement Lockett had had 21/z weeks experience as a learner on her operation be
fore the strike Lockett was called back and went to work on August 3, 1955, on
her former operation After 2 weeks Lockett was discharged because she fell below
the Company s minimum production expectations at that stage of the 8-week train-
ing period, according to Rutter Rutter testified in effect that the Company s super
visors had to use their judgment in determining whether an employee was going to
make the grade, and that after a 1 week warning, it was decided to let Lockett go
an This replacement was an experienced operator on this operation However she had
been discharged a week before the strike commenced because of misconduct and therefore
was not on the payroll when the strike began Accordingly she was technically a replace
ment whom the Company was obliged to discharge to make room for a returning striker
This undoubtedly created problems for the Company because Lockett a learner could
not be expected to produce enough volume to take the replacement's place However this
is the type of problem that the Company not infrequently faces during normal operations
of its plant such as when one of two fast producers on an operation becomes pregnant
and leaves, and no experienced operator is available to replace her It has solved such
problems frequently in the past and can do so in instances such as this , in my opinion
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of his claim of improper reinstatement, the General Counsel relies on
the figures as to her comparative progress in learning her operation before and after
the strike. They are as follows:
1954 scheduled Actual earnings Difference
earnings
1st week_____________ .30 .14 - 16
2d week-- .41 .27 - 14
3d week-------------- 48 36 -.12
1955 scheduled Actual earnings Difference
earnings
1st week_____________ .36 .25 -.11
2d week______________ . 50 .38 - 12
In my opinion, these figures do not give a sufficient basis for the conclusion that
Lockett was not properly reinstated. They indicate that before the strike Lockett
improved her production and that the opposite was true after Lockett's reinstatement
Absent evidence concerning how the Company treated other employees during the
training period or other evidence throwing light on the subject, I cannot conclude
that the Company unfairly dealt with Lockett. Accordingly, I conclude that the
backpay period, if any, for Lockett should terminate when she was reinstated on
August 3, 1955.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Lockett testified that she did not "remember looking in 1955 for work
any place." I construe Lockett's testimony in the context in which it was given as
meaning that she did not look for work in 1955.
Conclusions: The Company has failed to establish that it had no vacancy for
Lockett prior to her reinstatement. The General Counsel has failed to show that
Lockett was improperly reinstated. Lockett has willfully incurred a loss of earnings
throughout the backpay period which ended on August 3, 1955. Lockett is not en-
titled to backpay.
WILLIE MARSHALL
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied------------------- 4-8-55 (U )----------------------- 8-16-55---------------------- Begins 4-19-55
Reinstated---------------- 1955-31 ----------------3 1---------------- 8-29-55---------------------- Ends 11-15-56
Discharged--------------- ------------------------------------------------ 12-29-55---------------------
1 The specification alleges "No proper reinstatement until 11-15-56."
Specific evidence adduced by the Company as to the lack of a vacancy prior to rein-
statement: Marshall joined seat seams before the strike. At the time of the Union's
April 8 application for reinstatement, the Company had five replacements joining
seat seams.
Evidence adduced by the General Counsel supporting his claim of improper rein-
statement: On August 29, 1955, when Marshall was reinstated, instead of being as-
signed to seat seaming, her old operation, she was assigned to taping crotches. She
did not make production on this operation and was discharged for this reason on
December 29, 1955. As stated above, as long as the Company had replacements
working on Marshall's old operation, the Company was obliged to reinstate her to
her old operation. After having a baby Marshall was rehired by the Company on
May 21, 1956, and was again assigned to taping crotches. The General Counsel
has sustained his burden of proof with respect to his claim of improper reinstatement
on both occasions.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: In the interval between the union application in Marshall's behalf and
J. H. RUTTER-REX MANUFACTURING COMPANY 1557
her rehiring on August 29, 1955, Marshall worked 3 days a week as a maid for two
lawyers. Marshall's earnings in the period after her rehiring in August 1955 and
ending on November 15, 1956, will be treated as interim earnings because she was
not reinstated to her old operation. I find that Marshall was not looking for work
in the period beginning December 30, 1955, and ending on May 21, 1956, when
Marshall was rehired by the Company after her pregnancy. The excepted period for
pregnancy will be extended accordingly.
Conclusions- The record affirmatively establishes that there, was a vacancy for
Marshall at the time of the Union's application for reinstatement in her behalf.
Marshall was not properly reinstated. No willful loss of earnings has been proven
during any period for which backpay has been allowed. Willie Marshall is entitled
to backpay as set forth in the Appendix which reflects the adjustment stated above.
ORELIA MOORE
Reinstatement Backpay period
As alleged in
specification
As alleged in
answer
As found by
Trial Examiner
Applied ----------------------- ----- -- ------- 4-8-55 (U.)----------------------- 4-22-55 --------------------- Begins, 4-19-55.
Reinstated---------------- 5-2-55 1- ---------------
i- --------------- 5-2-55 1 ---------------------- Ends. 5-2-55 i
Discharged---------------ged ---- ------------------------------------------------ 5-10-55 2--- ------------------
i As amended at the hearing.
2 No issue is raised in this proceeding about Moore's discharge.
Specific evidence adduced by the Company as to the lack of a vacancy: Moore
was engaged in the operation of serging backs of pants before the strike. Rutter
testified that there were no new hires on this operation after the strike. When
Moore was reinstated, she was put back on her old operation.
Evidence adduced by the Company regarding interim employment and willful
loss of earnings: Moore was not questioned about her efforts to obtain interim
employment.
Conclusions: As found above, having no vacancy for Moore in her old operation at
the time of her application, the Company was obligated to transfer and retrain
Moore on a new operation No willful loss of earnings has been proven. Orelia
Moore is entitled to backpay as set forth in the Appendix.
J. The not-on-strike-payroll defense (schedule 6(i)) -
1. General discussion
The General Counsel contends in effect that the employees listed on schedule 6(i)
were no longer employed by it when the strike began and that hence it was not
obligated to reinstate them. The disposition of this contention, of course, depends
on the facts of the individual cases. In considering these facts, I have taken the
approach that the General Counsel has the burden of proof with respect to the estab-
lishment of the facts concerning the question of an individual's status as an employee
at the beginning of the strike. In two of the cases, I have found that the General
Counsel has sustained his burden of proof, has failed to do so in one other case, and
the case of the fourth employee in this category was dismissed on motion of the
General Counsel.
2. The individual cases
EVANGELINE BROWN
Reinstatement Backpay period
As alleged in
specification
As admitted
by Company
As found by
Trial Examiner
Begins 4-14-55.Applied------------------- 4-5-55 (U ) ------------ 4-6-56 (exh C)--------------
Ends 4-9-56.Reinstated---------------- 4-9-56----------------- 4-9-56-----------------------
1558 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the parties concerning Brown 's status as a striker: Brown
appears on the Company 's payroll for the period ending April 17, 1954, the last full
payroll period before the strike . The payroll for the succeeding payroll period, that
ending May 1 , 1954 , which includes the last 2 working days before the strike began,
was not produced at the hearing. However, Rutter testified from production records
before him that Brown had no earnings in the payroll period ending May 1, 1954,
and that she earned but $2.59 in the payroll period ending April 17, 1954, which
represented about 3 hours ' work. Rutter further testified that there was nothing in
Brown's personnel file to indicate the reason for her not having any earnings in the
last 2 days before the strike, April 19 and 20.
Under examination by counsel for the Company , Brown testified as follows•
Q. (By Mr . READ.) According to the Company 's records you did not work
on the day immediately before the strike and the records indicate that you may
have worked only a few hours in the entire month of April , the strike not start-
ing until April 21st. I am wondering if having refreshed your recollection by
,telling you that you would agree that you did not work the day before the
strike?
A. I remember being sick and being out. I think I was out for about a week,
and Johnny kept calling me back and calling me back and I went back before
I was well enough to come back and I think that's how I had that relapse. -I
remember it was a Tuesday.
Q. I see.
A. And I broke down at my machine and he told me I could go home. I
think I worked about a half day, sometime during the morning hours, and I
promised him if I felt better that I'd come back the next day , but I knew they
were supposed to have that strike the next day. I wasn't feeling any better so
I still didn't come out.
Q. How long had you been out?
A. Well, I had been out before during my illness about a week that I
remember.
Q. Well, when you left on the day that you are referring to was it because
you were ill?
A. Yes, sir , that Tuesday. Yes, I was ill , because I promised Johnny I would
come in that Monday . -That Monday I made it but Tuesday I took sick.
Q. This was before the strike?
A. Uh-huh.
Q. And you left before the strike because you were ill?
A. Yes, uh-huh.
On her application for reinstatement filed with the Company on April 6 , 1956, Brown
gave as the reason for leaving the Company's employ the last time, "Illness."
In view of the inclusion of Brown's name on the April 17, 1954, payroll , the failure
of the record to show Brown's termination as an employee prior to the strike, either
voluntarily or involuntarily, and Brown 's testimony that she worked at the plant the
morning before the strike began, I find that Brown was a striker . Even, if Brown
were mistaken in her recollection as to when she worked a few hours and had to go
home because she was sick and this actually occurred in the 2 weeks prior to April 17,
1955, I would nevertheless hold Brown entitled to the status of a striker since there
is nothing in the record inconsistent with her continuing status as an employee on
sick leave at the time the strike began.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings: Brown worked throughout the backpay period at Chanty Hospital.
Conclusions : The Company's contention that Brown should not be regarded as
a striker is rejected . No willful loss of earnings has been proven . Evangeline Brown
is entitled to backpay as set forth in the Appendix.
VERNA L . JOHNSON
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied----------------- 7-7-54--------------- -- ------------------------------
No backpay.
Reinstated ---------------- 2-8-57--- -------------- ------------------------------
J. H. RUTTER-FLEX MANUFACTURING COMPANY 1559
Evidence adduced by the parties concerning Johnson's status as a striker: Johnson
testified that before the strike she went into the office and told Rutter and Drake that
she had to be off to go to the hospital to have some tests made on her throat and
that the Company granted Fer a 2-week leave of absence. Johnson further testified
that after 2 weeks she went back and, finding the strike in progress, did not go in
to work. Instead she started reporting to the strike headquarters mornings.
In support of its contention that Johnson was not a striker, the Company produced
the following form, filled out almost entirely in Johnson's handwriting:
SEPARATION FORM
Employee No. 791 Date April 12, 1954
Name Verna L. Johnson Social Security No. 438-40-9571
Address 1507 Delry Home Telephone No. Ca-7860
Reason Left Illness-Have to go to hospital
Last Day Worked Friday April 9, 1954
Supervisor 's Name John Drake
Operation Button stay Department Shirt
Appearing on the bottom of the form in Rutter's handwriting are "OK-EJR" and
"turned in button," apparently in the personnel clerk's handwriting. The Company
also introduced into evidence an absentee form concerning Verna Johnson in the
personnel clerk 's handwriting containing the following notation "quitting-today."
The form is dated April 12, 1954. Johnson admittedly turned in her employee
button when she filled out the separation form. Based on his examination of these
records, Rutter testified that Johnson did not request a leave of absence, and that the
standard procedure used when separating an employee from the Company's employ
was used in Johnson's case.
Under all the circumstances, I conclude that the General Counsel has not estab-
lished that Johnson was a striker whom the Company was obliged to reinstate. It
is true, as the General Counsel and the Union point out, that the Company's policy
is to be lenient about granting leaves of absence and that if the matter had been
handled as a request for a leave of absence rather than a separation, such a request
very likely would have been granted. But the Company's records persuade me that
it was not so handled. Whether this resulted from a lack of knowledge on Johnson's
part as to the Company's policy regarding leaves of absence or from a failure of
communication between Johnson and the Company at the time of her separation, I
cannot ascertain. These facts remain. On April 12, 1954, Johnson signed a sepa-
ration form stating that she had left the Company's employ because of illness and
that her "Last day worked" was April 9, 1954. On the same day Johnson turned in
her employee's button. In my opinion, these facts, when considered with Rutter's
testimony that the Company's standard separation procedure was followed in John-
son's case, carry greater weight than Johnson's recollection almost 9 years later that
she was granted a leave of absence due to illness.
Conclusions: Verna L. Johnson had been separated from the Company's employ
prior to the strike. Hence the Company was under no obligation to reinstate her.
GERALDINE ROLLINS
Reinstatement Backpay period
As alleged in As admitted As found by
specification by Company Trial Examiner
Applied------------------- 4-11-55 (U.) I---------- 4-14-55 (R-220)-------------- Begins 4-19-55
Reinstated---------------- 8-3-55- ---------------- 8-3-55- ---------------------- Ends. 8-3-55.
I Rollins was named in the Union's April 8,1955, letter, which was received by the Company on April 11,
1955.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence adduced by the parties concerning Rollins' status as a stiiker. The parties
stipulated that Rollins' personnel file contains the original and duplicate of a letter
addressed to Rollins granting her a leave of absence from March 19, 1954, to
March 19, 1955. Rollins testified that she obtained a leave of absence because of
pregnancy about 2 weeks before the strike was called.
Evidence adduced by the Company regarding interim employment and willful loss
of earnings : Rollins was employed part time in a convalescent home during most of
the backpay period. Regarding her other efforts to obtain work, Rollins testified that
she applied unsuccessfully at various , named sewing factories in 1955. However,
Rollins was completely unable to recall whether or not these applications were made
during the backpay period. There is no evidence that Rollins was not looking for
other work during this period.
Conclusions: The Company's contention that Rollins should not be regarded as
a striker is rejected . No willful loss of earnings has been proven . Geraldine Rollins
is entitled to backpay as set forth in the Appendix.
MARY LEE TAYLOR
The claim on behalf of Mary Lee Taylor was dismissed on the motion of the Gen-
eral Counsel.
VI. MISCELLANEOUS CONCLUSIONS
A. The arithmetical method of computation used in the Appendix
The Board 's original Decision herein contained the usual provision for the com-
putation of backpay on a calendar quarter basis. As indicated above, the specifica-
tion, presumably to simplify the tremendous task of preparing it, was not prepared
on a strict calendar quarter basis, but utilized the system used by the Company in its
records, which involves the use of "quarters" consisting of an even number of weeks
ranging from 10 to 16 weeks. The use cif this system occasionally works an injustice
on the employees. This occurs in the following way. For'the most part the source
of interim earnings information is the social security records, which give earnings in-
formation by calendar quarters. In some instances , the employees ' 13 weeks' in-
terim earnings exceeded the gross backpay in a 10- or 12-week quarter. In this
situation, under the method of computation used in the specification, employees were
entitled to no backpay during certain quarters, whereas they would be entitled to a
small amount of backpay where 13 weeks ' interim earnings were offset against the
13 weeks' gross backpay figure. Because of this fact and the further fact that the
method of computation used in the specification did not accord with the Board's
Order, it has been necessary to recompute the quarterly totals in the Appendix, using
the figures set forth in the specification, but reallocating the quarterly totals on a
strict 13 weeks' calendar quarter basis. The Appendix states the figures for each
quarter in which any backpay is found to be due. The omission of a quarter from
the Appendix means that no backpay has been found to be due for that quarter.
In each of the gross backpay figures set forth in the Appendix the 6-percent deduc-
tion provided for in my Preliminary Intermediate Report for the -female operators
in group 5 has been deducted (from both the cross bonus and gross wages figures).
The figure given in the interim earnings column in the Appendix represents net
interim earnings, the employees' expenses having been deducted in those few cases
where the General Counsel has established an allowable expense.
B. Procedure with respect to deceased, incompetent, and missing employees
Backpay owing to a deceased employee shall be paid to the estate of the deceased
employee.
I have found that Johnnie Mae Keeler is entitled to backpay for the period from
April 19 to August 4, 1955. As stated above, the parties stipulated that Keeler was
in a mental institution at the time of the hearing. Keeler did not respond to a
subpena mailed to her by the Company. For this reason the Company was unable
to examine Keeler concerning her interim earnings and employment , in an effort to
minimize its backpay obligation to her. The specification reflects that Keeler had
a small amount of earnings in 1955-2, which indicates that she was seeking work, at
least part of the backpay period. The Company wholly failed to substantiate its
claim that its delay in reinstating Keeler was due to the lack of a vacancy on her
operation.
J. H. 'RUTTER-REX MANUFACTURING COMPANY 1561
Under all the circumstances, even though the Company has not had an opportunity
to examine Keeler regarding her interim earnings and activities, I deem it appropriate
to require that Keeler be made whole by paying her the sum set forth in the Ap-
pendix. In the event that Keeler has been adjudicated to be incompetent or insane,
the sum due her shall be paid to her legal guardian, committee, or other legal repre-
sentative appointed by the court to look after her interests. If not, the sum due her
shall be paid directly to Keeler. In the event that there is a question concerning
Keeler's status at the time the Company offers to comply the sum due Keeler shall
be paid in escrow to the Regional Director for Region 15, to be paid out by him
after he investigates and determines Keeler's status. The Regional Director, within
1 year after the issuance of the Board's Decision in this matter, shall report to the
Board and the parties the status of funds left in escrow with him for the benefit of
Keeler.
With respect to Gloria Delpit and Kathleen Lodge, the two employees whom the
Company attempted to reach with letters offering them reinstatement during the
hearing, and whose letters were returned to the Company marked "Moved, left no
address," the Company shall pay to the Regional Director for Region 15 in escrow
the sums due them In the event the Regional Director succeeds in locating these
missing employees, he shall promptly inform the Company as to their addresses.
The Company shall have the opportunity, if it requests such relief, to examine these
missing employees, if necessary, in formal proceedings to be instituted by the Regional
Director, as to their interim earnings and activities. The Regional Director shall
make a determination whether any interim earnings or other amounts in excess of
those shown in the Appendix, are revealed which are properly deductible from an
employee's backpay award under existing Board precedent. Where so determined,
the Regional Director shall make such deductions and return the amounts deducted to
the Company. The Regional Director is further instructed to report to the Board
when these matters have been finally resolved, and in any event no later than 1 year
from the date of the Board's Decision in this matter, the status of these two cases
at such time. In the event that Gloria Delpit and Kathleen Lodge have not been
located by the date the Regional Director's report is to be submitted to the Board, the
sums of money held in escrow by the Regional Director for the benefit of Delpit and
Lodge shall be returned to the Company. See Mastro Plastics Corporation, 136
NLRB 1342, 1347-1348; Brown and Root, Inc., 132 NLRB 486, 497-498, enfd. 311
F. 2d 447, 454-455 (C.A. 8). See also the court's opinion in Brown and Root on
motion for clarification of opinion rendered February 20, 1964, 327 F. 2d 958
(C.A. 8).
C. Interest on back pay
In view of the Board's policy now of granting interest on backpay (Isis Plumbing
& Heating Co., 138 NLRB 716), my Recommended Order will provide for the pay-
ment of simple interest at 6 percent on the backpay due for each quarter commencing
with the date of this Decision. Compare N.L.R B. v. Adams Dairy, Inc., 322 F. 2d
553, 563 (C.A. 8), in which-the court included interest on the sums due, apparently
from the beginning, in a case in which the Board had made no provision for interest
(137 NLRB 815, 816, 827).
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue
the following:
RECOMMENDED SUPPLEMENTAL ORDER
J. H. Rutter-Rex Manufacturing Company, Inc., its officers, agents, successors, and
assigns, shall, in the manner stated in the preceding section, pay to the employees
named in the Appendix the total net backpay set forth following their names in the
Appendix. Regarding those employees as to whom it has been found that the back-
pay period ends prior to the end of the second quarter of 1961, such payment shall
be in full satisfaction of the Company's backpay obligations to them arising out of
its unfair labor practices during the strike in 1954 and 1955 which were the subject
matter of Cases Nos. 15-CA-721 and 15-CA-723, 115 NLRB 388. As to those
employees concerning whom it has been found that backpay is still accruing, pay-
ment of the sums set forth in the Appendix shall constitute satisfaction of the Com-
pany's financial obligation to these employees up to the end of the second quarter of
1961 only. As provided hereinabove, interest shall be added at the rate of 6 percent
per annum beginning with the date this Decision issues.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross ) gross earnings backpay
1 Alexander, Estrella 1955-1 $269 37 $269 37 $217 99 $51 38
2 Alexander Iworner 1955-2 41 10 41 10 41 10
3 Alexcee (Burrell) Irene None
4 Allen Victoria 1955-2 $23 61 327 63 351 24 171 19 180 05
1955-3 370 24 370 24 294 32 75 92
1955-4 403 29 403 29 302 67 100 62
1956-1 15 65 406 27 421 92 53 06 368 86
1956-2 436 14 436 14 52 00 84 14
1957-1 438 26 438 26 251 57 186 69
1957-2 26 69 429 26 455 95 455 95
1957-3 406 50 406 50 - 406 50
1958-2 25 17 412 57 437 74 247 92 189 82
1958-3 - 228 78 228 78 227 51 1 27
1959-2 - 472 85 472 85 452 40 20 45
1959-4 18 17 433 96 462 13 411 15 40 98
1960-1 470 56 470 56 354 00 116 56
1960-2 30 77 478 94 509 71 408 47 101 24
1961-1 25 40 429 74 455 14 398 76 56 38
Total 2 685 43
5 Alonzo, Caledonia 1955-2 82 88 82 88 82 88
6 Anderson Beatrice - None
7 Anderson, Carrie 1955-2 23 61 268 80 292 41 292 41
1955-3 - 45 72 45 72 45 72
Total 338 13
8 Anderson Dora 1955-2 70 99 70 99 70 99
9 Angrum Ida 1955-3 169 23 169 23 116 00 53 23
10 August (Brown) Gloria 1965-2 23 61 320 05 343 66 11 81 331 85
11 Aultman, Clarinda 1955-2 23 61 327 63 351 24 254 20 97 04
1955-3 82 18 82 18 45 10 37 08
Total 134 12
12 Banks (Kennedy) Marion 1955-2 23 61 327 63 351 24 114 72 236 52
1955-3 370 24 370 24 239 25 130 99
1955-4 403 29 403 29 296 10 107 19
1956-1 15 53 406 27 421 92 302 15 119 77
1956-2 436 14 436 14 267 61 168 53
1956-3 27 18 383 65 410 83 373 50 37 33
1957-1 438 26 438 26 298 36 139 90
Total 940 23
13 Barnes (Rochon) Sonora _ 1956-1 15 65 406 27 421 92 150 00 271 92
1956-2 436 14 436 14 384 95 51 19
1958-2 25 17 412 57 437 74 236 02 201 72
1968-3 438 29 438 29 414 70 23 59
1958-4 353 78 353 78 271 20 82 58
1960-4 413 41 413 41 367 63 45 78
1961-1 25 40 429 74 455 14 308 10 147 04
1961-2 30 06 469 63 499 69 456 43 43 26
Total 867 08
J: H. RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1563
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
14. Bentley, Helen__________________ 1955-3 __________ $169.63 $169.63 $127 35 $42.28
15. Berry (Patterson), Ira___________ 1955-2 $23 61 366.84 390.45 ---------- 390 45
1955-3 ---------- 228 43 228.43 ---------- 228 43
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 618.88
16. Beckham, Amanda_______________ 1955-2 23 61 327.63 351.24 152 32 198.92
1955-3 ---------- 370 24 370. 24 228 68 141.56
1955-4 ---------- 403.29 403.29 90.00 313 29
1956-1 15.65 406.27 421.92 90.00 331.92
1956-2 _ 14 436.14 90.00 346.14
1956-3 27 18 383.65 410.83 900 320.83
1956-4 9 74 356.50 366. 24 90.00 276.24
1957-1 _-___-____ 300.49 300. 49 90.00 210.49
1957-2 26. 69 429.96 456. 65 90.00 366 65
1957-3 ____ _____ 406 50 406 50 90.00 316.50
1957-4 _ _ _ _ _ _ _ _ _ _ 381.47 381.47 90.00 291.47
1958-1 10.39 409 02 419.41 90.00 329 41
1958-2 25.17 412.57 437.74 90.00 347.74
1958-3 __________ 438.29 438.29 90.00 348.29
1958-4 __________ 423 85 423.85 90.00 333.85
1959-1 13 81 188. 40 202. 21 90. 00 112.21
1959-2 __________ 189.14 189.14 90.00 99.14
1959-3 29 45 179.14 208. 59 90.00 118 59
1959-4 18 17 173.58 191.75 90.00 101 75
Total--------------------------- ------------ --------- ------- --------- --------- 4,904.99
17 Bowles, Doris____________________ 1955-2 23 61 327.63 351 24 48 29 302 95
1955-3 _ 48 151 48 111 78 39 70
1955-4 ________ 403 29 403 29 161 46 241.83
1956-1 15 65 406 27 421.92 161 46 260 46
1956-2 _______-__ 436 14 436.14 161 46 274.68
1956-3 27.18 383 65 410.83 161 46 249 37
1956 1 9.74 356 50 366 24 192 62 173 62
1957-2 26 69 429.96 456.65 263.00 193 65
1957-3 __________ 406 50 406 50 323 50 83.00
1957-4 _________- 381 47 381 47 184 06 197 41
1958-1 10.39 409 02 419.41 289 89 129 52
1958-2 25.17 412 57 437 74 340 93 96.81
1958 1 _-________ 423.85 423.85 313.80 110 05
1959-1 13 81 470 99 484 80 396 25 88 55
1959-2 __--_---__ 105.12 105 12 73 25 31 87
Total------------------------- ------------ ---------- ------- ---------- ---------- 2.473 47
18 Bozonier, Marguerite_____________ 1955-2 23.61 327 63 351 24 __________ 351.24
1955-3 ---------- 370 24 370 24 246 44 123 8?
1955-4 ---------- 403 29 403 29 390 00 13 20
1956-3 27 18 104 02 131.20 _ 20
1956-4 9.74 356.50 366.24 _ 24
1957-1 ---------- 438 26 438.26 ---------- 438 26
1957-2 26 69 429 96 456 65 ---------- 456 65
1957-3 ---------- 406.50 406 50 ---------- 406 50
1957-4 _ 381.47 381. 47 _ 47
1958-1 10 39 409.02 419 41 139 02 280 39
Total 2.949'94
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross ) (gross ) gross earnings backpay
19 Breaud Leonce 1955-2 $11 11 $572 03 $583 14 $449 46 $133 68
1956-1 717 90 717 90 361 05 356 85
1956-3 17 96 683 15 701 11 588 50 112 61
1958-3 712 03 712 03 648 00 64 03
Total 667 17
20 Brimmer Bell 1955-2 170 06 170 06 170 06
21 Brooks Millie 1955-2 23 61 327 63 351 24 351 24
1955-3 82 18 82 18 9 00 73 18
Total 424 42
22 Brown (Harris), Bessie 1955-2 23 61 327 63 351 24 285 00 66 24
23 Brown Elvera None
24 Brown Evangeline 1955-2 23 61 327 63 351 24 203 00 148 24
1955-3 370 24 370 24 300 00 70 24
1955-4 403 29 403 29 300 00 103 29
1956-1 15 65 406 27 421 92 300 00 121 92
1956-2 34 15 34 15 23 07 11 08
Total 454 77
25 Brown Idele 1955-2 23 61 327 63 351 24 81 39 269 85
1965-3 76 27 76 27 17 80 58 47
Total 328 32
26 Brown Marguerite 1955-2 23 61 327 63 351 24 142 12 209 12
1955-3 41 83 41 83 40 65 1 18
Total 210 30
27 Brumfield , Ruth 1955-2 23 61 327 63 351 24 120 00 231 24
1955-3 370 24 370 24 195 00 175 24
1955-4 403 29 403 29 195 00 208 29
1956-1 15 65 406 27 421 92 195 00 226 92
1956-2 436 14 436 14 195 00 241 14
1956-3 27 18 249 02 276 20 150 00 126 20
1956-4 9 74 356 50 366 24 195 00 171 24
1957-1 438 26 438 26 357 50 80 76
1957-2 26 69 429 96 456 65 220 00 236 65
1957-3 406 50 406 50 195 00 211 50
1957-4 381 47 381 47 195 00 186 47
1958-1 10 39 409 02 419 41 195 00 224 41
1958-2 25 17 412 57 437 74 195 00 242 74
1958-3 438 29 438 29 195 00 243 29
1958-4 423 85 423 85 195 00 228 85
1959-1 13 81 470 99 484 80 195 00 289 80
1959-2 472 85 472 85 195 00 277 85
Total - 3 602 59
28 Bryant Miriam 1955-2 29 73 29 73 21 43 8 30
29 Burkhalter Ole Mae 1955-2 59 03 59 03 59 03
30 Burns Elizabeth 1955-2 23 61 327 63 351 24 92 00 259 24
1955-3 22 27 22 27 8 00 14 27
Total 273 51
J. H. RUTTER-j EX MANUFACTURING COMPANY
APPENDIX-Continued
1565
Employee Year and Bonus Wages Total Interim Net
quarter (gross ) (gross ) gross earnings backpay
31. Burns, Hazel--------------------- 1955-4 ---------- $316 72 $316 72 $202.50 $114 22
1956-1 $15.65 406 27 21.92 263.25 158 67
1956-2 ---------- 309.69 309.69 182.25 127.44
1956-4 9.74 356 50 366 24 ---------- 366.24
1957-2 26 69 429.36 456.05 108 00 348.05
1957-3 ---------- 338.95 338.95 1.00 337 95
1957-4 ---------- 381.47 381 47 341.50 39.97
1958-1 10 39 309.02 419 41 234.75 184.66
1958-2 25 17 77.45 102 62 55.25 47 37
1959-3 29.45 447.86 477.31 439.13 38 18
1959-4 18 17 433 96 452 13 403. 88 48.25
1960-1 ---------- 470.56 470.56 185.75 284 81
1960-2 30 77 478.94 509.71 320 50 189.21
1960-3 ---------- 428 05 428.05 307.00 121 05
1960-4 ---------- 148.20 148.20 111.25 36 95
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 2,443 02
32. Campbell, Rose------------------ 1956-1 15 65 67 94 83.59 6.00 77.59
-------- 68.29 68.29 8.32 59.97
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 137 56
33. Carr, Katie Ruth---------------- 1955-2 23 61 327 63 351 24 268.02 83.22
1955-3 ---------- 76 27 76.27 62.69 13.58
Total- -------------------------- ------------ ---------- ---------- ---------- ---------- 96.80
34. Carter, Mary--------------------- 1955-2 ---------- 17 94 17.94 ---------- 17.94
35. Cerf, Raymond----------------- ------------ ---------- ---------- ---------- ---------- None
36. Cheri, Miriam--- ---------------- 1955-2 23.61 215 02 238.63 --------- 238 63
1955-4 ---------- 403.29 403.29 390.94 12 35
1956-1 15 65 406 27 421 92 420.61 1 31
1956-3 27.18 383.65 410 83 382.75 28 08
1958-3 ---------- 438.29 438.29 375.13 63.16
1959-1 13 81 470. 99 484.80 454.38 30 42
1959-3 29 45 447.86 477.31 441.25 36 06
1959-4 ---------- 433.96 433.96 432 50 1.46
1960-1 ---------- 182.82 182.82 154 36 28.46
1960-2 30.77 478 94 509.71 335 51 174.20
1960-4 ---------- 444.61 444.61 431.08 13.53
1961-1 25 40 429.74 455 14 436 44 18.70
1961-2 30.06 469.63 499. 69 478 86 20 83
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 667.19
37. Clay, Helen----------------------- 1955-2 23 61 327.63 351 24 196.33 154.91
38, Clements, Luhe------------------- 1955-2 23 61 327 63 351 24 ---------- 351.24
1955-3 ---------- 370.24 370 24 ---------- 370.24
1955-4 ---------- 403.29 403 29 ---------- 403 29
1956-1 15 65 392.68 408.33 ---------- 408 33
Total--------------------------- ------------ ---------- ---------- ---------- --------- 1,533.10
39 Coaston, Lucille----------------- 1955-2 23.61 327 63 351 24 253 80 97 44
1955-3 ---------- 15.16 15 16 ---------- 15 16
Tnta l - --------- 112.60
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Contmued
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
40 Coleman (Woods) Wilhelmina 1955-2 $23 61 $262 62 $286 23 $190 14 $96 09
1955-3 189 14 189 14 121 00 68 14
Total 164 23
41 Columbus Juanita 1955-2 23 61 327 63 351 24 342 92 8 32
42 Cooper (Lee) Bessie 1955-2 23 61 327 63 351 24 351 24
1955-3 370 24 370 24 77 97 292 27
1955-4 61 20 61 20 33 90 27 30
1956-1 15 66 351 86 367 51 186 45 181 06
1956-2 436 14 436 14 220 35 215 79
1956-3 27 18 383 65 410 83 220 35 190 48
1966-4 9 74 358 50 366 24 220 35 145 89
1957-1 438 26 438 26 220 35 217 91
1957-2 26 69 429 36 456 05 220 35 235 70
1957-3 406 50 406 50 220 35 186 15
1957-4 381 47 381 47 220 35 161 12
1958-1 10 39 409 02 419 41 220 35 199 06
1958-2 25 17 412 57 437 74 220 35 217 39
1958-3 438 29 438 29 214 95 223 34
1959-1 13 81 470 99 484 80 417 31 67 49
1959-3 29 45 447 86 477 31 475 16 2 15
1959-4 18 17 433 96 452 13 399 96 52 17
1960-1 470 56 470 56 411 74 58 82
1960-4 444 61 444 61 210 31 234 30
1961-1 25 40 429 74 455 14 210 31 244 83
1961-2 30 06 469 63 499 69 210 31 289 38
Total - 3 793 84
43 Cornish (Davis) Estelle 1955-4 403 29 403 29 225 00 178 29
1956-1 15 65 406 27 421 92 325 00 96 92
1956-2 144 25 144 25 100 00 44 25
1956-4 9 74 356 50 386 24 366 24
1958-2 25 17 412 57 437 74 437 74
1958-3 438 29 438 29 438 29
1958-4 423 85 423 85 423 85
1959-1 13 81 183 12 196 93 196 93
Total 2 192 51
44 Coston (Pickens) Ethel 1955-2 158 74 158 74 128 06 30 68
45 Courseault (Mercadel), Shirley 1955-2 113 27 113 27 102 96 10 31
46 Crawfoid, Shirley None
47 Ciopper Clara 1955-2 41 10 41 10 41 10
48 Dandridge Doiothy None
49 Darensbourg Irma 1955-3 242 32 242 32 201 65 40 67
50 Davis Elvera 1955-2 23 61 327 63 351 24 7 88 343 36
1955-3 57 94 57 94 46 69 11 25
Total 354 61
51 Davis (Deruisa), Georgian 1955-2 23 61 134 27 157 88 157 88
1959-3 29 45 447 86 477 31 41 60 435 71
1959-4 433 96 433 96 164 92 269 04
Total 962 63
J. H. RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1567
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
52. Davis, Lenora-------------------- 1955-1 ---------- $35.47 $35 47 ---------- $35 47
1955-2 $23.61 372 44 396 05 $371 09 24 96
1956-1 15 . 65 406 27 421 . 92 420 65 1 27
1560-1 ---------- 470.56 470 56 468.38 2.18
Total----------------- -------- ------------ ---------- ---------- ---------- ----------
63.88
53 Davis (Matthews), Thelma------ 1955-2 ---------- 209 44 209.44 ---------- 209 44
54. Delpit, Gloria ------------------- 1955-2 23 61 327 63 351 24 189 54 161 70
1955-3 ---------- 370 24 370 24 88 25 281 99
1955-4 ---------- 403 29 403 . 29 240 00 163.29
1956-1 15 65 406 . 27 421 92 240 00 181.92
1956-2 -- -------- 436.14 436 14 16 70 196 14
1956-4 9.74 356 50 366.24 189 04 177 20
1957-1 ---------- 438 . 26 438 26 101 . 23 337 03
1957-3 ---------- 406. 50 406 50 318 . 00 88.50
1957-4 ---------- 69 38 69 38 60.60 8 78
1959-4 ---------- 37 31 37 31 26.41 10 90
1960-1 ---------- 106.92 106. 92 39 61 64 31
Total-------------------------- ------------ ---------- ---------- ---------- ----------
1,898.06
R
55. Delpit , Matilda------ ------------ 1955-2 23.61 327. 63 351.24 132 00 219.24
1955-3 ---------- 179.01 179 01 148.00 31.01
Total--------------------------- ----------- ---------- ---------- --------- ----------
250.25
56 Denley ( Gabriel), Alice---------- 1955-3 ---------- 240. 77 240.77 ---------- 240 77
1956-2 ---------- 436.14 436.14 405. 04 31.10
1956-3 27.18 383 . 65 410.83 164.90 245.93
1956-4 9.74 356.50 366 . 24 296 80 69.44
1957-2 26.69 429 . 96 456.65 430. 30 26.35
1959-2 ---------- 472.85 472.85 417. 20 55.65
1960-2 30.77 478.94 509. 71 234.94 274.77
1960-3 ---------- 428.05 428. 05 ---------- 428.05
1960-4 ---------- 168.52 168 . 52 40 00 128.52
1961-2 30.06 138 31 168 37 160.00 8.37
Total--------------------------- ------------ ---------- ---------- ---------- ----------
1,508.95
57 Dixon, Gloria-------------------- 1956-1 15 65 406.27 421 92 276 76 145.16
1956-2 ---------- 436.14 436 14 415.62 20 52
1957-2 26.69 429 96 458.65 450 00 6.65
1957-3 ---------- 406. 50 406 50 380.77 25.73
1959-1 13.81 470. 99 484.80 443 . 10 41.70
1959-3 29.45 447.86 477 31 443 . 10 34.21
1961-2 30 06 469 . 63 499.69 470. 76 28.93
Total----- --------------------- ------------ ---------- ---------- ---------- ----------
302.90
58. Drake, Elizabeth ----------------- ------------ ---------- 41.10 41 10 ----------
41.10
59. Duckett, Norma----- ------------ 1955-2 23.61 327.63 351.24 83.00 268.24
1955-3 ---------- 117.65 117 . 65 ---------- 117.65
Total--------------------------- ------------ ---------- ---------- ---------- ----------
385.89
M Tlnfanehard Arthemisn ---- 1955-2 ---------- 47.83 47.83 ---------- 47.83
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
61. Dunn, Stella_____________________ 1955-3 ---------- $300 08 $300 08 _ _________ $300.08
62 Eddington,Isabella ----------- ---- 1955-2 ---------- 41 10 41.10 ---------- 41 10
63 Edgerson, Shirley________________ 1955-1 ---------- 339 46 339 46 $218 64 120 82
1955-2 $23 61 372 44 396 05 173 76 222 29
1955-3 ---------- 370.24 370 24 202 20 168 04
1955-4 ---------- 403 29 403.29 384 37 18.92
• 1956-1 15 65 406 27 421 92 ---------- 421.92
1956-2 ---------- 436.14 436 14 _ 436 14
1956-3 27 18 383 65 410 83 28 75 382 08
1957-1 ---------- '438 26 438 26 422 39 15 87
1957-2 26 69 429 96 456 65 66.97 389 68
1957-3 ---------- 406 50 406 50 ---------- 406 50
1957-4 ---------- 381.47 381 47 210 00 171 47
• 1958-1 10 39 409 02 419 41 390 00 29 41
1958-2 25 17 412 57 437 74 390 00 47 74
1958-3 ---------- 438 29 438 29 309 00 48 29
1958-4 - 85 423 85 390 00 33 85
1959-1 13 81 470 99 484 80 390 00 94 80
1959-2 __--______ 472 85 472 85 390 00 82 85
1959-3 29 45 447 86 477 31 390 00 87 31
1959-4 18 17 33 96 452 13 420 00 32 13
1960-1 __-______- 470 56 470 56 360 00 110 56
1960-2 30 77 478 94 509 71 390.00. - 119 71
1960-3 ________-- 428 05 428 05 390 00 38 05
1960-4 __-_____ 444.61 444 61 330 50 114 11
1961-1 25 40 318.72 344 12 225 00 119 12
Total----------------------=---- ------------ - -------- ------- - `------- ---------- 3,711 66
64. Evans, Alice__________________ 1955-2 23 61, 327.63 351 24 66 50 284 74
65. Farria, Vivian ------------------- - 1955-2 ---------- 18 48 18 48 ---------- 18 48
1955-3 ---------- 54 15 54 14 ---------- 54 14
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 72 62
66. Ferguson, Pear]__________________ 1955-2 23 61 262 62 286 23 154 76 131 47
1955-3 ---------- 135 38 135 38 20 00 115 38
Total------------------------ ------------ ---------- ---------- ---------- ---------- 246 85
67. Fernandez , Minnie ______________ 1955-2 23 61 327 63 351 24 25 12 326 12
1955-3 ---------- 372 44 372 44 84 08 288 36
1955-4 . ---------- 403 29 403 29 219 32 183 97
1956-1 15 65 406 27 421 92 360 01 61 91
1956-3 27 18 383 65 410 83 257.30 153 53
1956-4 9 74 356 50 366 24 343 60 22 64
1957-1 ---------- 438 26 438 26 365 50 72 76
1957-4 ---------- 47 381 47 -135 60 245 87
1958-1 10 39 409 02 419 41 317 50 101 91
• 1958-2 25 17 412 57 437 74 396 50 41 24
1958-4 ---------- 14.40 314 40 270 30 44 10
1959-2 ---------- 472 85 472 85 262 58 210 27
• 1959-3 29 45 447 86 477 31 262 25 215 06
1959-4 ---------- 433 96 433 96 409 98 23 98
1960-1 ---------- 470 56 470 56 449 00 21 56
1960-2 30 77 478 94 509 71 304 30 205 41
Total--------------------------- - ----------- ---------- ---------- ---------- ---------- 2,218 69
J H RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1569
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
68 Fontenberry, Cleo 1956-4 $30 36 $30 36 $21 93 $8 43
69 Foreman (Askins) Ethel 1955-3 318 41 318 41 210 00 108 41
1955-4 403 29 403 29 219 00 184 29
1956-1 $15 65 406 27 421 92 234 00 187 92
1956-2 436 14 436 14 244 00 192 14
1956-3 27 18 383 65 410 83 280 00 130 83
1956-4 9 74 356 50 366 24 240 00 126 24
1957-1 438 26 438 26 280 00 158 26
1957-2 26 69 429 96 456 65 281 85 174 80
1957-3 406 50 406 50 325 00 81 50
1957-4 381 47 381 47 350 00 31 47
1958-1 10 39 409 02 419 41 300 00 119 41
1958-2 25 17 412 57 437 74 351 00 86 74
1958-3 438 29 438 29 325 00 113 29
1958-4 423 85 423 85 350 00 73 85
1959-1 13 81 470 99 484 80 300 00 184 8
1959-2 472 85 472 85 350 00 122 85
1959-3 29 45 447 86 477 31 325 00 152 31
1959-4 18 17 433 96 452 13 325 00 127 13
1960-1 470 56 470 56 325 00 145 56
1960-2 30 77 478 94 509 71 325 00 184 71
1960-3 428 05 428 05 325 00 103 05
1960-4 444 61 444 61 325 00 119 61
1961-1 25 40 429 74 455 14 325 00 130 14
1961-2 30 06 469 63 499 69 325 00 174 69
Total 3 214 00
70 Fountain, Genever 1955-2 70 99 70 99 70 99
71 Francis Edna 1957-4 381 47 381 47 260 00 121 47
1958-1 10 39 409 02 419 41 260 00 159 41
1958-2 25 17 205 20 230 37 140 00 90 37
1959-2 292 12 292 12 72 00 220 12
1959-3 29 45 447 86 477 31 131 60 345 71
1959-4 18 17 433 96 452 13 117 00 335 13
1960-1 470 56 470 56 117 00 353 56
1960-2 478 94 478 94 117 00 361 94
1960-3 428 05 428 05 257 51 170 54
1960-4 444 61 444 61 391 31 53 30
1961-2 30 06 469 63 499 69 443 94 55 75
Total 2 267 31
72 Franklin, Zearlee 1955-2 130 45 130 45 130 45
73 Fulton Vera 1955-2 23 61 310 45 334 06 97 02 237 04
1955-3 370 24 370 24 45 50 324 74
1955-4 403 29 403 29 227 50 175 79
1956-1 15 65 406 27 421 92 229 75 192 17
1956-2 436 14 436 14 192 50 243 64
1956-3 27 18 383 65 410 83 69 90 340 93
1956-4 9 74 356 50 366 24 299 00 67 24
1957-1 438 26 438 26 340 50 97 76
1957-2 26 69 429 96 456 65 291 50 165 15
1957-3 406 50 406 50 31 20 375 30
1957-4 381 47 381 47 338 00 43 47
221-7&1-67-vol 158-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and
quarter
Bonus
(gross)
W ages
(gross)
Total
gross
Interim
earnings
Net
backpay
1968-1 $10 39 $409 02 $419 41 $338 00 $81 41
1958-2 25 17 412 57 437 74 286 00 151 74
1958-3 438 29 438 29 72 80 365 49
1958-4 423 85 423 85 364 00 59 85
1959-1 13 81 470 99 484 80 312 00 172 80
1959-2 472 85 472 85 280 80 192 05
1959-3 29 45 447 86 477 31 61 60 415 71
1959-4 18 17 433 96 452 13 392 00 60 13
1960-1 470 56 470 56 336 00 134 56
1960-2 30 77 478 94 509 71 348 00 161 71
1960-3 428 05 428 05 87 00 341 05
1960-4 444 61 444 61 333 00 111 61
1961-2 30 06 469 63 499 69 333 00 166 69
Total 4 678 03
74 Gabriel Geneva 1955-2 23 61 327 63 351 24 351 24
1955-3 76 27 76 27 68 82 7 45
Total 358 69
75 Gamble Indiana Plummer 1955-2 23 61 327 63 351 24 228 00 123 24
1955-3 370 24 370 24 260 00 110 24
1955-4 403 29 403 29 260 00 143 29
1956-1 15 65 406 27 421 92 260 00 161 92
1956-2 436 14 436 14 260 00 176 14
1956-3 27 18 383 65 410 83 260 00 150 83
1956-4 9 74 356 50 366 24 260 00 106 24
1957-1 438 26 438 26 260 00 178 26
1967-2 26 69 429 96 456 65 260 00 196 65
1957-3 406 50 406 50 260 00 146 50
1957-4 381 47 381 47 260 00 121 47
1958-1 10 39 409 02 419 41 260 00 159 41
1958-2 25 17 412 57 437 74 260 00 177 74
1958-3 438 29 438 29 260 00 178 29
1958-4 423 85 423 85 260 00 163 85
1959-1 13 81 470 99 484 80 260 00 224 80
1959-2 472 85 472 85 260 00 212 85
1959-3 29 45 447 86 477 31 260 00 217 31
1959-4 18 17 433 96 452 13 260 00 192 13
1960-1 470 56 470 56 260 00 210 56
1960-2 30 77 478 94 509 71 260 00 249 71
1960-3 428 05 428 05 260 00 168 05
1960-4 444 61 444 61 260 00 184 61
1961-1 25 40 429 74 455 14 260 00 195 14
1961-2 30 06 469 63 499 69 260 00 239 69
Total 4 388 92
78 Gant (Ward) Mary 23 61 137 76 161 37 88 00 73 37
77 Givens Catherine 1955-2 135 42 135 42 135 42
78 Green, Dorothy 1955-2 23 61 327 63 351 24 351 24
1955-3 370 24 370 24 370 24
1955-4 403 29 403 29 403 29
1958-1 15 65 406 27 421 92 421 92
1956-2 436 14 436 14 436 14
1956-3 27 18 383 85 410 83 410 83
1956-4 253 48 253 48 253 48
Total 2 647 14
J H RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1571
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
79 Green (Hilliard) Genevieve 1956-2 $144 25 $144 25 $65 00 $79 25
80 Gieen, Herise 1955-2 281 41 281 41 89 07 192 34
81 Gieen Jimmie Lou 1955-2 $23 61 327 63 351 24 233 75 117 49
1955-3 370 24 370 24 143 00 227 24
1955-4 403 29 403 29 325 00 78 29
1956-1 15 65 406 27 421 92 325 00 96 92
1956-2 436 14 436 14 325 00 111 14
1956-3 383 65 383 65 325 00 58 65
1956-4 9 74 356 50 366 24 325 00 41 24
1957-1 292 68 292 68 220 00 72 68
1957-3 128 03 128 03 100 00 28 03
1957-4 381 47 381 47 325 00 56 47
1958-1 10 39 409 02 419 41 325 00 94 41
1958-2 25 17 412 57 437 74 325 00 112 74
1958-3 438 29 438 29 325 00 113 29
1958-4 423 85 423 85 325 00 98 85
1959-1 13 81 470 99 484 80 325 00 159 80
1959-2 472 85 472 85 325 00 147 85
1959-3 29 45 447 86 477 31 326 00 152 31
1959-4 18 17 433 96 452 13 325 00 127 13
1960-1 470 56 470 56 325 00 145 56
1960-2 30 77 478 94 509 71 325 00 184 71
1960-3 428 05 428 05 325 00 103 05
1960-4 444 61 444 61 325 00 119 61
1961-1 25 40 429 74 455 14 325 00 130 14
1961-2 30 06 469 63 499 69 300 00 199 69
Total 2 777 29
82 Green Louise 1955-2 59 03 59 03 59 03
83 Griffin Audrey None
84 Griffin, Ethel 1955-2 47 07 47 07 47 07
85 Griffin Joyce 1955-2 135 58 135 58 127 07 8 51
86 Guidry Mary 1955-2 23 61 327 63 351 24 6 50 344 74
1955-3 218 72 218 72 218 72
Total 563 46
87 Hall Catherine 1955-2 152 33 152 33 152 33
88 Hamilton Veoila Gibson 1955-2 70 99 70 99 70 99
89 Harris Fred 1955-2 184 85 184 85 66 00 118 85
90 Haynes (Gale) Gustavia 1955-2 23 61 138 08 161 69 20 00 141 69
1955-3 370 24 370 24 120 00 250 24
1055-4 403 29 403 29 166 00 237 29
1956-1 15 65 406 27 421 92 403 83 18 09
1956-2 436 14 436 14 136 86 299 28
1957-1 438 26 438 26 405 75 32 51
1958-1 10 39 409 02 419 41 303 77 115 64
1968-2 25 17 412 57 437 74 437 74
1958-3 438 29 438 29 335 67 102 62
1958x1 423 85 423 85 277 26 146 59
1959-2 472 85 472 85 333 96 138 89
1960-1 470 56 470 56 335 80 134 76
1960-2 30 77 478 94 509 71 404 40 105 31
1960-4 444 61 444 81 230 77 213 84
1961-1 25 40 429 74 455 14 207 04 248 10
1961-2 30 06 469 63 499 69 300 19 199 50
m,.a..i 2 822 09
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
91 Haynes Ida 1955-3 $370 24 $370 24 $102 65 $267 59
1955-4 403 29 403 29 92 27 311 02
1956-1 $15 65 406 27 421 92 154 55 267 37
1956-2 436 14 436 14 113 03 323 11
1956-3 27 18 383 65 410 83 133 79 277 04
1956-4 9 74 356 50 366 24 113 03 253 21
1957-1 438 26 438 26 123 41 314 85
1957-2 26 69 429 36 456 05 113 03 343 02
1957-3 406 50 406 50 133 79 272 71
1957-4 234 86 234 86 72 66 162 20
1958-2 25 17 272 65 297 82 87 19 210 63
1958-3 438 29 438 29 124 56 313 73
1958-4 423 85 423 85 124 56 299 29
1959-1 13 81 470 99 484 80 166 08 318 72
1959-2 472 85 472 85 124 56 348 29
1959-3 29 45 447 86 477 31 145 32 331 99
1959-4 18 17 433 96 452 13 103 80 348 33
1960-1 470 56 470 56 166 08 304 48
1960-2 30 77 478 94 509 71 124 56 385 15
1960-3 428 05 428 05 145 32 282 73
1960-4 444 61 444 61 124 56 320 05
1961-1 25 40 429 74 455 14 124 56 330 58
1961-2 30 06 469 63 499 69 145 32 354 37
Total 6 940 46
92 Head Marguerite 1955-2 130 45 130 45 130 45
93 Henderson Victoria 1955-2 23 61 310 45 334 06 130 51 203 55
1956-3 27 18 383 65 410 83 386 50 24 33
1957-1 438 26 438 26 415 25 23 01
1957-2 28 69 429 96 456 65 396 50 60 15
1957-3 406 50 406 50 169 25 237 25
1958-3 438 29 438 29 173 00 265 29
1958-4 423 85 423 85 116 00 307 85
1959-1 13 81 470 99 484 80 425 00 59 80
1960-1 470 56 470 56 383 70 86 86
1960-2 30 77 478 94 509 71 209 75 299 96
1960-3 428 05 428 05 384 25 43 80
1960-4 444 61 444 61 434 78 9 83
1961-1 25 40 429 74 455 14 307 72 147 42
1961-2 30 06 469 63 499 69 499 69
Total 2 268 79
94 Hicks Rose Marie 1955-2 23 61 327 63 351 24 351 24
1955-3 370 24 370 24 370 24
1955-4 403 29 403 29 403 29
1956-1 15 65 406 27 421 92 121 78 300 14
1956-2 436 14 436 14 399 70 36 44
1956-3 27 18 383 65 410 83 330 10 80 73
1956-4 9 69 356 50 366 19 332 95 33 24
1957-1 438 26 438 26 351 52 86 74
1957-2 26 69 429 96 456 65 447 10 9 55
1957-4 381 47 381 47 97 60 283 87
1968-1 10 39 409 02 419 41 338 50 80 91
1968-2 25 17 412 57 437 74 348 30 89 44
J. H. RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1573
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
1958-4 ---------- $423 85 $423 85 $284 85 $139 00
1959-1 $13.81 470 . 99 484.80 47 . 00 437.80
1959-2 ---------- 472 . 85 472.85 39 00 433 85
1959-3 29 45 447 86 477.31 473 80 3.51
1960-2 30 77 478 94 509 71 490.63 19.08
1960-3 ---------- 428.05 428.05 420.29 7 76
1960-4 ---------- 444 61 444. 61 423 88 20.73
1961-1 25 40 429 74 455. 14 341 38 113.76
1962-2 30 06 469.63 499. 69 245 . 26 254.43
Total--------------------------- ------------ ---------- ---------- --------- ---------- 3,555 75
95 Hill, Bertha --------------------' - -- --------- ---------- ---------- --------- ---------- None
96 Holden, Helen------------------- ------------ ---------- --------- ---------- ---------- None
97. Hol d, Genme------------- ------------ ---------- ---------- ---------- ---------- None
98 Hubbard, Ruth------------------- 1955-2 23 61 327. 63 351.24 224 . 00 127.24
1955-3 _ 370. 24 260 00 110 24
1955-4 403 29 403 29 260 00 143.29
Total-------------------------- ----- ---------- -------- ---------- --------- 380 77
99. Hughes (Johnson), Nmnie-------- 1955-2 23 61 327.63 351 . 24 302.70 48 54
100 Jackson , Eleanora---------------- 1955-2 23.61 327 . 63 351.24 33 00 318.24
1955-3 ---------- 165 25 165 25 24.00 141 25
Total - --- 459.49
101. Jackson , Louise------ ------------ 1955-2 23 61 250 69 274.30 ------ ---- 274 30
1955-3 ---------- 370 24 370 24 220.00 150.24
1955-4 ---------- 403 29 403 . 29 294.00 109.29
1956-1 15 65 406 27 421 92 273.00 148.92
1956-2 --- ------- 436.14 436.14 273.00 163.14
1956-3 27 18 383.65 410.83 273 00 137.83
1956-4 9 74 356 50 366.24 280 00 86 24
1957-1 ---------- 438.26 438. 26 338 00 100.26
1057-2 26.69 429 96 456 65 338 . 00 118 65
1957-3 ---------- 406.50 406 . 50 325.00 81.50
1957-4 ---------- 381.47 381 47 338.00 43.47
1958-1 10 39 409.02 419.41 338 . 00 81.41
1958-2 ---------- 412 57 412. 57 338 00 74.59
1958-3 ---------- 438 29 438 . 29 338 . 00 100.29
1958-4 ---------- 423. 85 423 . 85 338 00 85 85
1959-1 13 81 470 99 484 80 338. 00 146.80
1959-2 -------_ 472 85 472 85 338. 00 134.85
1959-3 29 45 447. 86 477.31 156 00 321 31
1959-4 18 17 433 . 96 452.13 338 . 00 114 13
1960-1 ---------- 470 56 470 56 338. 00 132.56
1960-2 30.77 478.94 509 71 338.00 171.71
1960-3 ---------- 428.05 428 05 338. 00 90 05
1960-4 -- -------- 444 61 444. 61 338.00 106.61
1961-1 25 40 429.71 455.11 338 00 117.11
1961-2 30 06 469. 63 499.69 338 00 161 69
Tntal - --- --- ----- - - -- ------- ---------- ---------- ---------- 3.252.78
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and
quarter
Bonus
(gross)
Wages
(gross)
Total
gross
Interim
earnings
Net
backpay
102 Jeff (Clark) Catherine 1956-1 $261 31 $261 31 $72 00 $189 31
1956-2 436 14 436 14 300 00 136 14
1956-4 $9 74 356 50 366 24 204 00 182 24
1967-1 438 26 438 26 245 50 192 76
1958-1 10 39 409 02 419 41 204 00 215 41
1958-2 25 17 412 57 437 74 9 00 428 74
1958-3 438 29 438 29 107 50 330 79
1058-4 423 85 423 85 222 55 201 30
1959-1 13 81 470 99 484 00 236 50 248 30
1959-2 293 31 293 31 154 80 138 51
1959-4 18 17 325 17 343 34 343 34
1960-1 470 56 470 56 470 56
1960-2 30 77 478 94 509 71 509 71
1960-3 428 05 428 05 73 10 354 95
1960-4 444 61 444 61 233 75 210 86
1961-1 25 40 429 74 455 14 253 70 201 44
1961-2 30 06 469 63 499 69 150 86 348 83
Total 4 683 19
103 Johnson, Eunice 1954-3 122 23 122 23 122 23
1955-2 23 61 372 44 396 05 110 00 286 05
1955-3 370 24 370 24 347 50 22 74
1955-4 403 29 403 29 275 00 128 29
1956-2 436 14 436 14 330 00 106 14
1956-4 9 74 356 50 366 24 330 00 36 24
1957-1 438 26 438 26 104 00 334 26
1957-4 381 47 381 47 252 00 129 47
1958-1 10 39 409 02 419 41 78 00 341 41
1958-2 25 17 412 57 437 74 84 00 353 74
1958-3 438 29 438 29 97 00 341 29
1958-4 423 85 423 85 299 05 124 80
1959-1 13 81 470 99 484 80 130 48 354 32
1969-2 472 85 472 85 4 00 468 85
1959-4 18 17 433 96 452 13 452 13
1960-2 30 77 478 94 509 71 25 00 484 71
1960-4 444 61 444 61 100 00 344 61
1961-1 25 40 429 74 455 14 455 14
1961-2 30 06 469 63 499 69 499 69
Total 5 388 11
104 Johnson Louella 1955-2 23 81 264 91 288 52 225 00 63 52
1955-3 117 85 117 66 109 45 8 20
Total 71 72
105 Johnson Maybelle None
106 Johnson Olivia 1955-2 80 68 80 68 80 68
107 Johnson Verna None
108 Johnson Virginia 1955-2 23 61 327 63 351 24 351 24
1965-3 129 47 129 47 129 47
Total 480 71
109 Jolly (Cahn) Ruth 1955-4 185 99 185 99 180 00 5 99
1956-1 15 65 406 27 421 92 390 00 31 92
1956-2 436 14 436 14 390 00 46 14
7 otal 84 05
J H RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1575
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
110 Jones Edna 1965-2 $59 03 $59 03 $59 03
111 Jones (Taylor) Shirley 1955-2 $23 61 310 45 334 06 $270 00 64 06
112 Joshua Olivia 1955-2 76 93 76 93 76 93
113 Keeler Johnnie Mae 1955-2 23 61 310 45 334 06 36 55 297 51
1955-3 123 56 123 56 123 56
Total 421 07
114 Kelly Dorothy 1955-2 59 17 59 17 56 00 3 17
115 Kimble, Alnetta 1955-2 23 61 57 43 81 04 81 04
116 Landry Lela Mae Coston 1955-2 25 12 327 63 352 75 229 50 123 25
1965-3 370 24 370 24 274 50 95 74
1955-4 403 29 403 29 274 50 128 79
1956-1 15 65 406 27 421 92 286 09 135 83
1966-2 436 14 436 14 289 50 146 64
1956-3 27 18 383 65 410 83 302 00 108 83
1956-4 9 74 356 50 366 24 304 50 61 74
1957-1 438 26 438 26 304 50 133 76
1958-2 25 17 412 57 437 74 300 18 137 56
1958-3 438 29 438 29 393 50 44 79
1959-1 13 81 470 99 484 80 416 07 68 73
1959-3 29 45 223 93 253 38 209 94 43 44
1959-4 18 17 433 96 452 13 395 85 56 28
1960-1 470 56 470 56 400 37 70 19
1960-4 444 61 444 61 403 91 40 70
1961-2 30 06 469 63 499 69 384 85 115 04
Total 1 511 31
117 Lanier Elmarie None
18 Lanier Ernestine None
19 La Roche Sophie None
20 La Rose, Gertrude 1955-2 237 67 237 67 132 00 105 67
21 Larrieu Louis None
22 Learson, Dorothy 1957-4 381 47 381 47 153 00 228 47
1981-1 25 40 429 74 455 14 75 00 380 14
1961-2 30 06 469 63 499 69 80 00 419 69
Total 1 028 30
23 Le Beau Edna 1955-2 88 83 88 83 16 56 72 27
24 Lee Ruby 1955-2 47 07 47 07 47 07
25 Lesene Amelia None
26 Lewis Audrey 1955-2 23 61 327 63 351 24 173 40 177 84
27 Lewis Doris None
28 Lewis Jr Leonard T 1955-2 11 11 543 54 554 65 529 01 25 64
1956-1 875 32 875 32 816 53 58 79
1956-2 642 18 642 18 553 43 88 75
1957-1 682 36 682 36 675 75 6 61
1957-3 706 53 706 53 612 00 94 53
1958-2 20 29 654 17 674 46 535 35 139 11
1958-3 654 81 654 81 601 80 53 01
1958-4 682 95 682 95 621 88 61 07
1959-3 30 44 742 59 773 03 716 45 56 58
1960-1 878 89 878 89 821 30 57 59
1960-3 708 53 708 53 498 36 210 17
1906-4 776 19 776 19 767 04 9 15
1961-2 33 26 1 030 48 1 063 74 498 88 564 86
Total 1 425 86
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross ) (gross ) gross earnings backpay
129. Lockett, Marie------------------- ------------ ---------- ---------- ---------- ----------
None
130. Lodge, Kathleen----------------- 1955-3 ---------- $370 24 $370 24 ---------- $370 24
1955-4 ---------- 403 29 403. 29 $30 19 373.10
1956-1 $15 65 406 . 27 421 92 232 87 189.05
1956-2 ---------- 436.14 436 14 ---------- 436 14
1956-3 27.18 383 65 410 83 ---------- 410 83
1957-3 ---------- 406 50 406 50 335 12 71.38
1958-2 25.17 412 57 437.74 492 00 8 74
1959-1 13 81 470 99 484 80 416 00 68 80
1959-2 ---------- 472 . 85 472 85 316 80 156 05
Total--------------------------- ----------- ---------- ---------- ---------- ----------
2,084 33
131 Lotten , Herbert------------------ 1956-1 - ---------- 717 90 717 90 637. 65 80.25
1956-2 ---------- 672 15 672 15 651 . 25 20.90
1956-3 17 96 • 683 15 701 11 650 00 51.11
1957-2 ---------- 662 82 662 82 662 00 .82
1958-3 ---------- 712 03 712 03 689 00 23 03
1959-2 ---------- 746 . 85 746 85 689 00 57 85
5959-3 30.44 687 80 718. 24 689 00 29 24
1960-1 ---------- 756 07 756. 07 636 . 00 120 07
1960-2 30 77 806 83 837 60 689 00 148 60
1960-4 ---------- 842 05 842 05 742 00 100 05
1961-1 ---------- 866 56 866 56 689 00 177.56
1961-2 33 26 956 45 989 71 689 00 300 71
Total --------------------------- ------------ ---------- ---------- ---------- ----------
1,110 19
132. Lyons , Lorraine------------------ 1955-2 -------- -- 280 46 280 46 ---------- 280.46
1956-1 15 65 232 94 248 59 131 25 117.34
1956-2 ---------- 208.26 208. 26 ---------- 208 26
Total- ------------------------- ------------ ---------- ---------- ---------- ----------
607.06
133 McKlnnle, Loetha- --------------- 1955-2 ---------- 23.78 23 78 15.00 8 78
134 Magee , Vivian------------------ -- 1955-2 23 61 280 56 304 17 -------- -- 304 17
1955-3 ----- ----- 370 24 370 24 240 15 130 09
1955-4 ---------- 271 30 271 30 229 08 42 22
Total--------------------------- ------------ ---------- ---------- ---------- ----------
476.48
135 Margin , Eleanor------------------ 1955-2 23.61 327 63 351 24 185 74 165 50
1955-3 ---------- 135 38 135 38 109 . 26 26 12
Total------- -------------------- ------------ ---------- ---------- ---------- ----------
191 62
136 Marshall , Dorothy------------ --- 1955-2 ---------- 59 02 59 02 ---------- 59 02
137. Marshall , Willie------------------ 1955-2 23 61 310 45 334 06 120 00 214 06
1955-3 ---------- 370 24 370 24 262 39 107 85
1955-4 ---------- 403 29 403 29 237 51 165 78
1956-2 ---------- 194 32 194 32 175 00 19 32
1956-3 27 18 383 65 410 83 393 31 17.52
Total-------- ------------------ ------------ ---------- ---------- ---------- ----------
524 63
J. H. RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1577
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
138 Martin, Eliska------------------- 1955-2 $23 61 $327 63 $351.24 ---------- $351 24
1955-4 ---------- 403 29 403 29 $374 13 29 16
1956-3 27 19 383 65 410 84 384 00 26 84
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 407 24
139 Martin, Noel--------------------- 1955-1 ---------- 531 83 531 83 246.98 284 85
1956-1 9 26 530 09 539.35 290 23 249 12
1956-3 9 93 447 57 475.50 422 39 35 11
1956-4 9.93 496 99 506 92 392 10 114.82
1957-1 ---------- 510 72 510 72 246 15 264 57
1959-2 ---------- 534 50 534.50 467 00 67 50
1960-1 ---------- 559 34 559 34 511 00 48 34
1960-4 ---------- 488 59 488 59 195 00 293 59
Total-------------------------- ------------ ---------- ---------- ---------- ---------- 1,357 90
140. Matthews, Gloria---------------- 1955-2 23 61 203.13 226 74 156 96 69 78
1955-3 ---------- 76 27 76 27 33 90 42 37
Total--------------------------- ----------- ---------- ---------- ---------- -------- 112 15
141 Meredith, Geraldine------------- 1955-2 23 61 327.63 351 24 104 00 247 24
1955-3 ---------- 15 16 15.16 7 69 7 47
Total-------------------------- ----- -- ----- --------- ---------- --------- ---------- 254 71
142 Monette, Roberta---------------- 1955-2 ---------- 41 10 41 10 ---------- 41 10
143. Montgomery, Bessie------------- 1955-3 ---------- 205 00 205 00 103 50 101 50
1955-4 ---------- 403.29 403.29 227.26 176 03
1956-1 15 65 • 406 27 421 92 301 00 120 92
1957-1 ---------- 438 26 438 26 397 06 41 20
1958-1 11 05 409 02 420 07 318.73 101 34
1958-2 25 17 412.57 437 74 410 54 27 20
1958-3 ---------- 438 29 438 29 349 29 89.00
1959-1 13 81 470 99 484 80 376 74 108 06
1959-2 ---------- 180 73 180 73 156 35 24 38
1960-2 30 76 478 94 509 70 400 55 109 15
1960-3 ---------- 428 05 428 05 400 55 27 50
1960-4 ---------- 444 61 444 61 352 95 91 66
1961-1 25 40 429 74 455 14 422.66 32 48
1961-2 30 06 469 63 499 69 397 26 102 43
Total--------------------------- ------------ ---------- --------- ---------- ---------- 1,152,85
144 Moore, Leola--------------------- 1955-2 23.61 131 81 155 42 34 20 121 22
1955-3 ---------- 17.73 17 73 4 00 13.73
Total--------------------------- ----- ------ ---------- ---------- ---------- ---------- 134 95
145. Moore, Orelia-------------------- 1955-2 ---------- 53.81 53.81 ---------- 53 81
146 Morrison, Elouise---------------- ------------ ---------- ---------- ---------- ---------- None
147 Moten, Lena--------------------- 1955-2 ---------- 47 07 47 07 ---------- 47 07
148. Myers (King), Mandy ------------ 1955-1 ---------- 212 18 212 18 203 52 8.66
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross ) (gross) gross earnings backpay
149 Nash (11a11) Adele R 1955-2 $23 61 $327 63 $351 24 $260 00 $91 24
1955-3 370 24 370 24 310 00 60 24
1955-4 403 29 403 29 250 00 153 29
1957-3 406 50 406 50 160 00 246 50
1957-4 381 47 381 47 220 00 161 47
1958-1 10 39 409 02 419 41 280 00 139 41
1958-2 25 17 412 57 437 74 280 00 157 74
1958-3 438 29 438 29 240 00 198 29
1958-4 423 85 423 85 240 00 183 80
1959-1 13 81 470 99 484 80 320 00 164 80
1959-2 472 85 472 85 240 00 232 85
1959-3 29 45 447 86 477 31 280 00 197 31
1959-4 18 17 433 96 452 13 325 00 127 13
1960-1 470 56 470 56 320 00 150 56
1960-2 30 77 478 94 509 71 325 00 184 71
1960-3 428 05 428 05 240 00 188 05
1960- 4 444 61 444 61 250 00 194 61
1961-1 25 40 429 74 455 14 315 00 140 14
1961-2 30 06 469 63 499 69 325 00 174 69
Total 3 146 88
150 Newman Marietta 1955-2 23 61 327 63 351 24 351 24
1965-3 370 24 370 24 370 24
1955-4 403 29 403 29 234 00 169 29
1956-1 15 65 406 27 421 92 390 00 31 92
1956-2 436 14 436 14 390 00 46 14
1956-3 27 18 383 65 410 83 390 00 20 83
1957-1 438 26 438 26 390 00 48 26
1957-2 26 69 429 96 456 65 390 00 66 65
1957-4 381 47 381 47 381 47
1958-2 452 27 452 27 372 01 80 26
Total 1 566 30
151 New ton Rosie Lec 195o-2 23 61 244 75 268 36 226 88 41 48
152 Nicholas (Martin) Clothilde 1955-2 23 61 9 10 32 71 7 88 24 83
1955-3 110 74 110 74 80 44 30 30
Total 55 13
153 Ocimpo Desideria 1954-3 303 64 303 64 42 00 261 64
1954-4 8 41 394 72 403 13 102 64 300 49
1955-1 387 06 387 06 180 16 206 90
1955-2 23 61 372 44 396 05 48 00 348 05
1955-3 370 24 370 24 113 81 256 43
1956-1 15 65 406 27 421 92 419 10 2 82
1956-3 27 18 383 65 410 83 289 31 121 52
1960-2 30 77 478 94 509 71 465 39 44 32
1961-2 30 06 469 63 499 69 354 24 145 45
Total 1 687 62
154 Parker Anna - - - - - None
155 Parker Shirley _ 1955-2 23 61 244 99 268 60 190 23 78 37
J. H. RUTTER-REX MANUFACTURING COMPANY 1579
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross ) (gross ) gross earnings backpay
156. Parnell, Yvonne----------------- 1955-2 $23 61 $27 58 $51 19 ---------- $51 19
1956-1 15 65 406 27 421 92 $54 00 367 92
1956-2 ___ __ _ 436 14 436 14 234 00 202 14
1956-3 Q27 18 383 65 410 83 234 00 176 83
1956-4 9 74 356 50 366 24 234 00 132 24
1957-1 ---------- 438 26 438 26 156 00 282.26
1957-2 26 69 429 96 456 65 156. 00 300 65
1957-3 ---------- 406.50 406 50 156 00 250 50
1957-4 ---------- 381 . 47 381 47 156 00 225.47
1958-1 10 39 409.02 419.41 156 00 263 41
1958-2 - ---------- 178 . 85 178 . 85 72 00 106 85
1958-3 ---------- 378 11 378. 11 200. 00 178 11
1958-4 ---------- 423 85 423 85 240 . 00 183 85
1959-1 13 81 470 99 484.80 320 00 164.80
1959-2 ---------- 472 85 472 85 240 00 232 85
1959-3 29 45 447.86 477 31 280.00 197 31
1959-4 18.17 433. 96 452.13 200 00 252.13
1960-1 ---------- - 470. 56 470.56 320 00 150 56
1960-2- 30 77 478 94 509. 71 240 . 00 269 71
1960-3 ---------- 428.05 428 . 05 280 00 148 05
- 1960-4 -_________ 444. 61 444 . 61 240.00 204 61
1961-1 25.40 429.74 455.14 240.00 215.14
1961-2 36.06 469 63 499 69 280.00 219.69
Total----------=---------------- --------- -- ------- ---------- ---------- ---------- 4,776.27
157 Patterson , Elnora---------------- ----------- ---------- ---------- ---------- ---------- None
158. Penn (Smith ), Gloria_____________ 1955-2 9970 70.09 65.99 5 00
159 Phillips (Kearns), Louise________ 1955-2
-
27 63 351 24 5.00 346.24
1955-3
-
82.18 82.18 . ---------- 82.18
Total----------------- ---------- ------------
--
----- --------- 428 42
160 Powell, Melvina---- -------------- 1955-2 .6 71.06 94.67 11 81 82 86
1955-3 ---------- 76.27 76.27 69 19 7.08
Total-------------- ------------- ------------ ---------- ---------- ---------- ---------- 89 94
161. Proctor , Mildred___ ______________ 1955-2 23.61
-
286 54 310 15 _ 15
1955-3 ---------- 370. 24 370 24 290 29 79 95
1955-4 ---------- 403 29 403 29 101 91 301.38
1956-1 15.65 406 27 421 92 262. 95 158 97
1956-2 ---------- 6.83 6 83 ---------- 6.83
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 857.28
162. Randall, Edna_ __________________ 1955-1 ---------- 29.56 29.56 9.94 19 62
1955-2 ---------- 209. 21 209 21 __________ 209 21
Total--------------------------- ------------
-
----------
- ---
------- ---------- ---------- 228 83
163. Rapp (Bennett). Gloria ---------- 1955-2 __________ 41.85 41.85 ---------- 41.85
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and
quarter
Bonus
(gross)
Wages
(gross)
Total
gross
Interim
earnings
Net
backpay
164. Ray (Blanchard), Wilhelmina____ 1955-3 $370.24 $370 24 $360 00 $10 24
1955-4 403 29 403.29 360 00 34 29
1956-1 $15 65 406.27 421 92 390.00 31 92
1956-2Q 436 14 436 14 390 00 46 14
1956-3 27 18 383.65 410 83 390 00 20 83
1957-1 438 26 438.26 416 00 22 26
1957-2 26 69 429 96 456. 65 416 00 40 65
1958-1 10 39 409 02 419 41 416 00 3.41
1958-2 25 17 412 57 437 74 416 00 21.74
1958-3 438.29 438.29 416.00 22 29
1958-4 423 85 423.85 416 00 7 85
1959-1 13 81 470.99 484.80 416.00 68 80
1959-2 472.85 472.85 401 00 71.85
1959-3 29 45 447.86 477 31 167 50 309 81
1960-1 470.56 470.56 66 75 403.81
1960-2 30 77 478.94 509 71 100 00 409 71
1960-3 428.05 428.05 25 00 403 05
1960-4 444 61 444.61 444.61
1961-1 25.40 429.74 455.14 455 14
Total --------------------------- 2,837 40
165 Recasner , Isabelle---------------- 1955-2 23.61 327.63 351 24 351 24
1955-3 370 24 370 24 370 24
1955-4 403.29 403.29 371.69 31.60
Total --------------------------- 753.08
166. Reed, Dorothy Kearney --------- 1955-3 163 32 163 32 132 00 31 32
1955-4 348.40 348.40 242.00 106 40
1956-2 160.76 160 76 99.00 61 76
1956-3 27 18 383 65 410.83 343 27 67 56
1956-4 9 74 329.63 339 37 282 21 57 16
1957-2 26 69 422 96 449 65 390 00 59.65
1957-3 406.50 406 50 390 00 16. 50
1958-4 423.85 423.85 214 50 209 35
1959-1 13.81 470 99 484.80 214.50 270.30
1959-2 472 85 472 85 214.50 258 35
1960-1 470 56 470 56 214.50 256 06
1960-2 30 77 478 94 509 71 214 50 295 21
1960-3 428 05 428 05 214 50 213 55
1960-4 444 61 444 61 192.50 252 11
1961-1 25 40 429.74 455 14 143 00 312.14
1961-2 30 06 247.63 277 69 77 00 200 69
Total--------------------------- 2,668 11
167. Reeves, Nerlie___________________ 1955-2 245 60 245 60 96 00 149 60
168. Richard, Pearl (Deceased) _ ------ 1955-2 176 61 176 61 176 61
169. Richardson, Rose---------------- 1955-2 23 61 327 63 351.24 351 24
1955-3 21 27 21 27 21 27
Total --------------------------- 372 51
170 Robertson, Adele________________ 1956-3 27.18 383 65 410 83 54 41 356 42
171. Rollins , Geraldine _______________ 1955-2 23 61 310 45 334 06 150 00 184 06
1955-3 117 65 117 65 109 00 8 65
Total--------------------------- 192 71
J. H. RUTTER-REX MANUFACTURING COMPANY
APPENDIX-Continued
1581
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
172. Rubit, Doiothy B--------------- 1955-2 $23.61 $327 63 3351 24 ---------- $351.24
1956-3 ---------- 126.29 126. 29 _ 29
1956-4 9 74 139.85 149 59 $64 00 85.59
1957-3 _ 50 406.50 168 00 238.50
1958-1 39 409.02 419.41 312.25 107.16
1958-2 25 17 412.57 437.74 ---___--_ 437.74
1958-3 __----- 438 29 438. 29 128.50 309 79
1958-4 _--_____-_ 423.85 423 85 8 00 415.85
1959-1 13 81 470 99 484 80 -___------ 484 80
1959-2 __-_-_---_ 472.85 472.85 -------_-_ 472.85
1959-3 29 45 447.86 477.31 466.20 11.11
1961-2 30.06 469. 63 499.69 309 34 190.35
Total--------------------------- ---------- ---------- ------- ---------- ---------- 3,226 27
173. Rubit, Dorothy P---------------- 1955-2 23 61 327. 63 351.24 ---------- 351.24
1955-3 ---------- 27.38 27.38 ---------- 27.38
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 378.62
174. Sanders (Newsom), Ada --------- 1955-2 23.61 292.51 316.12 190. 00 126.12
1955-3 ---------- 370.24 370. 24 247.00 123.24
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 249.36
175. Sawyer, Ellen-------------------- ------------ ---------- ---------- ---------- ---------- None
176 Scott , Delores---------------- ---- 1955-2 ---------- 59.03 59.03 __________ 59.03
177. Seaton, Rebecca----------------- ------------ ---------- ---------- ---------- ---------- None
178. Shelton (Patterson), Clara------- 1955-2 23.61 327. 63 351.24 7. 88 343.36
1955-3 ---------- 76.27 76.27 69.19 7 08
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 350 44
179. Simpson, Lillie ------------------ ------------ ---------- ---------- ---------- ---------- None
180 Smith, Leonardme--------------- ------------ ---------- ---------- ---------- --------- None
181 Smith, Octavia----- ----------- --- ------------ ---------- ---------- ---------- ---------- None
182 Sonia, Rose Maiy---------------- ------------ ---------- ---------- ---------- ---------- None
183 Stewart (Bates), Millie ----------- 1955-2 23 61 327 63 351 24 ---------- 351.24
1955-3 ---------- 76 27 76 27 ---------- 76 27
Total--------------------------- ------------ ---------- ---------- ---------- ---------- 427 51
184 Taplin (Duncan), Dorothy ------- 1955-2 ---------- 29 87 29 87 12 42 17 45
185 Taylor, Maiy-------------------- ------------ ---------- ---------- ---------- ---------- None
186 Thomas (Washington), Luvema-- 1955-2 23 61 327 63 351 24 33 29 317 95
1955-3 ---------- 27 38 27 38 14 25 13 13
Total-------------------------- ------------ ---------- ---------- ---------- --------- 331 08
87. Thomas, Mary------------------- ------------ ---------- ---------- ---------- ---------- None
88 Thomas, Mignonette------------- 1955-3 ---------- 00 205 00 ---------- 205 08
1955-4 ---------- 403 29 403 29 ---------- 403 29
1956-1 ---------- 406 27 406 27 _ 27
1956-2 ---------- 302 83 302 83 ---------- 302 83
Total--------------------------- ----------- ---------- ------ ---------- ---------- 1,317.39
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross) (gross) gross earnings backpay
189 Thornton Jesenu 1955-2 $93 61 $327 63 $351 24 $351 24
1955-3 195 11 195 11 195 11
7 otal 546 35
190 Thornton Rosalie 1955-2 23 61 232 68 256 29 $250 92 5 37
1955-3 370 24 370 24 189 77 180 47
1956-1 15 65 406 27 421 92 360 27 61 65
1956-2 436 14 436 14 327 13 109 01
1956-3 27 18 383 65 410 81 217 50 193 33
1957-1 438 26 438 26 305 50 132 76
1957-2 26 69 429 96 456 65 420 76 35 89
1957-3 406 50 406 50 1o7 50 249 00
1958-1 10 39 409 02 419 41 206 50 212 91
1958-2 25 17 274 67 299 84 88 00 211 84
1958-4 82 20 82 20 82 20
1959-1 13 81 470 99 484 80 65 75 419 05
1959-2 472 85 472 85 164 25 308 60
1959-3 29 45 447 86 477 31 177 25 300 06
1960-1 470 56 470 56 225 37 245 19
1960-2 30 77 478 94 509 7L 359 74 149 97
1960-3 192 64 192 64 118 25 74 39
1960-4 68 16 68 16 64 00 4 16
1961-1 25 40 429 74 455 14 174 62 280 52
1961-2 30 06 469 63 499 69 239 50 260 19
Total _ 3 516 56
191 Valentine Hilda 1955-2 23 61 327 63 351 24 351 24
1955-3 27 38 27 38 - 27 38
Total 378 62
192 Walker Hattie 1955-2 23 61 310 45 334 06 221 92 112 14
1955-3 370 24 370 24 321 56 48 68
19654 403 29 403 29 344 42 58 87
1958-1 10 39 409 02 419 41 109 91 309 50
1958-2 25 17 412 57 437 74 437 74
1958-3 438 29 438 29 45 50 392 79
1958-4 423 85 423 85 285 70 138 15
1959-1 13 81 470 99 484 80 375 85 108 95
1959-2 472 85 472 85 419 99 52 86
1959-4 18 17 433 96 452 13 100 00 352 13
1960-1 470 56 470 56 106 12 364 44
1960-2 30 77 478 94 509 71 297 00 212 71
1960-3 428 05 428 05 130 00 298 05
1960-4 444 61 444 61 225 80 218 81
1961-1 25 40 429 74 455 14 455 14
1961-2 30 06 489 63 499 69 347 75 151 94
Total 3 712 90
193 Walker Marjorie 1955-1 17 73 17 73 17 73
1955-2 23 61 372 44 396 05 396 05
1955-3 370 24 370 24 76 58 293 66
1955-4 403 29 403 29 355 65 47 64
1956-1 15 65 406 27 421 92 275 73 146 19
1956-2 436 14 438 14 267 86 168 28
1956-4 9 74 356 50 366 24 348 50 17 74
1957-1 438 26 438 26 309 50 128 76
1957-2 26 60 429 96 456 65 326 05 130 66
1958-1 9 45 409 02 418 47 294 85 123 62
1958-2 25 17 412 57 437 74 9 20 428 54
.T. H RUTTER-REX MANUFACTURING COMPANY 1583
APPENDIX-Continued
Employee Year and Bopsu Wages Total Interim Net
quarter (gross) (gross) gross E aimngs backpay
1958-3 $438 29 $438 29 $422 20 $16 09
1958-4 423 85 423 85 337 40 86 45
1960-2 $30 77 478 94 509 71 342 44 167 27
1960-4 444 61 444 61 205 93 238 68
1961-1 25 40 429 74 455 14 287 19 167 95
1961-2 30 06 469 63 499 69 435 38 64 31
Total _-___ 263956
194 Wallace , Alma 1955-4 115 27 115 27 18 72 96 55
1956-1 15 65 406 27 421 92 317 60 104 42
1966-2 463 14 436 14 216 59 174 55
1956-4 9 74 200 68 210 42 73 32 137 10
1957-1 438 26 438 26 281 15 157 11
1957-2 26 69 429 96 456 65 259 98 196 67
1967-3 406 50 406 50 261 65 144 85
1957-4 381 47 381 47 303 48 77 99
1969-1 13 81 470 99 484 80 199 51 285 29
1959-2 472 85 472 85 276 16 196 69
1959-3 29 45 447 86 477 31 449 50 27 81
1959-4 18 17 433 96 452 13 286 50 165 63
1960-2 30 77 478 94 509 71 452 12 57 59
1960-3 428 05 428 05 190 31 237 74
1960-4 444 61 444 61 347 48 97 13
1981-1 25 40 429 74 455 14 317 11 138 03
1961-2 30 08 469 63 499 69 404 00 95 69
Total 2 390 84
195 Washington Beatrice 1955-2 23 61 310 45 334 06 292 87 41 19
1955-3 117 65 117 65 71 81 45 84
Total 87 03
196 Washington , Dorothy 1955-1 ' 163 08 163 08 163 08
1955-2 257 17 257 17 237 40 19 77
Total 182 85
197 Washington , Lulu Mae None
198 Watford , Fannie 1955-2 23 61 327 63 351 24 91 30 259 94
1955-3 370 24 370 24 107 90 262 34
1956-3 27 18 383 65 410 83 410 83
1957-1 265 50 265 50 225 00 40 50
Total 973 61
199 Watson Mabel None
200 Weathorsby, Dorothy None
201 White Beatrice 1955-2 23 61 327 63 351 24 23 82 327 42
1956-1 15 65 406 27 421 92 434 23 87 69
1956-2 438 14 436 14 61 83 374 31
1956-3 27 18 383 65 410 83 74 50 336 33
1956-4 0 74 356 50 366 24 96 55 269 69
1968-1 10 39 163 61 174 00 130 00 44 00
1958-2 25 17 165 03 190 20 130 00 60 20
1958-3 175 32 175 32 130 00 45 32
1958-4 169 54 169 54 130 00 39 54
1961-1 25 40 171 90 197 30 130 00 67 30
1961-2 30 06 187 85 217 91 130 00 87 91
Total 1 739 71
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
Employee Year and Bonus Wages Total Interim Net
quarter (gross ) (gross) gross earnings backpay
202. Williams , Alice___________________ 1955-2 ---------- $35.17 $35.17 $24.84 $10.33
203. Williams, Helen------------------ ------------ ---------- ---------- --------- ---------- None
204. Williams , Marion_ ________________ 1955-2 $23.61 327 . 63 351 . 24 95.00 256.24
1955-3 _ _ _ _ _ _ _ _ _ _ 370.24 370 . 24 350. 00 20.24
1955-4 ---------- 403.29 403.29 325 . 00 78.29
1956-1 15.65 90. 12 105 . 77 80. 00 25.77
Total--------------------------- ------------ ---------- ---------- ---------- --------- 380.54
205. Woodfork , Yvonne_______________ __________ ___ ---------- None
206. Woodridge , Estella_______________ 1955-3 ---------- 11.77 11.77 ---------- 11.77
1955-4 _ _ _ _ _ _ _ - _ _ 403 . 29 403. 29 8.00 395.29
1956-1 15 . 65 406 . 27 421.92 ------- --- 421.92
1956-2 _ 14 436. 14 _____--___ 436.14
1956-3 27.18 383 . 65 410 . 83 _____--___ 410.83
1956-4 9.74 356.50 366.24 _____-____ 366.24
1957-1 ___-______ 438.26 438.26 -_______-_ 438.26
1957-2 26.69 429.96 456. 65 _-______-_ 456.65
1957-3 ________-_ 406.50 406. 50 ____-___-_ 406.50
1957-4 -_-_______ 381.47 381 . 47 __________ 381.47
1958-1 10.38 34.50 44.88 44.88
Total- -------------------------- ------`----- ---------- -------- ---------- ---------- 3,769.95
207. Zeno, Audrey-------------------- 1955-2 ---------- - 237. 69 237 . 69 17.30 220.39
Cumulative Total (as of June
-
30,1961-- -------------------- ------------ ----------
1
---
------- ---------- ---------- $160,894.69
Modern Settings, Inc. and Amalgamated Jewelry, Diamond &
Watchcase Workers Union , Local 1 , International Jewelry
Workers Union , AFL-CIO
Modern Settings, Inc. and Amalgamated Jewelry, Diamond &
Watchcase Workers Union , Local 1, International Jewelry
Workers Union, AFL-CIO, Petitioner . Cases Nos. 2-CA-10610
and ?-RC-13933. June 6, 1966
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVE
On March 8, 1966, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. In addition, the Trial Examiner made additional
158 NLRB No. 147.