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

National Labor Relations Board - Board Decisions

Nov 5, 1971

194 N.L.R.B. 19 (N.L.R.B. 1971)

J. H. RUTTER-REX MANUFACTURING COMPANY 19
J. H. Rutter-Rex Manufacturing Company, Inc. and
Amalgamated Clothing Workers of America,
AFL-CIO. Cases 15-CA-721 and 15-CA-723
November 5, 1971
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 13, 1956, the National Labor Rela-
tions Board issued a Decision and Order in the above-
entitled proceeding' in which it found that Respon-
dent had violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended. The
Board's Order directed Respondent, inter alia, to offer
to the unfair labor practice strikers who made
unconditional requests for reinstatement immediate
and full reinstatement to their former or substantially
equivalent positions, and to make them whole for loss
of pay resulting from the failure to reinstate them on
request. Thereafter, the Board's Order was enforced
in full by the United States Court of Appeals for the
Fifth Circuit, including its reinstatement and backpay
provisions.2
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
15, a hearing was held before Trial Examiner Owsley
Vose for the purpose of determining the amounts of
backpay due the discriminatees. On June 6, 1966, the
Board issued a Supplemental Decision and Order3 in
which it ordered Respondent to pay to certain
enumerated discriminatees backpay in the amounts
found by Trial Examiner Vose, as modified by the
Board. The Board found, inter alia, that, with respect
to those employees whose backpay was still accruing,
payment to them of the net amount found to be due
and accruing constituted satisfaction of Respondent's
obligation only up to June 24, 1961, the terminal date
of the backpay specification.
Thereafter, the United States Court of Appeals for
the Fifth Circuit granted in part and denied in part the
Board's cross-petition for enforcement of its Supple-
mental Decision and Order.4 The court found that the
Board had been guilty of "inordinate" delay in issuing
the backpay specification and it modified the Board's
Order to eliminate all backpay accruing after July 1,
1959. On writ of certiorari to the Fifth Circuit Court
of Appeals, the United States Supreme Court reversed
the circuit court's judgment.5 On April 6, 1970, the
circuit court issued its supplemental judgment enforc-
ing the Board's Supplemental Decision and Order.
Pursuant to a supplemental backpay specification
and appropriate notice issued by the Regional
Director for Region 15 on November 30, 1970, a
hearing was held before Trial Examiner Lowell
Goerlich for the purpose of determining the amounts
of backpay due the 33 discriminatees whose backpay
continued to accrue beyond June 24, 1961, the end of
the period covered by the initial backpay specifica-
tion. On June 23, 1971, the Trial Examiner issued his
Decision in Backpay Proceedings, which is attached
hereto, in which he awarded specific amounts of
backpay to the 33 discriminatees. Thereafter, Respon-
dent filed exceptions to the Trial Examiner's Decision
in Backpay Proceedings and a supporting brief. The
General Counsel filed exceptions to parts of the
Decision, a supporting brief, and a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this proceeding to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. During the hearing Respondent
served a subpoena duces tecum on the Regional
Director for Region 15 requiring him to produce
"each and every statement, written and/or recorded
and memoranda made by or as a result of interview or
contact with any person, including backpay claim-
ants, which pertains to employment, search for
employment, interim earnings, availability for em-
ployment and/or any other matter affecting any
backpay claimant for the periods January 1, 1961
through December 31 of the year in which each
individual claim terminates." Pursuant to National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended,
Sections 102.117 and 102.118, Respondent sought the
General Counsel's permission for the Regional
Director for Region 15 to comply with the subpena.
Thereafter, the General Counsel denied Respondent's
request on the ground that "the information sought is
in the nature of pretrial discovery which is not
available in unfair labor practice hearings" and it "is
in the nature of investigatory materials compiled for
law enforcement, and is of a privileged or confidential
nature," falling within the exemptions of 5 U.S.C.
Section 552(b).
Thereafter, Respondent served a subpoena duces
tecum on Thomas D. Johnston, counsel for the
General Counsel in the instant proceeding, requiring
him to produce the identical material previously
sought from the Regional Director. Counsel for the
1 1 I5 NLRB 388. 4 399 F.2d 356
2 245 F.2d 594 5 396 U 5.258.
3 158 NLRB 1414.
194 NLRB No. 6
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel then filed a petition to revoke
subpoena duces tecum with the Trial Examiner
contending, inter alia, that, as noted above, the
General Counsel had refused to release the same
information pursuant to the subpena directed against
the Regional Director; that in the instant situation
Respondent had not requested the General Counsel's
permission to allow Counsel Johnston to comply with
the subpena; that the material sought by Respondent
constituted the Board agents' "work product" and
thus need not be produced; that the subpena did not
describe with sufficient particularity the evidence
sought; and, in any event, that all witnesses' state-
ments, as defined in Rules and Regulations Section
102.118(d), would be made available for purposes of
cross-examination pursuant to Section 102.118(b)(1).
In opposing the General Counsel's petition to
revoke, Respondent argued to the Trial Examiner, as
it did in its brief in support of,exceptions before the
Board, that, in view of the protracted nature of the
proceeding and Respondent's inability therefore to
obtain evidence needed to formulate its defense, the
General Counsel should be required to produce the
data upon which he based the supplemental backpay
specification.
The Trial Examiner concluded that, since the
General Counsel had called the compliance officer
who prepared the supplemental backpay specifica-
tion, and he had as a witness testified how each
discriminatee's backpay claim was determined, the
General Counsel had "waived the privilege against
disclosure and has imphedly given his consent,
disclosing to the Respondent all files, documents,
reports and memoranda and other records which were
utilized by Mr. Norton [the compliance officer] in
framing his testimony as well as framing the specifica-
tions. In the Trial Examiner's opinion, therefore, the
Respondent is entitled to any files, documents or
memoranda or records of the Board which touch
upon the testimony or are relevant to the testimony of
Mr. Norton or to the specifications as filed in this
proceeding. Consequently, the Trial Examiner over-
rules the motion to revoke the subpoena."
Thereafter, the General Counsel filed a request for
special permission to appeal the Trial Examiner's
ruling to the Board contending that the Trial
Examiner cited no precedent for his ruling, that
Respondent had not secured permission for release of
said documents, and, moreover, that the Compliance
Officer only testified to matters contained in the
supplemental backpay specification and did not
physically refer to documents, memoranda, notes,
etc., in the files while testifying except those already in
Respondent's possession.
By telegraphic order dated March 25, 1971, the
Board granted, the General Counsel's request for
special permission to appeal the Trial Examiner's
ruling denying the petition to revoke subpena. The
Board then reversed the Trial Examiner's ruling,
stating that it was too broad with respect to matter
required to be produced.
In the interim, on March 24,197 1, Respondent filed
a motion to dismiss the supplemental backpay
specification on the ground that the General Counsel
had refused to comply with the Trial Examiner's
ruling to produce the subpenaed documents. Respon-
dent contended that the evidence sought was neces-
sary and material to the defense of the claims alleged
in the supplemental backpay specification and that
the refusal of the General Counsel to comply with the
Trial Examiner's ruling substantially prejudiced
Respondent. Upon receiving the Board's telegraphic
order reversing the Trial Examiner's ruling, the Trial
Examiner denied Respondent's motion to dismiss. We
agree with that ruling. Moreover, we note that in all
other respects the General Counsel complied with
applicable Board evidentiary rules. Thus, where
affidavits of witnesses called by the General Counsel
existed, the General Counsel made them available to
Respondent's counsel . In a few instances , memoranda
of conversations between Board agents and discrimi-
natees were also turned over to Respondent. In
keeping with the Board practice, Respondent received
copies of all official social security documents
pertaining to the discriminatees . Finally, except for,'
discriminatee Denley, whom Respondent had an
opportunity to call, the General Counsel called all the
discriminatees involved herein so Respondent's coun-
sel could engage in cross-examination.
The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire''
record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following minor modifica-
tions.
We adopt the Trial Examiner's findings and
determinations of backpay due the following discri-
minatees except where modified herein:
Victoria Allen $2,543
Sonora Barnes (Rochon) 340
Doris E. Bowles 812
Marguerite Bozonier 1,601
Miriam Cheri 530
Bessie Cooper (Lee) 1,591
Georgiana Davis (Deruisa) 2,252
Lenora Davis 6 236
6 In the amended supplemental backpay specification Lenora Davis ' Examiner inadvertently failed to note this change . The award as stated
claimed gross backpay was reduced from $293 to $236 but the Trial reflects this correction
J. H. RUTTER-REX MANUFACTURING COMPANY 21
Alice T. Denley (Gabriel) 21
Gloria Dixon 191
Minnie M. Fernandez 2,185
Ethel Mae Foreman (Askin) 1,414
Edna Francis 1,161
Jimmie Lou Green 3,536
Gustavia Haynes (Gale) 4,530
Victoria Henderson 7 2,121
Rose Marie Hicks 1,778
Louise Jackson (deceased) 1,286
Eunice Johnson8 2,772
Lila Mae Landry (Coston) 192
Dorothy White (Learson) 1,591
Leonard Lewis 386
Bessie Montgomery 393
Adele Nash9 (Hall) 1,532
Desideria O'Campo 766
Yvonne Parnell (Charles) 1,367
Dorothy K. Reed 962
Adele L. Robertson 1,181
Rosalie Thornton 807
Marjorie Walker 351
Alma Wallace 52
Fannie M. Watford 10 9,592
Beatrice White (Lane) 3,007
ORDER
On the basis of the foregoing Second Supplemental
Decision and Order and the entire record in this
proceeding, the National Labor Relations Board
hereby orders that Respondent, J. H. Rutter-Rex
Manufacturing Company, Inc., New Orleans, Louisi-
ana, its officers, agents, successors, and assigns, shall
pay to the employees involved in this proceeding as
net backpay the amounts awarded to them in this
Second Supplemental Decision and Order with
interest. It is further ordered in view of the death of
Louise Jackson that Respondent pay to Jackson's
estate or any person or persons as their interests may
appear the backpay due and owing on behalf of
Jackson, including interest,
7In the amended supplemental backpay specification Victoria
Henderson's claimed gross backpay was likewise reduced from $2,163 to
$2,161 which, less found additional interim earnings of $40, results in net
backpay of $2,121. The award as stated reflects this correction.
a In the supplemental backpay specification Eunice Johnson's alleged
backpay was $2,772 but in his brief the General Counsel erroneously
asserted that backpay due Johnson amounted to $2,272 The Trial
Examiner apparently relied on the General Counsel's inadvertent error.
The award as stated reflects this correction.
9 The Trial Examiner found that Adele Nash (Hall) was due $1,533, as
stated in the General Counsel's brief In fact, the supplemental backpay
specification alleges that Nash is due $1,532 and the award as stated
reflects this correction.
10 In the amended supplemental backpay specification Fannie M.
Watford's claimed gross backpay was reduced from $10,057 to $9,692 but
the Trial Examiner apparently overlooked this amendment in awarding
Watford $9,957 backpay The award as stated ieflects this correction, less
$100 found additional interim earnings
We agree with the Trial Examiner that Watford is entitled to backpay
during the period she engaged in a strike against her interim employer,
Louisiana Garment. As found by the Trial Examiner, she incurred no
willful loss of earnings in looking for work. She sought and for a brief time
obtained work during the strike period for which interim earnings
amounting to $100 have been deducted from her gross backpay. The
evidence indicates that she would have been receptive to an offer to return
to work from the Respondent during the Louisiana Garment strike, no
such offer was forthcoming. In these circumstances, we will not penalize
Watford by disallowing her backpay for the period of that strike. W. C.
Nabors Company, 134 NLRB 1078, 1096. To hold otherwise would be to
compel a discriminatee in situations similar to Watford's to forgo the
legitimate exercise of Section 7 rights against his interim employer in order
to reduce the backpay liability of the employer who discriminatorily
discharged him.
TRIAL EXAMINER'S DECISION IN BACKPAY
PROCEEDINGS
History of Proceedings
LowELL GOERLICH, Trial Examiner: On February 13,
1956, the National Labor Relations Board, herein referred
to as the Board, issued a Decision and Order 1 in the within
captioned cases directing Respondent, J. H. Rutter-Rex
Manufacturing Company, Inc., inter alia, upon application,
to offer 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 by
reason of the Respondent's refusal, if any, to reinstate them
by the 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 applied for reinstatement to the date of the
Company's offer of reinstatement, to be computed on a
quarterly basis. Thereafter on June 10, 1957, the Court of
Appeals for the Fifth Circuit issued its decision granting
enforcement of the Board's Order.2 The court entered its
decree of enforcement on August 19, 1957.
On November 16, 1961, the Regional Director for Region
15 of the National Labor Relations Board issued the initial
backpay specification in this matter. On January 23, 1963,
Tnal Examiner Vose issued his Preliminary Intermediate
Report and Order in Backpay Proceeding in which he
approved the method of computing backpay set forth in the
specification but provided that such computation in regard
to group 5 employees should be subject to a 6 percent
reduction which he found necessary in order fully to reflect
the number of absences characteristic of a typical
employee. Thereafter, on various dates between February
12, 1963, and September 30, 1963, hearings were held on the
1 J. H Rutter-Rex Manufacturing Company, Inc., 115 NLRB 388.
2 N.L.R B v J H Rutter-Rex Manufacturing Company, Inc., 245 F.2d
594.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues raised by the Backpay Specification and the
Respondent's amended answer.
On June 2, 1964, the Trial Examiner issued his
Supplemental Decision in Backpay Proceedings in which
he ordered specific amounts of backpay to approximately
172 claimants and denied backpay to approximately 35
others while providing for 6 percent interest on the backpay
due for each quarter commencing from the date of his
Decision.
On June 30, 1966, the Board issued its Supplemental
Decision and Order.3 On July 23, 1968, the United States
Court of Appeals for the Fifth Circuit handed down its
opinion granting in part and denying in part the cross-
petition for enforcement of the Board's Supplemental
Decision and Order.4 On March 3, 1969, the Supreme
Court of the United States granted the Board's petition for
a writ of certiorari and on December 15, 1969, the Supreme
Court handed down its opinion reversing the judgment of
the United States Court of Appeals for the Fifth Circuit .5
On remand the United States Court of Appeals for the
Fifth Circuit issued on April 6, 1970, its Supplemental
Judgment Enforcing the Supplemental Backpay Order of
the Board dated June 3, 1966, except as to certain
individuals, none of whom are included in the Supplemen-
tal Backpay Specification which is the subject of this
proceeding.6
A controversy having arisen over the amount of backpay
due under the terms of the Board's Supplemental Decision
and Order as enforced by a United States Court of Appeals
for the Fifth Circuit, the Regional Director of the National
Labor Relations Board for Region 15, pursuant to
authority duly conferred upon him by the Board, issued a
Supplemental Backpay Specification on November 30,
1970, in which it was alleged the amount of backpay which
the Regional Director claimed was due under the Board's
Supplemental Order as enforced by the court.
On February 16, 17, 18, and 19 and March 22, 23, 24, and
25, 1971, this proceeding came on for hearing on the
Supplemental Backpay Specification, amendments thereto,
and on the Respondent's answer . Each party was afforded
a full opportunity to be heard, to call, examine , and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file briefs.
All briefs in total, 122 pages, have been carefully
considered by the Trial-Examiner.
Upon consideration of the Supplemental Backpay
Specification, the amendments thereto, the Respondent's
answer, the evidence adduced at the hearing, the record as a
whole, and the posthearing briefs of the parties and in view
of the Trial Examiner's observation of the demeanor of the
witnesses, the Trial Examiner makes the following findings
of fact, conclusions of law, and reasons therefor.
3 158 NLRB 1414, directing, inter a&c, that the Respondent pay to the
employees involved in the backpay proceeding the net Backpay amount
including interest from the date of the Trial Examiner's Supplemental
Decision but mmus the tax withholding required by the Federal and state
laws as set forth opposite their names in the Appendix to the Trial
Examiner's Supplemental Decision except for certain individuals named in
the Supplemental Decision and Order who were to be paid the amount set
forth by the Board. Additionally, the Board held: "With respect to those
employees whose backpay was still accruing, as found by the Trial
Examiner in his Supplemental Decision , payment to them of a net amount
found to be due and accruing constitute the satisfaction of Respondent's
First: In the Supplemental Backpay Specification, as
amended, hereafter referred to as the Specification, the
General Counsel seeks backpay for 32 black female
claimants and 1 black male claimant covering the period
from July 1, 1961,7 until each claimant was offered
reinstatement. With the exception of Louise Jackson, now
deceased, and Alice Denley (Gabriel) who presently resides
in the State of California and whose claim amounts to $21,
all the claimants were produced for testimony by the
General Counsel and were cross-examined by Respon-
dent's counsel.
Gross backpay claims for all of the claimants, with the
exception of Leonard Lewis, were based on a formula
which utilized the average quarterly earnings of 15
employees in a control group, excluding those quarters
where their earnings were less than $100 or less than 60
percent of the average of their three previous quarter
earnings. These quarters were excluded because they were
not representative. The 15 employees in the control group
were among those employees in the control group used in
the initial backpay proceeding and were still employed by
the Respondent throughout the backpay period in the
instant case. This group was selected because they were
female production workers and had been treated in a
similar manner in the initial backpay proceeding for
determining gross backpay.
With respect to the remaining claimant, Leonard Lewis, a
different formula was used because of the nature of his
work and the limited backpay period. Lewis' gross backpay
was computed by taking the gross earnings of another
employee, Isaac Williams, who performed similar work and
who was one of the control group used in computing Lewis'
backpay in the initial backpay proceeding, and comparing
his earnings in the last quarter set forth in the initial
backpay specification with the amount of earnings which
Trial Examiner Vose found Lewis was entitled to for that
quarter and then applying percentage ratio between the
earnings of Williams and Lewis for that quarter with
Williams' earnings for the quarter claimed in the instant
case, thereby determining Lewis' gross backpay.
The gross earnings of the control group employees were
computed from July 1, 1961, through the period the
claimants were entitled to backpay in the instant case. The
average quarterly earnings for the control group employees
were reduced by 6 percent to compensate for normal
absenteeism of employees; such a reduction had been
provided for by Trial Examiner Vose in the initial backpay
proceeding.
The earnings of the control group employees were taken
from their social security earnings records.
The figures set forth in the Specification for the quarter
1970-72 are projected earnings based on the previous
obligation only up to June 24, 1961, which is the end of the period covered
by this specification."
4 J. H. Rutter-Rex Manufacturing Company, Inc. v. N.LR.B., 399 F.2d
356 (CA. 5).
5 N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, Inc., 396 U.S.
258.
6 J. H. Rutter-Rex Manufacturing Company, Inc. v. N. L. R. B., 434 F 2d
1318.
4 The Specification in the initial backpay proceeding ended with the
date of June 24, 1961.
J. H. RUTTER-REX MANUFACTURING COMPANY 23
quarter earnings because social security records for that
period were unavailable at the time the Specification was
prepared.
The interim earnings of the claimants reflected in the
Specification were based on information taken from their
social security earnings records for those earnings reported
to the Social Security Administration and from information
obtained from each claimant for any earnings not reported
on their social security earnings records. However, the
majority of the interim earnings were reflected on the Social
Security 4180 Forms, copies of which were furnished to
Respondent. The exceptions of those earnings not reported
on the social security earnings records, primarily related to
domestic work and, in one instance involving Georgiana
Davis (Deruisa), related to earnings derived from part-time
work at two different restaurants.
Only one employee, Adele Robertson, claimed expenses
in connection with her search for work, which expenses
were deducted from her interim earnings during that
particular quarter. This involved a $33 train fare from New
Orleans to Chicago, where she subsequently obtained
employment.
No claims in the Specification were made for those
quarters in which net interim earnings exceeded gross
backpay or for quarters or portions of quarters where the
claimant was out of the labor market because of illness,
maternity or personal reasons, inadequate search for work,
or where backpay was tolled during the quarter.
The net interim earnings set out in the Specification were
those earnings of the claimants earned during the quarters
or portions of the quarters claimed, less expenses incurred
in seeking work.
The net backpay of each claimant set forth in the
Specification was determined by reducing the gross
backpay by the net interim earnings of each claimant for
each quarter or portions of each quarter claimed and by
adding the quarters together, giving the total amount of
backpay due each claimant, not including interest.
Recovery was sought for the net backpay of each
claimant as well as interest in the amount of 6 percent to be
computed on the basis of Isis Plumbing & Heating Co., 138
NLRB 716.
Joseph G. Norton, the compliance officer of the Board
who had drawn the Specification, explained the formula, its
application, and the computations contained in the
Specification. His testimony was clear, forthright, and
honest and the Trial Examiner was impressed that he was
an ingenuous person, knew his business, and had drawn the
Specification with great care and caution. Indeed the Trial
Examiner is convinced that the testimony of Norton as well
as the Specification reveal that doubts were resolved in
favor of the Respondent. There is no question in the Trial
Examiner 's mind that the Specification is fairly drawn.
8 In comparing the General Counsel's formula to the Respondent's
proposed formula, in support of which no evidence was adduced, counsel
for Respondent said,
There are some differences to a greater or lesser extent in individual
cases but, in general, the overall -result was substantially the same
. We don't intend to waive any contention that the method
adopted by the Board as compared to a realistic departmental method,
was designed to achieve the highest backpay result and, as best we can
determine, it was purely coincidental that the figures end up as they
have and we emphasize, we did not discover this until after the answer
Furthermore, the Respondent, for all practical purposes,
conceded the correctness of the gross backpay figures"
contained in the Specification.
The Trial Examiner finds that the formula employed by
the General Counsel was fair and reasonable and that the
General Counsel established a prima facie case for the
amounts sought in the Specification.
Second: The Respondent contends that the supplemental
backpay claims should be dismissed because of the
unjustified delay of the Board in filing the Supplemental
Backpay Specification and because of the General
Counsel's refusal to produce evidence. As to the latter
contention, the Board has answered it adversely to the
Respondent in the Respondent's direct appeal to the Board.
As to the former contention, the Supreme Court in the
above-captioned Rutter-Rex case at 396 U.S. 258 has
answered it adversely to the Respondent. The defense, of
course, would not lie, in the cases of claimants Green,
Haynes, Hicks, or Lewis, who by reason of alleged strike
misconduct were not offered employment until 1970, and
claimants Davis and Watford, who also were not offered
employment until 1970.
While the Supreme Court thought it "deplorable" if the
Respondent were hampered in the presentation of its
defenses to the Backpay Specification by delay, it held that
it was "even more deplorable" that innocent employees had
to live for some years on reduced incomes as a combined
result of the delay and the Respondent's illegal failure to
reinstate them.
Of the Respondent, the United States Court of Appeals
for the Fifth Circuit has said (399 F.2d 356) (after referring
to the Respondent's confrontations with the Board):
It convinces us, of course, that Rutter-Rex is not, and
has not been, a babe in the woods, now about to be
victimized for ignorance or inadvertent ineptitude in the
field of employer-employee relations, as regulated by
the National Labor Relations Act.
The court also said:
The Company, experienced in labor disputes and
represented by outstanding counsel, could not have
possibly overlooked the plain command of the Court's
decree that employees should be reinstated upon
application and made whole for any loss of pay they
might have suffered by refusal to reinstate.9
The Trial Examiner also found Respondent's counsel to
be outstanding and surely capable of comprehending a long
time ago Justice Marshall's suggestion that "[i ]t may be that
the company could have, through the courts, compelled
earlier Board action." Justice Marshall was referring to
Section 10(e)(A) of the Administrative Procedure Act, 5
U.S.C. 1009(e)(A) (1964), which provides that courts shall
"compel agency action unlawfully withheld or unreason-
ably delayed." That learned Counsel did not try this
was filed but we think the legal issue is framed and we just don't
choose to litigate all these details of actual gross dollar amounts. Not
net but gross dollar amounts which are similar in our computation and
the Board's computation because we think that on balance that will
achieve little.... So, we stick to our contentions about the formula
but in saying this we understand you will, in all probability, adopt
those gross figures.
9 It is the latter part of this decree which the Respondent seeks now to
avoid.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure, if the Respondent were apprehensive of delay,
seems to indicate that the Respondent accepted the delay
and pursued a course which was best fitted to its antiunion
needs. In any event, any discouragement of its employees'
union activities which was caused by its withholding
backpay payments for such a long period mitigated to the
advantage of the Respondent, and its employees were left
to wonder for many years whether their employer was
obligated to fully comply with the Act and whether the Act
really afforded them protection in the pursuit of their union
activities. For the employees such a state was "even more
deplorable."
In light of the Supreme Court's decision, with which the
Trial Examiner is wholly in accord, the Trial Examiner
finds that the Respondent's contention as set out above is
without merit. Under the circumstances of this case fair
play does not demand that the remedial policies of the Act
be so lightly treated as to exonerate a convicted wrongdoer
of the consequences of his misconduct. As a matter of
public concern, it is better that the salutary purposes of the
Act be accommodated.
The General Counsel's explanation for the delay is both
reasonable and adequate:
The Supplemental Backpay Specification in the
instant case was not issued until November 30, 1970,
because of the Respondent's refusal at all times to
comply with either the Trial Examiner's Supplemental
Decision in Backpay Proceeding or the Board's
Supplemental Decision and Order in the initial Backpay
Specification proceedings, whereby Respondent was
required to pay certain amounts of backpay to the same
claimants as in the instant proceeding and whose
backpay was still occurring, until after the United States
Court of Appeals for the Fifth Circuit issued its
Supplemental Judgment on April 6, 1970; Respondent's
failure or refusal to offer reinstatement to some of these
claimants until as late as May 1970; and because of the
intervening proceedings before the Board and Courts
between the issuance of the initial Backpay Specifica-
tion and the above-mentioned Supplemental Judgment
of the Court on April 6, 1970. In addition, Respondent
refused to make any of its records available for the
purpose of computing the gross backpay in the
Supplemental Backpay Specification, thereby causing
additional time for preparation of the Supplemental
Backpay Specification, as well as time spent for
settlement purposes.
Third: In the recent case of Fibreboard Paper Products
Corporation, 180 NLRB No. 33, the Board has reviewed and
io The Board cites N.L.R.B. v Mooney Aircraft, Inc., 366 F.2d 809 (C.A.
5). In such case the court commented at 812
While the General Counsel has the burden of proving unlawful
discrimination on the part of the employer, and hence that backpay is
due, the employer usually has the burden of establishing affirmative
defenses which would mitigate his liability. N L R.B v. Miami Coca-
Cola Bottling Co, supra [360 F.2d 569]; N.LR B v. Brown & Root,
Inc., 8 Cir. 1963, 311 F.2d 447. Among these affirmative defenses are
the unavailability of jobs because of nondiscriminatory factors, the
employees' wilful loss of earnings, and employees' interim earnings to
be deducted from the backpay award.
• s s s t
The cases are unanimous that the Employer must establish these
defenses by a preponderance of the evidence. N LR.B. v Miami Coca-
summarized some of the guiding principles applicable to
backpay cases:
"Willful loss of earnings is an affirmative defense, and
the burden of proof is on the Respondent.[10] Once the
General Counsel has shown the gross amount of backpay
due, the burden is upon the employer to establish facts to
negative or mitigate liability to a given employee.["] And
finally, `any uncertainty is resolved against the wrongdoer
whose conduct made certainty impossible.' "
"It is accepted by the Board and reviewing courts that a
discriminatee is not entitled to back pay to the extent that
he fails to remain in the labor market, refuses to accept
substantially equivalent employment, fails diligently to
search for alternative work, or voluntarily quit alternative
employment without good reason." N.L.R.B. v. Mastro
Plastics Corporation, 354 F.2d 170 (C.A. 2) fn. 3.
The test is whether the discriminatee has made reasona-
ble efforts to find new employment which is substantially
equivalent to his prior position. American Manufacturing
Co., 167 NLRB 520, 525. In this respect the duty imposed
on the discriminatee to minimize his loss of earnings stems
from "the healthy policy of promoting production and
employment." See Southern Silk Mills, Inc., 116 NLRB 769,
772. But this duty ". . . does not require success; it only
requires an honest good faith effort.... " N.LR.B. v.
Cashman Auto Co., 223 F.2d 832, 836 (C.A. 1).
In computing the backpay awards the Board endeavors
to restore the employee to the status quo he would have
enjoyed if he had not been discriminatorily discharged.
N.L.R.B. v. U. S. Air Conditioning Co., 336 F.2d 275, 277
(C.A. 6); N.LRB. v. Robert Haws Company, 403 F.2d 979
(C.A. 6).
A discriminatee who has otherwise made reasonable
efforts to seek out new employment is not required in
each specific quarter to repeat job applications which
from her past efforts she knows are foredoomed to
futility in order to protect her claim of backpay for that
particular quarter. Rather, the entire backpay period
must be scrutinized to determine whether throughout
that period there was, in the light of all surrounding
circumstances, a reasonable continuing search such as
to foreclose a finding of willful loss. [Cornwell Company,
Inc., 171 NLRB No. 43.]
The Respondent's affirmative defenses other than those
which were purely legal were supported primarily by cross-
examination of the claimants. Since these defenses must
relate to the credibility of the claimants, the Trial Examiner
carefully observed the demeanor of each witness as it
related to the truthfulness of his or her testimony. In this
Cola Bottling Co, supra, N.LR.B v. Mastro Plastics Corp., 2 Cu. 1965,
354, F.2d 170; N.LR.B. v. Brown & Root, Inc, supra
The Court of Appeals for the Fifth Circuit has said in the above-
captioned Rutter-Rex case (399 F.2d 356):
backpay, as used in the applicable statute, includes moneys
which it is reasonably found that an employee would actually have
received in the absence of unlawful discrimination, that lack of
available jobs is an affirmative defense, that the burden of establishing
such a defense rests on the employer, and the burden likewise rests
with an employer attempting to prove a former employee's failure to
make reasonable search for other employment.
n See also United States Air Conditioning Corporation, 141 NLRB 1278,
1280, enfd. 336 F.2d 275 (C A. 6).
J. H. RUTTER-REX MANUFACTURING COMPANY 25
endeavor the Trial Examiner was aided by the searching
and exacting cross-examination of counsel for the Respon-
dent. Weighing all factors the Trial Examiner has
concluded that none of the claimants deliberately lied for
the purpose of dishonestly obtaining backpay. This
conclusion is fortified by the fact that, had the claimants
lied about crucial matters, the depth and artfulness of
Respondent's counsel's cross-examination in most cases
would have wrung the truth from these unsophisticated and
unlearned witnesses. While there may have been a few
taradiddles, these did not reflect adversely on the witnesses'
overall credibility as to the material matters in issue.
Each discriminatee's backpay claim will be examined in
the light of the foregoing discussion, the whole record
before the Trial Examiner, and the Respondent's affirma-
tive defenses articulated in its answer and its memorandum
to the Trial Examiner.
Victoria Allen. Allen's backpay period extends from June
25, 1961, through May 24, 1963. During this period she
worked for Schram Brothers in the second and part of the
third quarters of 1962 and for Lynn Fashions, Inc., in part
of the third ' and fourth quarters of 1962 until each went out
of business. Prior to going to Schram Brothers she applied
for work with various employers including Haspel's, B.
Bennett, Famous Sternberg, Louisiana Garment, the
Respondent, and others. She was also registered at the
Louisiana State Employment Security Office, drawing
unemployment compensation. Following her termination
of employment at Lynn Fashions, Inc., she continued her
search for employment. Respondent's records indicate that
Allen applied for employment with the Respondent on
November 23, 1962. She was not hired.
Respondent maintains that Allen "was content to rely
upon her drawings from the unemployment compensation
bureau during periods of layoff up to the maximum amount
allowable" from which the inference is suggested that she
failed to search for work. As the footnote indicates 12 what
she was required to do in order to remain eligible for
unemployment benefits was sufficient to satisfy the
requirements to qualify for backpay under the Act.
The Trial Examiner finds that Allen made a reasonable
and diligent search for other employment and loss of
earnings , if any, was not caused by her own willfulness and
that backpay due her, as alleged in the Specification,
amounts to $2,543 plus interest at 6 percent per annum.
Sonora Barnes (Rochon). Rochon's backpay period
extends from June 25, 1961, through May 24, 1963, with the
exclusion of the third and fourth quarters of 1961, the first
12 According to William J. Gilmore, Jr., Employment Security
Supervisor 2 of New Orleans Claims Office, Department of Employment
Security, an employee of 26 years' experience, an employee who seeks
unemployment benefits, "must be out of work .. . register for work at the
employment service and . . . file a claim for benefits. After [that] he
reports back seven days later . sign[s] in and [has] a benefit rights
interview whereby the whole law is explained...." In order for the weekly
benefit to be approved, the claimant must appear, sign for benefits, and be
asked if he is "able and available for work," whether he has "sought work
in the past week" and whether he has had "any offers of work." He also
signs a statement that his answers are "true and correct" and that he has
complied with the regulations." The claimant's application is subject to
review at all times. If a claimant presents an insufficient reason for turning
down a job he "could be disqualified." The claimant is also classified, as
explained by Gilmore, Jr.:
According to the classification assigned the claimant, if he is in a type
and second quarters of 1962, and the second quarter of
1963, for which no claims are being asserted. In the third
and fourth quarters of 1962 and the first quarter of 1963 she
was employed by J. H. Bonck, Inc. In addition to
registering with the Louisiana State Employment Security
Office and qualifying for unemployment benefits, she
applied for work at several employers including Haspel's,
Famous Sternberg, and Cute-Togs.
The Trial Examiner finds that Sonora Barnes (Rochon)
made a reasonable and diligent search for other employ-
ment and loss of earnings , if any, was not caused by her
own willfulness and that backpay due her, as alleged in the
Specification, amounts to $340 plus interest at 6 percent per
annum.
Doris E. Bowles. Bowles' backpay period extends from
June 25, 1961, through May 24, 1963. During this period
she did daywork for Mrs. Paul Jensen and became
employed by Deansgate, Inc., during the fourth quarter of
1961 where she was employed for the remainder of the
backpay period. The Respondent conceded that it
"believed that Bowles truthfully testified that she looked for
additional work when employed only part time as a
domestic." Its complaint is that "there was no way of
actually checking Bowles' earnings as a domestic because
her former employer who lived in New Orleans until 1967
or 1968 had moved to another city." (Slidell, Louisiana)
Nevertheless, the burden of proof to establish Bowles'
interim earnings was on the Respondent. Moreover, the
record does not disclose that Mrs. Jensen would not have
been available for testimony. Bowles testified that she
worked 2 or 3 days a week for Mrs. Jensen at $3.50 a day
plus carfare. The Trial Examiner believes that in the light of
the Respondent's burden, the Respondent has been given
fair credit for Bowles' earnings.
The Trial Examiner finds that Bowles made a reasonable
and diligent search for other employment and loss of
earnings, if any, was not caused by her own willfulness and
that backpay due her, as alleged in the Specification,
amounts to $812 plus interest at 6 percent per annum.
Marguerite Bozonier. Bozonier's backpay period extends
from June 25, 1961, through May 24, 1963, with the
exclusion of the third and fourth quarters of 1961 and the
first quarter of 1963, for which no claims are asserted. In
1962 and 1963 Bozonier was employed by J. H. Bonck Co.,
Inc. When unemployed during the backpay period, she
qualified for unemployment compensation and applied for
work with a number of employers. Respondent complains
that Bozonier was "content merely to rely upon unemploy-
of industry that has a high turnover rate or he has a varied work
history, we put him in what we call Classification C and every five
weeks he is given a form to fill out to list the places he sought work in
those five weeks and they ask him various questions. Have you been
searching for work? Is there any problems at home that would keep
him from accepting work? And he has a desk interview and that is
gone over and checked to determine his availability. If you fall into a
category of a highly unionized group, we put them in A Classification,
where they would be interviewed only every 10 weeks. On the 10th
week we would ask him if he is a paid up union member and ask him
to produce his union record to show that he is a paid up member in
good standing with the union, who normally would get his jobs for
him.
After a claimant's benefits have expired, his job application becomes
inactive unless he reports once every thirty days.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment compensation for the first - six months or so of 1962"
rather than search for employment . However, as was
pointed out above , the requirements for job search to
remain eligible for unemployment compensation satisfied
the requirements for recovery of backpay under the Act.
The Trial Examiner finds that Bozonier made a
reasonable and diligent search for other employment and
loss of earnings , if any, was not caused by her own
willfulness and that backpay due her , as alleged in the
Specification , amounts to $1,601 plus interest at 6 percent
per annum.
Miriam Cheri. Cheri 's backpay period extends from June
25, 1961 , through May 24, 1963 , with the exclusion of the
second quarter of 1962 , for which no claim is asserted.
During the entire backpay period Cheri worked at Seg-Mar,
Inc., at a job comparable to that in which she worked for
the Respondent . The fact that Cheri worked was proof of
her desire to be employed . The fact that Cheri (as claimed
by the Respondent) confirmed to a Board attorney in 1961
that she would not accept an offer of reinstatement from
the Respondent and thereby showed no interest in
returning to the Respondent's employ is irrelevant to the
issues of this case . See Heinrich Motors, Inc., 166 NLRB
783; Burnup and Sims, Inc., 157 NLRB 366 , affd . 383 F.2d
987 (C.A. 5).
The Trial Examiner finds that Cheri incurred no willful
loss of earnings and that backpay due her, as alleged in the
Specification, amounts to $530 plus interest at 6 percent per
annum.
Bessie Cooper (Lee). Lee's backpay period extends from
June 25 , 1961, through May 24, 1963.
Lee testified that during the entire backpay period she
worked 4 days a week as a domestic for Dr . Digner.at $6 a
day. While the Respondent challenges the interim earnings
figure based on this testimony , Dr. Digner was not called
for testimony . The Trial Examiner credits Lee's testimony
and finds interim earnings in the amount of $2,376 as more
fully set out in the Specification.
During the latter part of 1961 and in the early part of
1963 , Lee applied for employment at Respondent's plant.
She was not hired . During the backpay period she also
looked for other jobs and answered ads in the newspaper.
She also applied at the Tulane Shirt Factory and Bonck's.
Since the Respondent failed to hire Lee on application, her
continued employment as a domestic may, to that extent,
be attributed to such failure.
In any event the Trial Examiner is of theopinion that Lee
fulfilled all her obligations to mitigate damages and that
backpay is due her, as alleged in the Specification, in the
amount of $1,591 plus interest at 6 percent per annum.
Georgiana Davis (Deruisa). Deruisa's backpay -period
extends from June 25, 1961 , through May 24, 1963, with the
exclusion of a portion of the third quarter of 1961, for
which no claim is being asserted . During the backpay
period , Deruisa, commencing in the third quarter of 1961,
worked in each quarter . The fact that Deruisa worked
refutes any claim that she had voluntarily withdrawn from
the labor market. That , as is contended by the Respondent,
Deruisa would have been unavailable for daytime work
with the Respondent if it had been offered , is sheer
speculation which ought not to be indulged to free a
Respondent who offered no employment from the
obligation of the court's decree.
The Trial Examiner concludes that Deruisa was available
for employment and satisfied her obligations to mitigate
damages and that backpay due her, as alleged in the
Specification, amounts to $2,252 plus interest at 6 percent
per annum.
Lenora Davis. Davis' backpay period extends from June
25, 1961 , through April 19, 1968 , with the exclusion of the
third and fourth quarters of 1961 , the first, third, and fourth
quarters of 1962 , the second, third, and fourth quarters of
1963, 1965 , the third and fourth quarters of 1966, the
second, third , and fourth quarters of 1967 , and the first
quarter of 1968.
The Respondent offered Davis reemployment on April
19, 1968 . During her entire backpay period she worked for
L. Frank & Co., Inc. There is no question about her
availability for work nor that her obligations to mitigate
damages were fulfilled . The Trial Examiner finds that
backpay due her, as alleged in the Specification , amounts to
$293 plus interest at 6 percent per annum.
Alice T. Dentley (Gabriel). Gabriel's backpay period
extends from June 25, 1961 , through May 24, 1963 , with the
exclusion of the fourth quarter of 1961, for which no claim
is being asserted . During the period claimed , Gabriel was
employed at Cute-Togs of Nola, Inc. Her claim is for $21.13
Since the evidence establishes Gabriel was employed
during the period claimed, she was available in the labor
market and satisfied her obligation to mitigate damages.
The Trial Examiner finds that backpay due her, as alleged
in the Specification, as amended , amounts to $21 plus
interest at 6 percent per annum.
Gloria Dixon . Dixon's backpay period extends from June
25, 1961 , through April 19, 1963 , with the exclusion of the
third quarter of 1961 , the first and third quarters of 1962,
and the first quarter of 1963 , for which no claims are being
asserted.
Throughout the backpay period Dixon worked for the
New Orleans Recreation Department in the costume
department . By working Dixon established her availability
for employment and satisfied her obligation to mitigate
damages. The Trial Examiner finds that backpay due her,
as alleged in the Specification , amounts to $191 plus
interest at 6 percent per annum.
Minnie M. Fernandez . Fernandez' backpay period
extends from June 25, 1961 , through May 24, 1963 , with the
exclusion of the third quarter of 1963 , for which no claim is
being asserted.
During the backpay period Fernandez was employed by
the Louisiana Garment Manufacturing Co., Inc„ until laid
off around July 1961 because of shortage of work. She was
rehired by Louisiana Garment Manufacturing Co., Inc., in
the second quarter of 1962 and worked there until she was
laid off around December 22, 1962. Following both layoffs
she applied for unemployment compensation and drew
73 Gabriel, who lives in California , did not appear for testimony. cost make this impossible , so we wrote her a letter releasing her from the
Counsel for Respondent stated, "The claim was amended to $21. We had subpoena"
subpoenaed Mrs. Dentley [Gabriel], the travel expense plus the subpoena
J. H. RUTTER REX MANUFACTURING COMPANY
unemployment compensation following her second layoff.
During the period of her layoff, she looked for work at such
places as Louisiana Garment, Haspel's, Famous Sternberg,
Cute-Togs, Benny Davis, and J. H. Bonck. The fact that
Fernandez found work is proof that she was looking for
work. During the entire backpay period Fernandez was
available for work and satisfied her obligations to mitigate
damages . The Trial Examiner finds that backpay due her,
as alleged in the Specification, amounts to $2,185 plus
interest at 6 percent per annum.
Ethel Mae Foreman (Askin). Askin's backpay period
extends from June 25, 1961, to April 19, 1963. Throughout
the backpay period Askin worked for the Clematis
Laundromat. That Askin chose to work for Clematis
Laundromat did not bar her reinstatement rights, as is
urged by the Respondent, since it was not necessary for her
to make a final choice between the two jobs until she was
offered reinstatement. East Texas Steel Castings Co., Inc.,
116 NLRB 1336, 1344, enfd. 255 F.2d 284 (C.A. 5). In
regard to the Respondent's claim that, by remaining at
Clematis Laundromat, Askin did not fulfill her concurrent
obligation to seek substantially equivalent employment, the
credible record does not support a finding that the Clematis
Laundromat job was not substantially equivalent to the one
Askin held at the Respondent's plant 14 Askin's job with
Clematis Laundromat was suitable alternate employment
which satisfied her obligation to mitigate damages. The
Trial Examiner finds that backpay due her, as alleged in the
Specification, amounts to $1,414 plus interest at 6 percent
per annum.
Edna Francis. Francis' backpay period extends from June
25, 1961, through May 24, 1963, with the exclusion of the
third quarter of 1961, the third quarter of 1962, and a
portion of the second quarter of 1962, for which no claims
are asserted.
Francis was employed by B. F. Davis until she was laid
off for lack of work around June 1962. She registered with
the Louisiana State Employment Security Office and drew
unemployment compensation until around February 1963.
During her backpay period she searched for employment
and visited such employers as D. H. Holms, Maison
Blanche, Sears and Roebuck, Gus Mayer, Kreegers, Adlers,
Krauss, Louisiana Garment, Haspel's, Excel, and Schram
Brothers. She was reinstated by the Respondent in May
1963.
The Trial Examiner finds that Francis made a reasonable
and diligent search for other employment and loss of
earnings , if any, was' not caused by her own willfulness and
that backpay due her, as alleged in the Specification,
amounts to $1,161 plus interest at 6 percent per annum.
Jimmie Lou Green. Green's backpay extends from June
25, 1961, through May, 9, 1970, with the exclusion of all
those quarters for the period from the first quarter of 1967
through the second quarter of 1970, for which no claims are
14 Askin's job at the Respondent 's plant was the sewing of button holes
on hip pockets; at Clematis Laundromat her job was to wash and fold
clothes. Apparently neither job required much skill or training.
15 Norton testified, "If we are making no claim as far as gross for a
particular month in a quarter for purposes of the Specification we are
saying that she was either not available for work that month or out of the
labor market that month."
27
being asserted. Portions of some of those quarters claimed
are also excluded.15
With the exception of the third quarter of 1965, when
Green worked for Mrs. Dessauer, she performed domestic
work for the Hess family in each of the quarters claimed in
the backpay period. While working for the Hess family, she
did not work during the summer months for which no
claims are asserted. When Green worked for the Respon-
dent she performed bar tacking and loop tacking. She
returned to work for the Respondent in May 1970 but
subsequently left her employment there due to an injury
sustained while working.
Green worked for Cute-Togs in the third quarter of 1963.
She also sought work elsewhere and commenced working
for the Hess family after she couldn't find a factoryjob. She
had sought work with the Respondent.
As in the case of Askin, there is no credible proof that
supports a finding that the work Green performed was not
substantially equivalent employment to bar tacking and
loop tacking. It was the Respondent's burden to present
such proof. Since the Respondent did not meet its burden
in this regard, the Trial Examiner is left to conjecture.
Without appropriate proof the Trial Examiner cannot find
that domestic work, which may require excellence in
cooking, mending, and sewing, is not equivalent to bar
tacking and loop tacking. The difference of pay is not
controlling because substantially equivalent employment is
not always compensated for by the same wage.
Green made herself available for work during the
backpay periods claimed and satisfied her obligations to
mitigate damages. The Trial Examiner finds that backpay is
due her, as alleged in the Specification, in the amount of
$3,536 plus interest at 6 percent per annum.
Gustavia Haynes (Gale). Gale is one of the individuals
who was subject to the strike violence defense asserted by
the, Respondent in the earlier proceedings.16 Her backpay
period extends from June 25, 1961, through May 9, 1970,
with the exclusion of the fourth quarter of 1961, the first
and third quarters of 1962, and the second quarter of 1965,
1967, the first and third quarters of 1968, and the third
quarter of 1969, for which no claims are being asserted.
Portions of other quarters are not being claimed. During
the backpay period Gale worked for Schram Brothers,
Lynn Fashions, Inc., Louisiana Garment Manufacturing
Co., Inc., Young Set, Inc., Local 602, and J. H. Bonck, Inc.
In 1963 she performed domestic work, during which period
she also registered with the Louisiana State Employment
Security Office and drew unemployment compensation for
approximately 6 months. Besides looking for domestic
work she applied at Haspel's, Cute-Togs, and Bonnie
Francis. Her work performance record indicates that she
kept herself available for employment. The fact that she
obtained jobs indicates that she searched for work. The
Trial Examiner finds no reason to deny her the backpay
claimed in the Specification and finds that backpay due
16 In view of this fact , Respondent's clams, as follows , is without merit
since it is clear that it would have been futile for Gale to have applied for
employment with the Respondent : "It is submitted that Gale surrendered
her reinstatement rights by making no applications at all at the Rutter Rex
plant with the exception of the one made shortly after the termination of
the strike in 1955."
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her, as alleged in the Specification, amounts to $4,530 plus
interest at 6 percent per annum.
Victoria Henderson . Henderson's backpay period extends
from June 25, 1961, through May 24, 1963, with the
exclusion of the third quarter of 1962 and the year 1963, for
which no claims are being asserted . Prior to the beginning
of the backpay period, Henderson had worked for Seg-Mar
but had been laid off because of a shortage of work. Up
until the time she went to work for the Louisiana Garment
Manufacturing Co., Inc ., in the second quarter of 1962, she
was registered with the Louisiana State Employment
Security Office and was looking for any kind of work. She
contacted a restaurant on Magazine Street , Wembley Tie,
and Famous Sternberg . She found work at the Louisiana
Garment Manufacturing Co., Inc.
Sometime prior to taking the Louisiana Garment job she
performed domestic work for 2 or 3 weeks for 2 days a
week, earning $5 a day. While there is some doubt whether
interim earnings for this domestic work have been
established by sufficient evidence , since the General
Counsel has been liberal in allowing interim earnings in his
Specification, the Trial Examiner will allow $40 as interim
earnings . Otherwise the Trial Examiner finds no reason to
deny the backpay sought by the General Counsel since
Henderson has satisfied her obligation to mitigate damages.
The Trial Examiner finds that backpay due Henderson
amounts to $2,123 plus interest at 6 percent per annum.
Rose Marie Hicks. Hicks' backpay period extends from
June 25, 1961, through May 9, 1970, with the exclusion of
the second and third quarters of 1962, the first, second, and
fourth quarters of 1963, the first quarter of 1964, the
second, third, and fourth quarters of 1965, the first, second,
and fourth quarters of 1966, the third quarter of 1967, the
first and second quarters of 1968, 1969 , and 1970, for which
no claims are asserted.
At the beginning of the backpay period Hicks was
employed by Schram Brothers until it discontinued
business, at which time she applied and was hired by Cute-
Togs. She quit Cute-Togs because it would not fix her
machine. Within 2 or 3 days she was hired by Comas Pants
Factory, where she worked 3-1/2 months until she was
discharged as a result of an argument . On appeal she was
found eligible to draw unemployment compensation.
Credible proof in the record does not establish that she was
discharged for cause . About 2, months after she left Comas
Pants Factory, she was rehired by Cute-Togs where she
worked for the remainder of her backpay period. During
the 2-month period in which she was unemployed, she
registered with the Louisiana State Employment Security
Office and drew unemployment compensation. She also
applied for work at various employers during this period
including Cute-Togs, Famous Sternberg, and Wembley Tie
and took tests at the unemployment office for work at
American Can and for sales and commodity jobs.
While Hicks' testimony was vague on the subject, it
would appear that she was incapacitated for about 3 weeks
in 1964 by reason of a neck operation . Respondent claims
that backpay should have been terminated as of that date,
for had Hicks been working for the Respondent, she would
have quit. Such supposition is highly speculative. It does
not take into account the Respondent 's burden . There was
no showing that the Respondent in 1964 enforced a policy
which would have ' denied Hicks sick leave under the
circumstances or that vacation time was not available for
the time lost . The Respondent's claim is without merit.
Hicks' working records conclusively establish Hicks'
availability in the labor market and she is entitled to the
backpay requested in the Specification . The Trial Examiner
finds that backpay due her, as alleged in the Specification,
amounts to $1,778 plus interest at 6 percent per annum.
Louise Jackson (deceased). Jackson's backpay period
extends from June 25, 1961 , to May 24, 1963. During the
entire backpay • period , Jackson performed domestic work
for John Dart. While the Respondent claims that such work
was not substantially equivalent to that which Jackson
performed while working for the Respondent , it produced
no credible proof to support such claim . Thus the
Respondent did not meet its burden and the Trial Examiner
is left with no facts on which he can base a finding
favorable to the Respondent on this point.
The fact that Jackson worked is evidence that she was not
willfully causing a loss of earnings and that she was
available for employment . Since proof does not establish
that Jackson was not entitled to the backpay claimed in the
Specification, the Trial Examiner finds that backpay due
Jackson, as alleged in the Specification, was in the amount
of $1,286 plus interest at 6 percent per annum.
Eunice Johnson. Johnson's backpay period extends from
June 25, 1961, through February 15, 1963. Her first job was
with the Respondent where she was in training . She was
rehired by the Respondent in February 1963.
During her backpay period, Johnson worked for Pelican
Tomato Co., Inc., Southern Baptist Hospital, Perry's
Restaurant and Bar, and Chicken Alonzo. During this
period she also applied for employment at B. Bennett, a
place on Jeanette Street , sewing factories on Jefferson
Davis and St. Bernard , and Louisiana Garment. She also
applied for work through the employment service, which
sent her to a sewing factory on Camp Street, where she filed
an application.
The Trial Examiner is convinced that Johnson made a
reasonable and diligent search for work and that any loss of
earnings were not caused by her own willfulness . The Trial
Examiner finds that backpay due her , as alleged in the
Specification, amounts to $2,272 plus 6 percent interest per
annum.
Lela Mae Landry (Coston). Coston's backpay period
extends from June 25, 1961, through October 23, 1962. No
claim for backpay is made for the third and fourth quarters
of 1961.
Coston's social security records indicate that she worked
for Equipto, Inc. While it is suggested that Equipto, Inc., is
related to the Respondent, the record lacks sufficient
credible proof that during the backpay period Coston was
employed by the Respondent.
The Respondent claims that backpay should be disal-
lowed for Coston as of September 1961 because it must be
presumed that her employment relationship with the
Respondent would have terminated at the time of her
pregnancy in 1961. The Respondent offered no credible
proof that under the Respondent 's labor policy in 1961
Coston's pregnancy would have caused the termination of
J. H. RUTTER-REX MANUFACTURING COMPANY 29
her employment which was its burden. Thus the Trial
Examiner can make no such finding.
Since there is no credible proof that Coston was
unavailable for work or incurred willful loss of earnings, the
Trial Examiner finds, as claimed in the Specification, that
backpay due Coston, as alleged in the Specification,
amounts to $192 plus 6 percent interest per annum.
Dorothy White (Learson). Learson's backpay period
extends from June 25, 1961, through May 24, 1963.
Throughout the backpay period she performed domestic
work for Albert De Ben, Jr., and others. Learson looked for
no other type of work. When offered employment by the
Respondent in May 1963 she declined because she was
expecting a baby but by letter stated, "I will apply later."
Later she filed an application for employment.
The Respondent contends that Learson's claim should be
dismissed "on the grounds of abandonment of reinstate-
ment rights and failure to seek substantially equivalent
employment during the backpay period." As to the former,
the facts do not support such contention. Learson indicated
her willingness to return to the Respondent's employment
by filing an application for employment. As to the latter
contention, the Respondent, as was its burden, submitted
no proof that the domestic work Learson performed was
not substantially equivalent to the work she was engaged in
with the Respondent.
The Trial Examiner is of the opinion that Learson is
entitled to the backpay set out in the Specification and
finds that the backpay due her, as alleged in the
Specification, amounts to $1,591 plus interest at 6 percent
per annum.
Leonard Lewis. Lewis' backpay period extends from June
25, 1961, through May 9, 1970. However, no backpay is
claimed after the third quarter of 1961. Except for a short
time at Imperial Records, Inc., Lewis worked during the
entire backpay period for Haspel Bros., Inc., doing layout
work which was the same type of work he performed for the
Respondent. No valid affirmative defense is stated against
his claim.
The Trial Examiner finds that backpay due him, as
alleged in the amendment to the Specification, amounts to
$386rplus interest at 6 percent per annum.
Bessie Montgomery. Montgomery's backpay period
extends from June 25, 1961, through May 24, 1963, with the
exclusion of the third quarter of 1961 through 1962, for
which no claims are being asserted. During the backpay
period Montgomery was employed by J. H. Bonck Co.,
Inc., a garment plant. During the quarters claimed she was
laid off for lack of work and filed for unemployment
compensation. She drew partial unemployment compensa-
tion when work was slack. During the period, she applied
for employment with such employers as Haspel's, Famous
Sternberg, Krauss, Maison Blanche, J. C. Penney, and the
Respondent.
The Trial Examiner is convinced that Montgomery made
a reasonable and diligent search for other employment and
loss of earnings, if any, was not caused by her own
willfulness and finds that backpay due her, as alleged in the
Specification, amounts to $393 plus interest at 6 percent per
annum.
Adele Nash (Hall). Hall's backpay period extends from
June 25, 1 961, through May 24, 1963. While working for the
Respondent, she packed shirts and pants in boxes for
shipping. During the entire backpay period she worked for
Sidney P. Prendergast, Sr., as a child care nurse. Hall was
reinstated by the Respondent in May 1963 and worked
until it appeared her packing job would terminate. She
applied for social security.
While employed by Prendergast, Hall, on a couple of
occasions, requested employment with the Respondent. She
was not hired. At that time it was difficult to obtain packing
work.
Respondent contends that Hall should be denied
backpay because she was content to remain at low paying
domestic work or other low paying employment without
seeking higher wages and that such does not satisfy the
obligation to mitigate her loss of earnings. The discrimina-
tee's duty to mitigate damages did not require that she
search for a higher paying job if she was filling a
substantially equivalent or a suitable alternate job. It is
common knowledge in the field of labor relations that
many substantially equivalent jobs do not pay equal wages.
Based on the record before him the Trial Examiner cannot
find that the job of a child care nurse is not substantially
equivalent to a packer of shirts and pants. It appears that
the responsibilities of the former would exceed those of the
latter. Moreover, the Respondent's failure to employ the
discriminatee upon her application contributed to the
discriminatee's loss of earnings , of which Respondent ought
not to be heard to complain.
The Trial Examiner is of the opinion that Hall satisfied
her obligations to mitigate damages and finds that backpay
due her, as alleged in the Specification, amounts to $1,533
plus interest at 6 percent per annum.
Desideria O'Campo. O'Campo's backpay period extends
from June 25, 1961, through May 24, 1963. During the
backpay period, O'Campo worked first for Stevens Band
Paper Co., Inc., and then for Frank J. Mathew, Jr. The
latter was domestic work. Stevens Band closed its plant
sometime in 1962. O'Campo sought work at other paper
bag companies, candy companies, watched newspaper
advertisements for work, and looked for sewing work. The
employment with Mathew was obtained through a
newspaper advertisement. Some of the places O'Campo
visited for work were Virginia Paper Bag, Jacobs Candy,
and the Roosevelt Hotel.
Since it was not affirmatively shown that O'Campo was
unavailable for work or incurred willful loss of earnings
during the backpay period, the Trial Examiner finds, as
alleged in the Specification, that backpay due O'Campo
amounts to $766 plus 6 percent interest per annum.
Yvonne Parnell (Charles). Charles' backpay period
extends from June 25, 1961, through March 27, 1963.
Throughout the quarters claimed she worked as a domestic
employee for L.A. Gravois where she was paid $25 a week.
She worked 5 days during the week from 9 a.m. to 2 p.m.
Charles looked for work at Louisiana Garment and the
Tulane Shirt Factory and at several hotels including the
Deville and Fontainbleau. She was "always looking for a
better job." She also checked newspaper advertisements for
help wanted.
The credible evidence adduced does not establish that
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles' domestic work was not substantially equivalent to
that which she performed for the Respondent. Nor does the
credible proof establish that she willfully removed herself
from the labor market. The Trial Examiner finds, as alleged
in the Specification, that there is backpay due her in the
amount of $1,367 with interest at 6 percent per annum.
Dorothy K Reed. Reed's backpay period extends from
June 25, 1961, through May 24, 1963. Her earnings during
this period were derived from housework. During the
backpay period she was "going to places trying to get
applications." She went to "the department stores and a
couple of sewing factories." She also "went back to Rex";
she was told that Rex would call her. She was sent by
"Social Security" to a glass factory but "they wanted
somebody with a car." The job was not taken by Reed
because "you had to stand out on the highway and wait for
a bus." She also applied at a baby clothes factory on
Gentilly Road.
Reed described her work at the Respondent's plant, "A
machine, there's a machine and you fasten the collar on it
and you press down with your feet. They call it block
point."
The Respondent has not established by credible evidence
that the housework performed by Reed was not substantial-
ly equivalent to the block point she performed for the
Respondent. Nor has the Respondent adduced credible
evidence to establish that Reed willfully removed herself
from the labor market. The Trial Examiner finds, as alleged
in the Specification, that backpay due Reed amounts to
$962 plus interest at 6 percent per annum.
Adele L. Robertson. Robertson's backpay period extends
from June 25, 1961, through May 24, 1963. No claim for
backpay is made during the first, second, and third quarters
of 1962.
During the entire backpay period, except for the time she
cared for her ill sister-in-law and her children , she was
either gainfully employed or was actively looking for work.
No claim is made for the period Robertson cared for her
sister-in-law and her children. Prior to this period, which
extended from the end of 1961 to April 1962, she had
worked for Seg-Mar, Inc.
Respondent contends that had Robertson worked for the
Respondent she would have terminated her employment
likewise to care for her sister-in-law and her children; thus
it insists that her backpay should be cut off as of April 20,
1962. The Trial Examiner considers such contention to be
highly speculative without sufficient probative value to be
credited. The Respondent would have the Trial Examiner
guess as to what Robertson would have done if she had
worked for the Respondent or how the Respondent would
have treated her under the circumstances. Perhaps the
Respondent would have allowed her a leave of absence or
perhaps others would have cared for her sister-in-law.
After Robertson's sister-in-law died, Robertson searched
for employment. She applied for employment with the
Respondent, Bonck, and the Union Passenger Terminal.
She also went to Chicago, Illinois, seeking work because she
couldn't find any work in New Orleans. She found work at
the St. Francis Hospital in Evanston, Illinois, where she
worked until she became ill with pneumonia. After recovery
she returned to New Orleans and again sought work at such
places as Union Passenger Terminal, Tulane Shirt Factory,
Blue Plate, Seg-Mar, and Benny Davis. She incurred travel
expenses which are allowed.
There is no credible evidence that she willfully incurred
loss of earnings. She made a reasonable and diligent search
for work. The Trial Examiner finds that, as alleged in the
Specification, backpay, together with travel expenses, due
Robertson amounts to $1,181 plus interest at 6 percent per
annum.
Rosalie Thornton. Thornton's backpay period extends
from June 25, 1961, through May 24, 1963, with the
exclusion of the second and fourth quarters of 1962 and the
second quarter of 1963, for which no claims are being
asserted.
Thornton worked for Ward's Discount House during the
third and fourth quarters of 1961 and the remainder of the
quarter claimed at Murphy's Wholesale Tailors. Her job in
both places was tailoring work. The fact that she was
employed establishes her desire to work. She satisfied any
obligation to mitigate damages. The Trial Examiner finds
that, as alleged in the Specification, backpay due her
amounts to $807 plus interest at 6 percent per annum.
Marjorie Walker. Walker's backpay period extends from
June 25, 1961, through May 24, 1963, with no claim made
for the third quarter of 1961 and the third and fourth
quarters of 1962.
During the entire backpay period, Walker worked for
Louisiana Garment Manufacturing Co., Inc. Respondent
does not contend that she sustained a willful loss of
earnings. The Trial Examiner finds that, as alleged in the
Specification, backpay due Walker amounts to $351 plus
interest at 6 percent per annum.
Alma Wallace. Wallace's backpay period extends from
June 25, 1961, through May 24, 1963. However, no claim is
made for the backpay period after the third quarter of 1963,
because of Wallace's retirement from the labor market.
Wallace was employed during the entire backpay period
at Seg-Mar, a sewing factory in New Orleans. She qualifies
in all respects for the backpay claimed in the Specification,
as amended. The Trial Examiner finds that backpay due
Wallace amounts to $52 plus interest at 6 percent per
annum.
Fannie M. Watford Watford's backpay period extends
from June 25, 1961, through April 19, 1968, with the
exclusion of the third quarter of 1964, and the first and
second quarters of 1965. From the second quarter of 1964
until the end of her backpay period, Watford was in the
employ of the Louisiana Garment Manufacturing Co., Inc.
Prior to that time she was available for work and was
continuously searching for work. Except when she nursed
Mrs. Stribley, she found no work. She sought work at
Imperial Dye House, Louisiana Garment, Tulane Shirts,
Schram, B. Bennett, Harry Hymen, and other factories. She
also followed newspaper advertisements for help wanted.
On at least two occasions she contacted the Respondent, but
was not hired. She filed written applications with the
Respondent on December 4, 1961, and September 27, 1961.
J. H. RUTTER REX MANUFACTURING COMPANY 31
While Watford worked for Louisiana Garment she
engaged in a strike from November 3, 1966, until March 5,
1968. She looked for work during this period and earned
$100 during the carnival season working for "Greenburg's
costume place." 17
The Respondent claims that Watford was offered
employment by the Respondent sometime in December
1961. The Respondent produced no credible written or oral
substantiating evidence to support this contention; hence
the Trial Examiner finds the contention to be without
merit.
Likewise without merit is the Respondent's contention
that Watford should be disqualified for backpay during
those quarters in which she engaged in a voluntary strike
against the Louisiana Garment. Not only does it appear
that Watford searched for work and performed some work
during that period, but the statute does not require that the
duty imposed on a discriminatee to minimize his loss of
earnings which stems from "the healthy policy of
promoting production and employment" also requires that
a discriminatee violate a lawful picket line placed at an
interim employer's establishment in order to mitigate an
employer's backpay liability arising from a discriminatory
discharge. Such sanction would clearly discourage the
participation of interim employees in a lawful strike. Thus it
would impede and interfere with the right to strike which
the Act protects. (See Section 13 of the Act.) To disallow
the discriminatee backpay accruing while she was engaged
in a lawful strike against her interim employer for such
reason would countervail the protection afforded to
employees in Section 7 of the Act. Furthermore, there is no
proof that Watford would have withheld her services during
this period had the Respondent offered her employment.
Thus the Trial Examiner finds that Watford was not
disqualified for backpay during the period she engaged in a
strike against Louisiana Garment Company.
The Trial Examiner further finds that there is no credible
evidence to support a finding that during the backpay
period Watford was out of the labor market, unavailable
for work or incurred a willful loss of earnings. The Trial
Examiner further finds that backpay due Watford amounts
to $9,95718 plus interest at 6 percent per annum.
Beatrice White (Lane). Lane's backpay extends from June
25, 1961, through May 24, 1963. Lane returned to work for
the Respondent in May 1963. During the backpay period
she "put applications in at Steins, Holmes, Krauss and
Wrights on Rampart Street " She also applied for work at
Schram, McKool, Tulane Shirt Shop, Louisiana Pants, and
several department stores.
Lane's only employment during her backpay period was
sewing work which she performed in her home. While the
Trial Examiner is not convinced that interim earnings from
this work during the backpay period have been proved with
sufficient specificity to warrant a finding, since the General
17 General Counsel concedes that the $100 may be included in interim
earnings.
is One hundred dollars which was earned by Watford while she was on
strike has been deducted from the amount alleged in the Specification.
19 Nine hundred and sixty dollars, representing interim earnings, has
been deducted from the amount alleged in the Specification
20 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
Counsel concedes that interim earnings of "possibly $10 per
week" ought to be credited, the Trial Examiner allows as
interim earnings the amount of $120 a quarter for the eight
quarters of the backpay period.
The Trial Examiner finds that Lane made a reasonable
and diligent search for work and that her loss of earnings, if
any, was not caused by her own willfulness. The Trial
Examiner further finds backpay due Lane amounts to
$3,007, 19 plus 6 percent interest per annum.
The Trial Examiner confirms the General Counsel's
Specification, as amended, with the modifications above
noted.
Upon the foregoing findings of fact and conclusions of
law and the entire record before the Trial Examiner and
pursuant to Section 10(c) of the Act, the Trial Examiner
issues the following recommended: 20
SUPPLEMENTAL ORDER
Respondent, J. H. Rutter-Rex Manufacturing Company,
Inc., New Orleans, Louisiana , its officers , agents, succes-
sors, and assigns , shall make the employees involved in this
proceeding whole by payment to them of the following
amounts together with interest at the rate of 6 percent per
annum, commencing June 2, 1964,21 and continuing until
the amounts are paid in full, but minus tax withholding
required by Federal and state laws.
Victoria Allen $2,543.00
Sonora Barnes (Rochon) 340.00
Doris E. Bowles 812.00
Marguerite Bozonier 1,601.00
Miriam Cheri 530.00
Bessie Cooper (Lee) 1,591.00
Georgiana Davis (Deruisa) 2,252.00
Lenora Davis 293.00
Alice T. Denley (Gabriel) 21.00
Gloria Dixon 191.00
Minnie M . Fernandez 2,185.00
Ethel Mae Foreman 1,414.00
(Askin)
Edna Francis 1,161.00
Jimmie Lou Green 3,536.00
Gustavia Haynes (Gale) 4,530.00
Victoria Henderson 2,123.00
Rose Marie Hicks 1,778.00
Louise Jackson (deceased) 1,286.00
Eunice Johnson 2,272.00
Lila Mae Landry (Colton) 192.00
Dorothy White (Learson) 1,591.00
Leonard Lewis 386.00
Bessie Montgomery 393.00
Adele Nash (Hall) 1,533.00
Desideria O'Campo 766.00
Yvonne Parnell (Charles) 1,367.00
findings, conclusions , and recommended Supplemental Order herein shall,
as provided in Section 102.48 of the Rules and Regulations , be adopted by
the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes.
21 June 2, 1964, is the date suggested by the General Counsel which the
Trial Examiner finds to be a reasonable date under the circumstances of
this case.
32
Dorothy K. Reed
Adele L. Robertson
Rosalie Thornton
Marjorie Walker
Alma Wallace
Fannie M. Watford
Beatrice White (Lane)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
962.00 In view of the death of Louise Jackson it is recommended
1,181.00 that the Respondent be ordered to pay to Jackson's estate
807.00 or any person or persons as their interests may appear the
351.00 backpay due and owing on behalf of Jackson , including
52.00 interest . See Herman Nelson Division, American Air Filter
9,957 .00 Co., Inc., 127 NLRB 939.
3,007.00