Kawasaki Motors Corp., U.S.A.

National Labor Relations Board - Board Decisions

Nov 17, 1986

282 N.L.R.B. 159 (N.L.R.B. 1986)

KAWASAKI MOTORS CORP. 159
Kawasaki Motors Corporation , U--.S.A. and' Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW). Cases 17-CA-8737, 17-CA-8854,
and 17-CA-8936
17 November 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 January 1985 and 4 June 1986, respective-
ly, Administrative Law Judge Robert T. Wallace
issued the attached supplemental decision and
second supplemental decision. The Respondent
filed exceptions to the supplemental decision, and a
supporting brief, to which the Charging Party filed
an answering brief. The Respondent also filed ex-
ceptions to the second supplemental decision and a
brief in support, to which the General Counsel and
the Charging Party filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion, the second supplemental decision, and the
record in light of the exceptions and briefs and has
1 The Respondent excepted to the judge 's ruling permitting the Gener-
al Counsel to amend the backpay specification to reflect the fact that
Bennett would have been , promoted as of I August 1979, maintaining that
the General Counsel failed to allege properly the promotion in either the
original backpay specification or in her first amendment to the backpay
specification These backpay specifications were calculated at the rate for
an apprentice mechanic , not at the higher rate for a maintenance mechan-
ic. The first notice that the Respondent had of the General Counsel's in-
tention to allege a promotion for Bennett! dung the backpay period was
on the last day of the original backpay hearing, when the General Coun-
sel 'asked one of Respondent 's witnesses some questions about the possi-
bility of a promotion. In his supplemental decision, the judge found that
the Respondent had not shown that the assumption that Bennett would
have been promoted "on or about the day he was fired" to be unreason-
able. The Respondent filed exceptions to the judge 's decision, arguing
that no evidence had been presented that Bennett would have been pro-
moted during the backpay period. The Board, by Order dated 7 January
1986, remanded the case to the judge for the specific purpose of deter-
mining, inter alia, whether Bennett would have been promoted and, if so,
when. On, the second day of the remanded backpay hearing, the Re-
spondent first raised its procedural arguments with respect to the promo-
tion , issue, arguments which it also raised in its exceptions and brief to the
Board concerning the judge 's second supplemental decision.
Even assuming that the General Counsel should have affirmatively al-
leged in the original backpay specification her intention of claiming that
Bennett should have been promoted during the backpay period , the Re-
spondent cannot, at this late date, ' complain of lack of notice or prejudi-
cial effect by the omission. The record reveals that the Respondent failed
to object to the General Counsel's raising of the promotion issue at the
original baickpay hearing and failed to raise its procedural arguments in
its exceptions to the judge's supplemental decision, although it did ad-
dress the promotion issue on its merits. In these circumstances, we find
that the Respondent is estopped from raising its procedural arguments at
this late point in the proceedings . Accordingly, we find that the Re-
spondent 's contention is untimely, and we adopt the judge 's findings on
the merits of the promotion issue. See Clear Pine Moldings , 268 NLRB
1044 fns. 2 and 4 (1984).
-decided to affirm the judge's rulings; l findings, 2
and conclusions3 and to adopt the recommended
Order as modified.
ORDER
The Respondent, Kawasaki Motors Corporation,
U.S.A., Lincoln, Nebraska, its officers, agents, suc-
cessors, and assigns, shall pay to Daniel R. Bennett
as net backpay the total amount of $50,885.88,
specified in the amended backpay specification
with adjustments as required by the judge's initial
and supplemental decisions, less reduction result-
ing, from the tolling of backpay for the period
Bennett removed himself from the work force by
virtue of his active duty in the Air Force National
Guard, plus interest computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977), see generally Isis Plumbing Co., " 1138 NLRB
716 (1962), and less tax , withholdings required by
Federal and state laws.
a The Respondent has excepted to some of the, judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91' NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a In his supplemental decision , the judge finds that Bennett bad re-
moved himself from the work force during the time he was on a 4-month
tour of active duty with the Air Force National Guard. There was no
exception to that finding. However, the judge then fords that Bennett's
pay from the military should be used to offset the Respondent 's backpay
liability. The Respondent excepted to this finding, and argued that the
backpay period should be tolled for the time that Bennett removed him-
self from the work force by entering the military. We agree with the Re-
spondent's position , and find that the 4-month period that Bennett was on
active duty should be excluded from the backpay period.
Richard C Auslander, Esq., for the General Counsel.
Charles E. Sykes, Arthur T. Carter, and Gerald A. Ein-
sohn, Esqs. (Alaniz, Bruckner & Sykes), of Houston,
Texas, and Lincoln, Nebraska, for the Respondent.
Stanley Eisenstein, Esq. (Katz Friedman, Schur & Eagle),
of Chicago, Illinois, for the Charging Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge.
This backpay proceeding was tried before me; in Lincoln,
Nebraska, on November 8-10, 1983, pursuant to the Sep-
tember 28, 1983 backpay specification issued by the Gen-
eral Counsel of the National Labor Relations Board
through the Regional Director for Region IT,
On August 3, 1981, the Board issued its Decision,
Order, and Direction of Second Election (257 NLRB
502) requiring Respondent Employer, Kawasaki Motors
Corporation, U.S.A. to make whole Daniel R. Bennett
for any loss of earnings he may have suffered because of
Respondent's unlawful action in firing him. That decision
was affirmed by the United States Court of Appeals for
282 NLRB No. 28
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Ninth Circuit on September 14, 1982; and that court
ordered enforcement of the Board's Order on March 1,
1983, following denial by the Supreme Court of the
United States of Respondent's request for review.
When the parties could not agree on the amount of
backpay due, the backpay specification was issued
wherein, as amended,' it is alleged that $38,729.74 is due
Bennett under the Board's Order.
On the entire record, including the briefs submitted by
the General Counsel, the Charging Union, and the Re-
spondent, and from my observation of the witnesses and
their demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. BACKGROUND
The pertinent backpay period is approximately 47
months and extends from the day Bennett was fired
(April 10, 1979) to the date of his rehire pursuant to the
Board's Order (March 1, 1983). During that time he is
shown to have been gainfully employed for all but five
periods of unemployment which, in total, add up to
about 12 months. The first period (2 months) occurred
immediately after his discharge; and during that period
he is shown to have earned $112.50 by submitting his
body for controlled medical experimentation and remain-
ing in an isolation ward for 4 days. The second period
encompassed the first quarter of 1980 during which he
was on layoff from a job he had acquired as a track la-
borer with Burlington Northern, Inc. The third period
(19 days) began on February 24, 1981, when he again
was laid off by Burlington Northern after working there
for about 19 months during which time he supplemented
his income by working for a brief period as a bouncer in
a pizza parlor. The fourth period (approximately 4
months) occurred between July and November 1981
after he was once again laid off by Burlington Northern
shortly after he had been recalled by that company fol-
lowing his return from taking a 4-month reservist basic
training course with the Air National Guard at installa-
tions in Texas and California. And his last period of un-
employment (2 months) occurred in early 1983 after he
moved from Lincoln to the Omaha, area, and had
worked there about 12 months as a self-taught keypunch
operator for a company (Fremont Computer Services),
which provided services to a number of banks. That
period ended when he went to work in nearby Council
Bluffs for a firm dealing in motorcycles just 7 days prior
to his recall by Kawasaki.
At the time of his unlawful discharge Bennett was 22
years old and had worked for Kawasaki for 26 months.
Although he had a high school diploma and had taken
some college courses, he appears not to have had any
formal technical education. His starting job at Kawasaki
involved folding boxes. Later on he did a variety of
things, including some welding as well as operation of a
forklift vehicle and drill and punch presses. His last job
' Subsequent to the hearing the General Counsel submitted for approv-
al an amended backpay specification reflecting changes approved during
the hearing The request is unopposed, and it is granted.
assignment there was that of an "apprentice" mainte-
nance mechanic.
II. EFFORTS TO OBTAIN EMPLOYMENT
Contrary to Respondent's contention, I find that Ben-
nett made reasonable efforts to obtain employment
throughout the pertinent period. The jobs he obtained
are not shown to be inappropriate in light of his limited
skills and educational background; and during his sporad-
ic periods of unemployment he is not shown to have
"willfully incurred" loss by a "clearly unjustifiable refus-
al to take desireable new employment." Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 199-200 (1941). Indeed,
Bennett's claim that he sought jobs with 50-named em-
ployers as well as with others including some named in
documents submitted to the Nebraska State Unemploy-
ment Commission (records to which Respondent was
given access) stands unrebutted (compare, S.E. Nichols,
258 NLRB 1, 14 (1981), enfd. 704 F.2d 921 (6th Cir.
1983)); and I find probable and have credited his testimo-
ny that he applied for work with other employers, this
notwithstanding the fact that he could not recall their
names at the time of hearing (see Izzi Trucking Co., 162
NLRB 242, 245 (1966); Hickory's Best, 267 NLRB 1274,
1276 (1983)). In those circumstances, I view as unpersua-
sive Respondent's evidence tending to show, through
help wanted advertisements in newspapers and statistical
reports of low unemployment, the existence of job op-
portunities in the Lincoln area and in Nebraska general-
ly. That evidence falls short of establishing the existence
of any particular position for which Bennett would have
been hired, especially in light of the stigma on his record
resulting from his discriminatory discharge. Airport Serv-
ice Lines, 231 NLRB 1272, 1273 (1977); Diversified Case
Co., 272 NLRB 1099 (1984). Moreover, under Board law
the reasonableness of a discriminatee's efforts to find a
job and thereby mitigate loss of income resulting from an
unlawful discharge need not comport with the highest
standard of diligence, i.e., he or she need not exhaust all
possible job leads. Rather, it is sufficient that, as here
found, the discriminatee make a good-faith effort. Central
Freight Lines, 266 NLRB 182, 191 (1983).
III. EFFORTS TO RETAIN EMPLOYMENT
Respondent contends that it should not be assessed for
periods of unemployment following Bennett's leaving
Burlington Northern on February 23, 1981, and Fremont
on December 24, 1982, because he is shown voluntarily
to have quit both jobs. Bennett, however, states that he
was laid off by Burlington Northern on the date in ques-
tion and that his decision to take a 4-month active duty
training course with the AFNG was made subsequently.
That claim is contradicted only by duplicate entries on
two interim earnings reports (R. Exh. 7), which show
"Entered ' Military" as the reason his employment ended.
The entries were made by a records clerk at Burlington
Northern in May and June 1983 in response to requests
of the General Counsel. Neither the clerk or any other
representative of Burlington Northern testified about the
information on which the entries were based. In those
circumstances I am not persuaded that the entries reflect
KAWASAKI MOTORS CORP. 161
a properly drawn conclusion . Instead, - I credit Bennett's
account.
On the other hand, the record shows that Bennett ad-
mittedly left Fremont voluntarily . But the matter does
not end there because a discriminatee is not required to
retain interim employment under all circumstances.
There is no duty to remain if the interim job is unsuitable
or threatens to become so for reasons beyond his or her
control. Florida Steel Corp., 234 NLRB 1089 (1978); Cen-
tral Freight Lines, supra . Here, Bennett claims he quit
due to "burn out" from working 50 and sometimes over
60 hours a week, a situation his supervisor had promised
to alleviate several months earlier but had not done so.
His testimony in that regard is consistent with that of the
supervisor, and I credit it. I also find that his quitting for
that reason did not constitute a willful loss of earnings
during the subsequent 2-month period , as alleged. Re-
spondent's citation of Shell Oil Co., 218 NLRB 87, 90
(1975), for the proposition that "added overtime" is not a
sufficient basis to terminate interim employment is mis-
placed . Unlike the situation here , the discriminatee in
that proceeding had merely alluded to a possibility that
he might have to work an 84-hour week . However, up
to the day he departed he had worked only a normal 40-
hour week.
IV. ALLEGED UNDISCLOSED INTERIM EARNINGS
Respondent points to Bennett 's failure specifically to
identify certain deposits to savings accounts made over
the 47-month backpay period, particularly deposits made
during periods of unemployment , as evidence that he in-
tentionally concealed ' interim earnings. Specifically, it
cites deposits made as follows:
1979:
April ......................................... 12 $352.17
April ......................................... 23 125.00
May ......................................... 3 376.32
May ......................................... 18 80.00
October ... ................................. 3 203.64
November ............................... 21 1,200.00
November ................................ 26 106.00
December ............................... 3 447.56
December ............................... 6 250.00
1981:
November 4 $940.00
1982:
January ... ................................. 12 $700.00
January ... ................................ 12 4.75
January ... ................................. 12 130.00
I find no merit in the claim. It is more normal than not
that an individual in Bennett 's situation failed to maintain
or retain records concerning his limited financial transac-
tions . Despite that circumstance he was able credibly to
account for the $1200 deposit on November 21, 1971, as
proceeds from the sale of his automobile ; the $940 depos-
it on November 4, 1981 , as resulting, at least in major
part, from a loan from his father to help him move from
Lincoln to the Omaha area when he was hired by Fre-
mont ; and the $700 and $130 deposits on January 12,
1982, a& due to another advance from his father and
compensation he received from the Air National Guard
for duty as a "weekend warrior." Concerning the re-
maining deposits in 1979, 1 note that the $352.17 item on
April 12 could very well be termination pay because he
was fired on April 11 and that other deposits in 1979
might reflect unemployment payments either from the
State of Nebraska in May 1979 or from Burlington
Northern in November and December . In any event, I
am not persuaded that any of the deposits represented in-
terim earnings.
V. OTHER MATTERS
Respondent further contends that it should be credited
with the entire compensation ' paid Bennett by the Air
Force for his 4-month active duty tour with the AFNG.
I agree.
Bennett did indeed remove himself from the job
market during the initial 6- to 8 -week or "basic" training
phase of that tour because that training was available
only on military installations remote from the Lincoln
area; and concerning that service an appropriate amount
of Bennett 's military pay has been used to offset Re-
spondent's backpay liability in the amended backpay
specification . But the remainder was not so credited, the
General Counsel claiming that the second or "technical"
phase of Bennett 's active duty training could have been
taken in or near Lincoln during a time (from 7 :30 a.m. to
3 p.m.) compatible with the hours he was working (5
p.m. to 1:30 a.m .) at the time he was unlawfully fired by
Respondent . In effect, the General ' Counsel argues that
the pay Bennett received for the second phase represents
collateral rather than interim earnings . That claim might
have validity had Bennett taken the second phase in the
Lincoln area . However, by opting to take the training at
posts in Texas and California he effectively withdrew
from the job market during that phase particularly as
there is no showing that Bennett 's status while taking the
active duty technical training did not preclude him from
accepting "outside" employment and, assuming that it
did not , that he in fact searched for such employment.
Respondent also claims error in the method used to
calculate the amount of overtime pay Bennett would
have earned but for his unlawful discharge , to wit: the
highest number of overtime hours worked by any one in-
dividual in the job classification "maintenance mechanic"
during the pertinent interim periods multiplied by that in-
dividuals rate of pay . Instead, it urges that the calcula-
tion be made either on the basis of the actual overtime
pay received by Bennett 's replacement or the ' average
overtime pay received by employees classified as "ap-
prentice mechanics." I approve the, method used in the
backpay specification. More specifically, Respondent has
not shown unreasonable the assumption that absent his
protected activities Bennett would have been promoted
to the job of maintenance mechanic about the ' clay he
was fired . Also, I see no reason for resolving any doubt
in Respondent's favor by assuming Bennett would have
worked average rather than maximum overtime hours.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Overall Finding
I find that the backpay computation set forth in the
amended backpay specification is appropriate, with one
exception. The exception involves the balance of Ben-
nett's active duty pay for service with the Air National
Guard; and I find that it should be credited as an offset
to Respondent's liability for backpay.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Kawasaki' Motors Corporation,
U.S.A., Lincoln, Nebraska, its officers, agents , succes-
sors, and assigns , shall pay Daniel, R. Bennett as net
backpay $38,729.74, less an amount representing that
portion of the compensation received by him from the
United States Air Force for the technical training phase
of his active duty service during the period March 13,
1981, to July 10, 1981, plus interest computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977), see generally Isis Plumbing C9., ,138 NLRB 716
(1962), and less tax withholdings required by Federal and
state law.
2 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the' findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
Richard C. Auslander and David A. Nixon, Esqs., for the
General Counsel.
Charles E. Sykes, Arthur T Cartor, and Gerald A. Ein-
sohn, Esq., (Alaniz, Bruckner & Sykes), of Houston,
Texas, and Lincoln, Nebraska, for the Respondent.
Stanley Eisenstein, Esq. (Katz, Friedman, Schur & Eagle),
of Chicago, Illinois, for the Charging Union.
I. PRELIMINARY MATTERS2
At the initial backpay hearing, the General Counsel
stated (Tr. 675) that compensation was being sought at
the hourly wage applicable to the job of maintenance
mechanic because Bennett would have been promoted
during the period of his enforced absence. In fact, the
hourly rate contained in the original backpay specifica-
tion (BPS), as well as in an amendment submitted shortly
after the initial hearing, was that of an apprentice me-
chanic. Respondent made no mention of the discrepancy.
Neither did it take exception to the General Counsel's
claim. Instead, it offered evidence that Bennett would
not have been promoted; and it argued that position in
its brief and later in its exceptions claiming that, at most,
he was entitled to compensation at the hourly rate of an
apprentice mechanic. At the further hearing, however,
Respondent opposed a motion of the General Counsel to
amend the specification so as , among other things, to re-
flect backpay calculated at the rate applicable to a main-
tenance mechanic. It claims surprise and, argues that it
would be materially prejudiced if the amendment were
allowed so late in the proceeding. I find no merit in the
objection; and, accordingly, grant the request to amend.3
Respondent had early actual knowledge of the General
Counsel's claim as well as adequate opportunity to fully
litigate the issue . Further, the fact that the Board's Order
as affirmed by the circuit court directed that Bennett be
restored to his former position does not preclude the
relief now sought because the Board's Order was issued
prior to determination of backpay entitlements and, by its
terms, it also provides for Bennett's reinstatement "with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed," thereby leaving open the
question of whether Bennett was entitled to promotion.
Indeed, the notice posted pursuant to the Order requires
that Respondent make him "whole for and loss of pay he
may have suffered as a result of our discrimination
against him." (Emphasis added.)
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. By
order dated 7 January 1986 the Board remanded this
matter for further hearing to receive additional evidence
on two questions, to wit: (1) how much overtime pay
discriminate Bennett is entitled to for the backpay period
and (2) whether and when he would have received a
promotion during that period. The further hearing was
held at Omaha, Nebraska, on 12 and 13 February and 18
and 19 March 1986.
On the entire record, including briefs submitted by the
General Counsel, 'L the Charging Union, and the Re-
spondent on 21 April 1986, I, make the following addi-
tional findings of fact and conclusions of law.
i The brief of the General Counsel contains an unopposed request to
correct the official transcript in certain respects The request is granted as
the changes sought, all editorial in nature , are warranted.
II. PROMOTION OPPORTUNITIES
Prior to his unlawful discharge on 10 April 1979 Ben-
nett had worked in Respondent 's maintenance depart-
ment for about 1 year-the first 6 months as a welder
and the second as an apprentice mechanic.4 Before that
he had been an "assembler" for 13 months following his
date of hire on 7 February 1977. In 1976 he gained some
mechanical experience while working for 7 months with
another company when , in addition to changing tires and
2 In a document filed about 30 April 1986 the General Counsel claims
that certain assertions in Respondent 's brief are not supported by evi-
dence of record, and it moves to strike-those portions . The document is
rejected because in substance it is an unauthorized reply brief
3 The amended backpay specification (R Exh 69) derives from an ear-
lier exhibit (G.C. Exh. 27c) which contained a number of technical
errors. G C Exh. 27c has been redesignated in the official record as ALJ
Exh 1.
4 Respondent's written job description states that a maintenance ap-
prentice - "Assists in all maintenance functions and various other duties as
assigned by supervisor." Specific responsibilities cited include assisting
with assembly , installing and repair of plant equipment, preventive main-
tenance, and operating cutting and welding equipment. A high school di-
ploma and mechanical aptitude are indicated as prerequisites.
KAWASAKI MOTORS CORP. 163
performing routine vehicle maintenance, he assisted me-
chanics in more complicated tasks. He graduated from
high school in 1975 having taken courses in woodwork-
ing and elementary electronics.
As a maintenance apprentice he received no formal in-
house training by Respondent. Rather his skills were de-
veloped on a day-by-day basis by learning new things
from maintenance mechanics, other apprentices, and
from his boss, Maintenance Supervisor Max Hosack. In a
written evaluation (G.C. Exh. 34) dated 19 December
1978 Hosack rated Bennett's 90-day performance as a
maintenance apprentice "outstanding" with regard to at-
titude, orderliness, and initiative; "commendable" in the
matter of attendance/punctuality, job knowledge, quality
of work, and attention to safety; and "acceptable" in the
area of output. Overall, he' rated Bennett's performance
as "commendable"-a term defined on the form as
follow:
Performance is superior. Employee's contribution
exceeds the normal rquirements for this grade and
position. Improvement and achievement are at an
accelerated rate even on the most complex assign-
ments. Contribution to the unit/company is signifi-
cant.
The evaluation also contains a number of handwritten
compliments such as: "understands job assignments
well-.completes with minimum amount of difficulty .. .
usually quick to understand . . . doesn't waste time
doing a job . ..' thinks before he starts." Hosack also
noted that Bennett's good sense of humor might in time
endanger other employees; and he observed that further
training or schooling in electrical work "could only in-
crease Bennett's skills."
According to' Bennett's uncontradicted5 and credited
testimony, by the time of his discharge he was familiar
with,the national electrical code (NEC) and he had inde-
pendently performed a wide variety of
mechanical/electrical jobs at the plant. These include
welding; use of drill presses, saws, and grinding ma-
chines; repair of electric motors and pumps; wiring; in-
stalling motors, ducts, oil, and gas lines and lighting sys-
tems; fabricating machinery and supports for machinery
for use on assembly lines; and performing preventive
maintenance on forklift trucks, machinery, motors, con-
veyor lines and pumps.
The position of maintenance mechanic is one step up
from that of a maintenance apprentice; and, as of 1
August 1979, the pay differential between the two posi-
tions was 35 cents an hour, an amount that gradually in-
creased to $1 by the end of 1982. The job description
and prerequisites applicable to the position "maintenance
mechanic" effective at all times pertinent are set forth in
full in the attached Appendix.6 Respondent's promotion
5 Hosack did not testify although he continues to be employed by Re-
spondent No one familiar with Bennett's mechanical capabilities and per-
formance testified
8 Those qualifications appear in a condensed version on forms posted
by Respondent to obtain bids for jobs. That version reads as follows:
Qualifications Required
Good work and attendance records High School education with a
mmmm of two years experience in maintenance or similar industry
policy was to promote from within whenever possible
and "from among those eligible, qualified applicants,
giving seniority preference' when those applying for the
job have the necessary qualifications." (G.C. Exh. 19b, p.
16.) Focusing on that language, and on a statement print-
ed on its job-bidding form, to wit: "The most senior
qualified applicant will be chosen," Respondent explains
(Tr. 780) that when "we have two people on a bid, both
meeting the qualifications for the position, seniority
would be the determining factor." From this explanation
an inference is warranted and taken that under Respond-
ent's promotion policy in effect at pertinent times herein,
an applicant who met the minimum requirements for a
promotion and had seniority over other bidders would
get the promotion.? Further, and except for the 2-year
experience provision, I find that Bennett met the mini-
mum requirements for the job of maintenance mechanic
at the time of his discharge."
The General Counsel contends that Bennett would
have been entitled to receive any one of the maintenance
mechanic positions filled on 1 August 1979 by John Ki-
trell, on 19 May 1980 by Hosack, and on 8 September
1980 by Paul Moss. Hosack had been a supervisor of
maintenance mechanics, and his appointment on 19 May
1980 was a downgrading to a less demanding job; and as
he was the more senior, I conclude that he would have
been selected over Bennett.
Concerning Kitrell and Moss, the only evidence of
their qualifications for the job is contained in Respond-
ent's records. These show that Kitrell was hired from
outside the Company on 1 August 1979 and that on his
employment application he claimed to have studied
"auto mech, paint" at a technical college during the
period 1973-1974, to have been a salesman/manager for
an automobile tire wholesaler between March 1970 to
June 1978, and to have worked as a welder, punch press
operator, painter, and set up man for a manufacturing
with sunilar type equipment or equivalent vocational school training.
This experience to include welding, equipment installation, electrical
installation and repair NEC, and mechanical repair Must furnish
own tools for craft involved
7 This inference is made explicit in a pertinent portion of Respondent's
current personnel` manual. (G.C. Exh. 13, pp 5-12 )
8 As noted, no company official or supervisor knowledgeable about
Bennett's performance testified However, in an indirect effort to dispute
his qualifications Respondent points to the fact that during the summer of
1985 Bennett took a college-level course entitled basic electrical con-
cepts; and it argues that his need to take a basic course proves his inabil-
ity to qualify for maintenance mechanic in 1979 A short answer here is
that Respondent's rquirements for that job ask for familiarity with elec-
trial work, not all encompassing knowledge Moreover, il- an inference of
unfitness attaches when refresher courses are taken then practitioners in
many professions are in trouble Respondent also argues lack of qualifica-
tion from the circumstance that, in response to a written admonition (not
a reprimand) issued in November 1984 for the breaking of a tire hub on a
forklift vehicle, Bennett wrote
I feel the incident would not have happened if I was properly
trained. Being an apprentice , I am one who is supposed to be learn-
ing under the guidence of a skilled worker I feel neglected of
proper training on this incident and throughout my years as a so-
called apprentice at Kawasaki. Granted I have changed wheels
before. I was never properly trained and I did the best I could for
what knowledge I had.
The note represents an admission of fallibility, not incompetence Also, I
note that Respondent offered no other evidence of deficient performance
on the part of Bennett.
164 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD
company from July 1978 to 20 May 1979-the date of
his application for employment with Respondent. He
also indicated that he had a background in electricity,
woodworking, and maintenance of large and small ma-
chines. Assuming Kitrell in fact had 11 months of quali-
fying actual experience with the manufacturing company
as stated in his application plus another 2 months (assum-
ing he continued to work then until hired by Respond-
ent), that total falls short of Respondent's 2-year experi-
ence requirement by 11 months.9 That being so I con-
cludethat Bennett-who (calculated from the time of his
promotion to welder) on the date Kitrell was hired had
he not been unlawfully discharged-would not have
been rejected under the 2-year rule but, instead, would
have obtained the job of maintenance mechanic on 1
August 1979 in place of Kitrell due to seniority as well
as his greater qualifying experience.
Moss was hired by Respondent on 4 April 1979 as a
"plant service man." He was promoted to maintenance
apprentice on 16 July 1979 and, as noted, to the job of
maintenance mechanic, on 8 September 1980. At that
time , but for his discharge, Bennett would have met the
2-year experience requirement and, in all respects, would
have been minimally qualified as maintenance mechanic.
Accordingly, on 8 September 1980 he would have pre-
vailed over Moss for that job if only by virtue of his se-
niority.10
earned by the other apprentices (including Bennett's re-
placement) between 11 April and 1 August 1979.
The second method of calculating overtime is applied
to the period from 1 August 1979 to the date Bennett
was rehired (21 March 1983) pursuant to the Board's
Order. During that period, the amended backpay specifi-
cation credits Bennett with overtime at hourly rates ap-
plicable to maintenance mechanics multiplied by a
number representing the average weekly overtime earned
by maintenance mechanics on the second shift. The third
method credits Bennett with overtime at mechanic's
rates multiplied by the actual number of overtime hours
he put in each week as an apprentice following his
rehire. No explanation was offered for use of the latter
method, and I see no justification for assuming that on
his rehire as an apprentice Bennett's opportunities for
overtime would have been the same as those of a me-
chanic. Instead, and having in mind the axiom that a
backpay claimant should receive the benefit of any doubt
rather than a wrongdoer responsible for the existence of
any uncertainty,12 I regard as reasonable and fmd that
Bennett should be given overtime at mechanic's rates
multiplied by the average number of overtime hours
worked each week by mechanics on the second shift
from 1 August 1979 through to the time when he is pro-
moted to the position of maintenance mechanic pursuant
to decision in this proceeding.
III. OVERTIME
As explained by the General Counsel" three different
methods of calculating overtime due Bennett are used in
the amended backpay specification (R. Exh. 69).
During the period 11 April to 1 August 1979, when
,Bennett would have continued to work as an apprentice
mechanic but for his discharge, he is credited with the
highest number of overtime hours worked each week by
an apprentice, this based on an inference that Bennett, as
an experienced apprentice, would have received substan-
tial overtime. But evidence adduced at the further hear-
ing shows that during the 3 months immediately preced-
ing his firing Bennett had worked a total of 79 overtime
hours on the second shift whereas the two other appren-
tices on that shift put in 102.3 and 97.5 overtime hours
respectively. In that circumstance, I find it equitable to
credit Bennett with an average of the weekly overtime
9 I have not credited Kitrell with any qualifying experience during his
employment with the tire company because he did not claim any on the
application. Also, and absent specific data concerning courses taken and
grades achieved at the technical school, I have no basis for determining
equivalency time. Information of that kind is most accessible to Respond-
ent, particularly because Kitrell too continues in its employ, and in failing
to produce it Respondent has not met its burden of coming forward
NLRB v. Great Dane Trailers, 388 U.S 26, 34 (1967), NLRB v. Wallick,
198 F.2d 477, 483 (3d Cir. 1952), Zapex Corp., 235 NLRB 1237 (1978),
enfd . 621 F.2d 328 (9th Cir. 1980)
10 Moss too appears not to have met the 2-year experience require-
ment. There is no indication that any qualifying experience attached to
his job as plant service man; and his prehire experience is not shown to
have included any on-the-job mechanical or electrical training As in the
case of Kitrell his file merely contains a notation to the effect that he had
taken some college-level training in welding and electronics with no indi-
cation of course content, grades obtained, or, indeed, whether he had
completed the courses.
I' See ALI Exh 1, pp 14-17, and Tr 1168-1171
IV. SUPPLEMENTARY FINDINGS
For the reasons stated above, I fmd that discriminatee
Bennett would have been promoted to maintenance me-
chanic on 1 August 1979 (alternatively, on 8 September
1980), and that he should be compensated for lost oppor-
tunities for overtime in the manner set forth immediately
above, and that the amended backpay specification (R.
Exh. 69), modified as indicated above with respect to
calculations of overtime entitlements both before 1
August 1979 and after 21 March 1983, represents an ap-
propriate make-whole remedy for wage losses incurred
by Bennett as a result of his unlawful discharge.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Kawasaki Motors Corporation,
U.S.A., Lincoln, Nebraska, its officers, agents, succes-
sors, and assigns, shall pay to Daniel R. Bennett as net
backpay the total amount ($50,885.88) specified in the
amended backpay specification (R. Exh. 69) with adjust-
ments required in this and in the initial supplementary
decision, plus interest computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977); see general-
ly Isis Plumbing Co., 138 NLRB 716 (1962), and less tax
withholdings required by Federal and state laws.
12 American Mfg Co., 167 NLRB 520, 529 (1967)
12 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
KAWASAKI MOTORS CORP. 165
APPENDIX ,
POSITION: Maintenance Mechanic
REPORTS TO: Maintenance Supervisor
BASIC FUNCTION AND JOB SCOPE
Performs all maintenance functions as directed by the
Maintenance Supervisor.
DUTIES AND RESPONSIBILTIES
Perform all mechanical maintenance functions such as
installation , assembly and repair of building and grounds
and Plant equipment as may be required. -
Perform minor electrical installation and repair such as
checking for continuity, blown ' fuses, taking amperage
readings , replacing, motor bearings and others as may be
required.
Perform preventive maintenance inspection , lubrica-
tion and safety inspection as required.
Operate welding and cutting equipment as required to
construct and repair various equipment.
Shall be familiar with and have proficient skills in:
'a),Skills of Junior grades
b) Equipment installation and.set up
cj Electrical installation and repair, according to
N.E.C.
d) Mechanical repair (major)
Responsible for the expedient completion of jobs as as-
signed. Work shall be performed safely and accurately.
Shall instruct Junior grade members of the department
in the use of Tools and Techniques as requested by the
Maintenance Supervisor.
Work area shall be kept clean and orderly.
Responsible for performance of helpers assigned to
assist.
QUALIFICATIONS
Should have a high school education with a minimum
(sic) of two years of experience in maintenance or similar
industry with similar type of equipment or equivalent vo-
cational school training . This experience to include weld-
ing, equipment installation, electrical installation and
repair NEC, and mechanical repair. ' Must furnish own
tools for craft involved.