Lloyd's Ornamental and Steel Fabricators, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 217 (N.L.R.B. 1974)

LLOYD'S ORNAMENTAL & STEEL FABRICATORS 217
Lloyd's Ornamental and Steel Fabricators, Inc. and
District No. 9, International Association of Ma-
chinlsts and Aerospace Workers, AFL-CIO. Case
14-CA-6427
3 Respondent 's request for oral argument is hereby denied as the record,
exceptions , and brief adequately present the issues and the positions of the
parties
June 7, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 26, 1974, Administrative Law Judge
Arnold Ordman issued the attached Supplemental
Decision in this backpay proceeding.' Thereafter, the
Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental pecision in light of the
exceptions and brief and has decided to affirm the
rulings, findings,2 and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Lloyd's Ornamental
and Steel Fabricators, Inc., Piedmont, Missouri, its
officers, agents, successors, and assigns, shall make
the employees involved in this proceeding whole by
payment of the amounts set forth by the Administra-
tive Law Judge in the attached Supplemental
Decision, plus interest less any deductions required
by state and Federal law.
1 On June 9, 1972, the National Labor Relations Board issued a Decision
and Order in the above-entitled proceeding (197 NLRB 367) finding, inter
a/a, that Respondent had discriminatorily discharged seven employees in
violation of Sec . 8(a)(3) and ( 1) of the Act and directing that Respondent
offer them immediate reinstatement and make them whole for any loss of
earnings suffered by reason of the discrimination against them. On
September 17, 1973, the Board's Order was enforced by the United States
Court of Appeals for the Eighth Circuit in an unpublished Order of
Affirmance (docketed as No. 73- 1080).
2 Respondent in effect has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
211 NLRB No. 34
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: On June
9, 1972, the Board issued its Decision and Order i directing
Respondent Lloyd's Ornamental and Steel Fabricators,
Inc., to make whole Charles Brinkley, Herbert Jones,
Stanley McFadden, Jim Sanders, George Sheets, Ralph
Thompson, and Jerry Warren for loss of pay resulting from
Respondent's unlawful discrimination against them. On
September 17, 1973, the United States Court of Appeals for
the Eighth Circuit, in an unpublished Order of Affir-
mance,2 enforced the Board's Order. Controversy having
arisen over the amounts due the named individuals under
the terms of the Board's Order, the Regional Director for
Region 14, on December 7, 1973, issued a Backpay
Specification and Notice of Hearing. On January 4, 1974,
and on January 10, 1974, respectively, Respondent filed its
answer and amended answer to the backpay specification
controverting certain allegations in the latter document.
A hearing was held before me in Greenville, Missouri, on
January 15, 1974, and, subsequent thereto, briefs were filed
by counsel for General Counsel and by Respondent. A
motion by Respondent to allow the late filing of its
brief-a matter of a few days-is hereby granted for the
reasons therein stated. Both briefs have been carefully
considered.
Upon the entire record in this case and upon my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. THE MATTERS.IN CONTROVERSY
The backpay specification sets forth a detailed break-
down of the gross backpay each of the seven named
employees would have earned from Respondent absent the
unlawful discrimination , sets forth also the net interim
earnings of these employees, and concludes with the net
backpay alleged to be due each individual to make him
whole as required by the Board's Order.3
As to two of the seven employees, Stanley McFadden
and Jim Sanders, Respondent admits all pertinent allega-
tions of the backpay specification including the net
backpay due. Accordingly, I find that Stanley McFadden
1 197 NLRB 367.
2 Docketed as No. 73-1080
3 At the opening of the hearing, counsel for General Counsel moved to
amend the backpay specification in certain particulars So far as relevant
here the effect of the motion to amend was to decrease the amount of net
backpay alleged to be due George Sheets from $3,362 to $3,297 and to
increase the amount of net backpay alleged to be due Ralph Thompson
from $395.20 to $417.70 Respondent, reserving the defenses alleged in its
answers, did not oppose the motion to amend and the motion was granted
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is entitled to net backpay in the amount of $36.60 and Jim
Sanders in the amount of $282.95.
As to the remaining five employees, Respondent, in its
answers to the backpay specification, pleads that each of
the five failed to make an adequate job search. In addition,
with specific reference to George Sheets, Respondent
pleads that Sheets failed or refused to work even though
work was available to him and further failed to report
earnings received by him during the specified backpay
period. Finally, Respondent pleads that the expenses
specified in regard to George Sheets, Ralph Thompson,
and Jerry Warren were in excess of those actually incurred
in the course of their search for interim employment.
The merits of the individual claim as to these five
employees are considered hereunder.
II. THE INDIVIDUAL CLAIMS
A. Charles Brinkley
The amount of net backpay alleged to be due Charles
Brinkley to make him whole is $934.12. Respondent admits
all relevant allegations of the backpay specification with
respect to Brinkley but challenges the amount alleged to be
due on the sole ground that Brinkley failed to make an
adequate search for employment during the backpay
period.
Extensive citation of authorities is unnecessary to verify
the well-settled principle that the burden of proving willful
loss of earnings, whether by inadequate job search or by
other means, lies upon the wrongdoer, here the Respon-
dent. See Mastro Plastics Corporation, et al., 136 NLRB
1342, 1346 (1962), and cases there cited at fn. 11.
Respondent did not discharge this burden. True,. Respon-
dent did produce numerous witnesses who testified that
work opportunities were available in the area where
Respondent's operations were located. But none of these
witnesses was asked whether Brinkley had or had not
applied to them for employment during the backpay
period. Nor did Respondent make any inquiries as to
whether Brinkley was qualified for whatever jobs might
have been available or as to other relevant considerations.
Significantly, Respondent did not call Brinkley as a witness
to explore these matters, although Brinkley had been made
available to Respondent for that or other purposes by
counsel for General Counsel.4
Under the circumstances the most that can be said for
Respondent is that it has shown that employment
opportunities existed for which Brinkley may or may not
have applied and for which Brinkley may or may not have
been qualified or found acceptable for hire. In this
uncertain state of the record, the familiar principle comes
into play that the uncertainty must be resolved against the
wrongdoer who has the burden of proof and whose
conduct created the uncertain situation. N.L.R.B. v. Miami
Coca Cola Bottling Co., 360 F.2d 569, 572-573 (C.A. 5,
1966).
4 Early in the course of the hearing, counsel for General Counsel
announced that, pursuant to agency policy, he had issued subpenas to the
five employees whose backpay was in issue so that they would be available
to Respondent for examination and that he had so advised Respondent a
week earlier . Of the five employees , Thompson was excused from being
I conclude that Respondent has not established its
affirmative defense and find that the amount of net
backpay due Brinkley is, as alleged in the backpay
specification, $934.12.
B. Herbert Jones
The only period for which backpay is claimed for
Herbert Jones is for the third calendar quarter of 1971.
During the ensuing periods, Jones had substantial interim
earnings. The amount alleged as due to make Jones whole
is $492.86. As with Brinkley, Respondent's sole defense is
that Jones failed to make an adequate job search. Here
again Respondent relies on the evidence that work
opportunities were available. Again, no inquiries were
made as to whether Jones had or had not applied for such
jobs, whether he had been accepted or rejected for such
jobs, and whether he was qualified or available for such
jobs. Respondent did not call upon Jones to testify
although he, like Brinkley, was made available to Respon-
dent for that purpose. Moreover, the record establishes
that Jones in fact did find employment during substantial
parts of the backpay period and that his earnings from that
interim employment mitigated to a considerable extent the
losses for which Respondent would otherwise have been
responsible.
Accordingly, I conclude and find that Respondent has
not sustained its affirmative defense with respect to Jones
and that Herbert Jones is entitled to be made whole in the
amount of $492.86.
C. George Sheets
The amount of net backpay required to make ,George
Sheets whole was originally alleged in the backpay
specification to be $3,362.60. As already noted, that
amount was reduced by amendment made at the opening
of the hearing to $3,297 (fn. 3, supra ). It subsequently
appeared through evidence adduced from George Sheets
by counsel for General Counsel on direct examination, and
it is now conceded, that because of inadvertent error, the
item of expenses for Sheets for the third calendar quarter
of 1972 was overstated. Correction of that error resulted in
an increase of Sheets' interim earnings for that period by
$356.27 with the result that the net backpay alleged to be
due Sheets for the entire backpay period now totals only
$2,940.73.5
Respondent, as previously noted, vigorously urges
defenses to its liability vis-a-vis Sheets. To recapitulate,
Respondent pleads that Sheets did not make an adequate
search for interim employment, that he failed and refused
to work even though work was available to him, that he
further failed to report earnings which he received during
the backpay period, and that the expenses allegedly
incurred by him during that period were overstated.
As indicated above, error was conceded in two instances
present for reasons which will appear when his situation is discussed.
5 The figure cited in this regard by counsel for General Counsel in his
brief to me (br. 9, 10) is $2,910.73. My own calculations indicate that the
figure cited in the text is correct.
LLOYD'S ORNAMENTAL & STEEL FABRICATORS 219
and the correction of that error is reflected in the reduction
of the net backpay claim to $2,940.73.
In Sheets ' case , as in the cases of Brinkley and Jones,
Respondent relies on the evidence it adduced of available
job opportunities in the area to establish that Sheets did
not make an adequate search for employment and/or that
he failed and refused to work even though work was
available to him. In all, Respondent produced as witnesses
more than a dozen employers or representatives of
employers in the immediately surrounding area who
testified that they had jobs available, ranging in number
from I to 63, during the backpay period. In the case of
Sheets , moreover, Respondent did make specific inquiry of
most of these witnesses as to whether Sheets had applied to
them for employment during the backpay period. Of those
questioned in this regard, all but one testified that Sheets
did not apply or that there was no recollection that he had
applied. One responded that Sheets did apply but was not
hired. Respondent urges on the basis of this evidence the
propriety of an inference that, if Sheets had made an
adequate search for interim employment, he would have
found such employment.
However, that issue need not be resolved here because
the evidence adduced by Respondent does not stand alone.
Sheets did testify and was subjected to searching examina-
tion and cross-examination by counsel for General
Counsel and by counsel for Respondent, respectively.
Preliminarily, his testimony, corroborating the data set
forth in the backpay specification, established that Sheets
did seek and find interim employment during the backpay
period. In addition, Sheets was able to recall with
specificity the names of seven employers among those to
whom he had applied for employment in addition to the
places where he had actually found employment. Sheets
did not confine his search to the immediate area where he
had been employed but testified that he also sought
employment in the area of Poplar Bluff and St. Louis. In
addition, on the very day he was laid off, Sheets registered
with the unemployment office in his home community.
Sheets testified from memory. He kept no records
relating to his search for work. That testimony remained
unshaken despite thorough cross-examination and im-
pressed me as being candid and sincere. I credit that
testimony.6 In addition, Sheets also credibly testified that
as to several enterprises where he thought work might be
available, such as supermarkets or a mobile home sales
agency, which Respondent relied upon, inter alia for its
showing of available work, he did not apply because he felt
he lacked the skills required for such jobs.
Taking all the circumstances into account, I find that
Respondent has not sustained the burden placed by law
upon the wrongdoing employer to establish that Sheets did
not make an adequate search for work. Indeed, although
such a finding is not required in this frame of reference, I
would find that the record affirmatively establishes that
Sheets did make an adequate search for work. See Southern
Household Products Company, Inc., 203 NLRB No. 138
(1973).
Brief mention should be made here of Sheets' venture
into self-employment in the logging business. This oc-
curred toward the end of the backpay period. The rule is
well established that self-employment does not constitute a
withdrawal from the labor market, is not the equivalent of
a willful loss of earnings, and is to be treated as other
interim employment. Heinrich Motors, Inc., 166 NLRB 783,
784-785 (1967), and authorities there cited. Indeed, as the
record shows, Sheets even showed a profit in this regard
which is credited against the net backpay due him. Sheets
candidly acknowledged that had he had better equipment
and more experience, the venture would undoubtedly have
been more profitable. But as the Court of Appeals for the
First Circuit long ago declared in a similar factual context,
"the principle of mitigation of damages does not require
success; it only requires an honest good faith effort ...."
N.L.R.B. v. Cashman Auto Body et al., 233 F.2d 833, 836
(C.A. 1, 1955); see also Heinrich Motors, supra at 784.
Here, as in Cashman Auto, the record, on the basis of
Sheets' credited testimony, adequately warrants a finding
of "honest good faith effort."
Turning now to Respondent's contention that Sheets
failed to report earnings which he received during the
backpay period, the discrepancy in that regard has been
remedied, as already described, by the motion to amend
made at the opening of the hearing and by the testimony
volunteered by Sheets during his direct examination by
counsel for General Counsel of the inadvertent error made
in the expenses allocable to the logging venture during the
third calendar quarter of 1972.7 The record is devoid of
evidence showing failure to report interim earnings in any
other respect. I find that Respondent has failed to sustain
this defense also.
Remaining for consideration is Respondent's defense
that Sheets overstated his expenses incurred during the
backpay period. The expenses involved consist of $606.23
incurred in the logging venture and a total of $31 incurred
in the course of Sheets' efforts to obtain and hold interim
employment. Sheets kept no records relating to the latter
expenditures, but the record facts, corroborated by Sheets'
credited testimony, demonstrate that the mileage traveled
by Sheets relating to his efforts in obtaining interim
employment is more than adequate, even on a conservative
estimate, to justify the $31 claimed. As to the logging
venture expenses, the records which Sheets did keep in
connection with the logging business and the credible
testimony furnished by Sheets in that regard fully support
the expenses claimed.8
8 There is conflict in the testimony here only as to one item . Robert
Woods, president of Sweezy Lumber and Hardware Company where Sheets
testified that he had applied for work , stated that the firm had hired three
people during the backpay period and that Sheets had not applied for work
during that period . On cross-examination , Woods became less certain and
stated merely that he could not recall that Sheets , whom he knew only by
sight before he came to the instant hearing, had applied for a job. In all the
circumstances I credit Sheets' testimony that he did apply to Sweezy
Lumber and Hardware Company for work.
7 Actually, Sheets had correctly reported his logging expenses as being
$1,127.06. When he discovered that the only relevant expenses were those
incurred during the third calendar quarter of 1972, he immediately provided
the lesser figure which was the amount expended during that quarter.
8 Respondent in its brief (p. 6) vehemently protests the expenditure of
$150 for the purchase of a skid mule and harness . Actually, as Sheets
testified, the $150 covered the purchase of a skid mule, two sets of harness,
(Continued)
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I conclude and find that George Sheets is
entitled to be made whole in the amount of $2,940.73.9
D. Ralph Thompson
The amount of net backpay alleged to be due Ralph
Thompson in the backpay specification as amended is'
$417.70. Respondent initially defended as to Ralph
Thompson on two grounds: (1) that his expenses were
overstated; and (2) that he failed to make an adequate job
search. In the course of the hearing, Respondent elected to
admit that the expenses alleged with respect to Thompson
were correct and relied only upon the defense of an
inadequate job search. Thompson was not asked to testify.
The data set forth in the backpay specification, admitted
by Respondent, reveal that not only did Thompson seek
interim employment but that he found such employment
and derived substantial earnings therefrom. As in the cases
of Charles Brinkley and Herbert Jones, Respondent made
no inquiries as to whether Thompson, during the periods
he was not working, had or had not applied for employ-
ment to the various employers who testified that they had
jobs available. Under these circumstances, Respondent
plainly failed to sustain the burden placed upon him under
well-settled authority to establish that Thompson had
incurred a willful loss of earnings by making an inadequate
search for employment.
Accordingly, I conclude and find that Ralph Thompson
is entitled to be made whole in the amount of $417.70.
E. Jerry Warren
The amount alleged in the backpay specification to make
Jerry Warren whole for lost earnings is $247.83. The
defense as to Jerry Warren is that he overstated his
expenses and that he failed to make an adequate search for
employment.
The background facts disclosed by the record and
admitted by Respondent reveal that Warren had interim
employment during each of the three calendar quarters
comprising the backpay period applicable to him. In the
latter two quarters ,'his earnings were so substantial as to
exceed by a considerable amount what he would have
earned from Respondent so that no liability is imposed
upon Respondent for these two quarters. The liability
sought to be imposed upon Respondent in this regard
derives solely from the excess of the gross earnings Warren
would admittedly have derived from employment with
Respondent during the first calendar quarter listed over his
net interim earnings for that quarter.
Warren testified as a witness for General Counsel and
was extensively cross-examined by counsel for Respon-
dent. It appeared that the $94 incurred as expenses in the
first calendar quarter of his backpay period derived from
the cost of round trips between St. Louis and Williamsville,
and single tree and skin tongs . I find no basis in the record for discrediting
the accuracy of this figure nor any basis , inter alga, for Respondent's
assertion (br. p. 6) that "Mr. Sheets obviously let the mule starve to
death...."
9 The record is not wholly clear as to whether the $100 which is listed in
where Warren maintained his home, to check out job'
opportunities. These trips were made before and during his,
employment at Multiplex Display Fixture Co. at St. Louis.
During his employment with Multiplex, Warren lived with
his aunt in St. Louis. During the period Warren had
worked for Respondent, Warren drove to work in a
carpool with three others, but in St. Louis he drove his own
car to work with a consequent increase in his cost of travel.
In addition, Warren reimbursed his aunt for his living
expenses at her home in St . Louis, whereas in Williamsville,
Warren lived with his parents at no cost to him.
Warren also testified in some detail as to his efforts to
find work both in the Williamsville area where he had his
home and in the St. Louis area where he did find jobs.
Warren's testimony both as to the expenses he incurred
and as to his job-seeking efforts was virtually unshaken
despite rigorous cross-examination and no countervailing
evidence was introduced. I credit Warren's testimony.
So far as appears, the only evidence upon which
Respondent relies to establish its affirmative defense that
Warren did not make an adequate search for work was the
showing, previously adverted to, that a number of
employers in the Piedmont area had jobs available. Warren
candidly acknowledged that he had not sought jobs in the
Piedmont area which was some 18 miles from Williamsville
where Warren lived with his parents. Yet his testimony that
he did seek employment both in the Williamsville area and
in St. Louis, in the latter place with considerable success, is
uncontradicted.
In sum , I find that the evidence submitted amply
supports the expenses claimed as to Jerry Warren. I find
further that Respondent has not sustained its affirmative
defense that Warren did not make an adequate search for
interim employment. It follows and I find that Respondent
is obligated to make Jerry Warren whole in the amount of
$247.83 as alleged in the backpay specification.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact , conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that Respondent Lloyd's
Ornamental and Steel Fabricators , Inc., its officers , agents,
successors , and assigns , shall pay to the employees
involved in this proceeding the amounts set forth opposite
their names:
Charles Brinkley $934.12
Herbert Jones 492.86
Stanley McFadden 36.60
Jim Sanders 282.95
George Sheets 2,940.73
Ralph Thompson 417.70
Jerry Warren 247.83
the backpay specification as being earned in the fourth calendar of 1971 was
earned in that quarter or in the first quarter of 1972. In either event the final
figure here found to be due would not be affected and the question raised
need not be resolved.
LLOYD'S ORNAMENTAL & STEEL FABRICATORS 221
Each of the foregoing sums shall accrue interest at the (1962). There shall be deducted from such sums any taxes
rate of 6 percent per annum , computed in the manner set or such other amounts as may be required by law.
forth in Isis Plumbing & Heating Co., 138 NLRB 716