Local 1566, International Longshoremen's Association

National Labor Relations Board - Board Decisions

Jan 31, 1964

145 N.L.R.B. 1417 (N.L.R.B. 1964)

LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 1417
within the Board's statutory jurisdiction' and would satisfy the
Siemons standard for assertion of jurisdiction over nonretail
enterprises.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that upon
the allegations submitted herein, the Board would assert jurisdiction
over the operations of Hartford and Ace as a single employer with
respect to disputes cognizable under Sections 8, 9, and 10 of the Act.
'The $22 ,900 out-of- State purchases , constituting direct inflow under Siemens, also
would subject the operations of Hartford and Ace to the Board 's statutory jurisdiction.
Local 1566 , International Longshoremen 's Association [Philadel-
phia Marine Trade Association ] and Marvin Gould
Local 1566, International Longshoremen 's Association and Zack
Page. Cases Nos..-CB-361 and 4-CB-362. January 31, 1964
SUPPLEMENTAL DECISION AND ORDER
On January 19, 1959, the Board issued a Decision and Order in the
above-entitled proceeding 1 finding, inter alia, that Respondent had
caused an employer, Maritime Ship Cleaning and Maintenance Co.,
to discriminate in employment against Marvin Gould and Zack Page,
in violation of Section 8(b) (2) and (1) of the Act and directing that
Respondent make Gould and Page whole for loss of pay resulting from
the discrimination. Thereafter, the United States Court of Appeals
for the Third Circuit entered its decree enforcing the aforesaid Board
Order.2
On November 30,1962, the Board's Regional Director for the Fourth
Region issued a backpay specification, and on January 9, 1963, Re-
spondent filed an answer thereto. Upon appropriate notice issued by
the Regional Director, a hearing was held before Trial Examiner
George Downing for the purpose of determining the amount of back-
pay due the two claimants. On August 15, 1963, the Trial Examiner
issued his Supplemental Intermediate Report, attached hereto, in
which he found that Marvin Gould and Zack Page were respectively
entitled to payments of $1,200 and $1,839. Thereafter, the General
Counsel and Respondent filed exceptions to the Supplemental Inter-
mediate Report and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
1122 NLRB 967.
2 278 F. 2d 883 ( C A. 3), cert. denied 364 U.S. 890
145 NLRB No. 134.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case including the Supplemental Intermediate Report,
the exceptions, and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner 3
ORDER
On the basis of the foregoing Supplemental Intermediate Report
and the entire record in this case, the National Labor Relations Board
hereby orders that the Respondent, Local 1566, International Long-
shoremen's Association, its officers, agents, and representatives, shall
make Marvin Gould and Zack Page whole by payment to each of them
of the amounts set forth in the attached Supplemental Intermediate
Report.
3In adopting the Trial Examiner's computation of the amounts of backpay due, we have
not relied on the Respondent's acceptance of the Regional Director's original backpay
computation as an admission of liability in any amount
SUPPLEMENTAL INTERMEDIATE REPORT
This is a proceeding on a backpay specification issued by the Regional Director
on November 30, 1962, pursuant to Section 1'02.52 et seq. of the Board's Rules and
Regulations, Series 8, as amended, for the purpose of determining the amounts of
backpay which will make whole the Charging Parties in the manner directed by the
Board in its Decision and Order herein, 122 NLRB 967, enforced 278 F. 2d 883
(C.A. 3) cert. denied 364 U S. 890. In sum, the specification computed the net back-
pay due to Gould at $11,722 and to Page at $17,803, through the first quarter of
1962. The latter sum was reduced by amendment at the hearing to $15,603 by
crediting additional interim earnings of $100 per quarter.
By amended answer Respondent took issue with all allegations of the specifica-
tion, with the correctness of the formula which the General Counsel used as the
basis for the computations, and with each item of the computations, and it denied
that it was indebted to Gould and Page in any amounts. It pleaded further that the
Regional Director had originally computed the back wages at $88 for Gould and
$434 [$4221 for Page; that Respondent had accepted those computations in a bind-
ing settlement agreement; and that if it is to be held liable at all, it should be on
the basis of those computations which ended on a "cutoff date" when Gould and
Page were accorded the same status they enjoyed prior to the alleged discrimination.
A hearing was held before Trial Examiner George A. Downing at Philadelphia,
Pennsylvania, on June 17 and July 1 and 2, 1963, pursuant to due notice. Oral
argument was heard, and briefs have also been filed and considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. Introduction; the escalating computations
There is no dispute on the record concerning the following facts regarding the
steps which led to the ultimate issuance of the specification herein.
The Intermediate Report contained the following finding:
The record indicates that on January 14, 1957, the Respondent's attorney in-
formed the Board's Regional Office that the Charging Parties could receive their
cards by calling at the Respondent's office; and the parties were so informed.
However, Gould and Page did not again seek cards, although it seems clear that
they would have received them had they applied.
The Trial Examiner found that the practice at the shapeups was for foremen to
make assignments first to "book" men, then to "card" men, and finally, if necessary,
LOCAL 1566 , INT'L LONGSHOREMEN 'S ASSOCIATION 1419
to applicants who were neither. Gould and Page were card men, and following a
strike in late 1956, Respondent refused to issue cards to certain card men ( including
Gould and Page ) who had not picketed during the strike. It was to Respondent's
rescission of that refusal that the quoted finding related.
The remedy which the Trial Examiner recommended made no reference to cutting
off backpay on January 14, 1957, or on any other date, but provided that Gould
and Page be made whole for any loss of pay "suffered as a result of the discrimina-
tion against them." Elsewhere the Trial Examiner commented that the extent to
which Gould and Page lost wages because of the discrimination involved remedy
questions to be ascertained in a compliance proceeding.
The first computations as made by the Regional Office used the January 1957 date
as the cutoff date and were based on a formula under which the gross back wages
were estimated as the average earnings of all employees . Upon subtraction of the
respective interim earnings , the total net pay due to Gould was calculated at $88
and to Page at $422.
On February 27, 1962, the Regional Office wrote Respondent's attorney "outlining
the steps necessary to achieve compliance" with the terms of the decree of the court
of appeals , such as the signing and posting of appropriate notices, and directed the
transmittal of backpay checks in the amounts of $88 and $422 . Respondent replied
on March 5 , stating its willingness to comply on the basis outlined and enclosing
checks as requested . The settlement was not effectuated , however, because Gould
and Page refused to accept the checks , and they wrote a letter to the General Counsel's
office in Washington protesting the computations as made in the Regional Office.
Thereafter the General Counsel directed the Regional Office to recompute the back
wages on the basis of continuing liability, without reference to the January 1957
cutoff date , but without further instructions and without questioning the basis on
which the first computations had been made, i.e , average quarterly earnings of all
employees less interim earnings of the respective discriminatees . New computations
were made on that basis and resulted in a total amount due to Gould of approximately
$600, and to Page of approximately $3,000.
Under both of the foregoing formulas the Regional Office calculated the full
amounts which were necessary to make whole Gould and Page for the loss of pay
which they had suffered, without effort at compromise, and the computations were
submitted to Respondent as reflecting the full amounts due . At no time did the
Regional Office suggest that it was seeking to compromise or settle for less than
the full amounts which would make the discriminatees whole for their loss of pay.
Respondent refused to accept the second computations ; and when the Regional
Office submitted them to the General Counsel 's office, it was informed that the com-
putations did not conform to what the General Counsel had in mind, and that be-
cause the earnings of Gould and Page in the second quarter of 1956 ( termed the
base quarter ) exceeded the average earnings of all employees in that quarter, the
Regional Office should recompute on the basis of a percentage factor so as to increase
the estimated gross earnings of Gould and Page in subsequent quarters in the same
proportion as the average earnings of all employees in the subsequent quarters ex-
ceeded the earnings in the base quarter .' Those computations , on which the specifica-
tion is based , skyrocketed the amounts due to Gould and Page, respectively, to
$11,722 and $17,803.
2. The issue of the cutoff date
Preliminary to reaching issues concerning the formula and the computations, the
question of the cutoff date needs to be settled The Regional Office originally as-
sumed that the Trial Examiner intended the January 14, 1957 , date to be used be-
cause of his finding that on that date the Charging Parties would have regained their
cards if they had applied for them. But as observed above, the remedy provisions
contained no reference to a cutoff date, and other findings by the Trial Examiner
showed that in his view factual issues concerning the extent of the discrimination
presented remedy questions to be determined in compliance proceedings.
In addition , the Trial Examiner's findings as to the type and manner of discrimina-
tion which Respondent practiced negate any idea that the mere reissuance of cards
to Gould and Page would have ended the discrimination against them. For what
the Trial Examiner found was that Respondent preferred , in order of employment,
first its members (book men ), then card men, and finally . applicants who were neither.
Thus, not only would the regaining of cards not end the discrimination, but under
i In all except one quarter there were increases over the base quarter which ranged from
106 percent to 245 percent.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nondiscriminatory hiring practices neither a card nor union membership was neces-
sary, for all applicants at the shapeups (assuming equality in ability, experience,
etc.) would stand on an equal footing in consideration for hiring . Cf. Houston
Chapter, Associated General Contractors , 143 NLRB 409, 53 LRRM 1299, 1302.
It is for that reason that Gould and Page were not legally required to qualify them-
selves for some lesser discrimination ( i.e., in "mitigation of damages ") by further
subscribing to Respondent 's discriminatory practices ; and the present record does not
show whether, or when , Respondent ended those practices.
Under the foregoing circumstances , I conclude and find that the discrimination
against Gould and Page did not end on January 14, 1957, and that it continued
through the period covered by the specification . That finding does not, of course,
reach Respondent 's contention , made before and renewed here, that Gould and
Page were hired each time they shaped up, for as the Trial Examiner observed in
the Intermediate Report, that is a matter which goes to the extent of their loss
of wages.
3. The guiding principles ; the fallacies in the specification
In a case like the present one there is no method by which calculations can be
made of the exact amounts which will make Gould and Page whole for the dis-
crimination against them . That is because there is no way of determining bow
much Gould and Page would have earned , absent discrimination , during the times
they were shaping up and because in addition there is no record , nor even any
satisfactory evidence , which will establish definitely how often they shaped up.
Of course , if a nondiscriminatory hiring practice were assumed , they would have
received over the long term the average earnings of all employees of comparable
ability and experience during the periods they were shaping up, but there is nothing
in the record from which such earnings can be calculated , and even if there were,
there would still remain the question as to the frequency of their shapeups.
The best that can be done is to reach a reasonable and realistic approximation,
working from such various indefinite and imprecise factors as are contained in
the record . Mathematical certainty is, of course , neither necessary nor possible.
Though certainty in the fact of damage is essential , certainty as to the amount goes
no further than to require a basis for a reasoned conclusion . Palmer v. Connecticut
Railway and Lighting Co., 311 U.S. 544, 561; N.L.R.B. v. Kartarik, Inc., 227 F. 2d
190, 193 (C.A. 8). "The wrongdoer is not entitled to complain that [the amount
of damages ] cannot be measured with the exactness and precision that would be
possible if the case, which he alone is responsible for making , were otherwise."
Story Parchment Company v. Paterson Parchment Company, 282 U.S. 555, 563,
cited in United Mine Workers v. Patton , 211 F. 2d 742, 749 (C.A. 4), cent. denied
348 U.S. 824 . See also Anderson v. Mt. Clemens Pottery Company, 328 U.S. 680,
686-688.
Board and court rulings have therefore made it clear that the Board 's aim in
situations like this is to reach a result which will fairly and equitably compensate
for losses caused by discrimination and restore the situation as near as can be to
that which would have existed but for the discrimination . Phelps Dodge Corp. v.
N.L.R.B., 313 U.S. 117, 198; N.L.R.B. v. Seven- Up Bottling Company of Miami,
inc., 344 U S. 344, 346; F. W. Woolworth Company, 90 NLRB 289; International
Brotherhood of Boilermakers , etc. (Babcock & Wilcox Company), 121 NLRB 26, 28.
Applying those principles to the specification , there are cogent facts which expose
the General Counsel's formula as both unrealistic and unfair . The first of these
is that the test quarter on which it is based is atypical both as to the individual
earnings of Gould and Page and as to the average earnings of all employees. On
the latter point the record shows that the average earnings in the base quarter
were lower than all except 1 of the 23 quarters covered by the specification and
that average earnings in 7 of those quarters were more than double those in the
base quarter . On the other hand, Gould's earnings in the base quarter exceeded
by nearly one-fourth his highest earnings in any other quarter, and Page's were
higher by a substantial margin than his earnings in all quarters except one during
a 10-year period beginning in 1952 . Indeed, Page's base quarter earnings of $507
were only $33 less than his average annual earnings of $540 over the 3-year period
from 1953 through 1955, which was prior to the discrimination found by the Board
and which was the only considerable period during which Page 's earnings remained
fairly constant.
Thus the measuring of abnormally low average earnings against abnormally high
individual earnings in a single quarter would alone result in obvious and glaring
imbalances and distortions in attempting to compute the gross amounts which
Gould and Page would have received as Maritime 's employee . But the General
LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 1421
Counsel 's formula went further ; it magnified those distortions stupendously by using
a multiplying factor so as to increase the abnormally high earnings of Gould and
Page in the base quarter by the same percentage that average earnings of all em-
ployees in subsequent quarters exceeded the abnormally low average earnings of
the base quarter . Under that formula the computations took off into the strato-
sphere, with Gould 's net pay zooming from the original $88 to an ultimate $11,722,
and with Page's zooming from the original $422 to an ultimate $17,803.
Analysis shows that those results border on the fantastic . The $15,603 presently
computed for Page under the amendment , is almost four times as much as his total
earnings at Maritime over a 10-year period beginning in 1952, and is more than
four times as much as his aggregate earnings during his four most productive years,
i.e., 1953 through 1956. Or if we regard as typical his average annual earnings of
$540 in the 3 consecutive years from 1953 through 1955-the only considerable
period when his earnings remained at all constant-the specification would call
for reimbursement for 29 years of employment . Viewed in still a different light,
Page would receive more than five times as much as he would if average earnings
were used as the base.
Gould, in turn , would receive 20 times as much as he would if average earnings
were used . Other disparities are not so glaring in his case , though it is to be
noted that he had no prior record of employment on the waterfront , as Page did,
which would afford some basis for comparison.
It would be unconscionable , of course , to uphold the foregoing results on any
basis, and least of all on the basis of "administrative expertise" as argued for by
the General Counsel at the hearing. Indeed , if that principle were applicable
here, there would have been no need for a hearing before a Trial Examiner and
no need for review by the Board, for the administrative act of the General Counsel,
himself a party litigant to the proceeding , would alone suffice to establish the
amounts due by Respondent in compliance with the Board's Order and the court's
decree.
Though I therefore reject the underlying formula and the computations contained
in the specification , it is nonetheless necessary to determine , if it is possible to do so
on the record before me , the amounts of backpay which will make whole the
discriminatees.
4. The alternative formulas; the composite schedules
Looking forward at the hearing to the possibility that the Trial Examiner might
not accept his basic formula, the General Counsel offered in evidence exhibits
which were based on two alternative formulas and from which it is possible to
make alternative computations. Though carefully reserving his contention that only
the specification was correct, the General Counsel offered the alternative as helpful
for purposes of comparison and for determining the amounts due in case the Trial
Examiner should decide (1) that a larger base period than a single quarter were
proper in Page's case (General Counsel's Exhibit No. 6), and (2) that the per-
centage factor, or "multiplier effect," was improperly used in both cases (General
Counsel's Exhibit No. 7).
In brief, under the first alternative a two-quarter base was used for establishing
Page's gross earnings, reducing the amount from $507 to $452, but the percentage
factor was retained. The second alternative eliminated the multiplication feature
of the percentage factor, but added to the gross earnings of Gould and Page in the
base period the actual difference by which the average earnings of all employees
in subsequent quarters exceeded the average earnings of the base quarter.
Before reaching the merits of those formulas, however, I shall interpolate here
an explanation of the composite schedules which I have prepared and which will
facilitate an understanding of the findings herein. See Schedule A, Marvin Gould,
and Schedule B, Zack Page, attached hereto and made a part of my findings. In
them I have conveniently assembled for purposes of comparison the computations
made under the specification, under the alternative formulas just referred to, and
under other formulas considered by the Trial Examiner.
The first five numbered columns of each schedule contain the computations on
which the specification is based. Columns numbered 6 and 7 of Gould's schedule
contain computations which are based on the General Counsel's second alternative
formula (General Counsel's Exhibit No. 7), under which the actual difference in
the average quarterly earnings (of all employees) over the base quarter were added
to Gould's earnings in the base quarter. Columns 8, 9, and 10 contain computa-
tions based on the same formula after excluding his periods of employment and his
earnings at the Budd Company (discussed in section 6. below). Column 11 is a
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reconstitution of the Regional Office 's second computation , based on the average
earnings of all employees , similarly after excluding Budd employment and earnings.
Columns 6 and 7 of the Page schedule contain computations based on the first
alternative formula, which applied only to Page. Columns 8 and 9 contain com-
putations based on the second alternative formula, but using the two-quarter base
as under the first alternative. Column 10 represents a reconstitution of the second
computation made by the Regional Office based on the average earnings of all
employees , less the increased interim earnings as provided in the amendment to
the specification.
It is readily apparent that the alternative formulas retain the basic defects and
imbalances of the specification , though the degree of distortion is considerably
reduced particularly under the second alternative. Indeed , under the first alterna-
tive Gould's earnings are unaffected , and Page's are affected only by reducing his
gross earnings in the base period from $507 to $452, thereby reducing his total
net backpay from $15,603 to $13,528. See Schedule B, and compare columns 3
and 5 with columns 6 and 7. Such a minor and superficial adjustment does not
and cannot cure the basic defects in the original formula, for average earnings of
all employees in the base period still remained abnormally low and quarterly
earnings of $452 for Page were still abnormally high.2 Finally, and of greater
importance , retention of the percentage factor still resulted in the continued magnify-
ing of those imbalances.
The second alternative formula jettisoned the percentage factor, but it continued
to follow another basic fallacy of the specification. Thus, still retaining the ab-
normally low base quarter for average earnings and the abnormally high base period
for Gould and Page, the formula required that their gross earnings in the base
period be nonetheless augmented by the arithmetical amount by which average
earnings of all employees in subsequent quarters exceeded the average earnings in
the low base quarter. In brief, it substitutes simple addition for multiplication. See
Schedule A, columns 6 and 7, and Schedule B, columns 8 and 9. Application of
that formula will cut Respondent's wage bill roughly in half.
As both of the alternative formulas simply reduce the more stupendous effects of
the original, without eliminating the basic inequitable factors which create the im-
balances and distortions, I reject them as I did the specification.
5. Average earnings as a fair formula
As will be noted, the findings which I have made up to this point have eliminated
all of the formulas which were used by the Regional Office except the one under
which it prepared, at the direction of the General Counsel's office, the second set
of computations , which were based on the average earnings of all employees less
interim earnings of Gould and Page. In deciding whether that formula should be
adopted, it is necessary to consider certain objections which the General Counsel
now raises to it and to decide whether , under the evidence , it will result in reaching
a fair and reasonable approximation of the amounts due.
Basic to the General Counsel 's present opposition to the use of average earnings
is the claim that Gould and Page earned more than the average, but that claim is
based on insistence that their earnings in a single quarter (modified to two quarters
for Page ) must be accepted as normal and typical .3 The findings which I have
made in section 3 , above, concerning the fallacies involved in accepting the base
period as typical, disposes of that claim.
The General Counsel also attacks the average as improperly weighted against Gould
and Page because it contains the earnings of an unknown number of casual laborers
who shaped up only infrequently or sporadically. Though the point is validly argued,
much of its force is offset by the fact that the average also includes the earnings of
the highest paid employees, i.e., the keymen in the first gang, such as foremen, truck-
drivers, and winchmen, who were hired ahead of the second gang in which Gould and
Page were normally reached?
2 Page never earned as much as $300 in any quarter prior to 1956 , and his average
quarterly earnings in his 3 prior highest years ( 1953 , 1954, and 1955) were only $135 a
quarter.
3Actually, there was no normal or typical prediscrimination period for either Gould or
Page. Gould had no prior employment on the waterfront, and Page's earnings were sub-
ject to extreme and unexplained fluctuations.
4 The General Counsel sought in part to justify the specification by comparing the gross
pay of Gould and Page with the earnings of the highest paid group. But though the
LOCAL 1566, INTEL LONGSHOREMEN'S ASSOCIATION 1423
Pertinent also to the ultimate determination is the issue as to the frequency with
which Gould and Page shaped up after January 1957, but on that point the testimony
is in irreconcilable conflict. In capsule form, Page's claim was that he shaped up as
much during that period as he did before it, i.e., three to six times a week, and
Gould's was that he shaped up regularly except when he was working at Budd.
Maritime's foremen (members of Respondent), on the other hand, testified that both
men shaped up infrequently and when they did they were hired. I am unable to
accept either version of those claims, for I am convinced that the truth lies some-
where in between.
Beginning with the latter, the evidence showed that the hiring was done by several
foremen other than those who testified, and I do not credit the testimony of the
latter that they were in position always to know when Gould and Page were among
the groups of some 75 to 100 men present at the shapeups and in position to know
when or whether other foremen actually hired them. Indeed, foremen who were
themselves hired on the first gang would not necessarily be present when the second
gang was hired. The vulnerability of such testimony was further exposed by claims
of one of the foremen that Gould and Page had not shaped up during periods when
the record showed earnings at Maritime.
I am also unable to accept without discount the testimony of Gould and Page.
Page in particular was partially impeached by his testimony given at the former
hearing .5 Furthermore, though admitting that at a later time he stopped shaping
at Maritime except during occasional quarters, Page excused his action by testifying
that it was because he could not get hired and that he just gave up and quit going.
Though the General Counsel interprets that as a plea of "futility," the contention
does not ring true in view of Page's record of employment. Thus the original
specification showed that in some nine quarters beginning in 1958 Page was unem-
ployed, and that the last four of such quarters were consecutive. Whatever Page's
feeling of futility, there was no reason why he should not have shaped up, there be-
ing nothing better for him to do. The amendment, which added $100 per quarter
to his interim earnings, did not appreciably change the situation, for the worktime
spent in earning such meager sums would not substantially have reduced his oppor-
tunities for shaping up.
There is little point in extending further the analyses of the earnings record of
the two men in the hope of hitting upon some figure which might be more fairly
representative of their earnings. In a situation like this, where even a minor change
in one of the basic elements of a formula will cause extreme fluctuations in end re-
sults (see section 3, supra), it is obvious that other approaches will achieve widely
varying recoveries. Though continued effort might afford intellectual exercise for
a mathematician, it would not likely result in suggesting a more realistic or reason-
able solution than the use of average earnings as the yardstick. In any event, there
remain no other proposals before me, the General Counsel having exhausted all of
his own and Respondent making none save to urge that it settled for the original $88
and $422 and that in no case should it be held for more.
Accordingly, and in view of all the uncertain factors in the record, including the
final uncertainty as to the frequency of shapeups, I conclude and find that the use
of average earnings of all employees will most fairly and realistically reflect the
amounts which Gould and Page would have earned over the long term covered
by the specification. Indeed, Page's average quarterly earnings during the 4-year
period from 1953 through 1956 come out at $223, which is equal roughly to the
$216 average for all employees for the 24 quarters in the specification. And though,
oddly enough, 1956 included a part of the period of discrimination, the earnings in
that year raised, rather than lowered, the average earnings during the prediscrimina-
tion period.
It is necessary , however, for reasons stated below, to make an adjustment in Gould's
case to eliminate all periods when he was working at the Budd Company.
group also included predominantly union members-the recipients of the most favorable
results of the discrimination--it is fallacious , of course , to use their wages as a criterion
for measuring the fair earnings of employees in a situation where discrimination is
ordered to be eliminated, with computations to be made accordingly.
5 An attempted similar impeachment of Gould failed in the light of his explanation that
he used the term "shapeup" to mean being actually hired, instead of simply being present
to be hired His explanation was understandable in the light of his prior inexperience on
the waterfront
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The modification for Gould
Gould has been an employee of Budd Company since November 7, 1945, and
though frequently in a layoff status , has been considered as a regular employee and
is presently so considered . Gould is carried on Budd's records as a permanent em-
ployee, for it has no positions which it regards as temporary ones.
Budd's employees are represented by UAW Local 813 , of which Gould is a mem-
ber, and at times when on layoff Gould has applied for and has been granted leaves
of absence in order not to forfeit his seniority rights under the collective-bargaining
contract . Gould has also received while on layoff , when eligible therefor , certain
supplemental unemployment benefits ( SUB) payments as provided by the contract.
Though frequently working elsewhere during layoffs from Budd, Gould has always
returned to Budd upon being recalled. Near the end of the first quarter of 1956,
Gould began to shape up at Maritime during his Budd layoffs, and has continued
to do so.
In Schedule C, hereto attached , I have made tabulations of the periods, beginning
in 1956, when Gould was working for Budd and when he was on layoff, as well as
an approximation of the proportion of each quarter for which he was available for
other employment . Leaves of absence are counted as periods of Budd employment.
Under all the computations which the General Counsel made, Gould was treated
as if he were the regular employee of Maritime , with his estimated gross back
wages being reduced by interim earnings at Budd ( and elsewhere). It is plain from
the foregoing evidence , however, and I find , that Gould was the employee of Budd,
that he was available for shapeups only during the period of his layoff at Budd,
and that it is only during the latter periods that he was entitled to backpay from
Respondents This means , of course, that Gould 's earnings at Budd are likewise to
be excluded from his interim earnings in the fractional quarters during which he
was shaping up, but that does not affect the correctness or the realism of the formula
which I adopted in the preceding section , despite the fact that it results , surprisingly,
in an increase in the amounts due him, rather than a decrease.
In computing the amounts due Gould , I have therefore used as the base the per-
centage of average earnings in fractional quarters which corresponded to the pro-
portion of time Gould was available for shapeups ( i.e., on layoff from Budd) as
shown in the fourth column of Schedule C, and from the resultant figure I have
subtracted all interim earnings except Budd earnings . See Schedule A, column 11.
CONCLUDING FINDINGS
Pursuant to the foregoing findings and to the computations made under the
formula which I have adopted, I find that through the first quarter of 1962, the
total net paid due to Gould was $1,200 (see Schedule A, column 11), and to
Page was $1 , 839 (see Schedule B , column 10).
The specification reserved for future determination Respondent's liability for
periods after March 31, 1962, in part because information concerning interim
earnings was not available. Aside from that, there was no real litigation of the
extent of the discrimination in the latter period, and there is no basis in the present
record upon which computations can be made.
The specification also alleges that but for the discrimination against them, Gould
and Page would have qualified for group 1 status, as provided in an agreement
between Respondent and the Employer effective from October 1, 1959, through
September 30, 1962, and it seeks a finding that backpay continues to accrue until
Respondent, among other things, notifies the Employer that Gould and Page are
to be placed in group 1. As I have found that average earnings will fairly measure
the gross earnings for Gould and Page during the period covered by the specifica-
tion, it cannot be found that Gould and Page would have achieved group 1 status
under the contract? It is also to be noted that the contract whose terms the General
6 Regardless of whether Gould's technical status was that of a "regular " or a "perma-
nent," employee, or something else, it was plain that during his employment at Budd he
was unavailable for work at Maritime. Other periods of such unavailability by both Gould
and Page were excluded by the General Counsel from the specification, with appropriate
proportional adjustments for fractional quarters.
'Thus average annual earnings over the entire period were approximately $900, which
when divided by an average hourly rate of approximately $2.50, would have yielded roughly
360 hours per year instead of the 700 hours needed to qualify under the agreement.
LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 1425
Counsel would seek to apply herein was entered into some 11 months after the
Board's decision.
I find, however, that backpay continues to accrue herein until Respondent ends
its discrimination against Gould and Page and until it complies fully with the Board's
Order, 122 NLRB 967, 970-97 1, as enforced by the court.
I conclude and find that Respondent's obligation to make whole Marvin Gould
and Zack Page during the period covered by the specification will be discharged
by payment to them, respectively, of $1,200 and $1,839.
I recommend that the Board adopt the foregoing findings and conclusions. I do
not recommend that the payment of interest be required on the sums herein found
to be due. Ellis and Watts Products, Inc., 143 NLRB 1269.
SCHEDULE A-MARVIN GOULD
uarter
Aver-
age
earn-
mgs
1)
Per-
cent I
2)
Gross
back-
pay
3)
Interim
earn-
rags
4)
Back-
pay
per
speci-
fication
(5)
Gross
pay
per
GCX
7
(6)
Net
pay
GCX7
7)
Gross
per
GCX
7
ex-
clud-
ing
Budd
(8)
Inter-
im
earn-
ings
ex-
clud-
ing
Budd
(9)
Net
per
GCX7
exclud-
ing
Budd
(10)
Net
per
aver-
ages
exclud-
mg
Budd
(11)
1956-2 (base)_____ 125 (100) 2 697 _
3___-__-_-_-_ 212 170 1,185 893 292 784 ________ 261 326 -------- --------
4------------ 132 106 739 (4) -
1957-1------------ 165 132 920 (4) ---- ------ -------- ------ ------ -------- --------
2------------ 104 83 579 (4) -------- ------ -------- ------ ------ -------- --------
3 ------------ 240 192 1,338 788 550 812 24 271 ------ 271 --------
4 ------------ 245 116 809 (4) -------- ------ -------- ------ ------ -------- --------
1958-1 ------------ 179 143 997 224 773 751 527 751 200 551 --------
2 ------------ 219 175 1,220 102 1,118 791 689 791 102 689 117
3------------ 188 150 1,047 145 902 760 615 760 145 615 43
4____________ 271 217 1,512 217 1,295 843 626 843 217 626 54
1959-1 ------------ 178 142 990 000 990 750 750 750 ------ 750 178
2------------ 280 224 1,562 138 1,304 852 714 852 138 714 142
3____________ 224 187 1,303 479 824 796 317 513 55 458 88
4------------ 225 180 1,255 .578 677 797 219 478 ______ 478 135
1960-1------------ 148 118 822 (4) -------- ------ -------- ------ ------ -------- --------
2 ------------ 306 245 1,708 1,685 23 878 -------- 69 ------ 59 20
3------------ 221 185 1,289 157 1,132 793 636 555 ------ 555 155
4------------ 283 226 1,575 (4) -------- - ----- -------- ------ ------ -------- --------
1961-1 ------------ 209 167 1,164 623 541 781 158 391 ------ 391 105
2------------ 265 212 1,478 972 506 837 -------- ------ 279 88
3------------ 297 237 1,652 921 731 869 -------- 222 ------ 222 75
4------------ 274 219 1,524 1,460 64 846 ________ ____ ______ ________ --------
1962-1 ------------ 191 153 1,066 (4) -------- ------ -------- ------ ------ -------- --------
Total-------- ------ ------ -------- -------- 11, 722 ------ 5,275 ------ ------ 6,658 $1,200
I The percentage by which average earnings of all employees in quarters subsequent to the base quarter
(1956-2) exceed the earnings in that quarter.
2 The employee's earnings in the base quarter were multiplied by the percentage factor to arrive at the
estimated gross amounts the employee would have earned in the subsequent quarters
3 The base quarter earnings were increased by the arithmetical amounts by which average earnings sub-
sequent to 1956-2 exceeded the average for the base quarter to arrive at the estimated gross earnings in sub-
sequent quarters. Cf footnote 2
4 No claim
5 Calculated by the Regional Office in the second computations at approximately $600.
734-070-64-vol. 145-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SCHEDULE B-ZACK PAGE
uarter
Average
earn-
mgs
(1)
Per-
cents
(2)
Gross
back-
pay
(3)
Interim
earn-
3
lags
(4)
Back-
pay per
specifi-
cation
(5)
Gross
pay per
specifi-
cation
(6)
Net
pay per
GCX6
(7)
Gross
pay per
GCX7
(8)
Net
perGCX 7
(9)
Net
per
aver-
ages
(10)
1956-2 (base) ---- 125 _ ________ 452 ________ 452 ________ _
3___________ 212 170 862 568 294 768 200 539 ________ ________
4___________ 132 106 537 (4) ________ 479 () 459 ________ ________
1957-1___________ 165 132 669 188 481 597 409 492 304
2___________ 104 83 421 159 262 375 216 431 272
3___________ 240 192 973 186 787 868 682 567 381 56
4___________ 245 116 588 209 379 524 315 572 363 36
1958-1___________ 170 143 725 214 511 646 432 506 292
2___________ 219 175 887 183 704 791 608 546 363 36
3___________ 188 150 253 100 153 5226 126 6 172 139 30
4___________ 271 217 ,100 100 1,000 981 881 598 498 171
1959-1 ----------- 178 142 720 100 620 642 542 505 405 78
2___________ 280 224 1,135 125 1,010 1,012 887 607 482 155
3___________ 224 187 948 100 848 845 745 551 451 124
4___________ 225 180 913 252 661 814 562 552 300 --------
1960-1 ----------- 148 118 598 107 491 533 426 475 368 41
2___________ 306 245 1,242 133 1,109 1,107 974 633 500 173
3___________ 221 185 938 100 838 836 736 548 448 121
4___________ 283 226 1,146 170 976 1,022 852 610 440 113
1961-1 - ---------- 209 167 847 131 716 755 624 536 405 78
2___________ 265 212 1,075 100 975 958 858 592 492 165
3___________ 297 237 1,202 100 1,102 1,071 971 624 524 197
4___________ 274 219 1,110 100 1,010 990 890 601 501 174
1962-1 ----------- 191 153 776 100 676 692 592 518 418 91
Total------ -------
15,603 -------- 13,528 -------- 8,346 1,839
I The percentage by which average earnings of all employees in quarters subsequent to the base quarter
(1956-2) exceed the earnings in that quarter o
2 As amended to include an additional credit of $100 per quarter
3 The employee earnings in the base quarter were multiplied by the percentage factor to arrive at the esti-
mated gross amounts the employee would have earned in the subsequent quarters
4 No claims.
5 This figure was erroneously calculated in the General Counsel's alternate formula (General Counsel's
Exhibit No 6) at $678 overlooking the fact that in the original specification the estimated gross backpay for
the quarter had been reduced by two-thirds because of unavailability for work
6 The figure of $515 included in the General Counsel's second alternate formula (General Counsel's Exhibit
No 7) has been reduced by two-thirds See footnote 5. Interim earnings were also reduced proportionately
in calculating the net pay in the next columns
SCHEDULE C
SUMMARY OF GOULD'S EMPLOYMENT AT BUDD
Quarter With Budd On layoff Percent on
layoff
1956-1------------------------ 1-1-56 to 2-6-56______________
2-6-56 to 10-19-56____________ 60
1956-2------------------------
10-19-56 to 11-5-56___________ 11-5-56 to 12-18-56___________ 100
1956-3------------------------ 12-18-56 to 4-5-57____________
4-5-57 to 6-10-57_____________ 100
1956-4------------------------ 6-10-57 to 8-8-57_____________
8-8-57 to 9-23-57 1___________ No claim
1957-1------------------------ 9-23-57 to 11-21-57__________
11-21-57 to 12-9-57___________ No claim
1957-2------------------------
12-9-57 to 12-16-57___________ 12-16-57 to 8-17-591--------- No claim
1957-3------------------------
8-17-59 to 9-4-59_____________ 9-4-59 to 10-16-59____________ 33 yj
1957-4----------------------- ------------------------------ ------------------------------
No claim
1958-1------------------------
10-16-59 to 10-30-59__________ 10-30-59 to 12-9-59___________ 100
1958-2------------------------ 12-9-59 to 6-24-60____________
6-24-60 to 8-22-60 1__________ 100
1958-3------------------------
8-22-60 to 8-25-60____________ 8-25-60 to 9-21-60____________ 100
3 Two weeks ' leave of absence.
CONTINENTAL CAN COMPANY, INC., PLANT 142, ETC. 1427
SCHEDULE C-Continued
Quarter With Budd On layoff Percent on
layoff
1958-4------------------------ 9-21-60 to 2-15-61____________ 2-15-61 to 4-3-61_____________ 100
1959-1------------------------ 4-3-61 to 6-2-61______________ 6-2-61 to 7-24-61_____________ 100
1959-2------------------------ 7-24-61 to 1-19-62__________-_ 1-19-62 to 2-26-62____________ 100
1959-3------------------------ 2-26-62 to 5-11-62____________ 6-11-62 to 5-17-62____________ 6433
1959-4------------------------ 5-17-62 to 6-15-62____________ 6-15-62 to 7-2-62_____________ 60
1960-1------------------------ 7-2-62 to 7-20-62_____________ 7-20-62 to 8-20-62____________ No claim
1960-2------------------------ 8-20-62 to date _______________ ------------------------------ 633
1960-3------------------------ ------------------------------ ------------------------------ 70
1960-4------------------------ ------------------------------ ------------------------------ No claim
1961-1------------------------ ------------------------------ ------------------------------ 50
1961-2------------------------ ------------------------------ ------------------------------ 3333
1961-3------------------------ ------------------------------ ------------------------------ 2533
1961-4------------------------ ------------------------------ ------------------------------ 100
1962-1------------------------ ------------------------------ ------------------------------ No claim
Continental Can Company , Inc., Plant 142, Plastic Container
Division and Dixie & Schulman, Attorneys for Individual
Employees, Petitioner. Case No. 23-RD-116. January 31, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer B. F. Mueller.
The Hearing Officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The Petitioner asserts that Glass Bottle Blowers Association of
the United States and Canada and its Local Union No. 125, AFL-CIO,
the currently recognized bargaining representative of the employees
involved herein, is no longer their representative as defined in Section
9 (a) of the Act.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
In 1959, following the development of a new type of plastic called
linear polyethylene, Continental Can Company, the Employer herein,
created a Plastic Container Division to manufacture plastic packages.
At present there are seven plants in the division, one each in Houston, .
Texas ; Cincinnati and Cleveland, Ohio ; Baltimore, Maryland ; and
South Gate, California; and two in Chicago, Illinois. The first four
of these plants manufacture packages exclusively of linear polyeth-
ylene whereas the latter three plants manufacture other plastic prod-
145 NLRB No. 133.