Marcus Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1962

137 N.L.R.B. 1378 (N.L.R.B. 1962)

1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were pretexts, and that it discharged them because of their union
adherence.
MEMBERS RODGERS and FANNING took no part in the consideration of
the above Supplemental Decision.
Marcus Trucking Company, Inc . and Dairy Transportation
Drivers, Helpers and Terminal Employees, Local 770, Inter-
national Brotherhood of Teamsters , Chauffeurs and Helpers
of America and Local 602, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, Party to a Contract . Case No. -CA-6031. July 18, 1962
SUPPLEMENTAL DECISION AND ORDER
On March 11, 1960, the Board issued a Decision and Order in the
above-entitled case, ' finding that the Respondent had engaged in un-
fair labor practices in violation of Section 8(a) (1), (2), (3), and (5)
of the National Labor Relations Act, as amended, and directing, inter
alia, that the Respondent (1) make the employees in the appropriate
unit whole for any loss of earnings which they may have incurred by
reason of the elimination of overtime pay by the Respondent; (2) re-
imburse all employees in the appropriate unit for all membership
dues, initiation fees, and assessments which they paid to Local 602 as
a condition of employment during the period commencing May 30,
1958; and (3) restore employee Kenneth Bedford to that position
,on the seniority roster to which he was rightfully entitled and make
him whole for any loss of pay which he suffered as a result of his re-
duction in seniority.
On January 26, 1961, the United States Court of Appeals for the
Second Circuit entered its decision ,a affirming the Board's findings of
unfair labor practices and enforcing the Board's Order with respect
to the loss of earnings resulting from the elimination of overtime pay
and with respect to the backpay owing to Kenneth Bedford, but modi-
fying the Board's Order by limiting the reimbursement of dues and
.other fees "to those employees who continued to pay dues to Local 770
and for the period of such payment, not, however, later than the date
when our order becomes final."
On July 31, 1961, the Board's Regional Director for the Second
Region issued a backpay specification and, on September 27, 1961, the
Respondent filed an answer thereto. Upon appropriate notice issued
by the Regional Director, a hearing was held before Trial Examiner
1126 NLRB 1080.
2 286 F. 2d 583.
137 NLRB No. 141.
MARCUS TRUCKING COMPANY, INC. 1379
John P. von Rohr for the purpose of determining the amounts of
backpay due the claimants. On March 1, 1962, the Trial Examiner
issued his Supplemental Intermediate Report on Backpay, which is
attached , finding that certain claimants were entitled to specific
amounts of backpay. Thereafter, the Respondent and the General
Counsel filed exceptions to the Supplemental Intermediate 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 Brown].
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
and the exceptions and briefs, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the modi-
fications noted below.
In its decision , the Board found that , by entering into a union-
security contract with Local 602 at a time when the Respondent's
contract with Local 770 was still in effect, the Respondent violated Sec-
tion 8(a) (1), (2), (3), and (5) of the Act, and, to remedy these un-
fair labor practices the Board ordered inter alia, that the Respondent
reimburse all employees in the appropriate unit for all dues, fees, and
assessments which they paid to Local 602 as a condition of employ-
ment. The Respondent contends that, in view of the decision of the
United States Supreme Court in Local 60, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, et al. (Mechanical
Handling Systems) v. N.L.R.B., 365 U.S. 651, issued subsequent to the
decision of the court of appeals herein, the Board may not impose that
portion of its remedy relating to the reimbursement of dues. We find
no merit in this contention. As noted, the court of appeals expressly
limited the reimbursement-of-dues remedy to those employees of the
Respondent who "continued to pay dues to Local 770." As these em-
ployees indicated their continued adherence to Local 770, we find that
the Respondent, by unlawfully entering into a union-security contract
with Local 602, coerced them into joining Local 602 as a condition of
employment. In these circumstances, we find that the reimbursement-
of-dues remedy imposed herein is not of the type rejected by the Su-
preme Court in Local 60, Carpenters, supra, but rather is similar to
the reimbursement-of-dues remedy upheld by the Supreme Court in
Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533. See
Lapeer Metal Products Company, 134 NLRB 1518.
In computing the backpay due employee Bedford, the Trial Ex-
aminer disallowed the amount of $45.99, claimed in the Regional
Director's backpay specification as reimbursement to Bedford of
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime backpay, on the-ground that overtime backpay due- Bedford
had already been taken into consideration in determining the gross
backpay due Bedford by reason of his reduction in seniority (see
Appendix B-1 to the Supplemental Intermediate Report, line (s) ).
The General Counsel excepted to the Trial Examiner's failure to find
that Bedford was entitled to the additional amount of $45.99. He
contended that since, in computing net backpay due Bedford as a
result of his reduction in seniority, the amount of overtime wages due
Bedford was deducted as interim earnings (see Appendix B-3 to the
Supplemental Intermediate Report, line (b)-3, it therefore followed
that Bedford would not receive his overtime compensation twice if he
were awarded the additional amount claimed. We find merit in the
contention of the General Counsel. We have therefore recomputed
the backpay due Bedford and we shall add to the amount of net back-
pay awarded Bedford by the Trial Examiner the amount of $45.99,
representing overtime backpay due Bedford by reason of the Respond-
ent's unlawful elimination of premium pay for overtime. We find
that the correct net backpay due Bedford is $3,919.56.
ORDER
On the basis of the foregoing Supplemental Decision and Order,
and upon the entire record in this case, the National Labor Relations
Board hereby orders that the Respondent, Marcus Trucking Coin-
pany, Inc., Monroe, New York, its officers, agents, successors, and
assigns, shall pay to the employees involved in this proceeding, as net
backpay, the, amounts set forth opposite their naives, as follows :
Bedford, Kemmeth____ $31919.56 Jurgensen, H--------- $2, 135.47
Miesner, T----------- 1, 757.99 Scherf, H------------ 1, 708.03
Ellis, D_____________ 31. 94 Washburn, B________ 1, 818.20
Somerville, W-------- 72. 10 Pirger, S------------ 129. 97
Bulson, H----------- 117.92 Rose, A-------------- 1,554.84
Washburn, A-------- 1, 646.85 Hansen, S----------- 1, 815.27
Tencza, J------------ 121.16 Thompson, W-------- 1,552.51
Klinegaardner, D_____ 1, 648.94 Polke, R_____________ 1, 578.51
Geysen, P------------ 333.65 Hartwick, L--------- 568.05
Vandunk, T---------- 21360.10 Knapp, F------------ 951.07
Austin, G------------ 1, 378. 58 Kowalczik, A-------- 9. 63
Lane, L-------------- 1,150.08 Keesler, G----------- 942.28
Lane, C------------- 1,587.51 McGill, C------------ 1, 601.89
Muller, B------------ 2, 089.67 Wood, J------------- 1,328.10
Bliss, C-------------- 2, 059.01 Winter, J------------ 264.75
Rockwell, R---------- 2, 003.09 Porter, J------------ 508.29
Crotty, L------------ 562.15 Brewer, W----------- 11070.915
Kruger, L----------- 102.48 Perrone, J----------- 261. 30
O'Brien, M---------- 2, 065. 15 Calhoun, L__________ 107.66
Gordon, H----------- 235.15 Marsh, T------------ 525. 59
Rhodes, J------------ 26.91 Ochs, J-------------- 422. 14
Gorsch, M_ ----------- 120.72 McNaughton, P------ 294.78
MARCUS TRUCKING COMPANY, INC. 1381
Kraus---------------- $316.63 Steenrod, R__________ $18.88
Kelly, L------------- 11223.58 Puetz---------------- 242.75
Gallagher, W_____-__ 11.56 Hellyer______________ 16.56
Ferrari, A___________ 756.72 Zamparelli___________ 208.13
Bell, Roger__________ 567.29 Bargisen, C------ ---- 133.28
Olsen, C_____________ 661.44 Perrone, R___________ 77.51
Cure, H------------- 861.33 Kelly, D------------- 18.79
Bargisen, L__________ 894.02 Cunningham_________ 24. 10
Finch---------------- 485.82 Cowton-------------- 424.78
Root----------------- 217.51 Do Freece____________ 7.86
Hall----- ----------- 428.74 Fisher_______________ 1.20
Yantz_______________ 200.43 Conklin, D___________ 585.70
Kraus_______________ 316.63 Paine__-_-_-_-_____-_ 108.78
Santora, F___________ 143.35 Wallace__-_-____-____ 63.01
Grady, A ------------ 172.08 Nelson___-______-____ 77.62
Padgett, D----------- 7.44
SUPPLEMENTAL INTERMEDIATE REPORT ON BACKPAY
On March 11, 1960, the Board issued its Decision and Order reported in 126 NLRB
1080, directing, inter alia, that the Respondent: (1) make the employees in the ap-
propriate unit whole for any loss of earnings by reason of the elimination of overtime
pay, the elimination of which the Board found to have been occasioned by the Re-
spondent's unfair labor practices; (2) reimburse to its employees in the appropriate
unit dues, fees, and assessments which they had paid to Local 602 as a condition of
employment during the period commencing May 30, 1958; and (3) restore to em-
ployee Kenneth Bedford that position on the seniority roster to which he is right-
fully entitled, and make him whole for any loss of pay suffered as a result of his
reduction in seniority status.
Upon petition for enforcement of the foregoing Board Order, the United States
Circuit Court of Appeals for the Second Circuit on January 26, 1961, entered its
opinion affirming the Board's findings on the merits and enforcing that part of its
order (1) with respect to the loss of earnings due to the elimination of overtime pay
and (2) with respect to any backpay owing to Kenneth Bedford; but modifying the
Board's Order with respect to reimbursement of dues, fees, and assessments to the
extent that such reimbursement be limited "to those employees who continued to pay
dues to Local 770 and for the period of such payment, not, however, later than the
date when our order becomes final."
On July 31, 1961, the Regional Director for the National Labor Relations Board
for the Second Region (New York, New York), pursuant to the Board's Rules and
Regulations , Series 8, issued a backpay specification and notice of hearing. On
September 26, 1961, the Respondent filed an answer to the said specification, follow-
ing which the General Counsel filed an undated motion to strike the answer and for
judgment on the pleadings. By order dated October 19, 1961, Trial Examiner Lloyd
R. Fraker granted said motion to the extent of striking certain affirmative defenses
alleged in Respondent's answer, but denied the motion insofar as it requested a judg-
ment in the pleadings. Subsequently the Respondent filed an undated amended
answer with the Regional Director which the General Counsel introduced as a part
of the formal papers in this proceeding. A further amendment to its answer was
filed by the Respondent during the hearing on November 21, 1961.
Respondent's answer, as amended, denies and admits various allegations in the
backpay specification and additionally alleges certain affirmative defenses, the details
with respect to all of which need not be set forth here since the issues raised by the
Respondent will be considered hereinafter.
Pursuant to notice, a hearing was held on November 20 and 21, 1961, in New York,
New York, and on November 28, 1961, in Monroe, New York, before Trial Examiner
John P . von Rohr. All parties were present and represented by counsel and were
afforded full opportunity to adduce evidence, to examine and cross-examine witnesses,
to present oral argument, and to file briefs. The General Counsel presented oral
argument at the hearing. A brief submitted by the Respondent subsequent to the
close of the hearing has received careful consideration.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS
A. Reimbursement of dues
The court's decree provides that Respondent shall "reimburse to those driver em-
ployees who continued to pay dues to Local 770, the dues, fees and assessments
which these employees paid to Local 602 as a condition of employment during the
period commencing May 30, 1958."
The backpay specification set forth the names of Respondent's driver-employees
who paid dues to both Local 770 and Local 602 during the period commencing
May 30, 1958, and the monthly amounts paid by said drivers to Local 602.1
Although the Respondent's amended answer contains a general denial of the allega-
tions in the backpay specification pertaining to dues reimbursement, counsel for the
Respondent stipulated at the hearing that the figures and amounts due on the specifica-
tion in respect to dues reimbursement were correct.
Respondent's contention that it should not be required to comply with the order
of dues reimbursement in view of the Supreme Court's refusal to enforce the Brown-
Olds remedy in Local 60, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO et al. (Mechanical Handling Systems) v. N.L.R.B.2 is without merit.
Suffice it to say that the latter case involved a hiring hall situation where the Court
found an absence of evidence to show that any employees were coerced in the pay-
ment of their union membership fees or dues. That situation is manifestly inapposite
from the case at bar, for here the violation found by the Board was predicated upon
Respondent's unlawful assistance to Local 602. The Board has traditionally ordered
a reimbursement of dues in cases involving employer domination of or assistance to
unions .3 Accordingly, it is found that the employees are entitled to dues reimburse-
ments in the amounts set forth opposite their names in the section of this report
entitled "Conclusions and Recommendations."
B. Overtime pay
The decree provides that the Respondent shall make its driver-employees whole
for any loss of earnings they may have suffered from May 30, 1958, up to and
including July 31, 1960, by reason of the elimination of the system of overtime pay
existing prior to May 30, 1958. The problem involved in this aspect of the remedy
may be posed by the following statement in the Board's decision:
The record indicates, and the Trial Examiner found, that in August 1957,
Respondent instituted the payment to its tank-drivers of time and one-half for
overtime in excess of 10 hours per day and that the payment of such premium
pay for overtime was discontinued by Respondent on May 30, 1958, pursuant
to its contract with Local 602. Since we have found that the Respondent
violated the Act by entering into this contract with Local 602, we deem it
necessary . . . to reimburse the drivers for the loss they suffered as a result
of Respondent having unlawfully modified their working conditions.
The formula used by the General Counsel in computing the overtime pay due
the drivers is substantially set forth in the backpay specification. Further elabora-
tion thereof was given by Sidney Levy, the acting compliance officer of the Second
Region, who was called as a witness by the General Counsel?
We now set forth the formula and its application as thus utilized by the com-
pliance officer. It is to be noted that for purposes of illustration, the columns to
which references are hereinafter made are shown in Appendix A, attached hereto,
which is a schedule showing the overtime backpay computations for driver-employee
T. Miesner.
The Respondent's records do not disclose the number of hours worked by each
employee for each day during the backpay period, but its weekly payroll records
do show for this period the wages earned by each employee for each day and the
total wages earned by each employee for each week. Accordingly, the compliance
officer made a determination of the number of hours worked daily by each em-
These figures included dues payments only, it appearing that no other fees or assess-
ments were paid by the drivers during the period in question.
2365 U.S. 651.
8 See Virg nia Electric and Power Company v. N L R B., 319 U S 533; Checker Taxi
Company, 131 NLRB 611; Reliance Fuel Oil Corp., 129 NLRB 1166
' Mr. Levy was in charge of and participated in the investigation of the matters covered
in the backpay specification herein The bark-ay specification was drafted under his.
supervision.
MARCUS TRUCKING COMPANY, INC. 1383,
ployee during the backpay period by dividing the daily wage of each employee by his
then prevailing hourly rate of pay. Having thus established the number of daily
hours worked , he then calculated the total number of hours worked in excess of
10 per day by subtracting 10 from the total hours for the day . The hours in excess
of 10 per day for all days in the backpay period of each discriminatee were totaled
for each calendar quarter and entered in column B of Appendix A.5 This latter
figure, then, on a quarterly basis represents the number of overtime hours worked
by the employees for which they are to be made whole under the court's decree.
The computation of the overtime earnings thus due was carried out by the simple
procedure of multiplying the overtime hours by one-half of the applicable hourly
straight time wage rate.6 These were entered under column C of Appendix A.
Finally, an examination of the Respondent 's payroll records indicated that during
the backpay period the employees were paid overtime for hours worked in excess
of 60 per week. Accordingly, the compliance officer credited the Respondent for
such overtime payments and entered these amounts under column D of Appendix A.
In other instances where Respondent 's payroll records explicitly identified a pay-
ment as a payment for overtime worked, such payments were also credited to the
Respondent and entered under column D. The net overtime wages due the driver-
employees were then determined by deducting the credits entered under column D-
from the overtime due entered under column C. They are entered under column E.
The Respondent does not dispute the accuracy of the compliance officer's calcu-
lations nor does it dispute the authenticity of the information which he thus obtained
from its payroll records. However, the Respondent raises several defenses which,
if meritorious, would substantially reduce the extent of its liability from that claimed
by the General Counsel.
First, the Respondent asserts that its liability is limited only to those employees
who were employed by it on May 30, 1958. In support of this contention, Re-
spondent argues in its brief,
There can not possibly be any claim that we discriminated against those persons
who came into our employ thereafter. These latter persons took employment
on the basis that they would be paid time and a half after 60 hours per week
and not on the basis of time and a half after 10 hours per day. When the
charge was filed these persons were not in the employ and charges were not
filed on their behalf or for their benefit. . The court dealt with those drivers
who on May 30 were in our employ and not with those who came to work
thereafter.
I am constrained to find that there is no merit to the foregoing contention. As.
indicated heretofore , the court 's decree requires the Respondent to "make its driver-
employees whole for any loss of earnings they may have suffered from May 30, 1958,
up to and including July 31 , 1960, by reason of the elimination of the system of
overtime pay existing prior to May 30, 1958." Clearly, the court's decree encom-
passes all employees who were employed by the Respondent during this period.
Neither the Board nor the court distinguished between employees who were hired
before or after May 30, 1958. There can be no doubt as to the basis for this
finding, for it is clear that the violation in question was a continuing one which ran
through the period from May 30, 1958, to July 31, 1960, inclusive. All employees
who were employed by the Respondent during this period were thereby subjected to,
an unlawful modification of working conditions. This, in substance, was the finding
of the Board and the court . In reality Respondent 's argument here is one which
goes to the merits of the case. As such it cannot be relitigated in the instant backpay
proceeding.
As a further defense, the Respondent sought to prove that the majority of its
drivers did not desire reimbursement for any loss of overtime backpay. 7 It is the
Respondent 's position that any order requiring payment of backpay against the
wishes of the employees would be of a punitive nature. The principle involved'
for the Trial Examiner's rejection of this defense has been well summarized by the
6 Column A of Appendix A shows the hourly rates for the periods specified thereon
Due to the various changes in hourly rates during the backpay period, it was in some
instances necessary to break down quarterly periods into appropriate fractions thereof.
0 The compliance officer's testimony is undisputed, and I find, that the Respondent paid
straight time for these hours worked by its employees Accordingly, its liability was
limited to half time ( or premium time ) for the overtime hours in excess of 10 per day.
7 Evidence to this effect was rejected by the Trial Examiner at the hearing as irrelevant
and immaterial to the issues in this proceeding . For the purpose of setting forth the Re-
spondent 's position , however , it is noted that Respondent 's amended answer attached &
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following statement of the Trial Examiner, which the Board adopted, in the recent
case of W. C. Nabors, d/b/a W. C. Nabors Company, 134 NLRB 1078:
The question presented, therefore, is whether the withdrawal at the hearing
of a backpay claim by the claimant, where such withdrawal is not shown to have
been coercively or fraudulently obtained, is effective. If the Board were con-
cerned only with the adjudication of private rights, such a withdrawal should
certainly be given effect. The Board, however, acts in a public capacity to
prevent the commission of unfair labor practices and to vindicate the declared
policies of the Act. "The Board, is not, as Respondents suggest, merely the
statutory representative of the employees for the recovery of their losses.
[Footnote omitted.] Its primary function under § 10, in connection with which
it makes specific monetary orders for specific employees, is to prevent the conduct
defined as unfair labor practices in § 8." N.L.R.B. v. Deena Artware, Inc., 361
U.S. 398, 411-412 (concurring opinion). Pursuant to this well-settled principle,
the Board has on numerous occasions held that "the desires of individuals
cannot be allowed to block the public purpose behind the Board's requirement
that they be made whole." I. B. Wood, an individual, d/b/a Wood Manufactur-
ing Company, et al., 95 NLRB 633, 642. See also N.L.R.B. v. E. A. Labora-
tories, Inc., 188 F. 2d 885 (C.A. 2), cert. denied 342 U.S. 871; Newspaper &
Mail Deliverers' Union of New York, 93 NLRB 237, 266. And as to closely
related matters, see Arista Service, Inc., 127 NLRB 499; Clayton-Willard Sales,
126 NLRB 1325. Application of the same principle here requires a like result.
The motion to strike the claim for Hatcher because of the latter's assertion at the
hearing that he desired to withdraw his claim is denied.
Finally, it is the Respondent's position that in fact no losses accrued to the driver-
employees by reason of the elimination of the overtime pay which is here under con-
sideration. In an effort to demonstrate the merit of this position, Respondent
attached to its brief a schedule which is entitled "Comparison of Earnings of Repre-
sentative Drivers between period prior to May 30, 1958 and Back Pay Period."
This schedule lists the total wages received by 21 of its drivers for the first and
second quarters of the years 1958, 1959, and 1960. With reference to this schedule,
Respondent states in its brief: "Our study shows that the drivers earned substantially
the same amounts of money during the quarters covered by this proceeding as they
had prior thereto." This statement is true insofar as it reflects what the schedule
purports to show. However, the schedule itself fails to take into account certain
vital factors which are involved in the employees' earnings, the omission of which
negates entirely the purpose for which it was offered. First, it is noted that the
driver-employees received an hourly wage rate increase in the latter part of 1958 and
another in 1959.8 Thus, although in some instances the drivers may have earned
as much during the discriminatory period as they did before, it is plain that the
wage increases given during the period of discrimination in a large measure ac-
counted for this apparent equality of earnings as shown in Respondent's schedule.
In other words, but for the loss of overtime pay for hours worked in excess of 10,
it is clear that the drivers would have earned proportionately more during the back-
pay period. A second factor which is not disclosed in Respondent's schedule is the
number of hours worked. Thus, it cannot be assumed that the employees worked
the same number of hours prior to the backpay period as they did during the backpay
period. It is apparent that since the backpay here in question must be determined
on the basis of the number of hours worked in excess of 10 hours per day, any
comparison of quarterly earnings is meaningless unless it takes into consideration
the actual number of hours worked. The Respondent's schedule setting forth certain
such comparisons is completely lacking in this respect.
It is well settled that the Board has been entrusted with broad discretion in choos-
ing an appropriate backpay formula, as warranted by the circumstances of each
copy of a petition dated August 8, 1961, purportedly signed by 45 of its driver-employees,
which stated as follows'
To Whom it May Concern'
We the undersigned employees of Marcus Trucking Company, Inc., of our own
free will will refuse any back pay that was handed down by the N L R B. and Court
decision The reason being : we the employees, struck Marcus Trucking Co, Inc, on
May 30, 1958, to do away with any overtime on the daily basis.
D During the period prior to July 31, 1958, the employees were paid at the rate of $2.47
per hour This rate was increased to $2.62 per hour on August 1, 1958, and on August 1,
1959 , the hourly rate was further increased to $2 77. (These increases are reflected in
Appendix A.)
MARCUS TRUCKING COMPANY, INC. 1385
case .9 It is necessary only that the formula utilized be reasonable and fair in
carrying out the terms of the Board's order.10 I find and conclude the formula uti-
lized by the General Counsel in determining the amount of overtime backpay due,
as heretofore described, to be fair and reasonable.
The total overtime backpay to which each of the driver-employees is entitled under
the General Counsel's formula is set forth opposite their names in the final section
of this report under the heading "Conclusions and Recommendations.""
C. Kenneth Bedford
The Board found that Respondent violated Section 8(a)(1), (2), and (3) of the
Act by reducing the seniority of employee Kenneth Bedford, a driver, because he
was not a member of Local 602. The court's decree requires that Respondent "re-
store Kenneth Bedford to that position in the seniority roster to which he is right-
fully entitled in accordance with the date of his hire, or other relevant non-
discriminatory factors, without regard to his union membership, and make him whole
for any loss of pay suffered as a result of his reduction in seniority status."
It is necessary to first set forth certain background for an understanding of the
backpay problem involved. Respondent is engaged in the hauling of milk by truck.
Bedford was one of its drivers. In the main, Respondent's milk runs were of two
categories, viz, one being the so-called "upstate run" which originated in Monroe,
New York,12 and went to points in upstate New York, the other being the "down-
state run," which originated in Monroe, New York, and went to New York City.
It is undisputed that the upstate runs were of longer duration than the downstate
runs and that the drivers assigned to the former earned higher wages than those
assigned to the latter. In this connection, the significance of the following finding
in the Board's decision is apparent:
At all material times, preference in job assignments has been accorded the Re-
spondent's drivers on the basis of seniority ranking. Thus, the drivers with
higher ranking have preference in the choice of available runs.
Bedford was ranked No. 19 on Respondent's seniority roster prior to the dis-
crimination which the Board herein found. On June 22, 1958, the date of the dis-
crimination, be was dropped from 19th place to 44th place on the seniority list.13
In the instant hearing, Bedford testified without contradiction that prior to his
discriminatory reduction in seniority he customarily had been assigned to the longer
upstate runs. After his reduction in seniority, however, he was assigned to the
shorter downstate runs.14 This takes us to the backpay problem here involved, for
it is undisputed that drivers on the downstate runs earned less than those assigned
to the upstate runs.15
As the General Counsel points out, the problem of Bedford's backpay is not one
of easy resolution. There perhaps is no perfect formula to determine exactly how
much Bedford would have earned had it not been for his discriminatory reduction
on the seniority list. The compliance officer, therefore, adopted a formula which
9 Phelps Dodge Corp. v. N L R B., 313 U.S 177, 198.
" Brown and Root, Inc, et al, 132 NLRB 486; Kartarsk, Inc, 111 NLRB 630, enfd
227 F. 2d 190, 192-193 (CA. 8) ; Ozark Hardwood Company, 119 NLRB 1130, 1158, enfd
in part and remanded 282 F. 2d 1, 7 (C.A. 8)
11 A total of 74 employees are to be made whole for loss of overtime pay The backpay
computations as to each are shown on individual schedules which were computed in the
same manner and on the same form as shown on Appendix A, attached hereto These
schedules were attached to the backpay specification which was served on all parties to
this proceeding. Inasmuch as the backpay specification was received in evidence as a
General Counsel's exhibit, these individual schedules of computations are also a matter
of record in the instant case Rather than to further burden this report, the said
schedules are incorporated herein by reference.
22 Monroe, New York, is Respondent's base of operations
13 By being dropped to 44th place, Bedford was at this time put on the bottom of the
seniority list. However, other drivers were thereafter hired Thus, although retaining
the number 44 position, he did not thereafter continue to remain at the bottom of the list
11 Respondent's contention that Bedford willfully refused upstate runs during the back-
pay period is considered hereinafter
15 Mileage in itself is not a factor in the instant case, for the drivers were paid solely
on an hourly basis It is undisputed that drivers on the downstate run (to New York
City) were paid for 8 hours work, although normally these runs were of somewhat less
than 8 hours' duration. The upstate runs, according to Bedford 's unrefuted testimony,
were from 8 to 14 hours ' duration.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the circumstances appears to be both reasonable and objective. Before setting
forth the formula, the question might be asked as to why the General Counsel did
not adopt the simple procedure of computing the earnings of Bedford's successor
to his 19th standing on the seniority list and use this as a basis for determining the
amount due Bedford for the backpay period. The answer, according to the un-
challenged testimony of the compliance officer, is that the investigation revealed the
{earnings of Bedford's successor during the backpay period to be almost 50 percent
below the earnings which Bedford made when he held that position. The reason for
such disparity in earnings, according to the compliance officer, was accounted for
'by the driver's own personal preference for certain types of runs. It was therefore
apparent that while Bedford took advantage of his seniority to select the longer up-
state runs, his successor to position 19 chose the shorter downstate runs.
The formula employed by the compliance officer to determine Bedford's backpay,
which formula I find to be reasonable and appropriate, may be basically stated as
follows: First, determine the ratio of Bedford's earnings for a representative pre-
backpay period with those of representative fellow employees during the same
period. Secondly, having established such ratio, project the resultant relationship
into the backpay period. For the prebackpay period the compliance officer used the
four quarterly periods just prior to the time of Bedford's reduction in seniority. As
to the representative employees, the compliance officer took the five employees who
preceded Bedford on the seniority list prior to his reduction in seniority, i.e., the
employees who then held positions 14 through 18 on the seniority list. In explaining
his reasons for selecting as representative employees those who preceded Bedford
in seniority, rather than those who followed him, the compliance officer testified:
Well, the reason for selecting the people who preceded Bedford is this. The
Trial Examiner's report in the unfair labor practice indicated that seniority was
a factor in the selection of runs and therefore in the amounts of wages earned
by the employees and our investigation ... led us to the same conclusion.
It follows from that that all of the people ahead of Bedford, higher than
Bedford on the seniority roster had a prior opportunity by virtue of their
seniority position to express their preference for various runs available and that
he could express a preference as number 19 only after the first 18 had been
satisfied. The demotion of Bedford . . . from position number 19 to position
number 45 or in any lesser position would in no way affect the privileges and
opportunities of the first 18 men on the seniority roster.
However, the removal of Bedford from position number 19 would throw
open to bidding on requests by any or all of the employees who had lesser
seniority than he.
But I would like to point out that no claim . . . is being made that Bedford
would have enjoyed the earnings of people who are senior to him on the seniority
roster. We're not claiming in this backpay specification that he is entitled to
what number 16 or 17 made or that he is entitled to the average that these people
ahead of him would have made. All that we . . . because you must follow
through what we did, selecting these people and determining their average earn-
ings in the pre-discrimination period was only the first step in the process.'°
The various steps involved in the application of the formula employed in computing
Bedford's backpay, including the deduction of Bedford's interim earnings, are self-
,explanatory and are set forth in the backpay specification as follows: 17
1. (a) Bedford was ranked No 19 on Respondent's seniority roster prior to
Respondent's discrimination against him.
(b) Bedford's position in the seniority roster was reduced on June 22, 1958.
(c) Bedford's employment was terminated on or about May 46, 1959.
(d) Bedford's backpay period is from June 22, 1958, to May 16, 1959, inclusive.18
2. (a) An appropriate measure of the gross backpay which Bedford would have
earned, absent Respondent's discrimination, may be determined in the following
manner:
(1) Establish the ratio between Bedford's earnings during the quarterly periods in
the year immediately preceding the discrimination (the third quarter of 1957 through
'a Emphasis supplied.
17 The schedules showing the computations, as referred to in the specification and as
reproduced above, are attached as Appendixes B-1, B-2, B-3, and C to this report.
18 In view of the fact that between June 22 and 28, 1958, Bedford worked only 1 day
and earned only $18.96, the termination of the representative period and the beginning
of the backpay period have been made to coincide with the first workweek of the third
calendar quarter.
MARCUS TRUCKING COMPANY, INC. 1387
the second quarter of 1958 , inclusive), herein called the representative period, and
the average quarterly earnings during the representative period of those driver-
employees of Respondent immediately preceding Bedford on the seniority roster
who performed similar work under the same terms and conditions of employment
as Bedford, herein called the representative employees.
(2) Determine the average earnings of the representative employees during the
backpay period.
(3) Multiply the average earnings of the representative employees during each
calendar quarter or fraction thereof of the backpay period by the ratio (computed
in subparagraph (1) above) for the corresponding calendar quarter of the representa-
tive period.
(b) From July 1, 1957, through May 16, ,1959, the following were employed
-as drivers by Respondent, and are the representative employees referred to above
in paragraph numbered 2(a) above.
Seniority No.:
14------------------------------------------------- Rockwell, R.
15------------------------------------------------- Crotty, L.
16------------------------------------------------- Kruger, L.
17------------------------------------------------- O'Brien, M.
18------------------------------------------------- Gordon, H.
(c) Appendix B, lines (b) through (f), sets forth the earnings, inclusive of over-
time, by quarter of the representative employees during the representative period.
(d) Appendix B, line (g), sets forth the aggregate quarterly earnings of the rep-
resentative employees.
(e) Appendix B, line (h), sets forth the average quarterly wages for the rep-
resentative employees during the representative period derived by dividing their
aggregate quarterly earnings by 5.
(f) Appendix B, line ( i), sets forth Bedford 's quarterly earnings during the rep-
resentative period, inclusive of overtime.
(g) Appendix B, line (j), sets forth the ratio of Bedford's earnings by quarters
during the representative period to the average wages of representative employees,
during the representative period, derived by dividing Bedford's quarterly earnings
by the average quarterly earnings of the representative employees.
(h) Appendix B, lines (1) through (p), sets forth the earnings by quarter of the
representative employees during the backpay period.
(i) Appendix B, line (q), sets forth the aggregate quarterly earnings of the rep-
resentative employees during the backpay period.
(j) Appendix B, line (r), sets forth the average quarterly wages for the representa-
tive employees during the backpay period.
(k) Appendix B, line (s), sets forth the average overtime compensation due to
the representative employees in accordance with the computation appearing on
Appendix B-2.
(1) Appendix B, line (u), sets forth the gross backpay due to Bedford, on a
quarterly basis, derived by multiplying the average total compensation, on a quarterly
basis, of representative employees in the backpay period, line (t), by the ratio which
appears in line (j) for the corresponding quarter of the representative period.
3. (a) Interim earnings consist of (1) the wages actually paid to Bedford during
the backpay period when he was employed by the Respondent as a driver in a lower,
discriminatory seniority ranking, plus (2) the amount of overtime compensation
found to be due to Bedford based on actual hours of work during the period of his
discriminatory employment by Respondent, as computed in Appendix C.
(b) Net backpay is the difference between gross backpay and interim earnings,
computed on a quarterly basis.
4. Appendix B-3 sets forth on a quarterly basis Bedford's gross backpay, interim
earnings, and net backpay.
The Respondent has not controverted the foregoing computations, which are hereby
adopted by the Trial Examiner, nor has it offered any alternative formula as a means
of computing Bedford's backpay, although specifically required to do so by Section
102.54 of the Board's Rules and Regulations, Series 8.
Respondent asserts that it is liable for Bedford's backpay only for a 2-week period
following Bedford's return from a vacation on June 21, 1958,19 during which period
it concedes not having given him any work assignment. Respondent's disavowal for
any further liability seems predicated upon its apparent contention that any fur-
ther loss of backpay by Bedford during the baekpay period was willfully incurred.
Thus, Respondent states in its brief as follows:
"'See the Board 's decision herein, 120 NLRB 1080, 1104.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now, after Bedford was reduced in seniority, then he told the dispatcher, Bollen-
back, that he wanted city runs and that he was accommodated. The dispatcher
testified that Bedford specifically requested that he be given city runs and made
a notation thereof on the payroll sheet and that by reason of Bedford's request,
that is the type and kind of run which was given to him. There is no evidence
that he was ever refused upstate runs; in fact, Bedford says he never thereafter
requested upstate runs In the circumstances, how can it possibly be claimed
that he was deprived of the opportunity for greater earnings. It is true that
those who run upstate earned more money, but Bedford at his own request asked
for work which could not have possibly given him greater earnings.
At this point some further background is necessary. Thus, the Intermediate
Report, as adopted by the Board in this case, shows that the first act indicative of
discrimination against Bedford occurred on May 30, 1958. The following is quoted
therefrom:
Prior to May 30, 1958, seniority ranking among the Respondent's drivers
was based upon date to hire, and a seniority list was posted periodically.
Kenneth Bedford was . . . a member of Local 770 . . . and stood 19th on the
seniority list on May 30, 1958. He was off duty that day but, as was his custom,
telephoned to Marcus at about noon to receive his assignment for the next day.
Marcus assigned him to a run he did not want. Bedford protested that, as
steward for the Respondent's drivers, he was "entitled to the longest run in the
barn." However, he was not assigned the longest run.
Bedford was on vacation from June 15 to June 21. . On June 22, 1958,
Bedford was dropped from 19th place on the seniority list to 44th.
Bedford testified that between May 30 and June 15, 1958, he was assigned to
"short" upstate runs. In contrast to the longer upstate runs which had been
customarily assigned to him prior to May 30, 1958, these "short" upstate runs were
of only 8 or 9 hours' duration. Bedford conceded that he had a conversation with
William Bollenback, the dispatcher, in much the same manner as indicated in the
heretofore quoted portion of Respondent's brief. His testimony concerning this
conversation, which apparently occurred just after June 15, 1958, is best set forth
in his own words, as follows:
Q. You stated that during this period you had a conversation with the dis-
patcher in which you wanted to complain to him. Is that correct?
A. That's correct.
Q. What did you say and what did he say?
A. I went in. I was kind of mad. I said to him, "If I can't get any longer
upstate runs than I'm getting (because I only was getting eight or nine hour
runs ) I might as well run the city because I can't make any more money.
Q. What did he say?
A. "You'll take what I give you."
Q. You said you wouldn't lose any money by taking city runs rather than
taking short upstate runs. What is that?
A. Because you work less hours and get paid for eight.
Q. On the city runs?
A. Yes.
Bollenback, called by the Respondent, testified that he did not recall whether at
the time of this conversation he had assigned Bedford to a regular upstate run or a
"short" upstate run. I credit Bedford's uncontradicted testimony that at the time
of this conversation, and for the several weeks prior thereto, he had been assigned to
the short upstate runs. Indeed, in this connection it is interesting to note that
Bollenback testified, "After he had been put down on the seniority list, it was a
question that his seniority only entitled him in most cases for runs from Monroe to
New York."
In view of the foregoing, I find that Bedford's conduct in expressing a preference
for the New York City run (made several weeks subsequent to the beginning of the
backpay period) does not establish any willful loss of earnings on his behalf.
According to the unrefuted evidence, his earnings on the New York runs were sub-
stantially the same as they would have been had he continued to accept the short
upstate runs. The Respondent has offered no evidence to the contrary.
Accordingly, I conclude that Respondent is obligated to pay Bedford $3,873.57,
the amount shown on the backpay specification , to make him whole for loss of
earnings.
MARCUS TRUCKING COMPANY, INC. 1389
Conclusions and Recommendations
Upon the foregoing findings , the Trial Examiner finds and concludes that the
employees listed hereunder are entitled to payment by the Respondent of the sums
listed opposite their names.
1. Reimbursement of dues
1958 1959
Total
June July Aug . Sept. Oct . Nov. Dec . Jan. Feb
L. Crotty ---------- $4 $4 $4 $4 $4 $4 $4 -------- -------- $28
P. Geysen------ ---- 4 4 4 4 4 4 4 -------- -------- 28
H Gordon- -------- 4 4
4 -------- -------- -------- -------- -------- -------- 12
L. Kruger---------- 4 4 4 -------- -------- -------- -------- -------- --------
12
J. Ochs ----- -------- 4 4 4 4 4 4 4 $4 $4 36
R. Steenrod-------- 4 -------- -------- -------- -------- -------- -------- ------- -------- 4
Total--------- -------- -------- -------- -------- -------- -------- ------- -------- --------
120
2. Reimbursement of overtime backpay 20
Miesner, T______________ $1, 757.99 Brewer, W______________ $1,070.95
Ellis, D_________________ 31.94 Perrone, J______________ 261.30
Somerville, W___________ 72. 10 Calhoun, L_____________ 107.66
Bulson, H_______________ 117.92 Marsh, T_______________ 525.59
Washburn, A____________ 1,646.85 Ochs, J_________________ 386.14
Tencza, J_______________ 121.16 McNaughton, P__________ 294.78
Klinegardner, D_________ 1, 648.94 Kraus________ __________ 316.63
Geysen, P_______________ 305.65 Kelly, L________________ 1,223.58
Vandunk, T_____________ 2, 360. 10 Gallagher, W____________ 11.56
Austin, G_______________ 1, 378.58 Ferrari, A______________ 756.72
Lane, L________________ 1,150.08 Bell, Roger------------- 567.29
Lane, C________________ 1,587.51 Olsen, C________________ 661.44
Muller, B_______________ 2, 089.67 Cure, H________________ 861.33
Bliss, C_________________ 2, 059.01 Bargisen, L_____________ 894.02
Rockwell, R_____________ 2,003.09 Finch ------------------- 485.82
Crotty, L_______________ 534. 15 Root___________________ 217.51
Kruger, L_______________ 90.48 Santora, F______________ 143.35
O'Brien, M______________ 2,065.15 Hall___________________ 428.74
Gordon, H______________ 223. 15 Grady, A_______________ 172.08
Rhodes, J_______________ 26.91 Yantz__________________ 200.43
Gorsch, M______________ 120.72 Padgett, D______________ 7. 44
Jurgensen, H____________ 2,135.47 Kelly, D________________ 18. 79
Scherf, H_______________ 1, 708.03 Steenrod,R-------------- 14.88
Washburn , B____________ 1,818.20 Cunningham------------- 24. 10
Pirger, S________________ 129.97 Puetz------------------ 242.75
Rose, A________________ 1, 554.84 Cowton----------- ----- 424. 78
Hansen, S_______________ 1,815.27 Hellyer_________________ 16.56
Thompson, W___________ 1, 552.51 De Freece_______________ 7.86
Polke, R________________ 1,578.51 Zamparelli______________ 208.13
Hartwick, L_____________ 568.05 Fisher__________________ 1.20
Knapp, F_______________ 951.07 Bargisen , C-------- _____ 133.28
Kowalczik, A____________ 9.63 Conklin, D______________ 585.70
Keesler, G______________ 942.28 Perrone, R______________ 77. 51
McGill, C_______________ 1, 601.89 Paine ------------------ 108.78
Wood, J________________ 1,328.10 Wallace________________ 63. 01
Winter, J_______________ 264. 75 Nelson_________________ 77. 62
Porter, J________________ 508.29
3. Reimbursement to Bedford
Kenneth Bedford_________ $3, 873.57
It is recommended that the Board adopt the foregoing findings and conclusions.
2O The backpay specification claims that Kenneth Bedford is entitled to reimbursement
of overtime backpay in the amount of $45. 99. This claim is being disallowed , for it ap-
pears that overtime pay due Bedford was taken into consideration in the formula utilized
ror determining the gross amount of backpay due him.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
RECORD OF OVERTIME HOURS WORKED AND OVERTIME WAGES DUE UNDER LOCAL 770
CONTRACT
(Name) MIESNER, T., #1 (Seniority-6/1/58)
(a)
Periods (weeks ending)
6/7/58-6/28/58 ($2.47 per hr )-----------------------------
7/5/58-7/31/58 ($2 47 per hr)-----------------------------
8/1/58-9/27/58 ($2 62 per hour)---------------------------
10/4/58-12/27/58 ($2 62 per hour)-------------------------
1/3/59-3/28/59 ($2.62 per hour)---------------------------
4/4/59-6/27/59 ($2.62 per hour) ---------------------------
7/4/59-7/31/59 ($2.62 per hour)---------------------------
8/1/59-9/26/59 ($2 77 per hour)---------------------------
10/3/59-12/26/59 ($2 77 per hour) -------------------------
1/2/60-3/26/60 ($2.77 per hour)---------------------------
4/2/60-6/25/60 ($2.77 per hour)---------------------------
7/2/60-7/31/60 ($2 77 per hour)---------------------------
Total--------------------------------------------
(b)
OT hrs. In
excess of
10 per day
51 07
53 67
54 33
148 54
150 32
156 92
53 42
188 17
122 34
114 75
232 42
93 58
(e)
Net OT
wages due
$54 03
51 97
60 57
163 12
183 36
196.04
60 12
246 39
160 52
156 62
309 82
115 43
1,757.99-
(c)
OT wages
due 770
contract
$63 39
66 55
71 17
194 59
196 92
205 56
69 98
259 67
168 83
158 35
320 74
129 14
(d)
OT wages
paid
$9.36
14 58
10 60
31 47
13 56
9 52
9 86
13 28
8 31
1 73
10 92
13 71
APPENDIX B-1
COMPUTATION OF GROSS BACKPAY DUE TO KENNETH BEDFORD
Line
Representative employees.
R. Rockwell --------------------------------
L. Crotty----------------------------------
L. Kruger------ -----------------------------
M. O'Brien ---------------------------------
H. Gordon-------------- --------------------
Total-------------------------------------
Average-----------------------------------
K. Bedford ----------------------------------
(i)-(h), percent ---------------------------------
Representative period by quarters
1957-3
$2,061 40
1,441 32
1,323 97
1,992.56
1,433 53
8,252.78
1, 650 55
1,923 86
117
Backpay period by quarters
(q)--
(t)--
(u)--
Representative employees:
R. Rockwell--------------------------------
L. Crotty-----------------------------------
L. Kruger-----------------------------------
M. O'Brien---------------------------------
H. Gordon----------------------------------
Total-----------------------------------
Average-----------------------------------
Average overtime compensation due to
representative employees.
Total (r)=(s)----------------------------
Gross backpay due to Bedford MX(j) ----------
1958-3
$2,152 87
1, 369 94
1,446 99
2,173 10
1,316 37
8,459.27
1,691 85
76 79
1,768 64
2,069.30
1957-4
$2,126.74
1,355.83
1,176 40
2, 236.19
1,329 74
8,224 90
1,644 08
2, 262 04
138
1958-4
$1,957 11
1,467 39
1,380 48
1,943 40
1, 418 74
8,167 12
1,633 42
89 44
1,722.86
2,377.55
1958-1
$2,249 04
1,397.61
1,387 90
1,678 64
1,407 34
8,120 53
1,624 10
2,162 48
133
1959-1
$2,190 24
1,829 44
1,422 83
2, 204 22
1, 465.56
9,11229
1, 822 45
96 75
1,919 20
2, 552 53
1958-2
$1,880 70
1,503 48
1,332 05
1,692 57
1,132 39
7,541 19
1,508 23
1,702 87
112
1959-2
(to
5/16/59)
$1,054 50
944 04
755.68
797 69
1,11600
4, 687 91
937 58
56 86
994 44
1,113 77
MARCUS TRUCKING COMPANY, INC. 1391_
APPENDIX B-2
COMPUTATION OF AVERAGE OVERTIME COMPENSATION DUE TO REPRESENTATIVE
EMPLOYEES DURING KENNETH BEDFORD'S BACKPAY PERIOD
Backpay period by quarters
Representative employees
1958-3 1958-4 1959-1 1959-2
(to 5/16/59)
R. Rockwell------------------------------------------ $147.55 $223 66 $212.54 $111.12:
L. Crotty---------------------------------------------- 32 72 16 61 65.01 31 89
L. Kruger---------------------------------------------- 23 49 ------------ ------------ 8 84
M. O'Brien-------------------------------------------- 161 74 198 18 200 90 118 42,
H. Gordon--------------------------------------------- 18.43 8.74 2 29 14 03.
Total------------------------------------------- 383 93 447.19 483 74 284 30)
Average----------------------------------------- 76 79 89.44 96 75 56 86.
APPENDIX B-3
COMPUTATION OF NET BACKPAY DUE TO KENNETH BEDFORD
1958-3 1958-4 1959-1 1959-2
(to 5/16/59),
(a) -1 Gross backpay--------------------------------- $2, 069 30 $2,377 55 $2, 552.53 $1,113 7T
(b) -1 Actual earnings --------------------------------- 1,123 26 1,413 33 1, 275.22 689 87
-2 Overtime wages_________________________________ 0.00 26 42 0.00 10 48
-3 Interim earnings ___-______ _______________ 1,123 26 1,439.75 1, 275.22 700 35
(c) Net backpay------------------------------ 946 04 937 80 1, 277.31 413.42,
Total------------------------------------- $3,542.57
APPENDIX C
RECORD OF OVERTIME HOURS WORKED AND OVERTIME WAGES DUE UNDER LOCAL.
770 CONTRACT
(Name) BEDFORD, K ., #45 (Seniority-6/1/58)
(a) (b) (c) (d) (e)
Periods OT hrs. In OT wages OT wages Net OT
(weeks ending) excess of
10 per day
due 770
contract
paid wages due
0/7/58-6/28/58 ($2 47 per hr.)_____________________________ 7 33 $9.09 $9 09.
7/5/58-7/31/58 ($2 47 per hr.)_____________________________
8/1/58-9/27/58 ($2 62 per hour)___________________________ ------------ ------------
10/4/58-12/27/58 ($2.62 per hour)_________________________ 20 17 26.42 ------------ 26 42'
1/3/59-3/28/59 ($2 62 per hour)___________________________ --------- - ------------ ------------
4/4/59-6/27/59 ($2 62 per hour)___________________________ 8.00
--
------------ 10 48
7/4/59-7/31/59 ($2 62 per hour)___________________________ ------------ ------------ ------------ ------------
8/1/59-9/26/59 ($2.77 per hour)___________________________ ------------ ------------ ------------
10/3/59-12/26/59 ($2 77 per hour)_________________________ ------------
1/2/60-3/26/60 ($2 77 per hour)___________________________ ------------ ------------ ------------
4/2/60-6/25/60 ($2 77 per hour)___________________________ ------------ ------------ -----------
7/2/60-7/31/60 ($2 77 per hour)___________________________ ------------ ------------ ------------ -------------
Total------------------------------------------ 1------------1------------1------------1 45 99,