Master Slack

National Labor Relations Board - Board Decisions

Mar 8, 1984

269 N.L.R.B. 106 (N.L.R.B. 1984)

DECIITON OnF NATTMt"AT T ARID, DI)1 A1ITT"L ln'*AD
106 -.
Master Slack and/or Master Trouser Corp. and
Hardeman Garment Corp., and Morehouse Gar-
ment Corp., and Lauderdale Garment Corp., and
Lobelville Garment Corp. and Amalgamated
Clothing Workers of America, AFL-CIO. Cases
26-CA-4924, 26-CA-4977, 26-CA-5013, 26-
CA-5057, 26-CA-5313, 26-CA-5632, and 26-
CA-5953
8 March 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 4 March 1982 Administrative Law Judge
Phillip P. McLeod issued the attached Supplemen-
tal Decision. Thereafter, the General Counsel and
the Respondent, respectively, filed exceptions and
supporting briefs. Respondent also filed an answer-
ing brief to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order,
as modified below.
The Respondent has excepted, inter alia, to the
judge's finding that the Respondent failed to meet
its burden of proof by establishing that Leroy Lake
was in high school and not seeking employment
during portions of his backpay period. The record
shows that before his discharge Lake worked for
the Respondent on the night shift while attending
school during the day. Lake admitted that he did
not seek other night-time employment after being
discharged by the Respondent.' The judge found
that the Respondent offered no evidence that Lake
was going to school on a year-round basis, that it
was common knowledge that public schools do not
operate year-round, and that there was no basis for
knowing or assuming the calendar quarters the
school year covered absent specific proof from the
Respondent. Hence, the judge found that the Re-
spondent failed to meet its burden of proof and he
awarded backpay in accordance with the computa-
tion of the General Counsel.
The judge's imposition on the Respondent of the
burden to establish the calender quarters that Lake
was in school was unwarranted. Lake's status as a
student is of no consequence to the determination
of reasonable job search for backpay purposes in
I In October 1973, the Respondent offered Lake a job on the day shift
which Lake declined because he was attending high school,
the circumstances here. The gravamen here is that
Lake, who was discharged from a night job, did
not seek other night-time employment after his dis-
charge. Indeed, it is clear from Lake's own testi-
mony that he failed to make a reasonable job
search during the period from his discharge
through the second quarter of 1976 when he grad-
uated from high school. 2 Accordingly, we will
modify the judge's recommended Order by reduc-
ing Lake's backpay from $17,056 to $9,014 plus in-
terest. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that Master
Slack and/or Master Trousers Corp., and Harde-
man Garment Corp., and Morehouse Garment
Corp., and Lauderdale Garment Corp., and Lobel-
ville Garment Corp., Memphis, Tennessee, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order as
modified.
Substitute for the list of specific backpay awards
in the judge's recommended Order the following.
Grace Beard
Mose Burkley
Earlie Cheairs
Ray Davis
Peggy Peoples Harris
Alma Jones
Freddie Jones
Mattie Jones
Earline Lake
Leo Sain
Leroy Lake
Nathaniel McClellan
Gladys McGowan
Annie McKinnie
Doris McNeal
Percy McNeal
Ronald Moss
Wiley Murphy
Vera Norment
Juanita Phillips
Lurlene Pirtle
$ 262
3,512
4,455
3,022
720
13,557
2,455
1,263
14,098
557
9,014
37,871
28,404
993
14,606
28,660
23,056
38,561
2,132
6,871
37,055
I The record shows that Lake obtained employment and had certain
earnings in the third quarter (July, August, and September) of 1975 and
1976. The record also shows that Lake asked a friend about the possibili-
ty of a job without either approaching the employer or submitting an ap-
plication. The judge found this was not an adequate job search. Other-
wise, Lake's testimony reveals no job search during the period in dispute.
3 The General Counsel has excepted to the judge's failure to include in
the recommended backpay order an award of S993, plus interest, for dis-
criminatee Annie McKinnie, as set forth in the backpay specification. The
Respondent did not dispute the figure. Accordingly, we will modify the
judge's recommended Order to provide backpay for Annie McKinnie.
269 NLRB No. 18
r-1ui LJllI- J D.W11J.Jr
MASTER SLACK
Allan Lynn Russell
Johnny Russell
Willie Spencer
Ressie Ford Traylor
Earnest Williams
Patricia Williams
Margie Wilson
32,492
2,941
6,909
23,434
552
7,876
29,950
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. On
July 22, 1977, the National Labor Relations Board issued
a Decision and Order' finding that the Respondent un-
lawfully discharged 20 employees2 in violation of Sec-
tion 8(a)(3) and 8 other employees 3 in violation of Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act,
as amended. To remedy the unfair labor practices, the
Board, inter alia, directed the Respondent to make whole
certain individuals4 for any loss of pay or any other ben-
efits they may have suffered by reason of the discrimina-
tion against them. With regard to all other individuals,
the Board ordered the Respondent to offer them "imme-
diate and full reinstatement to their former positions or,
if such positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges" as well as to make them
whole for any loss of pay or other benefits. The parties
being unable to agree on the amount of backpay due
under the terms of the Board's Decision and Order, the
Regional Director for Region 26 issued a backpay speci-
fication dated January 7, 1981, which was amended on
May 26, 1981. The Respondent filed an answer, adden-
dum to answer, and amended answer, and, following the
Regional Director's amendment to its backpay specifica-
tion, a second amended answer.
A trial was held before me in Memphis, Tennessee, on
June 22 and in Bolivar, Tennessee, on June 23 and 24,
1981. All parties were afforded full opportunity to call,
examine, and cross-examine witnesses; to introduce evi-
dence; to argue orally; and to submit post-trial briefs.
Briefs filed by counsel for the General Counsel and the
Respondent have been received and carefully considered.
On consideration of the entire record herein and on
my observation of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I. THE FORMER PROCEEDINGS
This case had its beginnings 9 years ago in 1973. On
June 20 of that year, Amalgamated Clothing Workers of
' 230 NLRB 1054 (1977).
2 Willie Spencer, Earlie Cheairs, Leo Sain, Earnest Williams, Ressie
Ford Traylor, Leroy Lake, Peggy Peoples, Mose Burkley, Lurlene
Pirtle, Mattie Jones, Doris McNeal, Nathaniel McClellan, Alma Jones,
Freddie Jones, William Ray Davis, Vera Norment, Grace Beard, Gladys
McGowan, Wiley Murphy, and Annie McKinnie.
3 Donald C. Moss, Patricia Ann Williams, Percy L. McNeal, Margie
A. Wilson, Johnny Russell, Allen L. Russell, Earline Lake, and Juanita
Phillips.
4Sain, Earnest Williams, Peoples, Burkley, Mattie Jones, Norment,
Beard, and McKinnie.
America, AFL-CIO, herein called the Union, won an
election among the Respondent's production and mainte-
nance employees. The Respondent filed objections to the
election, which were found to be without merit, and the
Union was certified by the Board on January 4, 1974.
Between November 12, 1973, and June 13, 1975, the
Union filed numerous unfair labor practice charges alleg-
ing that the Respondent violated Section 8(a)(1), (3), and
(5) of the Act. Complaints issued in seven consolidated
cases, and a trial was held on various dates in February
and March 1976 before Administrative Law Judge
Thomas A. Ricci. On June 8, 1976, Judge Ricci issued
his decision in which he found that the Respondent had
engaged in certain violations of Sections 8(a)(l), (3), and
(5) of the Act. Ricci found inter alia that on July 17,
1973, 3 days before the scheduled election, the Respond-
ent discontinued the night shift in its pressing department
and permanently abolished 20 jobs in violation of Section
8(a)(3) of the Act. During the trial before Judge Ricci,
both the Respondent and counsel for the General Coun-
sel introduced substantial evidence of how the Respond-
ent had treated those 20 individuals after July 17 to the
time of the trial. As a result, Judge Ricci made specific
findings with regard to each of these 20 individuals dis-
criminated against as to when the backpay period began
and ended, as well as when it was temporarily suspended
for certain periods although not permanently tolled.
Judge Ricci also found that the Respondent had not en-
gaged in alleged violations of Section 8(a)(5) of the Act
by making unilateral changes in the terms and conditions
of employment of its employees without notice to or
prior consultation with the Union.
Both the Respondent and counsel for the General
Counsel filed exceptions with the Board to Judge Ricci's
decision. On July 22, 1977, the Board issued its Decision
and Order, which adopted Judge Ricci's decision with
certain important modifications. The Board adopted
Judge Ricci's decision with regard to the 20 individuals
discriminated against by the Respondent discontinuing its
night shift in the pressing department. The Board found
merit in certain of the exceptions filed by counsel for the
General Counsel regarding the alleged unilateral
changes. It found that seven changes made by the Re-
spondent unilaterally without notifying the Union or
giving it an opportunity so bargain constituted violations
of Section 8(a)(1) and (5) of the Act. Because they have
a specific and important bearing on the outcome of this
stage of the proceedings as is more fully discussed
below, I note particularly that the Board found the Re-
spondent had violated Section 8(a)(l) and (5) of the Act
on August 20, 1974, by laying off approximately 200 em-
ployees; in October 1974 by laying off the remaining
production employees and shutting down operations; and
in November 1975 by recalling approximately 80 laid-off
employees on the basis of seniority and previous efficien-
cy without first negotiating with the Union concerning
the method and manner in which such actions would
occur. The Board also found that the Respondent had
violated Section 8(a)(1) and (5) of the Act by more strin-
gently enforcing tardiness and absenteeism rules which
resulted in the discharge of eight individuals. On June
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, 1980, the United States Court of Appeals for the
Sixth Circuit ordered that the Board's decision be en-
forced in full.
A controversy has since arisen over the amount of
backpay due under the terms of the Board's Order and
that issue is before me for decision.
II. POSITIONS OF THE PARTIES
Following issuance of the backpay specification and
notice of hearing on January 7, 1981, the Respondent
filed an answer dated January 19, an addendum to
answer dated March 10, and an amended answer dated
May 18, 1981. On May 26, counsel for the General
Counsel issued an amendment to backpay specification,
and on June 5 the Respondent filed its second amended
answer. Additionally, certain amendments were made at
the trial herein.
In its several answers, the Respondent asserted a
number of defenses to its backpay liability regarding
practically every discriminatee. The Respondent's argu-
ments are often expressed alternatively why backpay
should terminate entirely or be tolled during certain peri-
ods. Many of these defenses asserted in its answers, how-
ever, were not addressed at the trial or in the Respond-
ent's post-trial brief and must fail for lack of evidence.
The defenses to backpay liability which the Respondent
continues to advance are first that the backpay of various
discriminatees should terminate on certain dates when
they were reinstated to the Respondent's employ;
second, that backpay should terminate for all discrimina-
tees as of August 1974 when Respondent laid off all pro-
duction employees and completely shut down production
because the discriminatees were thereby "restored" to
the same position they would have occupied had the Re-
spondent not discriminated against them; third, that 10
discriminatees 5 should have their backpay completely or
partially withheld from them during certain periods be-
cause they failed to make a diligent search for interim
employment or because they removed themselves from
the labor market; fourth, that discriminatee William R.
Davis should be partially denied backpay because he
failed to produce information bearing on his earnings
from self-employment during certain parts of the back-
pay period; and, fifth, that interest charged on the back-
pay should remain at 6 percent per annum rather than be
raised to an amount called for by Florida Steel Corp.,
infra, as argued by counsel for the General Counsel.
The position advanced by counsel for the General
Counsel regarding the backpay claim of certain discri-
minatees is, at best, confused. Particularly troubling is
the position of counsel for the General Counsel regard-
ing backpay due Nathaniel McClellan, Earlie Cheairs,
Leroy Lake, William R. Davis, Gladys McGowan, and
Wiley Murphy. The backpay specification does not in-
clude backpay due, if any, beyond June 23, 1980. The six
individuals named above are the subject of a footnote in
the backpay specification which reads:
I Willie Spencer, Ressie Ford Traylor, Leroy Lake, Lurlene Pirtle,
Nathaniel McClellan, Gladys McGowan, Wiley Murphy, Percy McNeal,
Margie Wilson, and Earline Lake.
The date of June 23, 1980 is only for the purpose of
this Backpay Specification in that Respondent has
not complied with the reinstatement aspects of the
Decree to date and backpay is currently accruing
since June 23, 1980.
When the subject of these individuals first came up in
the hearing, both counsel for the General Counsel and
the Board's compliance supervisor who was then on the
witness stand informed the court that these individuals
were the subject of this footnote because they had not
been properly reinstated to their former positions when
they were recalled from layoff in November 1975 and
were therefore due backpay beyond, i.e., after June 23,
1980. This same position was repeated a short time later.
Thereafter, counsel for the General Counsel explained
the basis for his position thusly: according to both the
employee handbook and Judge Ricci's decision, employ-
ees who were in fact recalled in November 1975 had no
legitimate claim to seniority; therefore, in recalling em-
ployees without first notifying the Union and giving it an
opportunity to bargain, and by continuing to recognize
the original seniority dates of those individuals whom it
did recall, the Respondent has continued its unfair labor
practice. Therefore, the argument continues, whenever a
discriminatee is adversely affected by the Respondent
recognizing those seniority dates, rather than giving the
discriminatees preference in job retention, backpay con-
tinues to accumulate.
At the same time as he advanced the argument de-
scribed above, counsel for the General Counsel also
argued that discriminatees Earline Lake, Willie Spencer,
Doris McNeal, Percy McNeal, and Nathaniel McClellan
should have been recalled when the Respondent resumed
operations in November 1975 rather than the individuals
whom Respondent did recall and therefore are due back-
pay from that time forward. Further, the argument con-
tinues, on various other (later) dates Alma Jones, Wil-
liam Ray Davis, Earlie Cheairs, and Ressie Ford Traylor
should have been recalled rather than other individuals.
Counsel for the General Counsel argues that a recall
right exists for the individuals named above for jobs
which became available starting in November 1975 be-
cause of the findings by Judge Ricci in June 1976 that
they had been discriminated against in July 1973 by the
Respondent. According -to counsel for the General
Counsel's argument, the latter finding of their status as
discriminatees thereby cast on them some form of retro-
active superseniority. The rationale behind the General
Counsel's position was explained a bit more simply by
Compliance Supervisor Watson as "solely a matter of
convenience."
During the trial, and even more so in his post-trial
brief, counsel for the General Counsel confuses and
merges the two arguments described above. The General
Counsel's post-trial brief states in part:
Here we must note the contention of the General
Counsel respecting certain discriminatees, Cheairs
being one of them, who were not returned as they
should have been returned and therefore a conten-
tion of continuing liability. General Counsel's Ex-
108
MASTER SLACK
hibit 2 is a document giving a breakdown of the dis-
criminatees involved in this proceeding. It does so
in the fashion of their relative seniority dates and
contrasts them against five employees, who were
not discriminatees, who were returned as Respond-
ent resumed operations of its plant in 1975.
As previously noted, the first of the two argument de-
scribed below relates to six employees, one of whom is
Cheairs, who are the subject of the footnote above. The
second argument, however, is the one which is the sub-
ject of the General Counsel's Exhibit 2 and is an argu-
ment related primarily to employees Earline Lake, Willie
Spencer, Doris McNeal, Percy McNeal, and Nathaniel
McClellan. The confusion is even more evident from the
following statement regarding discriminatees who are the
subject of the footnote quoted above:
[I]t is the position of the General Counsel that the
argument regarding the incorrect reinstatement re-
lates solely to the manner in which employees
should have been recalled when the job opportuni-
ties were available upon the opening of the plant in
November 1975. It is not the contention of the Gener-
al Counsel that after June 23, 1980, backpay continues
to accrue, rather it is the improper method of recall
of said employees, that is the issue. The basic
premise has been set out already in this memoran-
dum but restated, same is to the effect that discri-
minatees are entitled to reinstatement requiring, if
necessary, displacement of other employees. Here
we have a group of employees who were recalled
when the plant commenced operations again in
1975, who were not discriminatees. It is the position
of the General Counsel that the discriminatees
should have been recalled ahead of any other em-
ployee. The refusal to consider same in this fashion
is tantamount to another violation of Section 8(a)(3)
of the Act. [Emphasis added.]
The statement of counsel for the General Counsel in his
brief, "it is not the contention of the General Counsel
that after June 23, 1980, backpay continues to accrue," is
in direct contradiction to the footnote quoted above
wherein it states in part "backpay is currently accruing
since June 23, 1980. While it is almost impossible from
counsel for the General Counsel's muddled treatment to
ascertain the real issues, for reasons more fully described
below, I have concluded that both of the General Coun-
sel's arguments relate to the availability of work in No-
vember 1975 rather than to the reinstatement aspects of
the Board Order.
111. GENERAL STATEMENT REGARDING APPLICABLE
PRINCIPLES
As was stated long ago by the Supreme Court in
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941):
Making the workers whole for losses suffered on
account of an unfair labor practice is part of the
vindication of the public policy which the Board
enforces.
A Board backpay order, the Supreme Court has
stated, "should stand unless it can be shown that it
is a patent attempt to achieve ends other than those
which can be fairly said to effectuate the policies of
the Act." NLRB v. Seven-Up Bottling Co. of Miami,
344 U.S. 344, 346, 347 (1953). The Supreme Court
has also recognized that "the computation of the
amount due may not be a simple matter .... Con-
gress made the relation of remedy to policy an ad-
ministrative matter, subject to limited judicial
review, and chose the Board as its agent for the
purpose." Nathanson v. NLRB, 344 U.S. 25, 29-30
(1952). In exercising the broad discretion granted to
it, the Board, with Court approval, has consistently
applied the principle stated in New England Tank
Industries, 147 NLRB 598, 601 (1964):
[W]hile the general burden is on the General Coun-
sel to establish for each discriminatee the loss of pay
which has resulted from Respondent's established
discriminatory conduct, i.e., the gross backpay over
the backpay period, the burden of proof is on re-
spondent to show diminution of that amount wheth-
er such diminution results from the claimants' will-
ful loss of earnings, or from the unavailability of a
job at Respondent's operation for some reason un-
connected with the discrimination.6
Thus, it is the burden of the General Counsel to establish
the reasonableness and accuracy of its calculation of the
gross backpay amount. In establishing this burden, it is
inherently recognized that a backpay determination is
not, and cannot be, an exact science, but rather necessari-
ly requires certain reasonable approximations and judg-
mental decisions. The burden of proof with respect to its
affirmative defenses rests on the Respondent as it was the
original wrongdoer.
IV. THE GENERAL COUNSEL'S CASE
In support of the General Counsel's burden of proof,
Compliance Supervisor Robert Watson testified and ex-
plained the manner in which backpay was calculated
consistent with the Board Order. It is apparent from the
Respondent's cross-examination of Watson that it has
little quarrel with the accuracy and manner in which
Watson prepared the backpay specification. Rather, the
Respondent attempted primarily to seek agreement from
Watson that Judge Ricci's decision, while clear on its
face, is internally inconsistent and/or self-contradictory.
It is on the basis of that claim, which relates to the Re-
spondent's asserted defenses, that I shall begin to analyze
its position. Before doing so, however, I shall first con-
sider the two arguments advanced by counsel for the
General Counsel because those arguments affect the
gross backpay calculations of several discriminatees. I
will not repeat the General Counsel's arguments for they
have been described above at length.
Regarding the position of counsel for the General
Counsel concerning McClellan, Cheairs, Lake, Davis,
McGowan, and Murphy, I note at the outset the appar-
6 Citations within quote omitted.
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent inconsistency between the contention in the footnote
quoted above that "Respondent had not complied with
the reinstatement aspects of the decree to date and back-
pay is currently accruing since June 23, 1980," and the
statement of counsel for the General Counsel in his post-
trial brief that "the argument . . . relates solely to the
manner in which employees should have been recalled
when the job opportunities were available upon the
opening of the plant in November 1975. It is not the con-
tention of General Counsel that after June 23, 1980,
backpay continues to accrue ... ." If indeed the argu-
ment relates solely to the method by which employees
were recalled in November 1975, then as it relates to
backpay the issue does not involve reinstatement aspects
of the Board Order. Rather, insofar as backpay is con-
cerned, the issue simply relates to the availability of
work. If work were available, discriminatees are entitled
to backpay during that period. Further, the burden is on
the Respondent to prove the unavailability of work.
NLRB v. Ellis & Watts Products, 344 F.2d 67 (6th Cir.
1965); New England Tank Industries, supra; Mastro Plas-
tics Corp., 136 NLRB 1342 (1962). The Respondent
herein, however, does not even respond to this argument
of the General Counsel much less assert an affirmative
I At the commencement of the trial herein, after the formal papers
were introduced into evidence, various matters were called to my atten-
tion by the parties including the footnote quoted above relating to
McClellan, Cheairs, Lake, Davis, McGowan, and Murphy. Based on my
reading of that footnote, it was my understanding that counsel for the
General Counsel was simply reserving for future proceedings a claim that
these discriminatees had not been properly reinstated. It was my under-
standing that future action was contemplated, probably in the form of a
contempt action against the Respondent for failing to comply with the
Board Order, to be followed later, if necessary, by a supplemental back-
pay proceeding. It was also my understanding that both parties agreed
with that interpretation. In effect, therefore, this proceeding was to be
limited to events predating June 23, 1980. On the basis of that under-
standing, I sustained several objections by the Respondent to questions
asked by counsel for the General Counsel relating to events after that
date. It was not my understanding that any party expected me to resolve
an issue whether these individuals had been properly reinstated. I did not
consider this to be an issue before me for two reasons. First, I was of the
opinion that the proper forum for such an issue would be before the cir-
cuit court of appeals in a contempt proceeding. Second, if such an issue
could be raised before an administrative law judge, I would not have ex-
pected it to be raised in the form of a footnote but rather in the form of
an affirmative allegation. From my reading of the transcript of the trial
herein, however, I have observed a rather clear indication at one point
on the part of counsel for the General Counsel that he expected me to
determine whether the individuals named above were properly reinstated.
I now realize that evidence which I excluded concerning events after
June 23, 1980, might be relevant to that issue if it was properly before
me.
In preparing this decision, I have discovered authority for the proposi-
tion that there are certain circumstances in which it would be appropriate
for evidence on the subject of reinstatement to be introduced before an
administrative law judge rather than before the circuit court in contempt
proceedings. NLRB v. Bird Machine Co., 174 F.2d 404 (Ist Cir. 1949),
sets forth a still-viable doctrine that provides:
[I]f [the discriminatee's] old position is still in existence, our earlier
decree, without the need of supplemental definition, specifically
commands that Respondent offer [the discriminatee] reinstatement to
that position. If it is the Board's contention that though the old posi-
tion remains in existence, Respondent has failed to offer [the discri-
minatee] reinstatement to that position, the issue thus tendered is
whether Respondent is in contempt of our decree. Determination of
questions of fact on this issue is not a proper administrative function
of the Board but becomes the function of this court in contempt pro-
ceedings. See Wallace Corp. v. N.LR.B. [159 F.2d 952 (4th Cir.
1947)] at 954.
defense that these discriminatees should not be afforded
backpay in November 1975 an thereafter because of an
alleged unavailability of work. Therefore, I conclude
that backpay has properly been awarded McClellan,
Cheairs, Lake, Davis, McGowan, and Murphy for the
period including November 1975 and thereafter.
7
But in the Wallace case the court was dealing with a situation
where the department in which the discriminatorily discharged em-
ployees had previously worked had been abolished. It was therefore
proper for the Board to have a further administrative hearing on
questions as to whether there were substintially equivalent positions
in the Company's service, and as to what action should be taken, in
view of changed conditions, to wipe out the effects of the unfair
labor practices; such hearing having in contemplation supplemental
findings by the Board, appropriate modification of the Board's previ-
ous order, and an application to the court for modification of the
general terms of its earlier decree so as to give enforcement to the
Board's order as modified and made more specific in the light of the
supplemental findings.
Substantial confusion has been caused by counsel for the General Counsel
through poor articulation of the precise issue relating to McClellan,
Cheairs, Lake, Davis, McGowan, and Murphy. At the trial, and in his
post-trial brief, he has spoken of an obligation on the Respondent's part
to reinstate these employees in November 1975 because of their status as
discriminatees. Administrative Law Judge Ricci's decision, however, did
not issue until June 8, 1976, and obviously there was no reinstatement
order directed against the Respondent until that time. The decision of
course also imposed an obligation to make employees whole for employ-
ment lost prior to that time, but that is an issue of backpay and not rein-
statement. Counsel for the General Counsel cites no case authority what-
ever in support of his argument framed in the context of Respondent's
obligation to reinstate a discriminatee before a judge's decision even
issues, and in my view the argument is patently absurd. As will be noted
in the portion of counsel for the General Counsel's brief quoted above,
he also asserts at one point that the Respondent's failure to reinstate the
discriminatees in November 1975 "is tantamount to another violation of
Section 8(aX3) of the Act." This statement is not at all helpful in defining
any real issue that may exist with regard to the six discriminatees named
above. Suffice it to say that the purpose of a backpay proceeding is not
to litigate the merits of any unfair labor practice.
In preparing this decision, I gave considerable thought to reopening
the record on my own motion to require further definition of the issue
regarding these six discriminatees in order to determine whether that
issue is the kind of reinstatement issue which it would be appropriate to
litigate before the Board pursuant to NLRB v. Bird Machine Co., supra. I
have chosen not to do so, however, for two reasons. First, I note the
statement by counsel for the General Counsel in his brief that "it is not
the contention of the General Counsel that after June 23, 1980, backpay
continues to accrue .... " If in fact there is no claim for backpay
beyond June 23, 1980, in spite of the language in the quoted footnote to
the contrary, my resolution of the backpay issue should provide a com-
plete liquidation of the Respondent's backpay liability. Second, although
counsel for the General Counsel has never articulated his argument in
this way, I have come to the conclusion that if there is in fact any issue
regarding reinstatement, rather than one simply involving the availability
of work, what he is really arguing is that the Respondent has not com-
plied with the reinstatement aspects of the Board's order because, while
the Respondent reinstated these six discriminatees at some point after
June 13, 1980, the date of the circuit court's order enforcing the Board's
decision, the Respondent should have recognized but has refused to rec-
ognize their original date of hire as a seniority date and/or should have
recognized but has refused to recognize November 1975 as the seniority
date for other employees (nondiscriminatees) reinstated in November
1975. Counsel for the General Counsel would argue that by operation of
the Respondent's employee handbook nondiscriminstees lost any earlier
seniority date, and by the Respondent recognizing a seniority date earlier
than November 1975 for those nondiscriminatees, the Respondent is per-
petuating the effects of its conduct which was found to be in violation of
Sec. 8(aX5) in the manner in which it resumed operations. If this is the
General Counsel's position, then I view the issue as one which can only
be raised in a contempt proceeding rather than as one involving the type
of reinstatement matter which might appropriately be litigated before an
administrative law judge.
110
MASTER SLACK
The second argument advanced by counsel for the
General Counsel relates to discriminatees Earline Lake,
Willie Spencer, Doris McNeal, Percy McNeal, and Na-
thaniel McClellan, and to a lesser degree to Alma Jones,
William Ray Davis, Earlie Cheairs, and Ressie Ford
Traylor. Although counsel for the General Counsel also
frames this argument in the context of the Respondent
having an obligation to reinstate these discriminatees in
November 1975 pursuant to Judge Ricci's order of June
1976, I have concluded that this issue also relates simply
to the availability of work. Therefore, putting aside the
argument that discriminatees had a recall right as discri-
minatees to jobs which became available in November
1975, I shall simply consider the argument as relating to
the availability of work beginning at that time. The Re-
spondent has not expressly asserted any affirmative de-
fense that Lake, Spencer, Doris McNeal, Percy McNeal,
McClellan, Jones, Davis, Cheairs, and/or Traylor should
not be afforded backpay in November 1975 or thereafter
because of an alleged unavailability of work. The Re-
spondent has, however, in conjunction with its argument
that backpay should be tolled for all discriminatees when
the plant closed in August 1974, which is treated sepa-
rately below, responded very briefly to the General
Counsel's argument regarding these nine discriminatees.
Counsel for the Respondent points out that the pre-shut-
down complement of employees numbered approximate-
ly 400, while the Respondent reopened the facility in
November 1975 with only 80 employees. The Respond-
ent argues that it would be punitive rather than remedial
to accord the discriminatees the "retroactive supersenior-
ity" requested by counsel for the General Counsel be-
cause it would "go beyond a restoration of the economic
status quo that would have obtained but for the unlawful
discrimination .... " In support of that argument, the
Respondent introduced testimony about the manner in
which employees were recalled to work in November
1975. From this testimony, it is clear that Respondent
argues that work was unavailable for these discriminatees
in November 1975 and thereafter. The Respondent intro-
duced testimony from the Respondent's director of man-
ufacturing, Hulon Stringer, that prior to the shutdown
there were three job classifications within the pressing
department: topper, legger, and combination topper and
legger. According to Stringer, when the plant reopened,
the Respondent recalled by seniority only those employ-
ees who were combination pressers. Stringer testified
that Lake, Spencer, both McNeals and Traylor were not
combination pressers. Therefore, the argument continues,
they would not have been recalled to work in any event.
McClellan, Jones, Davis, and Cheairs, who Stringer testi-
fied were combination pressers, would not have been re-
called until much later dates in 1976, 1977, 1979, and
1980 when jobs became available. The Respondent thus
argues that it would be unfair and punitive to award
backpay to these nine discriminatees in accordance with
the General Counsel's formula. Thus, although the Re-
spondent has not expressly raised an affirmative defense
regarding the availability of work in November 1975 and
thereafter, evidence bearing directly on that issue has
been introduced in response to a position taken by coun-
sel for the General Counsel.
In resolving this issue, I note at the outset that, al-
though the issue was first raised by counsel for the Gen-
eral Counsel, it was not framed in the context of the
availability of work, and the burden is on the Respond-
ent to prove the unavailability of work. NLRB v. Ellis &
Watts Products, supra; New England Tank Industries,
supra; Mastro Plastics Corp., supra. It is not necessary for
the General Counsel to show that on every day, or on
any given day, of the backpay period there was work
available which a particular discriminatee would have
enjoyed but for the discrimination against him. Rather,
once an employee is found to have been unlawfully ter-
minated, the employee is entitled to backpay from the
date of the unlawful termination until such time as the
employee is offered reinstatement. This is true for the
entire period of unemployment, and the respondent is re-
lieved of backpay liability only if it affirmatively meets
its burden of proof by showing that during some part of
the period the discriminatee would not have been em-
ployed even if Respondent had not engaged in the dis-
crimination. In the instant case, however, as found by
the Board in a decision enforced by the United States
Court of Appeals for the Sixth Circuit, the Respondent
engaged in unlawful conduct not only by terminating
these discriminatees but also by the method in which it
recalled people to work following the extended layoff
from August 1974 to November 1975. Therefore, if I
were to adopt the method which the Respondent used to
recall people in order to determine whether work was
available for discriminatees in November 1975 I would
be utilizing a method which was itself found to be un-
lawful. I would thereby allow the Respondent to reap a
windfall from unlawful conduct by allowing it to estab-
lish that pursuant to, and because of, the unlawful
method of recall, no work was available for discrimina-
tees. Clearly, the Board in fashioning a remedy should
not consciously allow a respondent to reap an affirmative
benefit from its own unlawful conduct. As was stated in
an analogous case, "when an employer's unlawful dis-
crimination makes it impossible to determine whether the
discharged employee would have earned backpay in ab-
sence of discrimination, the uncertainty should be re-
solved against the employer." NLRB v. Miami Coca-Cola
Bottling Co., 360 F.2d 569, 572-573 (5th Cir. 1966). Since
it is impossible to determine whether the discriminatees
herein would have been recalled to work in November
1975 if Respondent had not utilized an unlawful method
for recalling employees, I conclude that backpay has
been awarded properly in accordance with the General
Counsel's formula for employees Earline Lake, Willie
Spencer, Doris McNeal, Percy McNeal, Nathaniel
McClellan, Alma Jones, William Ray Davis, Earlie
Cheairs, and Ressie Ford Traylor for the period includ-
ing November 1975 and thereafter.
V. THE RESPONDENT'S DEFENSES TO BACKPAY
The Respondent's first defense to the payment of back-
pay is that although Judge Ricci made specific findings
of the dates when backpay begins, ends, and is temporar-
ily tolled for each discriminatee, issues regarding individ-
ual backpay periods were nevertheless not fully litigated
III
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the underlying unfair labor practice proceeding.
Therefore, the argument runs, the parties to this compli-
ance proceeding are not foreclosed by the doctrine of res
judicata from litigating individual backpay periods. The
Respondent's second argument is really part and parcel
of the first. The Respondent argues that many of the dis-
criminatees received valid offers of reinstatement from
the Respondent at various points in time subsequent to
the commission of the underlying unfair labor practices,
and their backpay periods should terminate at those re-
spective points in time. More specifically, the Respond-
ent argues that such valid offers of reinstatement were
made to discriminatees Earlie Cheairs on August 16,
1973; Ressie Ford Traylor on August 28, 1973; Lurlene
Pirtle on May 9, 1974; Doris McNeal on February 27,
1974; Nathaniel McClellan on May 9, 1974; Alma Jones
on May 9, 1974; and William R. Davis on May 9, 1974.
This argument is coextensive with the first argument be-
cause the dates when the Respondent argues that these
seven discriminatees were made valid offers of reinstate-
ment are matters which were litigated before Judge
Ricci. The dates are actually dates when these various
discriminatees reentered the Respondent's employ for a
period of time before being laid off again. Judge Ricci
took into account those events in making his findings of
the backpay periods of the individual discriminatees.
Judge Ricci nevertheless found the backpay periods to
run beyond the dates argued by Respondent. Instead of
terminating backpay on those dates, Ricci gave credit for
employment of the discriminatees with the Respondent
as an offset against (or temporary tolling of) backpay.
The Respondent now asks me to find, on the same facts
that were before Judge Ricci, that Judge Ricci's findings
were incorrect and to make different findings. I am
wholly convinced, however, that the doctrine of res ju-
dicata was adopted centuries ago to prevent just exactly
that.
I find nothing in the Board's Rules and Regulations
and no case authority whatever prohibiting an adminis-
trative law judge in his decision after the initial trial on
the merits of the unfair labor practice from making spe-
cific findings with regard to the backpay period of a dis-
criminatee where the judge believes that the evidence re-
quired to make those findings has been placed before him
by the parties. Even assuming Judge Ricci's findings
were wrong, it was incumbent on Respondent-or who-
ever considered them to be incorrect-to appeal Judge
Ricci's decision. The Respondent did appeal Ricci's deci-
sion. I note that Respondent even took exception to the
remedy ordered by Judge Ricci, but it chose not to
appeal that aspect of the remedy which it now attempts
to relitigate before me. Not only did the Respondent
have the opportunity to appeal the remedial portion of
Judge Ricci's decision to the Board, but it also had the
opportunity to raise such matters during the enforcement
proceedings before the United States Court of Appeals
for the Sixth Circuit. The Respondent did not do so. In-
stead, the Respondent now seeks to relitigate those mat-
ters before me. I find that it is precluded from doing so
by the doctrine of res judicata.s Consequently, I hereby
reject the affirmative defenses of the Respondent raised
in the first "affirmative defense" of its answer dated Jan-
uary 19; paragraph I of its amended answer dated May
18; and paragraphs 14-18 of its second amended answer
dated June 3, 1981.
As a separate affirmative defense, Respondent argues
that the backpay for all discriminatees should terminate
as of August 1974 when the Respondent temporarily
shut down its entire operation for valid economic rea-
sons. The Respondent argues that as a result of the entire
operation shutting down and all employees being laid
off/terminated, the discriminatees were thereby "re-
stored" to the same position they would have occupied
even if the Respondent had not discriminated against
them. This argument is a mere extension of the first and
second arguments described above because the events re-
lated to it, including a subsequent recall of certain em-
ployees when the plant reopened in November 1975,
were events litigated before Judge Ricci. Ricci consid-
ered this layoff and the subsequent recall in making his
findings regarding the backpay periods of the individual
discriminatees. With those facts before him, Judge Ricci
nevertheless found the backpay periods to run beyond
the dates argued by the Respondent. Like the arguments
above, I conclude that Respondent's asserted defense is
barred by the doctrine of res judicata. Moreover, I note
8 At the beginning of the trial herein, counsel for the General Counsel
made a motion to strike par. 15 of the Respondent's second amended
answer dated June 3 on res judicata grounds. The Respondent opposed
that motion and filed a written statement of position which is in evidence.
In its post-trial brief, Respondent concedes that the motion should be
granted, although not on res judicata grounds. In its brief, the Respond-
ent states in part:
The substance of the paragraph 15 defense is that, inasmuch as the
backpay periods for claimants Leo Sain and Earnest Williams termi-
nate on August 20, 1973, the date of a temporary recall of the press-
ing night shift, backpay periods for various other claimants who
were recalled on that date should terminate then as well.
Regarding General Counsel's motion to strike paragraph 15 of Re-
spondent's Second Amended Answer, Respondent concedes that the
temporary recall of August 20, 1973 did not constitute a valid offer
of reinstatement, but the Respondent does not thereby concede that
it is foreclosed by the doctrine of resjudicata from litigating individ-
ual backpay periods.
Respondent does not oppose General Counsel's motion to strike
per se, since Respondent concedes that the August 20, 1973 recalls
did not constitute valid offers of reinstatement for the purpose of ter-
minating backpay liability. By its withdrawal of its opposition to
General Counsel's motion, however, the Respondent does not there-
by conceded that the paragraph 15 defense is barred by the doctrine
of res Judecata.
Elsewhere in its brief, the Respondent argues that even if the motion to
strike is granted on res judicata grounds, the doctrine of res judicata
should therefore apply only to the one paragraph of that answer since
counsel for the General Counsel's motion to dismiss was not directed at
other paragraphs of its several answers. Clearly, however, a party does
not waive a res judicata argument on the merits by filing a motion to
dismiss directed only at limited matters. I find no substantive difference
between granting counsel for the General Counsel's motion to dismiss
par. 15 of the second amended answer on res judicata grounds and dis-
missing the other paragraphs on the merits on the same grounds. There-
fore, rather than grant counsel for the General Counsel's motion to dis-
miss, I shall simply reject on the merits all of the Respondent's defenses
asserted in the paragraphs enumerated above on res judicata grounds.
112
MASTER SLACK
the Respondent's argument overlooks the fact that the
Board, with circuit court agreement, found the method
in which the Respondent effected both the layoff and
recall to be unlawful in violation of Section 8(a)(5) of the
Act. In order to find merit to this asserted defense of the
Respondent, one would have to invoke a presumption
that if the Respondent had acted lawfully and fulfilled its
obligation to bargain with the Union in good faith, the
exact same result would have occurred as did occur.
Since it is impossible to determine what would have oc-
curred if Respondent had fulfilled its lawful obligation to
bargain with the Union, Respondent's unlawful conduct
could not serve to terminate backpay. Therefore, I reject
the affirmative defenses of the Respondent raised in para-
graphs 7-14 of its amended answer dated May 18 and
paragraph 19 of its second amended answer dated June
3, 1981.
The Respondent argues that discriminatees Willie
Spencer, Ressie Ford Traylor, Leroy Lake, Lurlene
Pirtle, Nathaniel McClellan, Gladys McGowan, Wiley
Murphy, Percy McNeal, Margie Wilson, and Earline
Lake should have their backpay completely or partially
withheld from them during certain periods because they
failed to make a diligent search for interim employment
or because they removed themselves from the labor
market.
A. Willie Spencer
The Respondent argues that Spencer failed to make a
diligent search for employment throughout his entire
backpay period and that his claim for backpay should
therefore be denied in full.
Spencer worked for the Respondent in a night-shift
position. At the same time Spencer worked for the Re-
spondent, he also worked for another employer on a
day-shift job. Spencer admitted that after his termination
by Respondent he never made any attempt to secure
nighttime employment elsewhere. It is on this basis that
the Respondent argues Spencer should be denied back-
pay in full.
Following Spencer's termination by the Respondent,
however, he was laid off at a later date by the other em-
ployer. Thereafter, Spencer sought employment through
the Tennessee state-operated employment service. He
was able to secure employment with CETA; the city of
Bolivar, Tennessee; and an employer referred to in the
record as ECS in Whiteville, Tennessee.
In his post-trial brief, counsel for the General Counsel
concedes that backpay should be withheld from Spencer
until the time when he was laid off by the other employ-
er. Counsel for the General Counsel is therefore willing
to reduce the Respondent's net backpay figure of $1 1,047
by $4,138 in order to arrive at a new net backpay figure
of $6,909, exclusive of interest. Counsel for the General
Counsel gives no reason why Spencer's backpay should
not be withheld in its entirety since Spencer admits that
he never looked for supplemental income. I shall never-
theless award Spencer the amount of backpay recom-
mended by counsel for the General Counsel. The fact is
that Spencer held two jobs. While Spencer did not begin
to look for work until he also lost the job with the other
employer, it is just as possible and reasonable that he
would not have looked for work then had he still been
employed by the Respondent. It is impossible to say that
the search for work which began after he lost the job
with the other employer was directed at replacing only
that other job. The fact is that beginning in approximate-
ly August 1974 and continuing thereafter, Spencer did
seek work and obtained it where he could. Consequently,
beginning at that time, but not earlier, Spencer is entitled
to backpay. Accordingly, I find that the Respondent
owes Spencer backpay in the amount of S6,909, plus in-
terest.
B. Leroy Lake
The Respondent argues that Lake should be denied
backpay from the time of his discriminatory termination
through the second quarter of 1976 when Lake graduat-
ed from high school.
Lake worked for the Respondent on the night shift at
the time he was going to high school during the day.
Lake admits that, after being discharged by the Respond-
ent, he did not seek other nighttime employment. Lake
testified that he did ask a friend who worked for another
employer about the possibility of Lake obtaining night-
time work, but was told no jobs were available. Lake
admits he never submitted an application with that em-
ployer. Consequently, the Respondent argues Lake
should be denied backpay. Counsel for the General
Counsel argues that because Bolivar, Tennessee is a very
small community of 7500 people, nighttime work was
not available and Lake's search was adequate. I find that
merely asking a friend about the possibility of a job,
without at least approaching the employer itself and/or
submitting an application is not an adequate search for
work. I also find, however, that the Respondent has
failed to meet its burden of proving that in each of the
calendar quarters for which backpay is claimed Lake
was in school and therefore not conducting an adequate
search for work. The Respondent offered no evidence to
show that Lake was going to school on a year-round
basis and it is common knowledge that public schools do
not operate on that basis. I note from the backpay speci-
fication computation for Lake that he earned S638.40
during the third calendar quarter (i.e. July, August, Sep-
tember) 1975 and again obtained employment beginning
in the third calendar quarter 1976, the period when
public schools normally do not operate. Failing specific
proof from the Respondent of the calendar quarters
when Lake was in school, I have no basis for knowing
or assuming what calendar quarters the school year cov-
ered. Consequently, I am constrained to conclude that
the Respondent has failed to meet its burden of proof on
the issue, and I shall award backpay in accordance with
the computation of counsel for the General Counsel. Ac-
cordingly, I find that Leroy Lake is due backpay in the
amount of $17,056, plus interest.
C. Ressie Ford Traylor, Lurlene Pirtle, Nathaniel
McClellan, Gladys McGowan, Wiley Murphy, Percy
McNeal, and Margie Wilson
The Respondent contends that Traylor, Pirtle, McClel-
lan, McGowan, Murphy, McNeal, and Wilson should be
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied backpay during portions of the backpay period
because their search for work was inadequate.
Regarding Traylor, the Respondent argues that she
should be denied backpay for the fourth quarter 1975
through the fourth quarter 1976. The Respondent sub-
mits that it owes Traylor only $14,036 rather than
$23,434 claimed by counsel for the General Counsel. The
Respondent argues that, during the period from mid-1975
until she began work at the Townhouse Restaurant in
early 1977, Traylor applied for work at only two places,
Harman International and Armour Leather.9 Traylor tes-
tified that she telephoned Harman International once a
week for approximately a month and that she tried for 3
or 4 weeks consecutively to obtain employment at
Armour Leather.
Regarding Pirtle, the Respondent argues that she
should be denied backpay for third and fourth quarters
1973, the first and second quarters 1974, the years 1976,
1977, 1978, and the first and second quarters 1979. The
Respondent admits that it owes Pirtle only $3,847 rather
than $37,055 claimed by counsel for the General Coun-
sel. During the period from her termination through the
third quarter 1975, Pirtle could recall applying for work
at only four places: Harman International, Kilgore Cor-
poration, Western State Hospital, and Brown Shoe Cor-
poration where she was hired in mid-1975. After being
laid off from her job at Brown Shoe Corporation in Oc-
tober 1975, Pirtle remained unemployed until mid-1979.
During that time, she was registered with the Tennessee
state employment service and individually applied for
positions at a local hospital, at Care Inn, and at the Sum-
merville Board of Education.
Regarding McClellan, the Respondent argues that he
should be denied backpay during the second, third, and
fourth quarters 1976, all of 1977, the first and fourth
quarters 1978, the first and second quarters 1979, and the
first and second quarters 1980. Respondent submits that
it owes McClellan only $10,912 rather than the $37,871
claimed by counsel for the General Counsel. During the
backpay period from July 1973 to June 1980, McClellan
worked for Bolivar Motor Company; Bryan Foods in
West Point, Mississippi; the city of Bolivar; Care Inn;
and T. J. & L. Construction Company in Henderson,
Tennessee. McClellan could not recall whether he sub-
mitted any job applications between the time he was laid
off by the City of Bolivar in February 1976 and the time
he went to work for Care Inn in March 1978. He volun-
tarily quit the job at Care Inn, and shortly thereafter
went to work for T. J. & L. Construction Company.
After working there only 3 days, however, McClellan
was terminated because he did not possess necessary
qualifications for the position. From then until August
1979, when he returned to work for the Respondent, he
was able to remember submitting applications at Western
State Hospital and at Kilgore Corporation.
Regarding McGowan, the Respondent argues that she
should be denied backpay for the fourth quarter 1975,
the entire year 1976, the first and second quarters 1977,
9 Needless to say, Traylor also began to seek work at some point in
time at the Townhouse Restaurant where she eventually obtained em-
ployment in early 1977.
the fourth quarter 1978, and the entire year 1979. The
Respondent submits that it owes McGowan only $4,221
rather than $28,404 claimed by counsel for the General
Counsel. Following her unlawful termination by the Re-
spondent, McGowan sought and obtained employment at
Kilgore Corporation. She remained employed there con-
tinuously for approximately a year and a half from
August 1973 to March 1975. She did not obtain work
again until some time in the third quarter of 1977 when
she was able to secure a job with Winter Garden Freezer
Company. McGowan was not able to recall whether she
submitted any employment applications during the inter-
im period. It is not clear whether she quit or lost her po-
sition with Winter Garden, but it is clear that from Sep-
tember 1977 to September 1978, McGowan attended
school. No backpay is claimed by counsel for the Gener-
al Counsel during that entire year. Upon graduation,
McGowan, reentered the labor market. McGowan was
able to recall that after her graduation she submitted ap-
plications at Western State Hospital, Care Inn, an HIS
plant, and the Townhouse Restaurant. In early 1980,
McGowan was offered and accepted a job at the Town-
house Restaurant where she remained employed through
the end of her backpay period.
Regarding Murphy, the Respondent argues that he
should be denied backpay for the years 1974, 1975, 1976,
1977, and first and second quarters 1978. The Respond-
ent submits it owes Murphy only $13,941 rather than the
$38,561 claimed by counsel for the General Counsel. The
Respondent argues that Murphy should be denied back-
pay because he submitted a miniscule number of employ-
ment applications over a 5-year period and failed to
secure anything other than low-paying seasonal employ-
ment during that time. Murphy's testimony was typical
of that by the backpay claimants generally. Overall, the
testimony was vague and indefinite. Initially, he could
not recall having worked at all during the 6-year period
from 1973 to 1979. Only through prompting was he
eventually able to recall seasonal employment with Maro
Farms and Laro Angus Ranch. Murphy testified he
never worked for Chickasaw Area Development Com-
mission which is listed as one of his employers in the
backpay specification. Murphy was only able to recall
applying at Dover Elevator and at Brown Shoe between
1976 and 1978.
Regarding Percy McNeal, the Respondent argues that
he should be denied. backpay for the third and fourth
quarters 1973; the first, second, and third quarters 1974;
the fourth quarter 1975; the first, second, and third quar-
ters 1976; the fourth quarter 1978; and the first and
second quarters 1979. The Respondent submits it owes
McNeal only $12,522 rather than $28,660 claimed by
counsel for the General Counsel. McNeal was able to
recall that during the backpay period he applied for
work at Harman International and Brown Shoe Corpora-
tion; that he sought and eventually obtained farm work
with Maro Farms; that he applied for work and took a
test at a plant referred to as E.S.C.; and that he applied
for work at Jervis Company. McNeal also testified that
he twice went to St. Louis, Missouri, to look for work.
His first trip was unsuccessful, and he returned home.
114
MASTER SLACK
Thereafter, he was only able to secure intermittent farm
work, and he therefore went back to St. Louis. In St.
Louis, McNeal obtained work at French Cleaners. After
being laid off from that position, McNeal remained in St.
Louis and secured a job at Crown Foods. After being
laid off from Crown Foods in October 1978, McNeal uti-
lized the St. Louis employment job referral service.
Unable to find employment in St. Louis, McNeal thereaf-
ter returned to Bolivar, Tennessee. In the fall of 1979,
McNeal was able to secure a job with Bolivar Wood
Products, where he remained employed until being rein-
stated by the Respondent.
Regarding Wilson, the Respondent argues that, while
she has made attempts to secure employment during the
8-year backpay period, they have been half-hearted at-
tempts. According to the Respondent, an inference
should be drawn from the fact Wilson's interim jobs fre-
quently lasted no longer than a month that Wilson
gradually made herself more and more unemployable.
The Respondent argues that it should not be called on to
bear the burden of Wilson's inability to find or hold a
job over an 8-year period of time. Therefore, the Re-
spondent would deny Wilson all backpay after the third
quarter 1974. The Respondent submits it owes Wilson
only $2,854 rather than the $29,950 claimed by counsel
for the General Counsel. After the Respondent unlawful-
ly terminated Wilson, she sought work through the Ten-
nessee state unemployment office. She submitted applica-
tions at Kilgore Corporation and at Armour Leather
Company, but she was not hired. In addition, she applied
for work at Sommerville Manufacturing Company where
she was hired in August 1974. After working there 2
days, she failed to report to work thereafter. In the
evening after the second day of work, Wilson received a
beating which caused her to go to the hospital. Wilson
was treated and released without spending the night. The
Respondent does not argue that Wilson's termination on
this occasion should result in Wilson forfeiting backpay.
Approximately I month later, in September 1974, Wilson
obtained employment at Kilgore Corporation. After
working at Kilgore for about a month, Wilson's child
became ill and Wilson was forced to quit. How long
Wilson remained out of the labor market in order to care
for her sick child is not reflected in the record. No back-
pay is claimed by counsel for the General Counsel from
October 1974 to October 1975 because the Respondent's
plant was shut down and no work was available. In
August 1975, Wilson obtained work at Brown Shoe
Company. She quit after I week because the individual
with whom she rode to work quit; the job then did not
pay enough in view of babysitting expenses and in-
creased transportation costs resulting from having to
commute alone.
Wilson, like many other discriminatees, was vague and
indefinite in her testimony about her search for interim
employment. There is no reason whatever to believe,
however, that this resulted from any design on her part.
Rather, it was clear from the demeanor of Wilson and
every other witness that they were trying their best to
recall events which, as a practical matter, had been com-
pletely forgotten about because of the passage of time.
For example, Wilson testified that she worked at the
Pizza Hut Restaurant in Bolivar for about a 3-week
period but was not able to recall when it was or even
whether it was in 1976 or 1977. Wilson quit that job
after 3 weeks because it was only a part-time job work-
ing 3 or 4 hours a day at $1.65 per hour. Wilson estimat-
ed that during the 3-week period she earned approxi-
mately $26 plus one 25-cent tip. Wilson quit because she
simply was not making enough money to cover the
added cost of babysitting and transportation expenses.
Throughout 1976 to her offer of reinstatement by Re-
spondent in June 1980, Wilson continued her search for
employment through the state-operated unemployment
office. In addition, she applied for positions with the Re-
spondent, Jervis, The Tannery, Tipco, and UGGS.
Wilson was offered and accepted a job at Tipco. At the
end of the first day, Wilson was told they had run out of
work for her to do, but that they would call her back
when work picked up. At the UGGS factory, Wilson
was told they were only hiring men.1 0
As previously indicated, the Respondent argues that
Wilson's attempts to secure work have been "half-heart-
ed." It asks that an inference be drawn that Wilson has
made herself more and more unemployable by her re-
peated failure to stay on a job. In substance, the Re-
spondent's argument is identical to one rejected by the
United States Court of Appeals for the Sixth Circuit in
NLRB v. Miami Coca-Cola Bottling Company, supra, at
575, wherein the Respondent argued that because interim
earnings were "incredibly low," this fact makes a prima
facie case of willfully incurring losses during the back-
pay period. The court stated:
Respondent invites our adoption of a rule that the
employer's proof of "incredibly low" earnings shifts
to the General Counsel the burden of going for-
ward with evidence that the discriminatees used
reasonable efforts to find interim work. We decline
the invitation.
Similarly in this case, the fact that Wilson's periods of in-
terim employment have been abbreviated does not lead
to an inference that Wilson willfully incurred losses
during the backpay period. Neither does the burden shift
to the General Counsel to go forward with evidence that
Wilson used reasonable efforts to find interim work.
Rather, the burden remains with the Respondent to
prove that Wilson failed to conduct an adequate search
for interim employment or voluntarily removed herself
from the labor market.
I have grouped Traylor, Pirtle, McClellan, McGowan,
Murphy, McNeal, and Wilson for consideration because
there is a common thread which runs through their testi-
mony and which carries significant weight in my analysis
of that testimony. While it is undoubtedly gross oversim-
plification, it must be observed that the discriminatees
'o I reject the Respondent's argument that Wilson should be discredit-
ed in this regard based on the improbability of an employer violating
Title VII of the Civil Rights Act of 1964 and/or the improbability of an
employer revealing such an unlawful intent to an applicant. In this pro-
ceeding, Wilson's testimony is uncontroverted and I find no basis in her
demeanor for discrediting Wilson. Rather, I conclude that the incident
occurred as described by Wilson
115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein are rural and uneducated. This factor is only
partly revealed by a reading of the literal transcript of
the trial herein and is necessarily dependent in part on
my observation of the witnesses' conduct and demeanor
in testifying. The transcript cannot show the full extent
to which they mispronounced, misused, and misunder-
stood words. As the record does reveal, the testimony of
the backpay claimants about their search for interim jobs
was vague and indefinite. Some witnesses could not re-
member names of some of the plants where they applied
for work. At least one denied, on examination by counsel
for the Respondent, working at a place that was listed as
their employer in the backpay specification. Based on my
observation of each witness, however, I am thoroughly
convinced that they were testifying truthfully to the best
of their ability at the time about their search for interim
employment. Their testimony was frequently vague and
indefinite not because of an intention or attempt to de-
ceive but rather because of poor memories, the fact that
the period of time about which they were being ques-
tioned spanned eight calendar years, the failure to keep
records, and a lack of understanding as to the informa-
tion they were expected to furnish. The Respondent has
not shown that these discriminatees did not search for
work, but only that they could not recall searching for
work during certain periods. All of the discriminatees
did find interim jobs, some for substantial periods, and
there is no evidence that any of them rejected offers of
jobs. No backpay is sought for periods when they were
not seeking work for various reasons, such as when
McGowan attended school from September 1977 to Sep-
tember 1978.
As was stated in Lizdale Knitting Mills, 232 NLRB
592, 599 (1977):
It is established policy under the Act that a backpay
claimant is required to make a reasonable search for
interim employment" in order to mitigate loss of
income and the amount of backpay. The Board and
the Courts hold, however, that, in seeking to miti-
gate loss of income, a backpay claimant is "held
. . . only to reasonable exertions in this regard, not
the highest standard of diligence .... The princi-
ple of mitigation of damages does not require suc-
cess; it only requires an honest good faith effort
.... ,"12 The Board and the Courts also hold that
the burden of proof is on the employer to show that
the employee failed to make a reasonable search,'
or that he willfully incurred losses of income or
otherwise was not available for work during periods
when backpay is claimed' 4 and any "doubts should
l NLRB v. Midwest Hanger Co., 550 F.2d 1101 (8th Cir. 1977).
12 NLRB v. Madison Courier, 472 F.2d 1307 (D.C. Cir. 1972); NLRB v.
Arduini Mfg. Corp., 394 F.2d 420, 423 (Ist Cir. 1968); NLRB v.
NHE/Freeway, 545 F.2d 592, 594 (7th Cir. 1976); McCann Steel Co., 224
NLRB 607 (1976).
13 NLRB v. Midwest Hanger Co., supra.
"4 NLRB v. Pugh and Barr, Inc., 231 F.2d 588 (4th Cir. 1956); NLRB
v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966); Guardian
Industries, 227 NLRB 1140 (1977).
be resolved in favor of the backpay claimant rather
than the respondent wrongdoer who is responsible
for any uncertainty which may exist" and against
whom any uncertainty must be resolved.'
It is particularly important in a case such as this where
the backpay period spans eight calendar years and the
backpay claimants simply are not able to recall much of
what occurred during that period to keep in mind the
fact that at this stage in the proceedings the backpay
claimants do not enter the courtroom with a burden of
establishing that throughout the backpay period they
have engaged in an uninterrupted search for work.
Rather, they enter as employees who have been unlaw-
fully discriminated against by the Respondent, who, as
the wrongdoer, is responsible for any uncertainty which
may exist. While there may be some surface appeal to
the Respondent's argument that it "should not be called
upon to bear the burden of [employees'] inability to find
or hold a job over an eight-year period of time," that ar-
gument must fail because it is directly contrary to all
precedent and sound public policy. The burden is and re-
mains on the Respondent as the original wrongdoer to
show that the employee failed to make a reasonable
search for work, if that is the Respondent's claim. Based
on my observation of the witnesses and a careful analysis
of the record as a whole, I find that the Respondent has
not shown that the backpay claimants did not search for
work, only that during various periods they could not
recall whether and where they searched. In conclusion, I
find that all of these backpay claimants made a sincere
and reasonable effort, in their circumstances, to find in-
terim employment to mitigate loss of income resulting
from their discriminatory discharges and because they
needed to work to earn their livelihood. The Respondent
has failed to sustain its burden of proving lack of dili-
gence in seeking interim employment or willful loss of
earnings on the part of any of these backpay claimants
during the period when backpay is claimed. According-
ly, I find that backpay is due these individuals in the
amounts claimed by counsel for the General Counsel."'
D. William Ray Davis
The Respondent argues that William Ray Davis has
made ascertainment of his interim earnings impossible by
failing to produce subpoenaed information bearing on his
earnings from self-employment throughout his backpay
period. Thus, the Respondent argues, Davis should be
denied backpay in full from the time he became self-em-
ployed through the remainder of his backpay period.
The Respondent submits that it owes Davis only $2,710.
In the backpay specification, counsel for the General
Counsel claimed $10,159 on Davis' behalf, but, accepting
I' United Aircraft Corp., 204 NLRB 1068 (1973).
16 Earline Lake, another individual whom the Respondent argues
failed to make an adequate search for work and should have her backpay
reduced, removed herself from the labor market between May 1975 and
December 1976 in order to care for her sick husband. Counsel for the
General Counsel and counsel for the Respondent agree that Lake's back-
pay should be reduced accordingly, and both agree to the sum of
S14,098, plus appropriate interest. Their agreement is well supported by
the record herein, and I find that to be the amount owed to Lake.
116
MASTER SLACK
only the least sum which Davis testified he might have
earned through self-employment, has agreed in his post-
trial brief to reduce that amount to $5,968.17.
In the backpay specification, no interim earnings are
attributed to Davis for having operated any individual
business. When examined by counsel for the Respondent,
however, Davis freely admitted operating Ray's Wharf
and Hideout. The Respondent argues that it should be
inferred Davis purposedly neglected to inform counsel
for the General Counsel about the establishment and any
revenue it brought him. The Respondent also submits it
is probable Davis would have never acknowledged its
existence had the Respondent not questioned him about
it while on the stand. I see no basis for drawing any in-
ference against Davis or speculating about probabilities
suggested by Respondent. During his examination, Davis
made no attempt to conceal his earnings from that source
and cannot be said to have been evasive.
Davis admitted that he obtained a beer license in ap-
proximately October 1974 at which time he opened
Ray's Wharf and Hideout. Davis operated the establish-
ment as a sole proprietorship for approximately 3 or 4
years, i.e., at least through 1977. Davis now rents out the
facility. During examination by counsel for the Respond-
ent, Davis admitted several times that when he operated
the business himself prior to renting it out he made ap-
proximately $7,000 or $8,000 per year from the business.
Under cross-examination by the General Counsel, Davis
asserted he made only $150 or $200 per month. It is on
the basis of the testimony on cross-examination that
counsel for the General Counsel has agreed to reduce
the claim for backpay for Davis from $10,159 to
$5,968.17. I am not satisfied with the General Counsel's
position. Davis claimed that he filed annual income tax
returns derived from the operation of Ray's Wharf and
Hideout. The Respondent subpoenaed Davis to bring
those records to the trial, and in his testimony Davis ac-
knowledged receipt of the subpoena. Although Davis ad-
mitted having copies of those records, Davis failed to
comply with the subpena. While Davis was not evasive
in his testimony and I will not draw an inference that he
concealed interim earnings from counsel for the General
Counsel, I shall draw an adverse inference against Davis
for having failed to comply with the subpoena requiring
him to produce income tax records which he admits are
in his possession and/or control. I shall infer that if pro-
duced, those records would not support the assertion on
cross-examination that he earned only $150 or $200 a
month from the operation of this business but rather
would reflect that he earned at least $7,000 or $8,000 per
year from it as he admitted to counsel for the Respond-
ent on direct examination. Further, in view of Davis
having willfully failed to comply with the subpoena, I
shall adopt the approximation of $8,000 annually ($2,000
quarterly) for determining whether Davis is entitled to
any backpay after October 1974 when he commenced
business. A review of the backpay specification reflects
that the second calendar quarter of 1976 is the only quar-
ter in which an amount greater than S2,000 is claimed.
Accordingly, I find that after October 1974 Davis is enti-
tled only to S312 of $2,312 claimed on his behalf for the
second quarter 1976. Adding that to the amounts claimed
on his behalf for the fourth quarter 1973 and the first and
second quarters 1974, the net backpay due Davis is
$3,022 plus appropriate interest.
ORDER
Upon the entire record, and in accordance with the
foregoing findings, I conclude that the Respondent,
Master Slack and/or Master Trouser Corp., Hardeman
Garment Corp., Morehouse Garment Corp., Lauderdale
Garment Corp., Lobelville Garment Corp., its officers,
agents, successors, and assigns, shall satisfy its obligation
to make whole the backpay claimants here involved by
payment of the amounts of net backpay set forth oppo-
site their names. Each of the amounts listed below shall
be paid plus interest thereon accrued to the date of pay-
ment at the rate of 6-percent interest per annum, comput-
ed in the manner specified in Isis Plumbing Co., 138
NLRB 716 (1962), minus any tax withholdings required
by Federal and state laws."7
Grace Beard
Mose Burkley
Earlie Cheairs
Ray Davis
Peggy Peoples Harris
Alma Jones
Freddie Jones
Mattie Jones
Earline Lake
Leroy Lake
Nathaniel McClellan
Gladys McGowan
Doris McNeal
Percy McNeal
Ronald Moss
Wiley Murphy
Vera Norment
Juanita Phillips
Lurlene Pirtle
Allan Lynn Russell
Johnny Russell
Leo Sain
Willie Spencer
Ressie Ford Traylor
Earnest Williams
Patricia Williams
Margie Wilson
$ 262
3,512
4,455
3,022
720
13,557
2,455
1,263
14,098
17,056
37,871
28,404
14,606
28,660
23,056
38,561
2,132
6,871
37,055
32,492
2,941
557
6,909
23,434
552
7,876
29,950
" Counsel for the Oeneral Counsel argues that interest should be com-
puted on the basis of the Board's decision in Florida Steel Corp.. 231
NLRB 651 (1977). Counsel for the Respondent objects, citing clear au-
thority contrary to the Oeneral Counsel's position. Vanguard Oil & Serv-
ice, 246 NLRB 130 (1979); Otis Harpital, 240 NLRB 173 (1979); Pierre
Pellaton Enterprises, 239 NLRB 1211 (1979). Accordingly, interest shall
be computed at the rate of 6 percent per annum.
117