McCann Steel Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1973

203 N.L.R.B. 749 (N.L.R.B. 1973)

McCANN STEEL COMPANY, INC.
McCann Steel Company, Inc. and Shopmens' Local
Union No. 733 of the International Association of
Bridge, Structural and Ornamental Ironworkers,
AFL-CIO and J. C. Hindsley . Cases 26-CA-3661
and 26-CA-3717
May 18, 1973
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 23, 1971, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding 1 finding, inter alia, that Respondent
had discriminatorily dishcarged J. C. Hindsley in vio-
lation of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended. Respondent was directed to
make an offer of immediate and full reinstatement to
Hindsley to his former or a substantially equivalent
position and make whole Hindsley for any loss of
earnings resulting from the discrimination. On July 6,
1972, the United States Court of Appeals for the Sixth
Circuit entered its judgment enforcing in full this as-
pect of the Board's Order.
Thereafter, pursuant to a backpay specification and
appropriate notice of hearing issued by the Acting
Regional Director for Region 26, a hearing was held
before Administrative Law Judge Thomas S. Wilson
for the purpose of determining the amount of backpay
due Hindsley. On January 18, 1973, the Administra-
tive Law Judge issued the attached Supplemental De-
cision in which he found that Hindsley was entitled to
the amount of money set out in the specification, i.e.,
$4,967, upon which interest was to be paid at the rate
of 6 percent per annum, minus the tax withholding
required by the Federal and state laws. Thereafter,
Respondent filed exceptions to the Supplemental De-
cision and a supporting brief and counsel for General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in the light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge as modified herein.
Respondent's answer to the backpay specification
admitted the propriety of the formula that was used
to compute the gross backpay figure. However, in its
answer, Respondent argued that Hindsley sustained a
1 190 NLRB 12.
749
willfull loss of earnings during a portion of the back-
pay period while he worked at an interim employer,
Englert Engineering Co., by his alleged failure to work
a reasonable number of hours of work, including
overtime which Respondent contended was available
to him at Englert. Respondent argued that the
amounts which Hindsley could have earned at Eng-
lert if he had exercised "due diligence" should have
been deducted from the net backpay it owes Hindsley
and urges as error the failure of the Administrative
Law Judge to so find. Respondent also argued in its
answer that by Hindsley's leave of absence at Englert,
ostensibly to enter business for himself, from April
1972 until the time of his reinstatement at Respondent
on June 29, 1972, Hindsley further willfully lost earn-
ings by intentionally removing himself from the labor
market.
The Administrative Law Judge found that Respon-
dent had not adequately demonstrated the amount of
work available at Englert for Hindsley to perform
during the backpay period, and he therefore conclud-
ed that Hindsley was not guilty of any willful loss of
interim earnings because there was no showing that he
willfully refused to do any available work. The Ad-
ministrative Law Judge did not specifically address
himself to the issue of Hindsley's alleged willful with-
drawal from the labor market.
We agree with the Administrative Law Judge's con-
clusion that Hindsley is entitled to the amount of
backpay set out in the specification but we add our
own reason for so finding.
We start with the basic premise that:
... while the general burden of proof is upon the
General Counsel to establish the damage which
has resulted from Respondent's established dis-
criminatory discharge, i.e., the gross backpay
over the backpay period, the burden of proof is
upon the Respondent as to diminution damages,
whether from the willful loss of earnings by the
failure to either look for or keep a substantially
equivalent job or from the unavailability of a job
at Respondent's plant for some reason uncon-
nected with the discrimination.
Further we note that any uncertainty is resolved
against the wrongdoer whose conduct made certainty
impossible.;
In this case, Respondent admitted the propriety of
the gross backpay formula and thus the burden
passed to it to establish that the gross backpay should
be diminished due to a willful loss of earnings by the
discriminatee. We do not think Respondent has met
this burden.
2 Mastro Plastics Corporation, 136 NLRB 1342, 1346, enfd 354 F.2d 170
(C.A. 2), cert. denied 384 U.S. 972, accord. N.L.R.B. v. Brown & Root Inc.,
311 F.2d 447 (C A. 3).
N L.R.B. v. Miami Coca-Cola Bottling Company, 360 F 2d 569 (C.A. 5).
203 NLRB No. 115
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent attempted to demonstrate that there be without merit. A claimant who goes into business
was work available for Hindsley that he did not per- for himself is treated as one who obtains interim em-
form by introducing evidence from Englert's records ployment,10 and here we think the record is clear that
which did, in fact, show that Hindsley worked a lower Hindsley did not willfully incur losses by opening his
number of straight-time hours than the other employ- own business.
ees in his job category during the latter part of 1971
and the first quarter of 1972, and that Hindsley
worked no overtime in this period while his fellow
employees did .4 Respondent did not elicit any direct
evidence, however, that Hindsley ever refused to do
an available straight-time job or that there was always
work available for Hindsley at those times he was not
present at Englert. Although Respondent called
Hindsley's supervisor at Englert as its witness and
thus had an excellent opportunity to clear up this
area, Respondent elicited from this witness only gen-
eralized testimony concerning the method of assign-
ment of work at Englert and the overall state of its
business during the backpay period.5
In agreement then with the Administrative Law
Judge, we find that the record fails to show whether
work with Englert was available to Hindsley at those
times he was not present there .6 In such circum-
stances, and mindful of Respondent's burden and the
fact that any uncertainty is to be resolved against it,
we conclude Respondent has not sustained its burden
of proving Hindsley willfully incurred a loss of earn-
ings since it has not been shown that he willfully
refused to do any available work.'
Nor has Respondent shown that Hindsley's self-
employment constituted a willful loss of earnings.
Hindsley requested a leave of absence from Englert in
April 1972 to become self-employed. He thereafter
opened a welding and repair shop. Hindsley had done
some part-time welding work and repair jobs during
the time he worked at both Respondent and Englert
but he did not actively begin his business until a week
or so before taking the leave of absence.8 Hindsley
testified that he bought the equipment he used in his
business over a period of 3 to 4 years and he had 90
percent of the necessary equipment before April 1,
1972.
In his business, Hindsley designed and built cus-
tom-made trailers? While Respondent characterized
Hindsley's welding operation as merely a "personal
hobby" we note that David Miller, one of
Respondent 's own witnesses , testified that in late
April or early May 1972 he called Hindsley to see if
Hindsley would build a trailer for a trail bike that
Miller had purchased. Miller contacted Hindsley who
informed him of his price but it was Miller who finally
decided he did not want the work done. Hindsley was
ready and willing to do the work at all times.
We find Respondent's claim that Hindsley's self-
employment constituted a willful loss of earnings to
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that McCann Steel Compa-
ny, Inc., its officers, agents , successors , and assigns,
shall pay to J. C. Hindsley as net backpay the sum of
$4,967 together with interest thereon at 6 percent per
annum less any tax withholdings required by Federal
and state law.
The records also show that from the time Hindsley was hired in July 1970
until that latter part of 1971 (about September of that year ), Hindsley worked
about the same number of hours, perhaps slightly less , as the other employees
in his category This included overtime in the early part of his hire . Overtime
was abandoned at Englert in February 1971 and with the exception of a
2-week period in June 1971 did not resume until September 1971. Although
Hindsley's supervisor at Englert and its office manager testified overtime
began again in June 1971 , we do not think Englert 's time records which were
read into the record bear this out.
Hindsley took his leave of absence from Englert in April 1972 and this is
discussed, infra
3 We thus disagree with the Administrative Law Judge , however, who
stated that Respondent asked Hindsley's supervisor no questions as to the
availability of work during that period but such disagreement does not negate
our agreement with his ultimate conclusions.
6 We do not agree with the further conclusion of the Administrative Law
Judge , however, that the record affirmatively shows that "work was avail-
able " Rather , we find that it has not been shown sufficiently that work was
available . This latter criterion is the one Respondent must satisfy to sustain
its burden and such has not been done here.
Finally, we do not agree with the Administrative Law Judge that there
were six draftsmen at Englert at the start of Hindsley 's employment and only
three after he left . The records read into the record show that there were at
least three other draftsmen when Hindsley was hired and at least the same
number when he took his leave of absence Again , our disagreement here
with the Administrative Law Judge does not alter our agreement with his
final conclusions.
7 Moreover , had it been shown that overtime work was available at Englert
for Hindsley, we reject Respondent 's argument that Hindsley should have
worked those hours to reduce Respondent 's liability Whatever the merits of
this argument in a situation where overtime work at an interim employer is
mandatory (a situation not before us), here the record reflects that overtime
at Englert was optional In such a situation, we do not find the failure to work
overtime, even had it been shown it was available , to constitute a willful loss
of earnings.
8 Hindsley learned welding in the armed services before he went to work
for Respondent While Hindsley has never taken a test to become a certified
welder , once he finished his armed services training , he was a qualified welder
and one does not need to become certified to do welding work for the public.
However , Hindsley does have a license to go into business for himself.
9 About 5 weeks after he was reinstated at Respondent, Hindsley quit to
continue in his business full time.
10 Mastro Plastics, supra, 136 NLRB at 1350
McCANN STEEL COMPANY, INC. 751
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: On April
23, 1971, proceeding 1 directing McCann Steel Company,
Inc., herein called the Respondent, to make whole J. C.
Hindsley for any loss of pay he may have suffered as a result
of the unfair labor practices found to have been committed
by Respondent against him in violation of Section 8(a)(3)
and (1) of the Act. Thereafter, on July 6, 1972, the United
States Court of Appeals for the Sixth Circuit entered its
judgment enforcing in full this aspect of the Board's Order.
On September 28, 1972, the Acting Director for Region
26 (Memphis, Tennessee) issued a Backpay Specifications
and notice of hearing to which Respondent filed an amend-
ed answer. A hearing thereon was held in Nashville, Tennes-
see, on November 22, 1972. All parties were afforded full
opportunity to examine and cross-examine witnesses and to
introduce pertinent evidence. Briefs have been received
from General Counsel and Respondent on December 21,
1972.
Upon the entire record made in this proceeding and from
my observation of the witnesses, including their demeanor
while on the stand, I hereby make the following:
FINDINGS OF FACT
The Backpay Specifications
At the time of Hindsley's discriminatory discharge by
Respondent he was employed by it as a draftsman at an
hourly wage of $4.20.
In computing the gross backpay due and owing Hindsley
the Backpay Specifications allege that the appropriate mea-
sure of his earnings during the backpay period from June
23, 1970, to June 29, 1972, would be his average weekly
earnings with Respondent during the first and second quar-
ters of 1970 immediately prior to the unfair labor practice.
The Specifications then admit Hindsley's employment by,
and quarterly earnings from, Englert Engineering Co. (Eng-
lert), between July 20, 1970, and June 29, 1972, together
with earnings which Hindsley made during that period
while self-employed. The Specifications finally conclude
that the backpay due and owing Hindsley from Respondent
amounts to $4,967 by subtracting the sum of his acknowl-
edged interim earnings from the amount he would have
earned from Respondent during that period but for the
unfair labor practice.
The Answer
Respondent's answer to the above Specifications admit-
ted all the facts stated therein but claimed, as set forth in
its Bill of Particulars filed in response to an order by Admin-
istrative Law Judge Arther Leff, that:
The Company is also informed that, during his employ-
ment with Englert Engineering Company, Hindsley
190 NLRB 12
failed to work the number of hours that were available
to him, as evidenced by the fact that he consistently
failed to put in as many hours as the other draftsmen
who were then employed by Englert Engineering Com-
pany. [Emphasis supplied.]
This became the only issue at the hearing.2
The Evidence
At the hearing Respondent introduced, by the oral testi-
mony of the office manager of Englert Engineering Compa-
ny based upon that Company's books and records, the
hours worked by each of its draftsmen, including Hindsley,
for the whole period of his employment there.
These records show that in every week from July 30, 1970,
to February 8, 1971, Hindsley worked an average of 10 or
more hours of overtime which was about the same amount
as the other five draftsmen then employed by Englert.
The records also showed that beginning during the week
starting February 6, 1971, Englert abandoned all overtime
work by its draftsmen until on or about September 6, 1971,
and that during this period also Hindsley worked approxi-
mately the same number of hours, perhaps slightly less on
the average, as the other draftsmen.
Finally from September 6, 1971, to the week ending April
3, 1972, these records show that Hindsley worked in each
of the biweekly pay periods but on an average of considera-
bly fewer hours than did the three or four other draftsmen
still employed and did no overtime work.
The above findings, with one exception, are identical to
those Respondent made in its brief:
From his first pay period at Englert through the pay
period ending February 6, 1971, Hindsley worked a
weekly number of hours consistent with the other
draftsmen. Following the February 6 pay period, how-
ever, overtime work for the draftsmen at Englert was
suspended until the pay period beginning June 14,
1971. Beginning with the February 6 pay period and
continuing through the pay period ending April 1, 1972
(the last period for which Hindsley was paid), Hindsley
worked no overtime at all. [Emphasis supplied.]
The above quotation is incorrect in its statement that the
suspension of overtime by Englert ended on June 14, 1971.
It is true that overtime was, in fact, worked during the week
beginning on June 14. But the testimony proved that, with
the sole exception of the 1 week, overtime remained sus-
pended by Englert until the week beginning September 6,
1971, after which some overtime was again worked by
draftsmen other than Hindsley. When overtime was re-
sumed on September 6, Englert stated that working over-
time would be at the option of the individual draftsmen.
Hindsley opted for no overtime and thereafter worked
none.
2 Respondent also claimed in its answer that the Specifications failed to
take into consideration Hindsley's annual wage increases of $4.20 per hour
and $4 .40 per hour . However, Respondent failed to show that these increases
had not been taken into account in the Specifications . Actually the interim
earnings reported came from Englert Engineering Co., and thus must have
included these annual wage increases.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Law
In its brief Respondent contends that the law on backpay
governing this case is as follows:
The general rule in backpay cases is thus usually stated
to the effect " . . . that a wrongfully discharged em-
ployee is entitled to the difference between what he
would have earned but for the wrongful discharge and
his actual interim earnings from the time of discharge
until he is offered reinstatement. Backpay can be re-
duced, however, if a `willful loss of earnings,' ... is
shown." Stated another way, a discriminatee ". .. is
not entitled to backpay for periods during which he
voluntarily remained in idleness."
It is thus the position of the Company that, if the
Administrative Law Judge is satisfied that Hindsley
failed to work a reasonable number of available hours,
then the number of hours he thus missed should be held
to be tantamount to "periods during which he volun-
tarily remained in idleness ." [Citations omitted.]
Based on this concept of the law, which is here accepted
arguendo, Respondent presumes that Hindsley would have
had available to him the same number of regular and over-
time hours as the other draftsmen averaged. Upon this ba-
sis, Respondent presumes that Hindsley should have "in
due diligence" worked the same 10.7 hours overtime per
biweekly period which it says the other draftsmen worked.
Under that formula Respondent now computes that it owes
Hindsley $219.26. If, on the other hand, Hindsley should
not be required to work overtime, Respondent's computa-
tion shows that it now owes Hindsley $514.99.
Conclusions
However it is axiomatic that an employee cannot work
when work is not made available to him. No Company is
going to pay an employee for hours spent sitting around
when there is no work available for him to do.
At the hearing Respondent produced the head of
Englert's drafting department as a witness. Presumably, as
the head of that department, he could have testified as to
the work available over the backpay period. However Re-
spondent asked him no questions as to the availability of
work during that period. Thus this record is devoid of any
evidence as to the amount of work available.
The availability of work for Hindsley to do and to be paid
for is a vital element in detemining the amount of backpay
due and owing Hindsley from Respondent. However proof
of that element is missing here. Respondent's omission of
such testimony may have been due to carelessness or it may
have been calculated and intentional.
The facts here lead but to the conclusion that this vital
omission of proof is not chargeable to mere carelessness. As
previously noted, Englert suspended all overtime work for
its draftsmen from February 6, 1971, to September 6, 1971,
with the exception of that 1 week beginning June 14. Upon
the resumption of overtime work for the draftsmen Englert
made working overtime optional with the individual drafts-
men. These facts would indicate that work was not in abun-
dant supply for draftsmen. The sockdolager, however, is the
fact that, when in April 1972 Hindlsey voluntarily left his
interim employment with Englert to enter business on his
own, Respondent's staff of draftsmen, upon his departure,
became and remained throughout the period about which
Respondent chose to inquire, three in number whereas at
the beginning of Hindsley's employment there had been six
draftsmen in the department. Obviously work was not avail-
able. Accordingly the facts require, and therefore I must
find, that Hindsley was not guilty of any willful loss of
interim earnings because there was no showing made here
that he willfully refused to do any available work.
Therefore, in accordance with the Backpay Specifica-
tions, I hereby find that there is now due and owing J. C.
Hindsley from Respondent the sum of $4,967 together with
interest thereon at 6 percent per annum from June 29, 1972,
less any tax withholdings required by Federal and state law.