Midwest Hanger Co.

National Labor Relations Board - Board Decisions

Dec 1, 1975

221 N.L.R.B. 911 (N.L.R.B. 1975)

MIDWEST HANGER CO.
Midwest Hanger Co. and Liberty Engineering Corp.
and United Steelworkers of America, AFL-CIO.
Case 17-CA-4331
December 1, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On October 8, 1971, the National Labor Relations
Board issued its Decision and Order' directing that
Respondent make whole certain employees for their
losses resulting from Respondent's unfair labor
practices in violation of Section 8(a)(3)'and (1) of the
National Labor Relations Act, as amended.' On
February 20, 1973, the United States Court of
Appeals for the Eighth Circuit issued its judgment
enforcing the Board's Order.2 Respondent's petition
for certiorari to the United States Supreme Court
was denied on October 9, 1973.3 On June 7, 1974, the
Regional Director for Region 17 issued a backpay
specification and notice of hearing to which Respon-
dent filed an answer and an amended answer., A
hearing was held before Administrative Law,Judge
Julius Cohn on September 10• through 13, and
November 1.1 through 15, 1974, for the purpose of
determining the amount of backpay due the discrimi-
natees. On May 20, 1975, the Administrative Law
Judge issued the attached Supplemental Decision in
which he found that the discriminatees were entitled
to backpay as set forth in his recommended Order.
Thereafter, Respondent filed exceptions and a
supporting brief.
-Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached' Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings,4 findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Supplemental Order.
ORDER
Pursuant , to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Supplemental Order of the Administrative Law
Judge and hereby orders that Respondent, Midwest
Hanger Co . and Liberty Engineering , Corp., Kansas
City, Missouri , its officers , agents, successors, and
221 NLRB No. 135
911
assigns, shall take the action set forth in said
recommended Supplemental Order.
1 193 NLRB 616
2 474 F.2d 1155
3 414 U S 823.
4 Respondent contends that the Administrative Law Judge's action in
quashing a subpena to compel production of the Board 's Compliance
Officer Manual deprived Respondent of due process in its cross -examina-
tion of the Compliance Officer. We find no merit in this contention as the
Administrative Law Judge properly relied on two grounds. (1) Respondent's
failure to obtain written consent from the General Counsel for the
production of the manual pursuant to Sec. 102.118 of the Rules and
Regulations which were in effect at the time of the hearing in the instant
backpay proceeding, and (2) the fact that the backpay formulas and
rationale herein are spelled out in the record as well as in the Board's past
Decisions.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JULIus COHN, Administrative Law Judge: On October 8,
1971, the National Labor Relations Board issued its
Decision and Order (193 NLRB 616) directing Midwest
Hanger Co. and Liberty Engineering Corp., herein called
Respondent, to make whole certain employees for their
losses resulting from the unfair labor practices found to
have been committed by the Respondent.'On March 21,
1973, the Board's Decision and Order was enforced by the
United States Court of Appeals for the Eighth Circuit (474
F.2d 1155),1 Respondent's petition for certiorari to the
United States Supreme Court was denied on October 9,
1973 (414 U.S. 823). The parties being unable to agree on
the amount of backpay due under the terms of the Board's
Order, the Regional Director for Region 17 issued a
backpay specification dated June 7, 1974. The Respondent
filed an answer and an amended answer thereto.
A hearing was held,before me at Kansas City, Missouri,
on September 10 through 13, and November 11 through
15, 1974. Briefs, which have been carefully considered,
have been received from General Counsel and Respon-
dent.
Upon the entire record in the case and on my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BACKPAY PERIOD
The Board's Order as enforced by the court provided for
reinstatement of 17 employees and directed the Respon-
dent to make them whole for any loss of earnings they may
have sustained by reason of its discrimination? In its
answer to the backpay specification Respondent contend-
1 The court of appeals did not enforce that portion of the Boards Order
requiring reinstatement and backpay for Betty Johnson andGrover Speck.
2 The L7 employees are- John Ashby, Kim Bristow (Woods), Margaret
Buckley, David Covey, Joseph DeMent, June Elliott, James Walter Forbis,
Ronald Greathouse, William Greathouse, Marilyn Kimberlin, John Charles
Lankford, Shirley Lauderdale (Chamberlin), Sharon Meier, Michael Owens,
Virgie Peterson (McCannon), Elaine Peukert, and John Sells.
912 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
ed that it- had made a proper offer of reinstatement to
certain of the 17 discrimmatees on October 25_197V s At
the opening of the hearing herein it was deemed expedient
to proceed with the evidence on this issue at the outset.
Counsel for the General Counsel then moved to prohibit
the testimony on the ground that the question, had been
fully, ,litigated in the prior unfair labor practice hearing. In
addition to his reliance on, the Board's Order as enforced
by the court, General Counsel submitted in support of his
motion excerpts from the transcript of the previous
hearing, briefs of the parties to ' the Trial Examiner, the
Respondent's exceptions to the Trial Examiner's Decision
and the cross-exceptions of the General Counsel, and,
finally, excerpts from the briefs of the parties to the court
of appeals.4 As the prior Decision contained no specific
finding with reference to the alleged offer of reinstatement
made to some terminated employees , it was not clear that it
had been finally resolved. I therefore denied the motion,
made without prior notice, rather than refuse Respondent
an opportunity to litigate a matter in these circumstances.
- Upon reconsideration of this issue , I shall grant General
Counsel 's motion to strike contained in his brief. I now
find , based on the entire record in this, and the relevant
portions, of the, previous proceedings, that the question of
whether Respondent made an unconditional offer to
reinstate 11 employees in October 1970 was litigated finally
in the course of the original unfair labor practice case. The
Trial Examiner's recommended Order provided that
Respondent offer to such of the employees named in the
complaint, "who have not heretofore been fully reinstat-
ed," their former jobs and make them whole for any loss of
earnings they may have suffered. Respondent took specific
exceptions 'to what it termed the Trial Examiner 's failure to
consider the Respondent 's offer to reinstate terminated
employees on October 25, 1970, in ordering their reinstate-
ment . Counsel for Respondent ,'who had urgied this issue in
its brief to the Trial Examiner, reiterated it in a brief
submitted to the Board in support of its exceptions'to'his
Decision . The Board , noting that it considered the Trial
Examiner 's Decision , the exceptions, the cross-exceptions,
and briefs and the entire record in the' case, adopted the
recommended Order of the Trial Examiner. In view of
these recitals it cannot be presumed that the Board did not
consider the issue of the alleged unconditional 'offer of
reinstatement in 1970 particularly as Respondent had
taken specific exception on the point. If the 11 discrimina-
tees, to whom the alleged offer had been made, had refused
it in 1970 , they would not have been entitled to reinstate-
ment in 1971 nor would they have been entitled to backpay
subsequent to the date of the offer . Since the Board
directed reinstatement in 1971 , which- it would not have
done if it had found a valid,prior offer, the backpay period
continued to run under the make whole remedy until
Respondent made a valid offer. Respondent urged the
same issue in the court of appeals but the court enforced
the Board 's Order with regard to the reinstatement and
3 As will be seen infra Respondent allegedly offered to reinstate 13
employees of whom II are discnminatees in this proceeding. The II
discnmtnatees referred to are John Ashby, Kim Bristow (Woods),
Margaret Buckley, David Covey,' Joseph DeMent, June Elliott, Ronald
Greathouse , Wilhain Greathouse, Marilyn Kimberlin, Sharon Meier, and
make-whole remedy.5 I conclude, therefore, that the issue
had been litigated and decided. ,
If it should be held that the Board's Order as enforced by
the court in the original case is not conclusive on this issue
and there was no final determination as to whether the
Respondent had offered reinstatement to some of the
discriminatees herein, I would find, nevertheless, on the
basis of all the testimony and evidence in the hearing
herein that Respondent had not made a valid uncondition-
al offer of reinstatement on October 25, 1970, to I I of the
discriminatees in this matter.
On October 22, 1970, the employees on the second shift
walked out and were later joined by the employees on the
other two shifts. The following,day; a Friday, representa-
tives of the Company and the Union and employees met at
the plant. The Company was represented by,its attorney,
Stanford Madden, Gene Brown, plant manager, _ and
Reginald Ward, vice-president, and general manager. For
the Union there were Harry Andrew, an International
representative of the United Steelworkers, and an employ-
ee committee 'including some of the discriminatees: All of
the company representatives present at 'the meeting, as well
as Andrew and a number , of the employee committee,
members, testified at this hearing. There is substantial
agreement that meetings were conducted over the entire
weekend in the course of which the parties devoted most of
their time to a discussion of the 26 employees who had
been terminated by the Company. After it had been
established that the Union was seeking by the strike to
have these employees reinstated, among other things, the
Company resisted such demand' contending t that it had
discharged them for cause. Thereupon the parties reviewed
the Company's reasons and inspected Ahe personnel
records of each of the terminated employees . By Sunday
morning, October 25, it was agreed' that 13 of the
discharged employees would be taken back' There were
certain reservations with respect to this agreement which in
itself was' tentative as it was subject to the approval of the
Respondent's president, Carl Jones. Admittedly- David
Covey would have to submit to a physical examination
before he could be reinstated . Joseph DeMent, a welder,
would have to take another job, as would ' John Ashby.
Elaine Peukert and Marilyn .Kimberlin, would, have to
improve their absenteeism , and June Elliott, her attitude.
The Union agreed to speak to the various people who
would be returned to work , to urge them to improve their
absenteeism records, attitude and general 'performance.
The Company contends that these considerations were part
of the discussions and not conditions, attached ' .to its
agreement to take certain people back to work.
Carl Jones, company president, had been out of town
during this time on business . He returned on Sunday
morning, October 25 while'the parties were still engaged in
their discussions . He sat and listened for about half an
hour and then a recess was taken . Jones met with the other
representatives who briefed him on what had occurred. 'He
quickly decided that he'would make one, effort to resolve
Elaine Peukert.
'4 These materials were received in evidence as Board exhs . 13(a) through
(g).
5 Except, as previously noted , for two alleged discnmmatees not
involved herein
MIDWEST HANGER CO. 913
the strike. He said that he told his people if they had
already agreed to take 13 employees back, (he did not even
know who they were) that he would tell the Union that
they would be reinstated immediately. The meeting was
then reconvened and Jones said that in order to resolve the
strike he would reinstate the 13 employees agreed upon, he
would recognize the Union and bargain with it in an effort
to reach an agreement. At this point an employee member
of the committee, presumably Bill Greathouse, asked
whether backpay was included for the returning terminated
employees. Jones refused, stating that it was out of the
question. After a number of recesses during which the
union representatives went out to consult with the strikers,
and after a later meeting with a larger group of strikers, the
offer was turned down because the employees felt that the
13 should receive backpay.
While there is -not much dispute that the above recital
constitutes an account of what occurred at the weekend
meetings , there is a sharp conflict as to one other matter
which at some point was the subject of some discussion at
the meetings . This is with respect to the pending unfair
labor practice charges. By this time, the Regional Office of
the Board had already issued a complaint alleging that the
Company had violated Section 8(a)(l), (3), and'(5) of the
Act and, among other things, the complaint listed the 26
alleged discriminatees discussed at -the meetings. The issue
is whether the Company's offer to reinstate 13 employees
was conditioned upon withdrawal of the unfair labor
practice charges. Jones who had been present only'at the
final meeting on Sunday said that while he did not discuss
it, he assumed that if he put all the people back to work the
Union would withdraw their charges. Plant Manager
Brown testified that nothing was said about unfair labor
practices at the time Jones made his offer. Brown further
said that he does not recall when or by whom, but at some
point the matter of the pending unfair labor practices had
been brought up and Attorney Madden had pointed out
that this had to be resolved by the Labor Board. At the
prior hearing, Brown had testified that he knew about the
charges but did not recall any discussions that they be
dropped.6
Vice President Ward testified that he could only recall
the question of the unfair labor practices mentioned once
when someone brought it up to Mr. Madden who replied
that the NLRB would have to handle the whole thing.
Ward stated that nothing had been said about the
dropping of the charges. This is in contrast with Ward's
testimony at the previous' hearing where, in response to a
question about the pending unfair labor practice charges,
he said , "Everything was agreed to be dropped, if we took
the people back in full standing." And later he reiterated,
"All charges were to be dropped." Ward now states that he
misunderstood the question asked him in the original
hearing and his testimony now is that nothing was agreed
about dropping any charges.
Stanford Madden, the attorney, testified that upon being
informed of the strike on October 22, 1970, he called
6 Excerpts from the transcript of the previous unfair labor practice
hearing were received and made part of the record herein -
7 Ware explains this apparent discrepancy between the affidavit and his
present testimony by saying that he gave the affidavit 3 years after, the
Union Representative Andrew and made arrangements for
the meetings commencing that Friday. Madden stated that
the pending charges were not important because the main
objective of the Company was to get the plant back to
work . Madden said that , at the Sunday meeting in the
presence of Jones, he "might have raised the question of
the unfair labor practices" and Andrew replied that the
Union would withdraw them . Madden said he told
Andrew that he could not withdraw the charges but that he
could request withdrawal of the Board . Madden stated that
this discussion occurred right after Jones made his offer
but before the matter of the backpay was brought up.
Madden did not believe that he discussed with Mr. Jones
the problem of the Board 's handling of the backpay
situation before Jones made his offer . He does say,
however, that he generally informed Mr. Jones about the
consequences of the Board's finding of 8(a)(3) violations.
Finally he averred that Jones' offer was not conditioned
upon withdrawal of the charges . Thereafter Madden was
recalled as a rebuttal witness and he denied making a
statement at the outset of negotiations on Friday that the
charges would have to be taken care of. In any event he
said he did not know that they could settle the whole
matter because all the Union could do was to request
withdrawal of the charges. In this connection he said that
his experience taught him that if a settlement was reached
the Board would likely honor a withdrawal request.
Jewell D. Ware who was called as a witness on behalf of
the Respondent also testified with respect to this issue.
Ware is an employee who is presently chairman of the
Union but was then a member of the employee committee.
Ware said that after Jones made his offer that Sunday
morning he heard someone from the Company say that
they had some charges against them to which Andrew
replied that he had noticed. He testified that either Jones or
Ward said or asked if these charges could be dropped and
that Madden then said that it was in the hands of the
NLRB . Ware stated that it was right after Jones made his
offer , that Ward mentioned the charges and Madden said
he did not believe that it was possible to drop them without
the NLRB , and that nothing further was said on that
subject . In a written statement dated November 28, 1973,
Ware had said that Jones stated that he would bargain with
the Union if the employees would agree to drop their
charges.7
Harry Andrew, now retired, but then the representative
of the Union, testified that Madden called him on
Thursday night and requested that he meet with the
Company on Friday in an effort to settle the stake. At the
meeting Madden asked what it would take to solve the
strike Wand Andrew said that 26 people were terminated
unjustly and they wanted to get them back to work.
Madden replied that the circumstances were delicate and
that something would have to be done with the pending
charges to which Andrew rejoined that if something could
be resolved the charges could be dropped. Madden said
that if anything was worked out they would have to be
events had occurred and he was not quite sure about it and had not been
thinking about it for a long time. However , he testified that now having sat
in on the present hearing and listened to the "discussions," what actually
happened came back to him more clearly
914 DECISIONS OF NATIONAL LABOR {RELATIONS BOARD
dropped, meaning the charges. Andrew said that the
matter of dropping the charges was again brought up on
Sunday after the recess in which Jones had been briefed
and prior to the Jones' offer. Andrew testified that the
Company was offering a package deal: reinstate 13 of the
terminated employees and leave out 13, recognize the
Union, bargain for a contract, no backpay for the
reinstated employees, and finally dropping the unfair labor
practice charges. When the employees' committee turned
down the offer of Jones because of his refusal to include
backpay, at the request of the company representatives,
they met with the employees on the picket line who also
rejected the offer. Thereafter a meeting was held on the
parking lot attended by approximately 60 or 70 employees
and again the offer was turned down.
Andrew insisted that Madden brought up this question
of the charges, not only at the outset of the negotiations on
Friday, but also just before or just after Jones made his
offer. Andrew said that he knew that charges could not be
dropped automatically but he felt that he could get it done
by going to the Board and requesting it.
William Greathouse, one of the discriminatees, was also
a member of the employees' committee. He testified that at
the first meeting on Friday Madden asked what their
purpose was and Andrew said that the Union wanted
recognition and reinstatement of the 26 people who had
been terminated. Madden then asked if the problem could
be resolved, would the charges pending at the NLRB be
withdrawn, and Andrew said that if they could get an
agreement he felt that-he could withdraw the charges. The
matter was brought up again on Sunday when Jones made
his offer and Madden asked Andrew if he would withdraw
the charges if everything was agreed upon to which
Andrew replied that he would. Greathouse said that -he
thought this matter was settled and then he brought up the
question of the backpay.
Upon analysis of all the testimony with respect to this
issue of whether the Company's offer to reinstate 13
employees was in part, conditioned upon withdrawal of the
pending unfair labor practices, I credit the testimony of
Andrew and Greathouse and find that I cannot credit the
testimony of the Respondent's witnesses. At least Brown,
Ward, and Ware' had made prior inconsistent statements.
Brown testified at this hearing that at some point Madden
pointed out that the pending charges would have to be
resolved by the Labor Board, but testified at the prior
hearing that he did not recall any discussion that they be
dropped. On the other hand, Ward had testified at the
prior hearing that everything was agreed to be dropped
(referring to the pending charges). At the current hearing
Ward recanted and' stated nothing had been said about
dropping the charges but that Madden merely had pointed
out that the NLRB would handle the whole thing. Ware,
who in writing said that a company representative had
stated he would bargain with the Union if the employees
would agree to drop their charges, now testified at the
hearing that this had not occurred and that his memory
was better after listening to the testimony of the Compa-
ny's witnesses who preceded him on the stand.
Madden's testimony, in effect, relies on the technicality
of the necessity for a Regional Director to approve
withdrawal of the charges and that therefore it was not
possible to condition reinstatement or, any other agreement
reached by the parties upon withdrawal of the charges. But
Madden, a labor attorney of 30 years' experience and
himself a former field attorney with the Kansas City
Regional Office of the Board knew.-better. He' finally
testified that his experience told him that if a settlement
was reached the Board would likely honor a withdrawal
request. -
On the other hand, the testimony of Andrew and
Greathouse was straightforward and consistent on this
issue. I find, therefore, that any offer of reinstatement
made on October 25, 1970, was conditioned upon
withdrawal of the unfair labor practice charges.
An employee who has been discriminatonly discharged
is entitled to an unconditional offer of reinstatement to his
former position. Offering to reinstate such an employee
provided that he drops pending unfair labor practices
clearly attaches a condition to the offer. The Board has
long held that attaching such a condition to an offer of
reinstatement is not valid.8 Any other result appears to me
to, be implausible. A factor that was crystal clear from this
record is that President Jones was adamant with respect to
the payment of backpay to these discriminatees . Not only
did he view this as a matter of principle, but he also stated
that the Company did not at that time have the financial
resources to make such payments. In these circumstances I
do not believe that a businessman of his acuity would leave
himself open to a backpay liability which could have
resulted from the continued processing of "the unfair labor
practice complaint. If Respondent were making an offer of
reinstatement to curtail its backpay liability and litigate the
case, that should have been made clear to the Union and
the employees. Instead Jones told them he would never pay
backpay. If this creates anambiguous situation, the
interpretation must, be resolved against Respondent be-
cause the offer must, be clear and specific to be valid.
Finally, it is unlikely that parties agree upon recognition
and bargaining without seeking withdrawal of charges
alleging the Company's refusal to bargain in good faith.
Moreover, there are other factors which negate a finding
that Respondent's offer was unconditional. For example,
witnesses for the Respondent admit that discriminatee
David Covey would have had to undergo a physical before
returning to work. This is obviously a condition to his
reinstatement and as to David Covey, at,the very ' Feast,
Respondent's offer was not valid. At least two other
employees, DeMent and Ashby, were'to return to different
jobs, Respondent having contended that "their jobs had
been eliminated. Yet there is, testimony in this record to the
effect that other people were doing the work in their place.
Also Buckley, Peukert, and Kimberlin had to improve their
absenteeism . Respondent contends that these matters were
merely the subject of the discussion in determining which
employees it would agree to reinstate . But if so, the entire
context was one of limitation and condition and before
agreement it was clear that these people,would have to
improve either absenteeism or conduct or work habits, or,
8 Denver Fire Reporter and Protective Company, Inc, 119 NLRB 1187 (1957), Interior Enterprises, Inc; 125 NLRB 1289, 1312 (1959).
MIDWEST HANGER CO.
in the case of Ashby and DeMent, the assumption of
different positions. In these circumstances the discrimina-
tees were not receiving "a specific and unequivocal offer"
to which they were entitled.9 Respondent further argues
that none of these conditions were attached to Jones' offer
when he made it. While this is indeed true, Jones himself
said that he did not even know the names of the 13 people
to whom he was offering reinstatement. He relied on his
managers who had conducted these meetings for almost 3
days and who informed him that they agreed with the
Union to take back 13 of the terminated employees.
Having relied on these people to fill in the names of the 13
to be reinstated, he is also bound by any commitments they
made or conditions they may have placed upon the
reinstatements during the discussions with the union
representatives and the employee committee.
Finally, I find that the offer to reinstate 13 employees
was conditioned upon the termination of the strike. This
was implicit during the entire negotiation. The rhotivating
factor in commencing the negotiations was the desire of
company officials in getting the plant back to work.
Madden testified that the operation had been shut down
and the Company was interested in finding some way to
get the strike over with. Madden testified at one point that
no conditions were placed on Jones' offer of reinstatement,
but immediately he interrupted and stated that he wanted
"to back up" on that statement and went on to say as
follows: "There was a condition on that they would all
come back to work." Ware, the employee committeeman,
testifying at the behest of the Company, said, "It was -my
understanding that he wanted the strike settled and that he
would bring these people back if it would settle the strike
.... Jones said that he was interested in getting the
thing over with and accordingly resolved to break through
and make the offer which he did make. In these
circumstances , it is not conceivable, that he would have
accepted the return of 13 employees while the strike
continued.
What emerges from this entire discussion is that the
parties had agreed on a package deal. Thirteen terminated
employees would be reinstated, the Company would
recognize and bargain with the Union, the strike would be
concluded , certain reinstated employees would have to
take different jobs, others would have to improve their
records either with regard to absenteeism, work habits, or
other conduct, and the unfair labor practice charges would
be withdrawn. This does not add up to the unconditional
offer of reinstatement to which discriminatorily discharged
employees are entitled.
For all of the above reasons, I find that, even if the issue
had not been finally litigated, Respondent did not make a
valid unconditional offer of reinstatement to 11 of the
discriminatees herein on October 25, 1970.
9 See Rea Trucking Company, Inc., 176 NLRB 520 (1969).
10 It is customary, according to Compliance Officer Rooney, to use
hours worked, rather than earnings, as a basis for the computation
However, Rooney said Respondent informed him that the hourly records
were in dead storage and not readily available. In its brief, Respondent
criticizes Rooney's use of the` quarterly earnings method, implying perhaps
that he should have forced Respondent to produce the hourly records it
failed to submit voluntarily. Rooney testified with great forthrightness and
II. THE METHOD OF COMPUTATION
915
In computing the total gross backpay due to each of the
discriminatees, the Regional Office employed a formula
which utilizes a group of representative employees. This
method has been frequently employed in situations where
the backpay period is lengthy and it may be difficult to
determine the probable path of a particular discriminatee
during the period. A group of representative employees
were selected who worked in similar classifications and
earned similar wages at the time of the discharges. The
Compliance Officer divided the representative employees
into three groups to match corresponding groups of
discriminatees. He then ascertained the quarterly earnings
of each representative employee throughout the backpay
period and arrived at an average earnings figure for each of
the three representative groups. These amounts were
assigned as the gross quarterly earnings for every discrimi-
natee in the corresponding group. As earning figures were
used, factors such as overtime and absenteeism are
automatically reflected.10 With respect to the latter,
quarters in which representative employees had excessive
absences (determined at over 5 days for this purpose) were
excluded from the computation. This information was
gleaned from personnel records. In this manner, normal or
average amounts of absenteeism were built into the
computation. And, similarly the factor of overtime was
included.1' Wage increases are, of course, reflected by the
quarterly earnings of the representative employees.
Respondent has proposed, in lieu of the formula used in
the specification, a method of computation on an individu-
al basis extending the employment of each discriminatee
through the backpay period. This involved using the hourly
wage rate of each discriminatee, cranking in increases
according to the periodic changes in the Company's wage
schedules. It was assumed that the discriminatee worked a
40-hour week during the entire backpay period to which is
added an adjustment for overtime. For discriminatees
employed by Liberty Engineering,12 the total amount of
overtime ' hours each worked during his employment was
determined. This was divided by the number of weeks he
was' employed for a weekly average and multiplied by 13 to
obtain a quarterly average. This factor was then added to
the total regular hours each discriminatee would work in a
quarter and the gross backpay is calculated by using the
wage rate then in effect for the job classification.
To ascertain overtime for the other discriminatees
(Midwest employees) Respondent used a control group
consisting of all employees on the payroll in November
1973 and, working back to the discharge dates, computed
the average quarterly overtime worked by the group (in
each of the years they were employed), and assigned that
amount quarterly to each discriminatee.
candor, and I do not doubt that he asked for the hourly records. In any
event, there is nothing inherently wrong with his use of the quarterly
earnings and I reject Respondent 's contention in that regard.
u The problems of the excessive absenteeism of discriminatees prior to
discharge or representative employees with large amounts of overtime will
be dealt with under separate headings.
12 Lankford , DeMent, Sales, and Owens.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In appendix 18 of its amended answer, Respondent
employing its formula, has set forth a gross backpay figure
for each discriminatee on that basis. In so doing, it
assumed that five discriminatees 13 would have been
demoted to general labor for economic reasons. Respon-
dent 's formula contains no provision for absenteeism,
although it vigorously contends that the formula used in
the specification does not account for the excessive
absenteeism of some of the discriminatees during their
employment. In another calculation submitted in its
amended answer, proposed for the shorter backpay period
of approximately 6 months in the event it was held that
Respondent had made a valid offer of reinstatement,
Respondent built in a factor for historical absenteeism.
Except for its argument about the absenteeism of some
discriminatees, absence is not otherwise considered in
Respondent's proposed formula for the longer period.
A discriminatee is entitled to receive what he would have
earned had he remained in the Company's employ less his
interim earnings . This is a broad principle not simple in its
application. There is no formula that could measure an
exact figure since the discriminatees did not actually work
during the period. Therefore "the Board is vested with a
wide discretion in devising procedures and methods which
will effectuate the purposes of the Act." N.L.R.B. v. Brown
& Root, Inc., 311 F.2d 447, 452 (1963). The formula utilized
by the General Counsel, a representative group whose
earnings are averaged through the backpay period has
been often approved by the Board.14 I find that its
employment in this case is reasonable and'proper 15 While
the formula proposed by Respondent has produced similar
gross backpay figures for many of the discriminatees, as
previously noted it makes no provision for absenteeism,
normal or excessive, and while arguing against the
representative group concept, Respondent actually em-
ploys the idea (calling it a control group) in its computa-
tion of overtime for the Midwest discriminatees.
Having approved the use of the representative group
theory of computation,16 I do not intend to apply it
slavishly without regard to inequities arising from special
circumstances respecting groups or specific discriminatees.
As they have been divided into three groups, I shall
examine each separately, regarding the applicability of the
formula.
A. Group 1
There are eight discriminatees in this group all of whom
are in the general labor classification.17 The average
earning of six representative employees, all in similar
classifications and having similar wage rates as the
discriminatees, were assigned to this group. Respondent
objected to the inclusion of Leona Munkirs as a represent-
ative employee because she was a "Red Star" employee at
a rate of $2.50 per hour. Since the average hourly rate of
13 W. Greathouse, R. Greathouse, Covey, Forbis, and Ashby.
14 See Ambrose Distributing Co., 178 NLRB 721 (1969); J. H. Rutter-Rex
Manufacturing Company, Inc., 158 NLRB 1414 (1966).
15 Most discruninatees were terminated in mid-June 1970. As there were
only approximately 2 weeks remaining in that quarter, gross backpay for the
second quarter of 1970 was computed for each discriminatee on the basis of
a 40-hour week at the hourly rate as of the date of discharge.
16 In its brief, Respondent contended it was denied due process by
the representative group was $2 and the discriminatees
averaged $2.01, her higher rate did not unbalance the
group. Its effect was just the opposite, as it served to bring
the rates ofthe two groups to an almost exact balance. The
application of the representative formula to this group has
achieved the desired effect, noting the similarity of job
classifications, the almost identical average wage rate, and
the built in factors ofwage increases, normal overtime, and
absenteeism. I therefore approve and adopt it for Group 1
employees.
B. Group 2
This group of six discriminatees 18 of somewhat higher
skills had an average wage rate of $2.57 per hour at the
time of discharge. The, representative employee chosen for
Group 2 was Jewell-Hawker, Sr., a lift truck operator who
earned $2.50 per hour at the time. For the same reasons set
forth above, generally, and also with regard to Group 1, I
find that the application of the representative employee
formula used by the General Counsel to determine gross
backpay of this group is both fair and reasonable. The
gross earning figures shall be subject, of course, to specific
defenses raised by Respondent with respect to certain
discriminatees.
C. Group 3
This group consists of only two discriminatees, DeMent,
a maintenance welder and Lankford, a maintenance man,
whose rates at the time of discharge were $3.25, and $3.75,
respectively. The representative employee selected for this
group was Lloyd Admire, a maintenance man whose
hourly wage at the same time was $3.75 per hour.
Respondent vigorously opposes the use of the representa-
tive employee formula with respect to this group. I find
merit in its contentions. Since the representative group here
is not a group, but only one employee, it is manifestly
unfair to apply Admire's wage rate of $3.75 to DeMent
who only earned $3.25 at the time of his discharge.
Although DeMent would have been entitled shortly to an
increase to $3.50, the difference in rates over the whole
lengthy period would result in a considerable windfall to
him. The balancing argument advanced by the General
Counsel when it included Munkirs as a representative in
Group I is not available here.
The choice of Admire was not wise for another reason, as
he was not truly representative. Apparently he was a sort of
special category employee who had been employed over a
long period of time and, while recently he had been
performing a great 'variety of maintenance tasks, he was
also experienced with the production end of the business at
Midwest. (All three were Liberty Engineering employees.)
Thus he would frequently work at Midwest on weekends
reason of the quashing of a subpoena compelling production of the
"Compliance Officer Manual " Respondent relied on McClain Industries,
Inc. V. N.L.R.B, 87'LRRM2207 (E.D. Mich., 1974). That case was reversed
by the Court of Appeals for the' Sixth Circuit (508 F.2d 839).
17 Bristow, Buckley, Elliott, R. Greathouse, Kimberlin, Lauderdale,
Meier, and Peterson.
18 Ashby, Covey, Forbis, W Greathouse, Peukert, and Owens.
MIDWEST HANGER CO. 917,
doing production work. As a result of his utilization at
Midwest 19 and his versatility as a maintenance man,
Admire compiled an inordinate amount of overtime during
the backpay period. On the other hand, Respondent's
comptroller testified that overtime at Liberty was almost
nonexistent in 1970, 1971, and 1972. To credit Lankford
with the earnings of Admire, in these circumstances, is
clearly inequitable, even though their wage rates were the
same . Since it is clear that Admire is not really a
representative employee for this group, and no other
employee has been presented as such, I shall reject the use
of the representative employee theory for Group 3.20
The only alternative method of computation on the basis
of the record herein is that proposed by Respondent, which
I shall adopt subject to. a slight modification. Using the
wage scales for Liberty employees, applicable to DeMent
and Lankford, and extending their employment through-
out the backpay period on the basis of full 40-hour weeks
for each quarter, I find total gross backpay for Lankford to
be $28,834 and DeMent $26,785.21 -
III. CONTENTIONS APPLICABLE TO MORE THAN ONE
CLAIMANT
A. That Discriminatees Would Have Been
Discharged for Economic Reasons
Respondent contends _ that, had the discriminatees
continued in its employ, a number of them would have
been terminated for economic reasons, such as reductions
in force or job elimination, long before the end of the
backpay period. It is well settled that such a contention is
an affirmative defense and the burden is on Respondent to
establish that discriminatees would not have remained in
its employ for such nondiscriminatory reasons,22 Statistical
probability is not enough and it must be determined what
would have occurred regarding the employment of each of
the claimants based on the policies of Respondent.
Respondent must make the showing and mere conclusions
are not sufficient.23
Plant Manager Ward testified that employment dropped
from 82 in June 1970, to 52 in January 1971, and then
leveled off followed by a gradual dechne.to about 38 at the
end of 1973. Shifts have decreased from three in 1969 to
one at present. These changes were attributed to new and
improved machinery and maintenance.
19 He was on the Midwest payroll for a portion of the period.
20 The total gross pay, mcludmg overtime and absenteeism, of Admire
for the entire backpay period was $36,412. The specification assigns that
amount to both Lankford and DeMent.
21 These figures are broken down by quarters as appears in the appendix
annexed hereto, after adjustments made infra The evidence in the record as
to overtime is the comptroller's uncontradicted testimony' that, apart from
Admire, Liberty employees did not work overtime up to 1973 . In its own
calculation , nevertheless , Respondent credited DeMent with 6 5 hours of
overtime each month which was the average , of his overtime during the 2
months of employment . Although the amount of overtime he would have
worked but for his discharge is speculative, I shall not deprive DeMent of
the overtime conceded to him in Respondent's computation . There is ,no
evidence concerning overtime for Lankford save the comptroller's statement
as to the lack of it for Liberty employees generally, and the fact that he had
no overtime during his employment of 1 'month. Therefore I have not
credited him with any In Its amended answer , Respondent sets forth total
gross pay figures for Lankford at $28,301 and DeMent at $25,375, which
1. William and Ronald Greathouse
The Greathouse brothers were employed in May 1970 as
operators of a trouser guard machine, at a time when these
machines were operated for three shifts. In January 1971,
two shifts on the trouser guard were eliminated, and an
employee (DeShazer), hired after the discharge of the
Greathouse brothers to work on that machine, was
terminated. Respondent contends that the Greathouses
would have been terminated at that time because of the
shift cutbacks plus the fact that five other employees who
operated- trouser guard machines were their senior. The
trouser guard was operated for several months on one shift
and then was not used for 5 or 6 months. Thereafter
operations were resumed on a one-shift basis except for
such special occasions as receipt of a large order. The other
trouser guard operators were transferred to other jobs in
the plant.
In asserting that the Greathouses would have been
terminated in January 1971 Respondent apparently relies
on their lack of seniority. Yet Brown testified that there
was no strict policy of layoff in order of seniority; that
other factors such as ability, experience, flexibility,
performance, and absenteeism were considered.24 The fact
that DeShazer, a subsequent hire, was terminated 'iii
January 1971, does not lead inescapably to the' conclusion'
that the Greathouses would have met the same fate. Five
other trouser guard operators were retained-m that or other
positions. Why not the Greathouses? Most of the work was
relatively unskilled and there is no showing that they were
not adaptable. In view of all the circumstances, I find that
Respondent had not met its burden of showing specifically
that Ronald and William Greathouse would have been
terminated in January 1971.25
2. David Covey
Covey was a wire hanger adjuster on the third shift. After
his discharge, another employee, Abels was hired to work
the third shift . In January 1971, the second shift was
eliminated, but Abels continued to work the third shift. He
was terminated in July 1971 due to a reduction in force. As
Abels' place on the third shift was taken by -a more
experienced employee, Respondent argues , that Covey
would have been likewise terminated . Again, Respondent
apparently relies on seniority despite the testimony of its
officials that this has not been the sole criterion . Indeed,
include overtime for DeMent but not absenteeism . These are totals and
there is no quarterly breakdown , nor are the wage rate scales submitted for
Liberty employees precise in describing classifications. My own computa-
tion was made by quarters . In any event; the difference is not great, and as
the court said in N L R B v Rice Lake Creamery Co., 365 F.2d 88, 89
(C.A D.C., 1966); "The approximation thus reached is permissible in view
of the impossibility of exactitude." I shall discuss absenteeism infra' '
22 N L. R.B. v. Mastro Plastics Corporation and French American Reeds
Manufacturing Company, 354 F 2d 170 (C A. 2, 1965)
23 W. C. Nabors d/b/a W C Nabors Company, 134` NLRB 1078, 1088
(1961).
24 The-same seniority argument was rejected by the Trial Examiner in
the unfair labor practice case who found that President Jones had testified
to similar effect (193 NLRB at 625).
25 Respondent's last ditch contention that the Greathouses would have
been reduced in any event to a lower classification with a pay cut, (based on
testimony relevant to other employees ), not only sacks specificity, but is
sheer speculation.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
why was Abels retained in January 1971 when the second
shift was eliminated? I find, as with the Greathouses, that
an assumption that David Covey would, have been
terminated in July 1971, or even demoted, is speculative,
and Respondent has not sustained its burden of proof in
that regard.
3. 'John Ashby and James W. Forbis
Ashby and Forbis were employed in May, 1970 as
adjusters in the strut hanger department. According to
Plant Manager Brown, these jobs were created at that time
in an effort to improve efficiency by having employees who
were capable of adjusting the machines present full-time.
Brown said that as this result was not obtained, the attempt
was a waste . Consequently the jobs were not filled after
Ashby and Forbis were discharged and Brown stated that
they would have been terminated, in any event, in a few
weeks. However, contrary to the contention of, Respondent
that they, were not replaced, the then Trial Examiner
Peterson found (193 NLRB at 622) as follows: "When
Ashby and James Walter Forbis, another adjuster, were
discharged, the Respondent hired , two new employees to
perform that work and gave them a classification of
`general' employees.. So far as it appears, there was no
alteration in the job duties." As to the alternate contention,
that Ashby and,Forbis, would have been demoted, this is
speculative. I note there is testimony to the effect that they
were somewhat skilled employees and, in addition,
performed other duties. Other than the mere conclusion,
there- is no specific evidence from which , it can be
determined that they would have been demoted. I find
therefore, Respondent's contentions that, Ashby and Forbis
would have been terminated or demoted had they not been
discharged, to be unpersuasive.
terminated for economic reasons within a few weeks after
their discharge.
B. Absenteeism -
Respondent argues that certain discriminatees had such
records of absenteeism during their employment as would
warrant the conclusion 'that they would have been
terminated for that reason by the end of 1970.27 Respon-
dent has hypothetically extended their absences at the
same rate through the balance of 1970 and concludes that
absence record of each of these discriminatees would have
reached such proportions that they would have been
terminated in accordance with established company policy.
Once more, there is the question of relitigation, as the
defense of absenteeism was raised in the original case and
rejected. It is true, as Respondent contends, that the
Board's fording that they were discharged for union
activity rather than absenteeism does not negate the fact
that the discriminatees had records of absences. Neverthe-
less, the policy of Respondent with regard to the subject of
absence was litigated, and it does not appear that there was
any definitive policy, at least one of which employees were
aware. The only rule was that absence for 3 days without
calling in meant automatic termination. While Brown
testified that periodic reviews were made, and that some
employees were later terminated for absenteeism, no
objective criteria are set forth nor were employees told of
any. The vice of projecting prior absences into the future
lies in its speculative nature and involves subjective matters
and variables which cannot be predicted to recur in
precisely the same manner.28 This type of guesswork is
clearly insufficient to sustain the burden of Respondent in
proving that these discriminatees would have been dis-
charged in 1970, thereby curtailing the backpay period.29
4. Joseph DeMent and John C. Lankford
DeMent had been hired as a welder and Lankford as a
machinist. According to Brown, the Company had been
subcontracting welding and machine work even prior to
their employment, and, since this activity increased,
DeMent would have been terminated "a few weeks" and
Lankford "very shortly" after their discharges in June
1970.
Again, this contention will not wash as I find the
testimony of Respondent's witnesses to be self-serving and
conclusionary.26 Even taken at face value, it appears that
both discriminatees were hired at a time when allegedly
Respondent was subcontracting this work. It strains
credulity that they would have been hired and terminated
so shortly thereafter because of a sudden increase in
subcontracting their work. Just to discuss this matter
involves a degree of relitigation as the defense of lack of
work was found wanting in the unfair labor practice case.
Respondent has not presented sufficient probative evi-
dence that DeMent and Lankford would have been
C. Turnover
Respondent contends that because of its high turnover
rate, many of the discriminatees would not have remained
for a period of 3-1/2 years but would have left, voluntarily,
perhaps within 6 months. This is sheer conjecture which I
categorically reject. To say the least, this is another
"uncertainty" which must be resolved against the Respon-
dent.
IV. THE INDIVIDUAL CLAIMS
A. Preliminary
There are a number of controlling principles applied by
the Board and, the courts in backpay cases respecting the
efforts of an individual claimant to seek work, his interim
earnings and expenses incurred. It is well established, that
willful loss, of earnings is an affirmative defense, and the
burden has been described by the Court of Appeals for the
Eighth Circuit as follows:
26 See W. C. Nabors Company, supra. 230 (1974), with regard to overtime.
27 The discnminatees referred to are: McCannon, Buckley, Forbis, 29 This discussion of absenteeism is confined to whether the discnmma-
DeMent, Bristow, Peukert, Elliott, Kimberlin, and Meier. tees would have been discharged for that reason I' shall discuss absenteeism
28 See Atlantic Marine Inc. and Atlantic Drydock Corporation, 211 NLRB as a factor i DeMent's computation infra.
MIDWEST HANGER CO.
... in a backpay proceeding the burden is upon the
General Counsel to show the gross amounts of backpay
due. When that has been done, however, the burden is
upon the employer to establish facts which would
negative the existence of liability to a given employee
or which would mitigate that liability.30
It follows that the failure of a discrimmatee to make a
reasonable search for employment constitutes an affirma-
tive defense.31 An employer must prove that losses were
"willfully incurred" and a "clearly unjustifiable refusal to
take desirable new employment "32 An employee must
make a diligent or reasonable search for interim work 33 In
evaluating whether an employer has sustained his burden
,.any uncertainty is resolved against the wrongdoer whose
conduct made uncertainty possible." 34 Other applicable
principles will appear in connection with contentions made
by Respondent as to specific claimants.
Representatives of six companies in the- Kansas City,
North Kansas City, and Liberty areas testified on behalf of
Respondent as to the availability of work at their plants. In
substance they stated that their companies employ people
in general labor categories, both male and female, and
some also employed persons in skilled positions such as
welders and machinists. All testified to considerable
turnover, particularly in general labor jobs, and they
obtained applicants through referrals from Missouri State
Employment Service, newspaper advertisements, and walk-
ins. Most of the companies took written applications and
hiring was done on an as needed basis, frequently the job
going to the person who applied at the time. Many of the
discriminatees testified they applied for work unsuccessful-
ly at two of these companies, Guys' Potato Chips and
Armco Steel. None of these witnesses testified that any of
the 'claimants herein refused an offer of employment, nor
did they represent that if any one of them had applied they
would have hired him. Nor did the officials of Guys'
Potato Chips and Armco Steel state why they had not
hired the discriminatees who testified they had applied for
work at those companies. As stated by Administrative Law
Judge Schneider regarding similar circumstances in a
recent decision affirmed by the Board: "In this context
their testimony to the effect that they hired X number of
employees during the backpay period is :thus of no effect
whatever with respect to the issue of whether Milton would
have secured employment had he applied." Firestone
Synthetic Fibers and Textile Company, Division of the
Firestone Tire and Rubber Company, 207 NLRB 810 (1973).
To similar effect is Respondent's testimony concerning
newspaper advertisements, many of which were introduced
in this record, purporting to show job availability' during
the backpay period. The test, as above noted, is whether
each claimant made diligent and reasonable search for
employment or whether he incurred willful losses.
36 N L R. B v Brown & Root, Inc, supra at 454.
31 Marlene Industries Corporation v. N.L.R B, 440 F.2d 673, 674 (C.A. 6,
1971).
32 Phelps-Dodge Corporation v. N.L R B, 313 U.S. 177, 198 (1941).
B. The Claimants
1. John Sells and Michael Owens
919
The parties stipulated to the correctness of the backpay
computations respecting these two claimants as contained
in the specification as modified by Joint Exhibit 1.
Although Respondent did not waive its defenses concern-
ing appropriateness of the formulas or other affirmative
defenses raised in its amended answer, I have found no
merit to any of these defenses in any application to Sells
and Owens. I find therefore that they are entitled to the
gross backpay less interim earnings and expenses as set
forth in the Appendix annexed hereto.
2. John Ashby
Ashby, who was discharged on June 16, 1970, testified
that he then went to Kansas City to look for work at
trucking companies, of which he could name four. He did
not own a car but was driven in by David Covey, another
discriminatee, or his brother-in-law. Ashby looked for
dockwork rather than truck driving at these companies as
his own drivers license had been suspended in 1969 for 5
years because he had been driving while drunk. In the
course of these trips he filed applications at several places,
going to trucking companies and plants that he knew
about. Ashby had no telephone, did not take a newspaper,
nor did he visit the state employment service or any
employment agency because he had been promised work
by Luman Offutt Farms and Lowell Handley. In the
summer of 1970 he was employed by Luman Offutt Farms
hauling silage on the farm. When the picking season was
over and the hauling on the farm completed, Offutt had no
more work for Ashby as he was precluded from hauling the
corn over the road to town. In the fall he obtained work
with Lowell Handley, a contractor engaged in grading
work on farms, for whom Ashby operated a bulldozer on
farm property, but he could not haul the equipment over
the road. Both Offutt and Handley paid Ashby $2 per hour
for this work.
Ashby continued in this work pattern throughout the
backpay period. He said he looked for other work during
the slack intervals and would have taken any job that was
steady and paid more than what he was receiving from his
employer. In reporting wage and employment information
to the Regional Office, both Offutt and Handley indicated
that, there were several occasions on which Ashby failed to
show up for duty. Ashby asserted that these occurred at
times when Offutt wanted him to haul corn over the road
to town, or Handley directed him to move equipment on
the road from one farm site to another.
On the basis of these employers' reports, Ashby's failure
to register at the, state', employment service or other
agencies, and his alleged inadequate search for work,
Respondent contends that it should be absolved from
backpay liability for all periods that Ashby was unem-
ployed. I do not agree. As to those occasions which Offutt
33 N.LR.B v. Ardutni Manufacturing Corp, 394 F.2d 420, 423 (C.A. 1,
1968)
34 N.L. R B. v. Miami Coca-Cola Bottling Co., 360 F.2d 569' (C.A 5,
1966).
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or Handley have stated, that Ashby quit or did not want to
work, the Compliance Officer made allowances in the
specification. He determined the time Ashby would have
worked, had he not quit, and reduced it to a fraction of the
particular quarter. The fraction was then applied to a
previous quarter with that employer in which Ashby had
representative earnings. The product was used as -potential-
ized earnings and added to the interim earnings for that
quarter in which the defection occurred or into the next
quarter. These absences could have been only for short
periods, because the work was seasonal, particularly on the
farm, and, Ashby testified that he visited trucking and other
companies in the Kansas City area during the intervals
seeking work. Nor was his failure to register at the state
employment service in itself disqualifying, as urged by
Respondent, absent evidence that such registration would
have produced actual or potential employment.35
I find that Respondent has not adduced evidence
sufficient to establish thatAshby sustained willful losses of
earnings other than as provided for as potential earnings in
the specification, and, that at other tunes, he made
reasonable efforts to seek employment. However I find
that the W-2 tax form showing earnings from Handley in
1973 in the sum of $653 is a more reliable document than
the Board's form letter submitted by Handley which lists
earnings for 1973 which total $511.50. Accordingly, I shall
reduce total net, backpay by $141 and, for the sake of
convenience, reduce the net backpay in the'fourth quarter
of 1973 by that amount. Total net backpay of John Ashby
is thus found to be $13,710 as set forth by quarters in the
Appendix.
3. Kim Bristow Woods
The backpay period for Woods begins July 1, 1970, and
ends November 26, 1973. At the hearing amendments were
made to the specification regarding additional interim
earnings and expenses so that the net backpay claimed to
be due is $12,723.
After her discharge Woods sought employment by
responding to advertisements and visiting companies in the
area . She, also registered at the state employment service
but received no job referrals. Eventually she obtained
employment at a series of restaurant jobs either as an
attendant, a waitress, or fry cook. In connection with these
jobs, she incurred additional expenses for babysitting and
travel to which Respondent has raised no objection.
However Respondent does contend that it should not be
charged for time lost between jobs because Woods left two
positions allegedly due to her own misconduct. Woods
testified that, at Church's Fried Chicken in late 1971, "the
manager thought I was after her husband" and cut her
schedule to 3 days a week so that Woods left shortly
thereafter. She then went to work at Western Cafe, where
the manager discharged Woods for dating her son, whom
Woods later married. The evidence with respect to either of
these incidents does not obviously constitute misconduct
and I find no willful loss has been proven. Similarly with
regard to her leaving a job at Overdrive in late 1972
because, as Woods ' averred, the manager was "hassling
as Southern Household Products Company, Inc., 203 NLRB 881 (1973)
her." An employee need not remain under onerous
conditions in order to avoid a claim of willful loss, and
Respondent has adduced no evidence to the contrary. ,
However, as a result of the testimony of Woods, a
number of adjustments are clearly in order. During her
employment at the, Pizza Hut in 1971, she worked 3 weeks
as a waitress before going into the kitchen. As such Woods
earned about $3 a day in tips. Accordingly, I will add $45
to the net interim earnings during the second quarter of
1971, resulting in net backpay oi$944 for that quarter.' The
specification does not provide backpay for Woods during
the second quarter of 1973 due to her pregnancy but does
seek backpay for the first quarter. Woods stated that she
left her, job at Overdrive Inc. at the end of 1972 when she
was already 4-1/2 months pregnant. Although she said she
looked for work in January 1973, she did not work in the
first quarter, and admitted that she would not have been
able to, continue at Overdrive in, her condition. In these
circumstances, I find she was not available for work during
the first quarter of 1973 and will-strike the entire amount of
backpay requested in the specification for that quarter,
Therefore the total net backpay will be reduced by $1,376.
Woods was unavailable for work after the birth of her
child on May 25 until August 1, 1973. 1 do not find, ' as
contended by Respondent, that she incurred willful loss by
her refusal; at the time,'of a job at Norfolk & Western on a
late night shift, at a very low rate ofpay. During this period
(third and fourth quarters of 1973), she sought employment
on a regular basis following newspaper leads and visiting
factories and restaurants.
Respondent contended that the period from October 22
to November 4, 1971, should not be included in the
backpay period because of Woods' participation in the
strike. The Board has held to the contrary., The entire
duration of the strike is includable in the, backpay period of
employees unlawfully discharged before the strike, and
their participation does not thereby indicate unavailability
for employment.36 I find, after the above noted adjust-
ments the total net' backpay due Woods to be $11,302 as
appears, in the Appendix.
4. Margaret Buckley
The backpay period of Buckley commenced June 14,
1970, and ended November 8, 1973. In September 1970 she
obtained employment at -Mid-Continent Tool in North
Kansas City at a rate of $1.70 per hour. (She had been
earning $2.10 at the time of her discharge.) Buckley quit
her job at Mid-Continent on December 23, 1970, in order
to move to Smithville, Missouri, a small town of less than
5,000 population. Buckley testified that her husband is
totally disabled and receives a pension from social security.
She was unable to maintain her apartment at a rental of
$125 per month on her reduced earnings at Mid-Continent
and therefore moved to Smithville where she was accepted
into a Government housing project at a rental of $61 per
month. Buckley said that friends had informed her she
would be able to obtain' employment at the hospital there.
However, she made no inquiry or filed any application
before moving. Indeed during the balance of the backpay
36 Winn-Dixie Stores, Inc, 206 NLRB 777 (1973).
, MIDWEST HANGER CO. 921
period she tried but never did succeed in getting a job at
the Smithville hospital. Buckley did actively seek employ-
ment while at Smithville, but concededly not only were
there few jobs in the area, but she had no car, and public
transportation was not readily available.
Thus it is clear Buckley quit her job at Mid-Continent
and moved to an area where prospects for employment
were dim. In these circumstances, I find that Buckley
incurred a willful, loss. However unlike Respondent, I do
not believe her claim should be completely cut off. The
Board stated in Mastro Plastics Corporation and French-
American Reeds Manufacturing Co., Inc., 136 NLRB 1342,
1350 (1962):
Finally if a claimant does willfully incur losses by either
unjustifiably quitting or refusing substantially equiva-
lent employment, he is not depraved of his entire claim,
but only so much of it as he would have earned had he
retained or obtained the intenmiob.37
I therefore find, as did the Board in Knickerbocker,38 that
Buckley shall be deemed to have earned for the remainder
of the backpay period the hourly wage she was receiving at
the time she quit Mid-Continent. This will be computed on
the basis of a 40-hour week quarterly and will be offset
against her gross backpay,as already determined.39 I shall
adjust the award to Buckley in accordance with these
findings, as specified quarterly in the Appendix4°
5. David Covey
Covey's backpay period began June 14, 1970. He was
largely unsuccessful obtaining employment except some
farm work for about a year thereafter. Respondent
contends that his efforts were inadequate. However, he did
attempt to get work in trucking and construction, trades in
which he had prior experience, and also registered with the
state employment service. I find on the basis of the record,
and Respondent having not adduced evidence to, the
contrary, that Covey made a reasonably diligent search for
work. Respondent would disqualify Covey for slight
intervals brit the fact that he may not have looked every
week for work does not militate against such a finding.41
Nor did Covey incur a willful loss, as urged by Respondent
in turning down a mechanic's job which required him to
buy $500 worth of tools, a sum he did not have; or a farm
job' which would necessitate moving his family a consider-
able distance. Finally, his strike activity in October 1970
did not make him unavailable for work that week.42
37 In Mastro, the Board, cited Knickerbocker Plastic Co. Inc, 132 NLRB
1209 (1961), relied, on by Respondent mats brief. However the discriminatee
in Knickerbocker referred to by Respondent had never obtained interim
employment before moving Respondent also cited Mastro for disallowing
Buckley's claim in full but the Board found, that the particular discrimmatee
referred to by Respondent had she not been discharged by Mastro would
have also quit her job in order to move.
38 Supra, 1215 '
39 The offset will be greater than the interim earnings she had in any
quarter while employed atSmithviile
40 It is interesting to note that the difference between her rate of pay at
Respondent and the lesser rate at Mid-Continent was approximately the
same as the difference in rent which caused her to move to Smithville.
4i Cornwall Company, Inc, 171 NLRB 342 (1968).
42 Winn-Dixie Stores, Inc, supra.
Covey was reinstated in November 1973 to a general
labor position at $2.70 per hour, although at the time of his
discharge in 1970 he earned $2.75 per hour as a wire
hanger adjuster, a job no longer available. He was
therefore reinstated to -a position paying a lesser wage than
he received more than 3 years before, despite the fact that
company wage scales indicate a number of increases over
that span of time. The General Counsel contends that this
did not constitute a proper reinstatement, and I agree.
Covey clearly had the ability to perform other jobs, for
example, truck driving, and Respondent had a number of
drivers, of whom five were junior to Covey. Moreover,
Respondent was unable to show that any number of
employees had their earnings reduced over the. period.43
I find that Covey was not reinstated to a, substantially
equivalent position and will extend his backpay period
until April 8, 1974, when he resigned.44 I. further- find net
backpay due him as claimed in the specification as.
amended at the hearing and as appears in the Appendix 45
6. Joseph DeMent -
DeMent's backpay period began June 15, 1970, and
ended November 8, 1973. -After a, short period of
unemployment he found work on farms until the end of
1970. In the spring of 1971, DeMent entered the construc-
tion field as a laborer,-became a member of the Laborer's
Union, and was thereafter seasonally employed throughout
the backpay period.
Respondent contends that as a result of an on-the-job
injury for which he received workmen's compensation,
DeMent was unavailable for work, for a period of time. I
agree.46 Accordingly, I shall deduct 2 weeks' payfrom the
gross backpay for the fourth quarter of 197147
Respondent further contends that DeMent did not make
sufficient- efforts -to find work during those periods when he
was laid off from his construction jobs. During these times,
DeMent testified that he visited the state employment
service regularly and checked in at his union hall, at first,
three times a week, and later, at least once a week. After his
discharge, DeMent, sought welding or other type plant
work without success. He then was able to obtain
construction work, became, a union member, and was able
to gain remunerative employment making more money
than he had ever before. I find that during, his seasonal
layoffs he made reasonable and diligent efforts to seek
43 Respondent's comptroller could only recall two 'employees, both
under special circumstances
44 Respondent's reliance on Rodney Metals Inc, 160 NLRB 1419 (1966),
is misplaced. In that case the Board refused to order a company to resume
an operation in order to reinstate an employee to his former position , a quite
different situation
95 Respondent's contention that the rental value of$50a month for one
farmhouse and $60 for another farmhouse both occupied by Covey during
portions of the period is not sufficient is a mere quibble. Moreover, the
suggestion in its brief that these amounts be raised to $100 is not based on
any.evidence whatsoever.
46 Associated Transport Company of Te ras, Inc, and Transamerica
Transport Inc, 194 NLRB 62, 63 (1971).
47 Deiylent testified he was out 2 or 3 weeks but also stated he received
two checks
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work by checking regularly with the union hall and the
state employment office.48
In connection with DeMent's claim, there remain the
contentions of Respondent concerning absenteeism. I have
already disposed of Respondent's argument that DeMent
would, have been terminated by the end of 1970 for
excessive absenteeism. However, in rejecting General
Counsel's representative employee formula and adopting
that of Respondent for computing backpay, no provision
was 'made for absenteeism. As noted previously, I have
included a provision fofoverti'me on the basis, as suggested
by_ Respondent, that DeMent be credited with the average
amount of overtime he earned during his employment.
Respondent has made no recommendation with respect to
the evidence' of DeMent's previous absentee record, other
than urging the termination of the backpay period at the
end of 1970.=-In'the use of the representative employee
method, the normal absences of the representative is built
into the computation. While : it is only fair ` that some
provision be made, it is also unfair-to project a prior
absence record into the future, particularly where an
employee has been-employed only a-short time, a little
more than 2 months in DeMent's case. However, the only
available evidence shows that he was absent approximately
13 percent of the time during his employment. There is no
evidence as to the reasons for this record and- whether it
was based on an unusualexperience. The absence , figures
of the discriminatees whom. Respondent states it would
have, discharged show an average rate of 11.9,percent and
because these represent extreme cases, I will not use that
rate. But I do conclude on the basis of the entire record as
to absenteeism, and noting there are no average rates for
all employees, that an absenteeism factor of 7 percent
should be built into DeMent's computation.49 According-
ly, I shall reduce the gross backpay of DeMent'heretofore
computed at $26,785 by a rate of 7 percent on' a quarterly
basis. This will appear in the-Appendix annexed hereto in
addition to the diminution of 2 weeks' gross backpay found
for the fourth quarter of 1971.50
7. June Elliott
The backpay period for Elliott began June 16, 1970„ and
ended November 8,, 1973. After her discharge she was
unable to obtain employment until October, 1971, an
interval of more than a year .;dunng which -Respondent
contends that Elliott failed to make an adequate attempt to
find a job . However she testified credibly to having visited
and applied at many plants and businesses during the time
to no avail .. Respondent appears particularly upset at her
admitted failure to consult newspaper advertisement but I
45 1 Posner, Inc, Posner Distributing Corp, and Posner Beauty and Barber
Supply Corp, 154 NLRB 202 (1965) '
99 Cf. J H Rutter-Rex Manufacturing Co, supra
50 1 have computed the gross backpay detailed in the Appendix as
follows: The balance' of the second `quarter of 1970 was computed at a
straight rate of $3 25 per hour. DeMent would have received an increase to
$3.50 per hour the first week=of July 1970 Thereafter his gross quarterly
earnings including 6.5 hours of overtime per month were computed -at
$1,922, which was then reduced by 7 percent to $1;787 per quarter On
January 1, 1973, he would have received 'a pay increase to $390 per hour.
Using the same overtime and absentee factors, his quarterly earnings for
1973 were computed as $1,972 Interim earnings were credited as appear in
know of no requirement that she do so. Inaddition to her
personal visits, she also registered at the state employment
office.
Respondent also urges that Elliott was not motivated by
reason of her being supported by her husband. While, of
course, such support does not discharge her of her
obligation to seek and accept employment, the discrimina-
tee's motivation is not the issue. People may be motivated
to seek employment for a variety of reasons, some of which
may not be economic Si The issue is whether Mrs: Elliott
made a reasonable and diligent effort to obtain a job
during- her period of unemployment. In view of her
testimony, which is uncontradicted and credited, Respon-
dent has not fulfilled its burden of proving that she failed
to do so. -
I do find, however, in agreement with Respondent that
she was unavailable for employment for 2 weeks during the
first quarter of 1972 due to the death of her father, and I
shall deduct 2 weeks' pay from' gross backpay for that
quarter.52
8. 'James Walter Forbis
Forbis had been employed by- Respondent, on May 15
and discharged on June 15, 1970. After his discharge he
was unemployed"until August 18, 1970, when he obtained a
job 'and has been employed ever since. Respondent
disputes Forbis' efforts to find work during his 2 months of
unemployment. Contrary to Respondent's contention, I
find that Forbis did- seek referral at the Arkansas State
Employment Office. As a resident of Arkansas prior to his
job with Respondent, his return to seek employment there
the- day after his discharge rather than staying in the
Kansas City area does not disqualify him. Forbis testified
he sought work at the state employment office and, at
several local plants in Arkansas. He then returned to
Missouri several days later, resumed his search, and finally
obtained work through a private employment agency in
Kansas City.53 Respondent adduced no -evidence that
Forbis made other than a good-faith search for employ-
ment during the 2-month interval that he was out of work,
and I conclude that Respondent should make him whole
by the amount set forth in the specification as amended.
9. Ronald -Greathouse
After his discharge Ronald Greathouse immediately
sought employment. He followed newspaper leads, visited
companies, and registered .at'the state employment service
as well as private agencies, and I credit his testimony in
that regard. Respondent has not adduced any evidence to
indicate that he made other than a reasonable and diligent
the specification as were expenses such as mileage and union dues, not
challenged by Respondent, and which I find to be reasonable
51 1 adhere to my ruling, made at the hearing, which prevented
Respondent reading into the record, from the Elliotts'jomt tax return, the
income received by her husband. Not only because this bears on motive
which is irrelevant but I also believe to permit it would be an unwarranted
invasion of Mr. Elliott's privacy. He is not a claimant herein.
52 1 shall allow the allowances claimed for uniforms because it is clear
that these were required by her employer, The Laidlaw Corporation, 207
NLRB 591 (1973)
53 1 shall allow the agency fee of $249 as claimed in the specification.
MIDWEST HANGER CO.
search for a job. Its contention that Ronald Greathouse
would have had to leave his job or be discharged had he
remained with Respondent because of a conflict with his
attendance at college is without merit and based on sheer
conjecture. I conclude, therefore, that he be made whole in
the amount as provided in the amended specification.54
10. William Greathouse
William Greathouse was unemployed after his discharge
until the first quarter of 1971 and he worked steadily
thereafter. He testified credibly concerning his efforts to
find work which included registration at state and private
agencies , following up newspaper advertisements, and
visiting plants and companies . Other than its complaint
about Greathouse's obesity, voiced in its brief, a disqualify-
ing factor at some employers, Respondent could submit no
probative evidence that he had not made a diligent search
for employment. I therefore find that William Greathouse
should be made whole in the amount set forth in the
specification as amended.
11. Marilyn Kimberlin
Kimberlin sought employment immediately after her
discharge by registration at the state employment service
and other agencies and by personal application at many
employers. At the end of 1970 she obtained a position as a
bank teller and was thereafter continuously employed.
Respondent has not introduced any evidence to indicate
that her efforts were other than diligent. However, based
on Kimberlin's testimony that she first sought plant work,
Respondent argues that she -thereby excluded office work
at which she had prior, experience. Kimberlin testified,
without contradiction, that she had been doing plant work
for several years and did not have necessary clothes for
office work at that time. This is akin to the case of
claimants who lower their sights, and , absent any evidence
that the claimant has failed to make' a diligent search, any
doubts should be resolved in favor of the discriminatee.55
Indeed, often plant work may be more remunerative than
office work.
As to Kimberlin having voluntarily transferred to a 3-
day workweek in the second quarter of 1973, her gross
backpay was therefore reduced proportionally. Respon-
dent's contention that she would not have been able to,
accomplish this had she continued to work at its plant is,
again, speculative andwithout merit.
I conclude and recommend that Kimberlin be made
whole in the amount set forth in the specification as
amended.
12. John Charles Lankford
Lankford is one of the two discriminatees for whose
computation I rejected the representative employee formu-
la and adopted that recommended by Respondent. As
54 The specificatibn deletes from gross backpay those periods when
Ronald Greathouse was unavailable because of his attendance at college or
in the military service There is an arithmetical error in the amended
specification for the third quarter of 1970. The net backpay should be $447
for that quarter rather than $347 The corrected amount is shown in the
Appendix annexed hereto
923
noted, I have computed his backpay on a quarterly basis
and arrived at a'total gross backpay of $28,834. This figure
is before adjustments to be made with respect to any
interim earnings or expenses as developed at the hearing.56
After his discharge' he sought work as a maintenance
machinist in the Kansas City area. He testified credibly
that he visited plants and registered at several agencies. He
then obtained employment at Howard'Johnson's. Respon-
dent contends that there were adverti sements 'for machin-
ists in the area and Lankford'left his field of expertise by
taking the restaurant job. This contention is without merit
absent evidence that he was offered and refused work as a
machinist . Similarly, Respondent also contends that, in
giving up the Howard Johnson job and returning to his
home in Illinois, Lankford left a good ` labor market.
However; his home is'in the St. Louis area, also a good
labor market, and there is no showing that he did not
actively pursue a machinist's job there before accepting
another restaurant position. I find that at all times
Lankford made a reasonably diligent search for employ-
ment.
However, a number of adjustments are called-for in
connection with his interim earnings . Lankford testified
that he received three meals a day during the almost 3
weeks he worked at Howard,Johnson's. I shall -allow $4 a
day for meals, and, as it appears he worked-about 1,5, days,
add $30 to interim earnings received from Howard
Johnson's in each of the second and, third quarters of 1970.
Lankford stated he was given a meal a day at Skaggs and
its successor, Christoper Enterprises, but he also said it was
just a, sandwich. As no values are given I shall add $4 per
day to the interim earnings received from these two
employers. Thus interim earnings will be increased by the
following amounts:
1970 - 3rd quarter - $15
1970 - 4th quarter - 70
1971 - Ist quarter - 75
1971 - 2nd quarter - 75
1971 - 3rd quarter - 70
1971 - 4th quarter - 40
1972 - 1st quarter - 35
1972 - 2nd quarter - 20
During the second quarter of 1971, Lankford' left the
Skaggs restaurant' to work as a machinistat H. Mfg. Co.
However, as this was a temporary job, he left it after a
couple of weeks to return to Skaggs and seek work as a
machinist while employed at the restaurant. Backpay need
not be tolled in these circumstances.
In the first quarter of 1972, there was an interval of i
week between his leaving a Cruden Martin Manufacturing
job and starting a new job at Steuby Manufacturing when
Lankford was unavailable for work. I shall deduct 1 week,
from gross backpay in that quarter.
55 Untied Aircraft Corporation, 204 NLRB 1068 (1973)
56 In Lankford 's case, no overtime was included in view of testimony by
Respondent 's witnesses that Liberty -employees had little or no overtime
during the backpay period and Lankford had worked no overtime during
his employment Nor was any factor for absenteeism included asjthere was
no evidence regarding Lankfordon that subject
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the second quarter of 1972, Lankford com-
menced driving a taxicab for Alton,'City Cab,. a now
defunct company whose records are not completely
available. It is therefore necessary to reconstruct Lank-
ford's earnings for a portion of the backpay period on the
basis of his testimony. Lankford said he began working for
Alton Cab in April 1972. Since he had already earned, $259
plus $20 for meals-, in that quarter from Christopher
Enterprise, it will be assumed he started at Alton in the last
week of April. With Alton, he testified he earned between
$10 and $20 per day„ plus $10 a week for tips, and
knockdowns57 Lankford further testified he worked 6 days
a week. I shall compute his interim earnings -for periods
that the Alton records are unavailable on the basis of $90
per week plus $10 for tips and knockdowns. In the second
quarter of 1972, commencing the last week of April, that
would total 9 weeks or $900, which I shall add to interim
earnings for that quarter.
His earnings at Alton for the third and fourth quarters of
1972 are reported by Social Security and appear in the
specification. To these `recorded interim earnings there
must be added for tips and knockdowns the sum of $130 in
each quarter.
There are no reports for Alton earnings in 1973.
Therefore interim earnings from Alton City Cab for the
first quarter of 1973, on the same basis, would'total $1,300:
He commenced work full-time for American Steel Foun-
dries on May 2, so interim earnings from Alton City Cab
will be charged at $400 for the second quarter of 1-973.
I therefore recommend that Lankford's gross backpay be
computed on the basis of the formula heretofore described
and reduced by the interim earnings detailed in the
specification and further adjusted above, and that he be
awarded net backpay as set forth in the Appendix annexed
hereto.
13. Shirley Lauderdale (Chamberlin)
Lauderdale's backpay period was broken by several
intervals when she was unavailable. She attended school in
1971 to become a cosmetologist, worked briefly in that
field, and returned to factory work because of a skin
problem. Respondent's contentions regarding the amended
specification filed in her behalf are mainly limited to the
intervals between jobs, alleging that she did not make
immediate efforts to secure employment.
As a , result of Lauderdale's testimony and the records
submitted by her employers, ,certain adjustments to the
amended specification appear necessary.
During the fourth quarter of 1971, it is claimed that she
became available for work on November 10, and obtained
a job at American Bakeries on December 5. But she
testified that she did not,look for work between November
10 and December 5. Therefore her gross backpay will be
reduced by an additional 4 weeks which results in gross
backpay of $338. As her interim earnings were also $338, I
find that Lauderdale is not entitled to any backpay for the
fourth quarter of 1971.
57 A "knockdown" consists of pocketing a fare for an unrecorded trip
5s I credit Lauderdale's testimony that tips were almost nonexistent at-
Ronnie's„ and will not estimate them as any amount would be clearly
minimal Her low earnings , based on commissions , attest to the dearth of
Lauderdale left American Bakeries on March 4, 1972, to
stay at home for a month, according to her testimony. She
was 'thus unavailable for the balance of the second quarter
of 1972, and net backpay of $4 for that quarter as provided
in the amended specification will thereby be reduced to
zero:
The amended specification states that Lauderdale was
unavailable for work from April 1 through May 20, 1972.
The report submitted by her next employer, Ronnie
Fashion Salons, shows that she commenced working there
on June 18. Lauderdale testified that jobs were always
available at Ronnie's and there is no evidence that she
looked, elsewhere before June 18. I find she was unavaila-
ble for 11 weeks of the second quarter of 1972 thus, her
gross backpay for that quarter is reduced to $210, less $160
net interim earnings, leaving net backpay of $50.58
Her next employment was at Zodiac Beauty Salon where
she began April 9, 1973, and worked until June 8, 1973.
Thereafter she obtained a job at Kitterman Inc., on July
18, 1973. Lauderdale testified she did not look for work
before Zodiac or between Zodiac and Kitterman. In each
case, she was given the job when she applied. As her sole
employment in the second quarter of 1973 occurred
between April 9 and June 8, and she did not seek work in
that quarter before and after those dates, I shall credit her
with gross backpay for nine-thirteenth of the quarter rather
than the full 'quarter as provided in the am tided
specification. Thus gross pay is reduced to $1,067 and, less
$362 interim earnings, leaves net backpay of $645.
Similarly, as she commenced working at Kitterman's' on
July 18, I shall reduce gross backpay for the third quarter
of 1973 by 2 weeks bringing it to $1,401 and adjust the net
backpay for that quarter to $573.
Finally, Kitterman, her employer, has reported that
Lauderdale left that job on October 19, 1973, voluntarily.
Gross backpay for the fourth quarter of 1973 will be
reduced by 2 weeks to $361 and net backpay to $154.
Except as detailed above the specification with respect to
Lauderdale as amended at the hearing is adopted and I
conclude that she be awarded backpay in the amount set
forth in the Appendix.
14. Sharon Meier
The backpay period for this claimant ran from June 15,
1970, to November 8, 1973. During this entire period she
never obtained any job. Her only earnings were derived
from babysitting prior to Christmas of 1971 and 1972 to
enable neighbors to do some shopping.59 Meier testified
that after her discharge, she registered at the Missouri State
Unemployment Office and looked for work at banks in the
Liberty area as well as plants in the North Kansas City
area. She collected unemployment benefits for a period of
approximately 3 months. The requirements to remain
eligible for unemployment benefits have been held to be
customers.
59 The specification credits interim earnings of $200 in the fourth quarter
of each of those years
MIDWEST HANGER CO. 925
sufficient to satisfy the requirements to remain eligible
under the Act 60 Accordingly, I have no problem finding
that Meier is entitled to the backpay claimed in the
specification through the third quarter of 1970. Contrary to
the specification, however, I find Meier was unavailable for
employment throughout the fourth quarter of 1970, as she
testified that she stopped looking for work in the fifth
month of her pregnancy and her child was born on
February 1, 1971.
Except for the time deducted for two pregnancies, and
two illnesses , it is contended by General Counsel that
Meier is entitled to backpay for the entire 3-1/2 year
period. This must be based on her conducting a reasonable
diligent search for employment. Meier has testified that
throughout the period she was out looking for work 2 or 3
weeks of every month, and 2 or 3 days in each of those
weeks. She states she visited banks, finance companies,
plants, factories, retail stores, naming a number of them. In
all the circumstances , I do not credit Meier's testimony.
While concededly she may have sought work at some
places (after her unemployment benefits ran out), I do not
consider her search to have been diligent.
The claimant resides in a large metropolitan area with a
great number of plants, stores, and offices. A job is not
always easy to find but in 3-1/2 years, normally one would
turn up as it did for every one of the discriminatees
involved in this case. Meier is a high school graduate; she
was schooled, but not experienced, in office work. Her
horizon was not limited to plant work. She testified that, in
all of her search, she only filled out one application and
that was at Guy's Potato Chips, a plant adjacent to
Respondent. Yet she said she went to many banks and
finance companies which are normally the type of
organizations that accept or even require written applica-
tions. Meier never looked at advertisements in the large
daily papers of Kansas City, she merely followed some tips
from friends and drove her car. She did not return to the
Missouri State Employment Agency after her benefits ran
out nor did she try any private agency.
During the backpay period Meier gave birth to two
children, born February 1, 1971, and December 15, 1972.
Of course this is not a disqualifying factor, but her
testimony in this regard reflects on her credibility. The
specification would have us believe that she was available
and looking for work up to her eighth month of pregnancy.
Meier testified at first that she looked for work until 2 or 3
months before the second child was born in 1972. She then
changed her testimony to state that she stopped looking for
work after the fifth month of pregnancy.
Finally, Meier rejected the offer of reinstatement made
by Respondent in November 1973. She was not working at
the time and testified that she was ill, but did not so inform
Respondent . After the backpay period expired Meier
apparently obtained employment in April 1974, but was
not employed at the time of the hearing.
Although any one of the factors described above may
not be sufficient to disqualify a claimant for backpay, the
60 J.H. Rutter-Rex Manufacturing Company Inc, 194 NLRB 19, 24
(1971).
61 Respondent's motion to strike Meier's testimony, made at the hearing
on the ground that she failed to produce tax returns and other documents
pursuant to subpena, is dewed It appears that such of those documents
totality of the circumstances, in addition to my assessment
of the credibility, lead me to conclude that Meier did not
diligently pursue employment after the unemployment
benefits ran out. I shall therefore limit her entitlement to
the amount claimed in her specification for the second and
third quarter of 1970 as set forth in the Appendix annexed
hereto 6i
15. Virgie Peterson McCannon
After her discharge Peterson registered with the state
employment office and actively sought work. Except for
some rather lengthy periods of unavailability due to illness
or pregnancy, subtracted from gross backpay, Peterson was
employed or diligently looked for work. Respondent
offered no evidence to indicate her search was unreasona-
ble or inadequate. For a portion of the period, Peterson
worked on a part-time basis, but appropriate credit was
allowed in the computation. Respondent's contention that
this foreshortened the backpay period, as it would not have
permitted this had she remained employed, is speculative.
However, I do find, as contended by Respondent, that
the specification contains an overcharge for additional
mileage maintaining interim employment. ; Peterson had
moved from the place she resided when employed by
Respondent. Since the move was unrelated to her employ-
ment, the mileage differential is computed from the point
of her new residence 62 For the fourth quarter of 1972, I
find the difference in mileage to be 14 miles per day and
therefore reduce the amount charged from $65 to $21.
During the first quarter of 1973, the difference was 16 miles
per day and mileage charge is reduced to $56 from $62.
As Peterson testified that she employed a babysitter
while working for Respondent, I shall strike the babysitting
expenses charged at $75 for the fourth quarter of 1972 and
$175 for the first quarter of 1973.
Finally, Peterson testified she spent a total of about I
day away from her job in 1971 in connection with her
divorce proceedings, so I shall reduce gross backpay by' l
day in the third quarter of that year.
Except as modified above, I find net backpay due to
Peterson in accordance with the amended specification,
and as set forth in the Appendix annexed hereto.
16. Elaine Peukert
Upon her discharge, Peukert registered with the state
employment service and drew unemployment benefits until
December 1970. She received no referrals from the state
agency and looked for work in the usual manner by
following newspaper ads, personal visits, and filing
applications. Respondent adduced no evidence to the
contrary and I find that during the periods of her
unemployment, Peukert made a reasonable and diligent
search 63
However, there are a few adjustments necessary to be
made to the amended specification. Peukert testified that
requested that she lmght have had have been lost.
62 Gray Aircraft Corporation, 210 NLRB 555 (1974)
sa There is no purpose in seeking to characterize -Respondent's
contention in its brief urging that Peukert be disqualified by reason of her
refusal of a part-time job from 5 to 7 a.m. at $1 per hour.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was unavailable 1 day during the fourth quarter of
1970 because of a court appearance. She went on to say
that this occurred 5 more days during the backpay period.
In addition she lost still another day taking her daugher to
an out-of-town hospital. Since Peukert could not recall the
dates, I shall deduct a total of 7 days from gross backpay
and lump them for the sake of convenience in the fourth
quarter of 1970.
In the fourth quarter of 1971 expenses for uniforms of
$100 will be reduced to $24 as it appears that Peukert, due
to her back condition, also required similar shoes _ and
hosiery while working for Respondent. I shall also reduce
the cleaning expenses claimed for the first quarter of 1972
from $66 to $33 because the former amount would be 9
percent of her wages at Golden Age Lodge, a seemingly
exorbitant expense.
Finally, I find Peukert sustained a willful loss of earnings
by leaving the Golden Age Lodge job a month before her
employment began at Whitaker Cable. As she received
$1.70 per hour at Golden Age, I shall increase her interim
earnings stated as $414 for the first quarter of 1972 by 4
weeks' salary at $68 per week making a new total of $686
less $33 expenses or $653 net interim earnings for that
quarter.'
I therefore fmd net backpay for Peukert as requested in
the amended specification but as adjusted above and fully
set forth in the Appendix hereto.
V. THE REMEDY
For the reasons described above, I fmd that Respon-
dent's obligations to the disciiminatees herein will be
discharged by the payment to them of the respective
amounts set forth in the Appendix annexed hereto. Such
amounts shall be payable plus interest at the rate of 6
percent per annum to accrue commencing with the last day
of each calendar quarter of the backpay period on' the
amount due and owing for each quarterly period as set
forth in the Appendix, and continuing until the date this
Decision is complied with, minus any tax withholding
required by Federal and State laws.64
64 As is provided for in F. W Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
65 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
The gross backpay figures in the Appendix are based on
those set forth in the specification as amended at the
hearing except where I have modified them as described
above, particularly with respect to discnminatees DeMent
and Lankford. The Appendix states the figures for each
quarter in which any backpay is found to be due. The
omission of a quarter from the Appendix means that no
backpay has been found to be due for that quarter.
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in this proceeding, I
hereby issue the following recommended:
ORDER65
Respondent, Mid-West Hanger Co. and Liberty Engi-
neering Corp., of Liberty, Missouri, its officers, agents,
successors, and assigns, shall make the employees involved
in this proceeding whole by payment to them of the
following amounts together with interest at the rate of 6
percent per annum, in the manner set forth in the section
of this Decision entitled "The Remedy," and continuing
until the amounts are paid in full, but minus tax
withholding required by Federal and state laws:
John Ashby $13,710
Kim Bristow Woods 11,302
Margaret Buckley 6,846
David Covey 7,286
Joseph DeMent 8,731
June Elliott 8,737
James W. Forbis 5,594
Ronald Greathouse 3,010
William Greathouse 6,197
Marilyn Kimberlin 5,118
John Charles Lankford 11,844
Shirley Lauderdale Chamberlin 1,860
Sharon Meier 1,167
Michael Owens 781
Virgie Peterson McCannon 4,907
Elaine Peukert 14,048
John Sells 1,392
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
MIDWEST HANGER CO. 927
APPENDIX
NAME YEAR AND GROSS INTERIM EXPENSES NET INTERIM NET
QUARTER BACKPAY EARNINGS EARNINGS BACKPAY
JOHN ASHBY 1970 - 2 $ 220 $ NONE $ $ $ 220
1970 - 3 970 369 90 279 691
1970 - 4 1,136 361 361 775
1971 - 1 1,096 361 361 735
1971 - 2 1,299 534 534 765
1971 - 3 1,258 456 456 802
1971 - 4 1,465 256 256 1,209
1972 - 1 1,545 382 382 1,163
1972 - 2 1,366 264 264 1,102
1972 - 3 1,347 471 471 876
1972 - 4 1,451 471 471 980
1973 - 1 1,376 471 471 905
1973 - 2 1,454 208 208 1,246
1973 - 3 1,656 119 119 1,537
1973 - 4 1,046 342 342 704
TOTAL $ 13,710
KIM BRISTOW WOODS 1970 - 3 $ 970 $ NONE $ $ 970
1970 - 4 1,136 NONE 1,136
1971 - 4 1,096 43 30 13 1,083
1971 - 2 1,299 552 197 355 944
1971 - 3 1,064 745 187 558 506
1971 - 4 1,465 665 20 645 820
1972 - 1 1,545 NONE 1,545
1972 - 2 1,366 818 237 581 785
1972 - 3 1,347 845 189 656 691
1972 - 4 1,451 616 189 427 1,024
1973 - 3 1,018 NONE 1,018
1973 - 4 780 NONE 780
TOTAL $ 11,302
APPENDIX
NAME YEAR AND
QUARTER
GROSS
BACKPAY
INTERIM EXPENSES NET INTERIM
EARNINGS EARNINGS
NET
BACKPAY
MARGARET BUCKLEY 1970 - 2 $ 185 $ NONE $ $ $ 185
1970 - 3 970 115 855
1970 - 4 1,049 852 20 832 217
1971 - 1 1,096 884 884 212
1971 - 2 1,299 884 884 415
1971 - 3 1,258 884 884 374
1971 - 4 1,465 884 884 581
1972 - 1 1,545 884 884 661
1972 - 2 1,366 884 884 482
1972 - 3 1,347 884 884 463
1972 - 4 1,451 884 884 567
1973 - 1 1,376 884 884 492
1973 - 2 1,454 884 884 570
1973 - 3 1,656 884 884 772
TOTAL $ 6,846
DAVID COVEY 1970 - 2 $ 264 $ NONE $ $ $ 264
1970 - 3 1,352 12 12 1,340
1970 - 4 1,515 150 150 1,365
1971 - 1 1,440 220 220 1,220
1971 - 2 1,665 974 31 943 722
1971 - 4 2,085 901 901 1,184
1972 - 1 2,069 1,239 1,239 830
1974 - 1 1,733 1,372 1,372 361
TOTAL $ 7,-286
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NAME YEAR AND
QUARTER
GROSS INTERIM EXPENSES
BACKPAY EARNINGS
NET INTERIM
EARNINGS
NET
BACKPAY
JOSEPH DeMENT 1970 - 2 $ 312 $ NONE $ 312 $ 312
1970 - 3 1,787 1,423 1,423 364
1970 - 4 1,787 1,314 1,314 473
1971 - 1 1,787 NONE NONE 1,787
1971 - 2 1,787 1,845 195 1,650 137
1972 - 1 1,787 735 58 677 1,110
1972 - 4 1,787 NONE NONE 1,787
1973 - 1 1,992 NONE NONE 1,992
1973 - 4 769 NONE NONE 769
TOTAL $ 8,731
JUNE ELLIOTT 1970 - 2 $ 176 $ NONE $ $ NONE $ 176
1970 - 3 970 NONE NONE 970
1970 - 4 1,136 NONE NONE 1,136
1971 - 1 1,096 NONE NONE 1,096
1971 - 2 1,294 NONE NONE 1,294
1971 - 3 1,258 NONE NONE 1,258
1971 - 4 1,465 867 204 663 802
1972 - 1 1,307 1,146 132 1,014 293
1972 - 2 1,366 1,177 132 1,045 321
1972 - 4 1,451 1,349 160 1,189 262
1973 - 1 1,376 1,230 174 1,056 320
1973 - 2 1,454 1,166 174 992 462
1973 - 3 1,656 1,525 174 1,351 305
1973 - 4 605 628 65 563 42
TOTAL 8,737
NAME YEAR AND
QUARTER
GROSS
BACKPAY
APPENDIX
INTERIM EXPENSES
EARNINGS
NET INTERIM
EARNINGS
NET
BACKPAY
JAMES W. FORBIS 1970 - 2 $ 240 $ NONE $ $ NONE $ 240
1970 - 3 1,352 534 259 275 1,077
1970 - 4 1,515 1,320 33 1,287 228
1971 - 1 1,440 1,166 33 1,133 307
1971 - 2 1,665 1,254 33 1,221 444
1971 - 3 1,819 1,321 33 1,288 531
1971 - 4 2,085 1,325 33 1,292 793
1972 - 1 2,069 1,384 33 1,351 718
1972 - 2 1,713 1,535 11 1,524 189
1972 - 3 1,953 1,689 1,689 264
1972 - 4 1,926 1,600 1,600 326
1973 - 1 1,953 1,751 1,751 202
1973 - 2 1,953 1,770 1,770 183
1973 - 3 1,979 1,887 1,887 92
TOTAL $ 5,594
RONALD GREATHOUSE 1970 - 2 $ 221 $ NONE $ $ 221 $ 221
1970 - 3 646 274 75 199 447
1970 - 4 175 NONE NONE 175
1971 - 1 1,096 673 673 423
1972 - 1 1,426 679 100 579 847
1972 - 2 1,366 1,089 1,089 277
1972 - 3 1,347 1,110 1,110 237
1972 - 4 1,451 1,129 1,129 322
1973 - 3 1,376 - 1,340 25 1,315 61
TOTAL $ 3,010
MIDWEST HANGER CO. 929
APPENDIX
NAME YEAR AND
.QUARTER
GROSS
BACKPAY
INTERIM EXPENSES
EARNINGS
NET INTERIM
EARNINGS
NET
BACKPAY
WILLIAM GREATHOUSE 1970 - 2 $ 220 $ NONE $ $ NONE $ 220
1970 - 3 1,352 NONE "NONE 1,352
1970 - 4 1,515 69 125 NONE 1,515
1971 - 1 1,440 598 598 842
1971 - 2 1,665 1,455 1,455 210
1971 - 3 1,819 1,447 1,447 372
1971 - 4 2,085 1,502 1,502 583
1972 - 1 2,069 1,599 1,599 470
1972 - 2 1,713 1,683 1,683 30
1972 - 3 1,953 1,893 1,893 60
1972 - 4 1,926 1,886 1,886 40
1973 - 1 1,953 1,792 1,792 161
1973 - 2 1,953 1,851 1,851 102
1973 - 3 1,977 1,737 1,737 240
TOTAL $ 6,197
MARILYN KIMBERLIN 1970 - 2 $ 192 $ NONE $ $ NONE $ 192
1970 - 3 970 NONE NONE 970
1970 - 4 1,136 162 162 974
°1971 - 1 1,096 961 961 135
,1971 - 2 1,299 977 977 322
1971 - 3 1,258 868 38 830 428
1971 - 4 1,465 1,404 160 1,244 221
1972 - 1 1,545 1,404 273 1,131 414
1972 - 2 - 1,366 1,425 273 1,152 214
1972 - 3 1,347 1,425 273 1,152 195
1972 - 4 1,451 1,528 273 1,255 196
1973 - 1 1,164 1,200 228 972 192
1973 - 2 1,220 1,003 260 743 477
1973 - 3 994 984 178 806 188
TOTAL $ 5,118
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NAME YEAR-AND
QUARTER -
GROSS
BACKPAY
'INTERIM
- EARNINGS
EXPENSES NET INTERIM
EARNINGS
NET
BACKPAY -
JOHN CHARLES
LANKFORD 1970 - 2 $ 330 $ 158 $ 30 $` 127 $ 03
1970 - 3 2,040 358 358 1,682
1970 - 4 2,080 940 940 1,140
1971 - 1 2,080 1,013 1,013 1,067
-1971 - 2 2,080 1,232 1,232 848
1971 - 3 2,080 982 982 1,098
1972 - 1 1,920 -- 985 985 935
1972 - 2 2,080 1,179 1,179 901
1972 - 3 2,080 704 704 1,376
1972 - 4 2,080 1,198 1,198 882
1973 - -1 2,288 1,300 1,300 988
1973 - 2 2,288 1,814 1,814 474
1973 - 3 2,288 2,038 2,038 250
TOTAL $ 11,844
SHIRLEY LAUDERDALE
CHAMBERLIN 1970 - 2 $ 163 $'NONE $ $ NONE $ 163
1970 - 3 373 309 - 18 291 82
1970 - 4 1,136 1,004 1,004 132
1971 - 1 169 155 155 14
1972 - 2 210 186 26 160 50
-1972 - 3 207 160 160 47
1973 - 2 1,067 362 362 645
1973 - 3 1,401 948 120 828 573
1973 - 4 361 243 36 207 154
TOTAL $ 1,860
MIDWEST HANGER CO. 931
APPENDIX
NAME YEAR AND GROSS INTERIM EXPENSES NET INTERIM NET
QUARTER BACKPAY EARNINGS EARNINGS BACKPAY
SHARON MEIER 1970 - 2 $ 197 $ NONE $
_
$ NONE $ 197
1970 - 3 970 NONE NONE 970
TOTAL $ 1,167
MICHAEL OWENS 1970 - 2 $ 242 $ NONE $ S 242 242
1971 - 1 1,440 1,435 180 1,255 185
1971 - 3 1,819 1,955 180 1,774 45
1972 - 1 2,069 1,940 180 1,760 309
TOTAL $ 781
VIRGIE PETERSON
McCANNON 1970 - 2 $ 192 $ NONE $ $ NONE $ 192
1970 - 3 970 NONE NONE 970
1970 - 4 1,049 NONE NONE 1,049
1971 - 1 422 NONE NONE 422
1971 - 2 1,199 NONE NONE 1,199
1971 - 3 1,239 830 830 409
1972 - 4 363 228 21 207 156
1973 - 1 798 354 66 288 510
TOTAL $ 4,907
NAME YEAR AND GROSS
APPENDIX
INTERIM EXPENSES NET INTERIM NET
QUARTER BACKPAY EARNINGS EARNINGS BACKPAY
ELAINE PEUKERT 1970 - 3 $ 1,352 $ NONE $ $ NONE $ 1,352
1970 - 4 1,354 NONE NONE 1,354
1971 - 1 1,440 NONE NONE 1,440
1971 - 2 1,665 26 26 - 1,639
1971 - 3 1,819 624 624 1,195
1971 - 4 2,085 618 24 594 1,491
1972 - 1 2,069 686 33 653 1,416
1972 - 2 1,713 1,033 56 977 736
1972 - 3 1,953 1,392 21 1,371 582
1972 - 4 1,629 603 14 589 1,040
1973 - 1 1,953 1,187 21 1,166 787
1973 - 2 1,953 1,505 21 1,484 469
1973 - 3 1,979 1,458 21 1,437 542
1973 - 4 667 676 14 662 5
TOTAL $ 14,048
JOHN SELLS 1970 - 2 $ 476 $ NONE $ $ NONE $ 476
1970 - 4 2,834 2,541 50 2,491 343
1971 - 1 2,834 2,261 2,261 573
TOTAL $ 1,392