Minette Mills, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1009 (N.L.R.B. 1995)

1009
316 NLRB No. 159
MINETTE MILLS, INC.
1 305 NLRB 1032.
2 983 F.2d 1056.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 The Respondent has excepted to the judge’s adjustment of the
gross backpay figure for Van Douglas Wright for the fourth quarter
of 1990. Noting what appeared to be a mathematical error in the av-
erage hours worked during the week ending December 8, 1990, the
judge added $105 to gross backpay for the quarter in order to correct
the apparent error. If the printed total for that week had actually
been incorporated into the computations for the quarter, the judge’s
adjustment would have been correct. As the Respondent points out,
however, the error was merely a printing error, not a mathematical
error. The total hours for the quarter was correct and no adjustment
to gross backpay was necessary. We modify the order to eliminate
the extra $105.
1 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated as G.C. Exh. for the General
Counsel’s and R. Exh. for those of Respondent Minette Mills. Ap-
parently because the transcript for January 20, 1994 (the second day
of the hearing), is large at 354 pages, the court reporting service di-
Continued
Minette Mills, Inc. and Amalgamated Clothing and
Textile Workers Union, AFL–CIO. Case 11–
CA–13862
March 31, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On December 31, 1991, the National Labor Rela-
tions Board issued a Decision, Order, and Direction of
Second Election in this proceeding,1 directing the Re-
spondent, Minette Mills, Inc. to, among other things,
make whole employees Van Douglas Wright and
Debra Carol Wright for their losses resulting from its
unfair labor practices. The United States Circuit Court
of Appeals for the Fourth Circuit enforced the Board’s
order in its entirety on January 7, 1993.2 A controversy
having arisen over the amount of backpay due under
the terms of the Board’s Order, as enforced by the
court of appeals, the Regional Director for Region 11
issued a backpay specification and notice of hearing on
July 30, 1993. The Respondent filed an answer. A
hearing was held on January 19 and 20, 1994, before
Administrative Law Judge Richard J. Linton.
On May 17, 1994, the administrative law judge
issued the attached supplemental decision and order.
The Respondent filed exceptions and a supporting
brief.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the record and the at-
tached supplemental decision in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,3 and conclusions and to adopt the rec-
ommended Order, as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mi-
nette Mills, Inc., Grover, North Carolina, its officers,
agents, successors, and assigns, shall pay the sums set
forth in the Order as modified.
Insert the following as the total amount of backpay
due Van Douglas Wright: ‘‘$23,985.’’
Joseph T. Welch, Esq., for the General Counsel.
Thomas T. Hodges, Esq. (Haynsworth, Baldwin, Johnson &
Greaves), of Greenville, South Carolina, for the Respond-
ent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
backpay case. It is a compliance proceeding to determine the
amount of backpay which the Respondent, Minette Mills
(Minette), owes to Van Douglas Wright and to Debra Carol
Wright as a result of unlawfully discharging them on April
30, 1990. Liability was determined against Minette in the un-
derlying unfair labor practice case, reported as Minette Mills,
305 NLRB 1032 (1991), enfd. 983 F.2d 1056 (4th Cir.
1993). Generally agreeing here with the Government, I order
Minette to pay backpay (plus interest, less taxes required by
law to be withheld) as follows:
Van Douglas Wright $24,090
Debra Carol Wright 32,516
I presided at this 2-day trial in Shelby, North Carolina, on
January 19 and 20, 1994, pursuant to the December 1, 1993,
amended compliance specification (ACS) issued by the Re-
gional Director for Region 11 of the National Labor Rela-
tions Board on behalf of the Board.
Minette manufactures home furnishing textile products at
its plant in Grover, North Carolina. In 1990 the Union
(Amalgamated Clothing and Textile Workers Union, AFL–
CIO) conducted an organizing drive at Minette’s Grover
plant. Douglas and Debra Wright, husband and wife, sup-
ported the Union. On April 30, 1990, Minette fired the two
Wrights. The lawfulness of the discharge was one of the
issues presented to Administrative Law Judge J. Pargen Rob-
ertson in late 1990. On April 4, 1991, Judge Robertson found
that the discharge of the Wrights was unlawful. With its De-
cember 31, 1991 decision adopting that portion of Judge
Robertson’s decision, the Board ordered Minette to offer the
Wrights reinstatement and to make them whole, with interest.
Minette Mills, 305 NLRB 1032 (1991), enfd. 983 F.2d 1056
(4th Cir. 1993). By certified letters dated February 11, 1993,
Minette offered reinstatement to Douglas Wright (G.C. Exh.
2) and to Debra Wright (G.C. Exh. 7). (1:121–122.)1 The
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vided the day into two volumes. I have restrung the day as a single
volume, volume two of the transcript.
2 Consistent with the Internal Revenue Service procedure Amer-
ican taxpayers are familiar with in calculating their Federal income
taxes, I have rounded pennies of line items to the nearest dollar.
Thus, 50 cents and more are reflected at the next higher dollar, and
49 cents and less are rounded to the next lower dollar. (IRS Publica-
tion 17 for 1993 Tax Year, at 15.)
Wrights claimed the letters at the post office on Tuesday,
February 16, and called Minette that same day, speaking with
Sheila Gardner, Minette’s then personnel director. To allow
time for notice to the current interim employers, the parties
agreed on a return date of March 1. (2:254–257, 335–337.)
When the parties could not agree on the amount of the
backpay due Douglas and Debra Wright, the Regional Direc-
tor issued a compliance specification followed, on December
1, 1993, by the ACS (amended compliance specification). On
January 10, 1994, the Regional Director issued an amend-
ment to the ACS in which he corrected certain items on ap-
pendices D (calculation sheet for Douglas Wright) and E
(calculation sheet for Debra Wright). As so amended, the
ACS was the General Counsel’s trial pleading and alleged
net backpay of $29,874 due Douglas Wright and $41,864 due
Debra Wright.2 Unless otherwise specified, reference to the
ACS is to the trial pleading. Attached to the Government’s
posthearing brief are amended figures for appendices D and
E, of the ACS, based on evidence, and stipulations, adduced
at the hearing.
Minette defends on the following five grounds. First, the
backpay period should end on February 11, 1993, the date
Minette ‘‘made’’ its offers of reinstatement, rather than the
February 19 date selected by NLRB Region 11. Second, the
gross backpay formula of the ACS must be modified to in-
clude certain employees who were temporarily laid off.
Third, the Wrights incurred a willful loss of interim earnings.
Fourth, the ACS overstates the allowable expenses incurred
by the Wrights. And fifth, the backpay must be reduced for
periods when the Wrights were unavailable for work.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, Minette,
I make the following
FINDINGS OF FACT
I. GOVERNING LEGAL PRINCIPLES
The controlling legal principles are well settled by many
cases. In summary they are as follows. First, when loss of
employment is caused by a violation of the Act, a finding
by the Board that an unfair labor practice was committed is
presumptive proof that some backpay is owed. Arlington
Hotel Co., 287 NLRB 851, 855 (1987), enfd. on point 876
F.2d 678 (8th Cir. 1989).
Second, respecting the close of the backpay period, an
offer of reinstatement ‘‘must be unequivocal, specific, and
unconditional.’’ A-1 Schmidlin Plumbing Co., 312 NLRB
191 (1993).
Third, in compliance proceedings, the General Counsel
bears the burden of proving the amount of gross backpay
due. Florida Tile Co., 310 NLRB 609 (1993); Arlington
Hotel, Id. In discharging the Government’s burden, the Gen-
eral Counsel has discretion in selecting a formula which will
closely approximate the amount due. The Government need
not find the exact amount due nor adopt a different and
equally valid formula which may yield a somewhat different
result. NLRB v. Overseas Motors, 818 F.2d 517 (6th Cir.
1987); Kansas City Refined Helium Co., 252 NLRB 1156,
1157 (1980), enfd. 683 F.2d 1296 (10th Cir. 1982). Never-
theless, an Administrative Law Judge need not recommend
the General Counsel’s gross backpay formula to the Board
when a more accurate one is established in the record. Frank
Mascali Construction, 289 NLRB 1155, 1157 (1988); J. S.
Alberici Construction Co., 249 NLRB 751 fn. 3 (1980).
Fourth, the burden is on the employer who committed the
unfair labor practice to establish facts that reduce the amount
due for gross backpay. Florida Tile, supra. Thus, the burden
of showing the amount of any interim earnings, or a willful
loss of interim earnings, falls to the Respondent (Minette
here). Arlington Hotel, supra. Although it is the Respondent’s
burden to establish a discriminatee’s interim earnings, if any,
it is the General Counsel’s voluntary policy to assist in gath-
ering information on this topic and to include that data in the
compliance specification. Florida Tile, supra; Arlington
Hotel, supra; NLRB Casehandling Manual (Part Three),
Compliance, sections 10540.1 and 10629.9. As described in
a recent case, the voluntary policy is nothing more than an
‘‘administrative courtesy.’’ Ryder System, 302 NLRB 608,
613 fn. 7 (1991), enfd. 983 F.2d 705 (6th Cir. 1993).
Fifth, even though a discriminatee must attempt to mitigate
his or her loss of income, the discriminatee is held only to
a reasonable assertion rather than to the highest standard of
diligence, and success is not the test of reasonableness. Flor-
ida Tile, supra; Arlington Hotel, supra. Interim employment
means comparable work—substantially equivalent employ-
ment. Thus, it is well established that a discriminatee’s obli-
gation to mitigate an employer’s backpay liability requires
only that the discriminatee accept substantially equivalent
employment. Arlington Hotel, supra.
Sixth, when a discriminatee voluntarily quits interim em-
ployment, the burden shifts from the Respondent to the Gov-
ernment to show that the decision to quit was reasonable. Big
Three Industrial Gas, 263 NLRB 1189, 1199 (1982); NLRB
Casehandling Manual (Part Three), section 10545.4. (On a
single point, respecting concealment of interim earnings, the
Board subsequently overruled Big Three, supra. American
Navigation Co., 268 NLRB 426, 427 (1983). Other points in
Big Three were not disturbed.)
Seventh, a discharge from interim employment, without
more, does not constitute a willful loss of employment.
Ryder System, supra at 610. As the Board stated there, to
carry its burden:
A respondent must show deliberate or gross misconduct
on the part of the discharged employee in order to es-
tablish a willful loss of employment. Here we find that
the Respondents failed to show that Larry Elmore’s
conduct fell within that standard. Elmore may have
missed several scheduled deliveries, but he committed
no offense involving moral turpitude and his conduct
was not otherwise so outrageous as to suggest delib-
erate courting of discharge. [Footnote citations omitted.]
Without such proof, Elmore’s discharge from [interim
employer] ATS will not serve as a basis for tolling his
backpay. [Footnote omitted.]
1011MINETTE MILLS, INC.
Eighth, if a discriminatee incurs any reasonable and nec-
essary expenses in earning interim income (above what
would have been incurred working for the Respondent), it is
the General Counsel’s burden to establish the amounts of
those expenses. Arlington Hotel, supra. Such expenses are
deducted from interim earnings. They are not added to gross
backpay. NLRB Casehandling Manual (Part Three), section
10544.
Ninth, statutory ‘‘back pay’’ does not include reimburse-
ment for collateral losses resulting from distress sales of a
home, automobile, tools, or similar personal assets. Laborers
Local 38 (Hancock-Northwest), 268 NLRB 167, 170 (1983),
modified slightly on unrelated point 748 F.2d 1001 (5th Cir.
1984); NLRB Casehandling Manual (Part Three), section
10530.1. Thus, in the Wrights’ struggle to survive during the
backpay period, any losses they sustained when they had to
pawn personal items, including Debra Wright’s wedding ring
(1:174), are not recoverable.
Tenth, as Minette is the wrongdoer who caused the
Wrights’ initial unemployment, any ambiguities, doubts, or
uncertainties are resolved against Minette, the wrongdoer, be-
cause an offending respondent is not allowed to profit from
any uncertainty caused by its discrimination. Florida Tile
Co., supra, 310 NLRB at 610; Ryder System, 302 NLRB 608
and fn. 4 (1991), enfd. 983 F.2d 705 (6th Cir. 1993); Big
Three Industrial Gas, supra, 263 NLRB at 1190 fn. 8.
II. THE EVIDENCE
A. Introduction
For the Government’s first witness, the General Counsel
called Jack Bradshaw, NLRB Region 11’s supervisory com-
pliance officer since 1980. (1:13.) In lengthy testimony,
Bradshaw explained, and was cross-examined concerning, the
basis for the gross backpay formula, the interim earnings, ex-
penses, and calculations in the ACS. The next witness was
(Van) Douglas Wright (1:118), followed by his stepson,
David C. Irvin (1:233), and Debra Carol Wright (2:247).
These three testified about interim earnings, efforts to obtain
interim employment, and about expenses. The General Coun-
sel then rested. (2:347.) Debra Wright’s maiden name, and
apparently still her ‘‘legal’’ name, is Debra Carol Strange.
(2:247, 262.) On April 22, 1961, during the backpay period,
she left her husband, Douglas Wright, and moved back to her
mother’s home. (2:234.) Her mother’s home is on adjoining
land. (1:174, 218–219.) Although Douglas Wright testified
that they are divorced and have not moved back together
(1:219), she testified (2:248) that they are back together. His
testimony could be interpreted as meaning that they divorced
after he was fired by Elizabeth Weaving in October 1991. In
any event, as the parties have referred to her as Debra
Wright at the hearing and in their posthearing briefs, I shall
do the same.
Respondent Minette’s six witnesses consisted of personnel
directors from three of the principal interim employers, one
supervisor from a principal interim employer, and two former
personnel directors of Minette. Respondent then rested.
(2:574.) The General Counsel called Debra Wright in rebut-
tal. (2:575.) Minette offered no surrebuttal evidence. (2:582.)
B. Termination of the Backpay Period
Paragraph 1 of the ACS describes the backpay period as
beginning on April 30, 1990, and closing on February 19,
1993, ‘‘the date the Respondent’s reinstatement offers were
effective.’’ Denying the closing date, Minette asserts in an-
swer and on brief that the correct ending date is February 11,
1993, the date ‘‘full reinstatement was offered to Debra
Wright and Douglas Wright.’’
The February 11 letters (G.C. Exhs. 2, 7) offering rein-
statement have identical text reading:
This is to extend to you an offer of reinstatement to
your former position. If you would like to accept our
offer please contact our personnel department. If we
have not heard from you by February 26, 1993 [a Fri-
day], we will assume that you have declined our offer.
The letters were sent by certified mail. The Wrights testi-
fied that late on Friday (February 12) they found the postal
notices informing them of the certified letters which they
picked up the following Tuesday, February 16. That same
day they called Minette and spoke with Sheila Gardner, the
then personnel director (2:495) for Minette. To allow time
for the Wrights to give notice to their current interim em-
ployers, the date of (Monday) March 1, 1993, was agreed on
for them to come in and sign forms and fix a return date.
They resumed work on March 2. (1:121–123; 2:254–257,
335–337.)
What date is correct for closing the liability period? Feb-
ruary 11, the date of the letter (and apparently the date of
mailing), as Minette contends? Or February 12, the date the
U.S. Postal Service attempted delivery (leaving a notice be-
cause of their absence)? Should it be February 16, the date
that the Wrights actually received the letter offers? Perhaps
it should be March 1 or 2 when the parties agreed for the
Wrights to return. The ACS picks (Friday) February 19. Mi-
nette contends that February 19 is an arbitrary date.
Supervisory Compliance Officer Bradshaw testified that
February 19 was picked because the February 11 letters did
not offer reinstatement on a date certain and that such a date
was not set until ‘‘on or about February 19th in their com-
munications with the Employer.’’ (1:16.) Therefore, Brad-
shaw continues, NLRB Region 11 determined that (Friday)
February 19 was the earliest date the Wrights could have ef-
fectively returned based on their telephone conversation with
Sheila Gardner. (1:16.) Bradshaw’s ‘‘on or about’’ February
19 appears to refer to the telephone conversation of February
16. This is made clear from his second statement, that Feb-
ruary 19 was selected because it allowed the Wrights a brief
time (3 days) to return to Minette.
Although the date of February 19 falls short of the time
the Wrights needed to give notice to their interim employers,
I find that it represents a reasonable selection of the date
when the offers of reinstatement were effective. Accordingly,
I find that, as alleged in the ACS, the backpay period covers
April 30, 1990, to February 19, 1993.
C. The Gross Backpay Formula
1. Introduction
Douglas and Debra Wright began working for Minette in
September 1989. (1:119; 2:249–250); Minette Mills, 305
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 1032, 1037 (1991). In January 1990 they moved from
the day shift to the second shift where they were working
at the time of their April 30, 1990 discharge. Minette Mills,
supra at 1040. At Minette (Douglas) Wright worked as a
loom fixer (1:119) and his wife, Debra, operated looms as
a weaver (2:249). As a fixer, Wright kept looms in operating
repair. Minette Mills, supra at 1037. At Minette, Wright
worked 5 to 7 days a week, 8 to 10 hours a day, and never
was included in any layoffs. (1:120, 217.) At the time of his
April 30, 1990 discharge Wright’s regular hourly pay was
$10.54. (1:120.) Debra Wright worked 5 to 6 days a week
at Minette, 8 to 10 hours a day. Because she made produc-
tion on incentive pay, Debra Wright earned an average hour-
ly pay rate of $9. (2:249–250, 342.) There were no economic
layoffs in her department, and all the weavers worked 8 to
10 hours a day, 5 to 6 days a week. (2:342–343.)
As explained in NLRB Casehandling Manual (Part Three),
section 10532.1 ‘‘The objective in determining gross backpay
is to reconstruct as accurately as possible what employment
and earnings the discriminatee would have had during the
backpay period had there been no unlawful action.’’ The sec-
tion goes on to describe three basic methods for calculating
gross backpay, with formula two being the hours and earn-
ings of comparable employees. Compliance Supervisor Brad-
shaw testified that, based on records of Minette, the ACS
employs the method of representative second-shift fixers and
weavers. (1:17–18.)
Respecting potential absenteeism, section 10533.4 of the
compliance manual (NLRB Casehandling Manual (Part
Three)) contains the following relevant paragraph:
When backpay is based on comparison with a group
of employees, the Board has approved a method of
using employee hours, known as the ‘‘Twenty-four
hour method,’’ that takes into account normal absentee-
ism but excludes extraordinary absenteeism. [Footnote
citation to Hill Transportation Co., 102 NLRB 1015,
1021 (1953).] Under this method, when payroll records
show that the basic workweek was 5 days, only the av-
erage hours of earnings of employees working 24 hours
or more are used. When the basic workweek is 4 days,
only the average hours or earnings of employees work-
ing 16 hours or more are used. When the basic work-
week is 3 days or less, the average hours of all employ-
ees are used.
It is clear that formula two and the ‘‘24-hour method’’ are
used in the ACS for calculating the gross backpay, with
paragraphs 2 and 3 applying to Douglas Wright, and rep-
resentative second-shift fixers, and paragraphs 6 and 7 apply-
ing to Debra Wright and representative second-shift weavers.
ACS paragraph 2 (and par. 6) incorporates formula two, and
ACS paragraph 3 (and par. 7) applies the 24-hour method.
Other than the names and job titles of the rights, the text for
the paragraph read the same. Taking Wright’s as the exam-
ple:
2. The quarterly gross backpay due Douglas Wright
is the product of the average of the total regular and
overtime hours worked by representative second shift
fixers in each calendar quarter of the backpay period,
multiplied by the regular and overtime hourly rate of
pay Wright would have received, plus any vacation and
holiday pay to which Wright would have been entitled.
3. The average regular and overtime hours of rep-
resentative second shift fixers are the hours of all sec-
ond shift fixers employed by the Respondent during the
liability period who worked a minimum of twenty-four
(24) hours per week in a forty (40) hour workweek or,
who worked a minimum of sixteen (16) hours per week
in a thirty-two (32) hour workweek. When all rep-
resentative second shift fixers worked less than sixteen
(16) hours in a workweek, the average of the total num-
ber of regular and overtime hours worked by all second
shift fixers for that week was used.
2. Discussion
Bradshaw testified that the 24-hour method was applied in
making the calculations for the ACS. Thus, second-shift fix-
ers or weavers who did not work at least 24 hours (3 days)
in a week were not included with the group of representative
employees for that week. (1:19, 24, 46.) For its compliance
investigation, NLRB Region 11 relied on Minette’s records
to compile the representative employees and hours. (1:18,
47.) During the compliance investigation, Bradshaw testified,
Minette did not contend that the Wrights would have been
laid off during any of the liability (backpay) period. Minette
did argue, however, the some of the representative fixers and
weavers suffered temporary layoffs because Minette had in-
sufficient work. (1:47–48.) Because it was not shown that the
Wrights would have been included in the temporary layoffs,
the backpay was computed as if the Wrights would not have
been laid off. (1:48–49, 54, 105.) In any event, Bradshaw
testified, the 24-hour method was applied and it makes al-
lowance for employees who miss a day or two (as many as
16 hours) of work in a 40-hour week for whatever reason.
(1:19–20, 49–54.)
But that is where the dispute arises here. In its answer Mi-
nette denies that the hours of certain named fixers and wea-
vers should be excluded from calculating the hours of the
representative group because no additional work was avail-
able for them in the specified weeks. By including the hours
of these individuals for the weeks in question (hours ex-
cluded by the ACS because the individuals worked fewer
than 24 hours in a 40-hour week), Minette, in its answer,
would reduce the average weekly hours of the representative
group—thereby reducing the gross backpay due.
Although the answer does not explain Minette’s theory, at
trial and on brief Minette articulates its theory as follows.
After the April 30, 1990 discharges of the Wrights, Minette’s
business suffered a decline in the department where the
Wrights worked, and Minette periodically placed some of its
employees on temporary layoff. (Br. 16.)
In support of the business-decline position, Minette cites
testimony (2:499, 503) by Sheila Gardner, a former person-
nel director at Minette. Gardner testified that Wanda Neal
and then Neal’s assistant, Melodie Springs, preceded her as
Minette’s personnel director. (2:498.) Neal testified that she
served as Minette’s personnel director for 3 years, leaving at
some point in 1992. (2:533.) Neal has been the human re-
sources director at another company since November 1992.
(2:533.) Presumably she left Minette shortly before assuming
her duties with her current employer in November 1992.
Melodie Springs apparently did not serve long in the person-
1013MINETTE MILLS, INC.
nel director position at Minette, for Gardner began signing
documents as early as November 1992 while she was the
personnel director for Minette. (2:497–498; R. Exh. 34 at 13,
14.) Gardner explains that she was the personnel director for
a little over a year. (2:516.) While she was personnel director
at Minette, Gardner testified, business was slow in the bed-
spread department until about mid-1993. (2:499.)
Over the General Counsel’s objection (lack of personal
knowledge of the actual selection process), Gardner (2:502–
504, 515, 518–519, 526) and Neal (2:536–544) described a
practice at Minette whereby employees were rotated for tem-
porary layoffs due to lack of work. This was done on a
weekly basis. The practice is of long standing, but it is not
based on any written policy. Although the general procedure
is to rotate the affected personnel (less than fully trained per-
sonnel are not left alone on the job), the practice also in-
cludes accepting volunteers who choose to take off work for
the designated hours that week.
Documents are in evidence showing four second-shift fix-
ers (R. Exh. 34) and three second-shift weavers (R. Exh. 33)
who were temporarily laid off due to a lack of work at var-
ious times. The dates begin with early November 1991 and
run through January 30, 1993, for the fixers. (R. Exh. 34.)
Except for the week of November 9, 1991, only one em-
ployee is affected for a specific week. For the weavers the
time frame is early January 1992 through April 11, 1992 (R.
Exh. 33), with two weavers missing 2 weeks during the time
frame and one, C. L. Morrow, missing one for which Mi-
nette reported to the Employment Security Commission
(ESC) of North Carolina as being temporarily laid off.
As Gardner and Neal describe the practice, after the super-
visors do the actual selecting for layoff due to lack of work
(for which layoff someone may volunteer), the affected em-
ployee does not work the designated hours that week. The
following Monday the supervisor submits to personnel a list
of employees who worked no more than 23 hours the preced-
ing week. (2:520–521.) In North Carolina, unemployment
benefits may be claimed by an employee who is temporarily
laid off. As the ESC instruction (R. Exh. 35) explain, ‘‘A
temporary layoff occurs when an employee works less than
three (3) customarily scheduled full-time days due to lack of
work.’’ (For less than a 40-hour week, the definition pro-
vides further.) Neal, Springs, and Gardner signed the ESC
forms, in evidence, under a certification by the employer
stating, ‘‘I certify this benefit claim was completed in ac-
cordance with the regulation prescribed by the North Caro-
lina Employment Security Law.’’ Although there is a box for
certification by the affected employee (that he was available
for work), item 18 of the instructions (R. Exh. 35) states that
the worker’s certification is optional. None of the benefit
claim forms in evidence (20 claims as R. Exh. 34 for the fix-
ers, and 5 claims as R. Exh. 33 for the weavers) reflects a
signature by the employee claimant. Minette apparently files
claims on behalf of the claimant employee.
As the General Counsel vigorously contends, none of the
participants in the purported layoffs testified. The plant man-
ager did not appear and explain why a layoff was necessary.
Unlike Superior Export Packing Co., 299 NLRB 61, 63
(1990), no sales data were offered to show a drop in sales.
No production records were introduced here showing that
Minette’s output of home furnishing textile products (particu-
larly for the bedspread department where the Wrights appar-
ently worked) dropped during the backpay period. No one
testified as to the number of fixers and weavers on the sec-
ond shift during the weeks and months before April 30,
1990, compared that number to the number working during
the backpay period, and interpreted the significance of the
numbers in relation to the production and sales data.
Fixers are hired and fixers leave the second shift. At times
there are more than three fixers (apparently the number im-
mediately before Douglas Wright’s discharge) at one time,
and as many as five or more appearing at times during late
1991. The quarterly hours worked by, for example, the fixers
appear to show a drop for most quarters in 1992, particularly
when the figures advanced by Minette are used. Even assum-
ing that business declined, and that temporary layoffs became
necessary, no supervisor took the witness stand to describe
how he or she selected employees for layoff or whether all
or most such layoffs were satisfied by volunteers desiring
time off for fishing, hunting, travel, or other personal busi-
ness. More in point, no supervisor testified that either Doug-
las Wright or Debra Wright would have been laid off even
for a single day during the backpay period.
The evidence fails to establish that there was in fact a de-
cline in production in the department where Douglas Wright
worked as a fixer and his wife, Debra Wright, worked as a
weaver. The evidence fails to show that, in fact as opposed
to assumption by former personnel directors, the employees
who are identified as having been laid off due to lack of
work did not in fact volunteer for such temporary layoffs. Fi-
nally, and more in point, the evidence especially fails to
show that either Douglas or Debra Wright (neither of whom
was temporarily laid off before their discharge) in fact would
have been selected for any temporary layoff during the back-
pay period. Accordingly, I find that the gross backpay for-
mula set forth in the ACS is an appropriate one and not an
irrational formula.
D. Vacation Benefits
ACS paragraph 12 alleges that employees of Minette,
throughout the liability period, enjoyed nine paid holidays
per year and that the Wrights would have received such pay.
Admitting the number of paid holidays in its answer and at
the hearing (2:251), Minette asserts in its answer that, to
qualify for holiday pay, an employee must work the sched-
uled days before and after the holiday. Not knowing whether
the Wrights would have so qualified, Minette asserts that it
must deny the allegation, reserving the right to present evi-
dence that the Wrights were not eligible.
In calculating the gross backpay due, NLRB Region 11 in-
cluded the annual nine paid holidays in the ACS. (1:26,
Bradshaw.) Before his discharge by Minette, Wright testified,
he qualified for all paid holidays. (1:120–121.) Debra Wright
testified similarly. (2:252.) As Minette adduced no evidence
showing either Wright to have been ineligible for any of the
paid holidays, and on brief makes no ineligibility contention,
I find that the ACS properly includes credit for the paid holi-
days the Wrights would have enjoyed at Minette had Re-
spondent not unlawfully discharged them on April 30, 1990.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. The Backpay Quarters
1. Introduction: no willful loss of interim earnings
Minette contends that Douglas and Debra Wright each in-
curred a willful loss of earnings at various times during the
backpay period. Minette includes on brief its calculations for
all line items, including those which it contests. Countering
Minette’s contention of a willful loss, the General Counsel
argues that the Wrights diligently sought, and eventually
found, interim employment during most of the backpay pe-
riod (saving expenses by driving together to work when they
could), and that there was no willful loss of interim earnings.
Additionally, the Government attaches to its brief recal-
culated amounts for the line item figures that need modifica-
tion based on the evidence adduced at the hearing. Finding
the Government’s witnesses credible, and disbelieving
Minette’s witnesses were not credited, I find no willful loss
of interim earnings by either Wright, and I further find most
of the Government’s figures to be correct.
Appendix D attached to the ACS is the calculation page
for Van Douglas Wright. After setting forth the gross back-
pay (L. 1), it lists the interim earnings (L. 2), subtracts the
expenses (L. 3) to give the net interim earnings (L. 4), and
subtracts that (L. 4) from line 1 (gross backpay) to give the
net backpay (L. 5). Appendix E does the same for Debra
Wright. Footnotes explain many of the entries. Eventually,
when Minette pays the backpay due, NLRB Region 11 will
calculate the interest due and that interest is added to the
backpay due to produce the total backpay due. Interest accu-
mulates until the backpay is paid. See NLRB Casehandling
Manual (Part Three), section 10555.7.
Most of the General Counsel’s recalculated figures are for
expenses, and generally this is for mileage. During the com-
pliance investigation the Wrights estimated the mileage they
had traveled to their jobs. The distance to some interim em-
ployers turns out to have been shorter than the Wrights esti-
mated. At trial the parties stipulated to the distances from the
Wrights’ residence to the various employers. (2:245–247.)
Based on the stipulated distances, the General Counsel has
revised several of the expense lines in appendices D and E.
The stipulated distances, expressed in roundtrip mileage, are
as follows to the interim employers (from the Wrights’ resi-
dence), as compared to a roundtrip distance to Minette of 28
miles, with the second column of numbers being the extra
distance, if any:
Doran Textiles 26 0
Woodbridge 6 0
Elizabeth Weaving 30 2
Carpet Industries 12 0
Stonecutter Mills 86 58
Reeves Brothers 28 0
As the distance to Minette is greater than that to either
Doran, Woodbridge Handi Mart, Carpet Industries, or to
Reeves Brothers, no allowance for mileage is allowable ex-
cept where the Wrights had to travel separately when they
would have driven together at Minette.
In the following summary, I refer to the revised figures
submitted by the General Counsel on brief. The revised fig-
ures are shown on a revised appendix D and revised appen-
dix E to the ACS. Revised appendices D and E are attached
as appendix B to the General Counsel’s brief. The revised
figures, and revised footnotes, are based on adjustments
made by the General Counsel based on the evidence and
stipulations at the hearing. The adjustments (30 in number)
appear as appendix A to the Government’s brief. Figures
from my summary appear for each quarter and in tabulated
form later in this decision under the heading for ‘‘Recapitula-
tion.’’ Interest is not shown in this decision because, as I
noted a moment ago, that calculation is made when a re-
spondent issues a check for the backpay bill. That is, interest
accumulates until the backpay is paid.
2. Second quarter 1990
a. Douglas Wright
No dispute remains for this quarter concerning Douglas
Wright because the General Counsel has deleted (adjustment
9; revised app. D) the Government’s claim that Wright in-
curred reimbursable mileage expense. The parties agree that
(with line items rounded) the net backpay for this quarter is
$2645. Thus, the figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$1,3910 $1,265 —— $1,265 $2,645
b. Debra Wright
No dispute remains for this quarter concerning Debra
Wright because, based on the stipulated mileage distances,
the General Counsel has reduced to $14 the amount of allow-
able expenses to be deducted from interim earnings. The $14
matches Minette’s figure. The parties agree that the net back-
pay is $2943. Thus, the figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$1,3200 $271 $14 $257 $2,943
3. Third quarter 1990
a. Douglas Wright
No dispute remains for this quarter respecting Wright be-
cause, based on the stipulated distances to the interim em-
ployers, the General Counsel has deleted any claim for mile-
age for this quarter. The parties agree that the net backpay
is $1595. Thus, the figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$1,5523 $3,928 —— $3,928 $1,595
1015MINETTE MILLS, INC.
b. Debra Wright
The only difference here is the mileage claimed for 5 days
the week of August 13 through 17, or a difference of $31.20
(24 cents x 26 miles x 5 days). Debra Wright began work
at Doran Textiles on Monday, July 30, 1990. She testified
that, although Douglas Wright also was working the first
shift at Doran, she had to drive separately because, as she
was in training, her hours were different. At the completion
of her training ‘‘within a couple of weeks’’ she moved to the
second shift (when she also drove by herself). (2:262–263,
311–312.) At the hearing Minette introduced, through
Doran’s personnel manager, a status change form (R. Exh.
16) showing that Debra Wright’s transfer to the second shift
was effective on Saturday, August 18, 1990. (2:368.) From
these facts Minette (Br. 37, fn. 8) argues that Debra Wright
drove for her training of 2 weeks (through Friday, August
10) but that no claim should be allowed for the third week
because she and Wright could have driven together.
Minette’s contention distorts the evidence. It is clear that
Debra Wright was estimating the time of her training as
being about 2 weeks, after which training she was placed on
the second shift. The fact that the transfer was effective on
August 18, and not August 11, does not mean as Minette ar-
gues that the Wrights drove together to work, or could have
done so, the 5 days of August 13 through 17. Especially is
this so in light of Debra Wright’s testimony that it was to-
ward the end of their employment at Doran when they drove
together. (2:343–344.) If anything, the exhibit (R. Exh. 16)
indicates that Debra Wright trained for 3 weeks rather than
for 2 weeks. Rejecting Minette’s argument as without merit,
I find the General Counsel’s expense figure of $281 (adjust-
ment 3) to be correct, with the net backpay for the quarter
being $3083. The figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$5,558 $2,756 $281 $2,475 $3,083
4. Fourth quarter 1990
a. Douglas Wright
A difference exists here about the gross backpay. Agreeing
with the General Counsel that the initial figure would be
$5359, Minette contends (Br. 52–53) that such amount
should be reduced to $4874 because Wright’s attendance cal-
endar (R. Exh. 14) at Doran shows that Wright was absent
the 5 days of October 15 through 19, 1990. (2:358.) Wright
confirms he was out sick for 6 days in October. (1:203.) Al-
though the General Counsel does not address this 5-day ab-
sence, the Government (adjustment 14) would reduce Debra
Wright’s gross backpay for the quarter on the basis that she
was absent due to illness that week, plus Monday, October
22. Debra Wright’s attendance calendar (R. Exh. 17) shows
no absence for the week of October 15; she did not testify
that she was absent that week; and Minette makes no conten-
tion that she was absent that week. Thus, it appears that the
Government has erroneously applied the adjustment for that
week to Debra Wright rather than to Douglas Wright.
In light of the foregoing, Minette’s figure of $4874 for the
gross backpay appears to be correct. As parties agree on the
interim earnings expenses, and net interim earnings, I pre-
liminarily find, in agreement with Minette, that the net back-
pay due Wright for this quarter is $1094. I write ‘‘prelimi-
narily’’ because an adjustment must be made for an error in
arithmetic for the calculation of average weekly hours of rep-
resentative employees at Minette the week ending December
8, 1990. Appendix A (p. 3) to the ACS averages the hours
for that week to be 27.3 rather than the 37.3 (112 hours di-
vided by 3) for the identical figures on the week ending De-
cember 22, 1990. Correcting that error adds $105 (10 hours
x the $10.54 Wright would have been earning at Minette) to
the gross backpay figure ($4979) and is carried to the bottom
line, increasing the net backpay to $1199. The figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$4,979 $3,787 $7 $3,780 $1,199
b. Debra Wright
In light of the above discussion about Douglas Wright, the
Government’s adjustment 14, reducing Debra Wright’s gross
backpay for a 6-day absence beginning October 15, is mis-
applied here. Before that misapplication the General Coun-
sel’s figure of $4127 for the gross backpay (app. E at 3, to
ACS) matched Minette’s entry for the item (Br. 38). Accord-
ingly, I find that the correct gross backpay figure is $4127.
The parties agree that interim earnings are $3624, but list
different amounts for allowable expenses. The General Coun-
sel’s adjustment 4 ($343 for mileage for 55 days) is different
from the $306 shown in appendix B at 3, to the Govern-
ment’s brief. Minette’s computation (Br. 38–39), however,
correctly shows that Debra Wright drove alone only 18 days.
Finding, in agreement with Minette, that the correct figure is
$112 for allowable expenses, I further find $3512 to be the
correct amount of net interim earnings. This results in net
backpay being $615. The figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$4,127 $3,624 $112 $3,512 $615
5. First quarter 1991
a. Douglas Wright
Initially agreeing with the General Counsel that Wright’s
gross backpay would be $5138 (Br. 54), Minette observes
that Wright was absent from work for 3 days, possibly 4, be-
ginning Friday, January 11 through Tuesday, January 15,
1991. (At this interim employer, Elizabeth Weaving, Wright
sometimes worked 6-day weeks. 1:210.) Minette would sub-
tract 3 days’ pay, suggesting a gross backpay figure of
$4885. Although the Government notes (Br. app. A at 8) the
missed days at adjustments 26 and 27, the General Counsel
applies that adjustment only to mileage expenses, not to
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gross backpay, on the recalculated appendix D (Douglas
Wright) attached to the Government’s brief (app. B to the
brief).
The problem with Minette’s contention is that the days of
absence fall into separate workweeks (either 1 and 2 or, at
most, 2 and 2 absences in the successive weeks). To charge
Wright for these absences would penalize him twice, the first
being with the adoption of the 24-hour method (gross back-
pay based on representative employees who work at least 24
hours in the week). That is, normal absenteeism (up to 2
days in a workweek) already is factored into the gross back-
pay formula so as to reduce (at least potentially) the gross
backpay by representative employees who have missed work
up to 2 days (16 hours). This, apparently, is why the Agen-
cy’s compliance manual makes the correlative provision that
backpay is tolled when a discriminatee is unable to work be-
cause of an illness lasting ‘‘3 days or more.’’ NLRB
Casehandling Manual (Part Three), section 10546.2. Stated
differently, backpay is not tolled (the employee is not consid-
ered unavailable) when the discriminatee misses interim
work, because of illness, 2 days or less in a single work-
week. Making no subtraction here for Wright’s mid-January
illness, I find the correct gross backpay figure to be $5138.
Although the parties stipulated (2:396) that Wright’s in-
terim earnings for the quarter are $3969, and the General
Counsel noted this in adjustment 20 (and adjustment 26), the
General Counsel, apparently inadvertently, failed to list the
stipulated figure on the recalculated appendix D at 1, show-
ing instead the unexplained amount of $4241. As Minette
does, I shall use the stipulated figure of $3969 for interim
earnings. As the parties agree that expenses were $29, that
puts net interim earnings at $3940 and net backpay at $1198.
The figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$5,138 $3,969 $29 $3,940 $1,198
b. Debra Wright
The parties agree, initially, that the gross backpay here
would be $4827. They also agree that allowance should be
made for 3, or possibly 4 (the evidence is unclear) days
which she missed when out with the flu in mid-January. The
parties apply the adjustment at different points, however,
with Minette (Br. 39) deducting it from the gross backpay,
and the General Counsel (adjustment 26) adding it to interim
earnings. Minette’s adjustment is for 3 days, whereas the
General Counsel charges Debra Wright for a 4-day absence.
The evidence is unclear on the number of days absent, main-
ly because no attendance calendar from the interim employer
(Elizabeth Weaving) is in evidence specifying the actual
workdays missed.
Regardless of whether 3 days or 4 is the correct number,
as with Douglas Wright in the section above, Debra Wright’s
backpay is not tolled because she was absent no more than
2 days in each of 2 separate workweeks. Accordingly, I find
her gross backpay to be $4827 and her interim earnings to
be $2966. With no allowable expenses claimed, the net in-
terim earnings figure is $266, resulting in a net backpay fig-
ure of $1861. Thus:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$4,827 $2,966 —— $2,966 $1,861
6. Second quarter 1991
a. Douglas Wright
Were it not for a mid-April absence by Wright of 3 days
for family illness (with the first day on Friday, April 12), the
parties would agree to a gross backpay figure of $7562. Mi-
nette, again, would subtract 3 days’ pay from Wright’s gross
backpay. (Br. 55.) That is not correct because an illness is
considered for each workweek. I therefore find the gross
backpay to be $7562. The parties stipulated (2:396) that the
figure for interim earnings is $5066. They differ by a couple
of dollars on the mileage expense, in part because the Gen-
eral Counsel apparently would apply a mileage rate of 25
cents (adjustment 25; revised app. D). The mileage rate for
federal employees however, (the standard used, NLRB
Casehandling Manual (Part Three), sec. 10544) did not in-
crease from 24 cents to 25 cents a mile until June 30, 1991
(see NLRB Administrative Bulletin 91-55, July 8, 1991, of
which I take official notice). Accordingly, I find the mileage
expense to be $28, as Minette calculates. That renders a net
interim earnings figure of $5038, resulting in a net backpay
sum of $2524 and figures of:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$7,562 $5,066 $28 $5,038 $2,524
b. Debra Wright
Respecting the second quarter of 1991 for Debra Wright,
the parties have differences on the merits respecting whether
there was a willful loss of earnings. Although agreeing with
the General Counsel that the gross backpay initially would
be $6040, Minette (Br. 40) would subtract for her 3-day ab-
sence in mid-April for family illness. These are the same
days that her husband was absent. As with Douglas Wright,
above, I find no merit to Minette’s position. I therefore list
the gross backpay at $6040.
The parties stipulated (2:397) that Debra Wright’s actual
interim earnings were $966. Minette contends, however, that
she incurred a willful loss of earnings when she quit her in-
terim employment with Elizabeth Weaving on April 22,
1991. She did not again obtain employment until August 5,
1991, when she went to work for Carpet Industries. As sum-
marized earlier under the topic for governing legal principles,
when a discriminatee voluntarily quits interim employment,
the burden shifts from the Respondent to the Government to
show that the decision to quit was reasonable. Big Three In-
dustrial Gas, 263 NLRB 1189, 1199 (1982). The General
Counsel argues (Br. 23) that Debra Wright’s voluntarily quit
1017MINETTE MILLS, INC.
at Elizabeth Weaving was ‘‘not unreasonable.’’ The Govern-
ment’s actual burden to establish that the quitting was ‘‘justi-
fied’’ or ‘‘reasonable’’ is affirmative and heavier than merely
demonstrating that the quitting was ‘‘not unreasonable.’’
Debra Wright began work at Elizabeth Weaving on De-
cember 10, 1990, and quit her employment there on April
22, 1991. (App. E to ACS, fn 7; R. Exh. 27 at 3; R. Exh.
30; 2:279.) Although her base hourly rate was $7 (2:266; R.
Exh. 27 at 3), she expected to earn, with incentive produc-
tion, about $8 an hour. Moreover, her husband would earn
about $2 an hour more than he was receiving at Doran.
(2:265.) At Elizabeth Weaving, Debra Wright worked as a
weaver and Douglas Wright worked as a loom fixer (1:137).
They worked together. (1:175; 2:325.) After their training,
they were transferred to the second shift. (R. Exhs. 24, 28.)
Because of difficulties Debra Wright had trying to learn
the production process at Elizabeth Weaving, her pay never
rose above $7 an hour. (2:270.) As the second-shift super-
visor at Elizabeth Weaving, Harry Webb supervised both
weavers and fixers. (2:273, 546–547, 556.) On January 17
Webb warned (R. Exh. 8) Debra Wright for the poor quality
of the product. (2:276, 316–317.) He also criticized her sev-
eral times on the defects in the quality of her work. (2:273,
277.) In so doing, he would bring the cloth out to her and,
in the presence of other employees, tell her, in sarcastic
(smartmouthy) tones, that she should have seen the defects.
He singled her out in this fashion, but with other weavers
he handled any such matters away from the production area.
This public censure humiliated Wright. (2:273, 277–278,
321–322.) Webb denies much of Debra Wright’s version, in-
cluding her testimony of public criticism and singling out.
(2:551, 566.) Debra Wright testified with a more sincere and
convincing demeanor than did Webb, and I credit her and do
not believe him on disputed matters. Webb concedes that his
other weavers were experienced at Elizabeth Weaving and
nearly always earned at the incentive production rate and that
he earns more when the weavers are more efficient. (2:557,
558, 559–562.)
Eventually Debra Wright applied to the first-shift super-
visor for transfer to that shift, but she was unsuccessful in
her request. (2:274, 276, 323.) Similarly, she was unsuccess-
ful in asking Webb for transfer to a yarn service position
(2:274) or to another set of looms. (2:341.) She did not com-
plain to the personnel manager or to the plant manager about
Webb’s treatment of her, nor did she request of them that
she be transferred to the first shift. (2:322–323.) During her
last several days at Elizabeth Weaving, Wright testified,
Webb criticized her ‘‘pretty bad.’’ She began having anxiety
attacks. On her last day she told her husband that she just
could not take it. Fearing for her health, Wright told Webb
that she was going home and that she was not putting up
with it any more. She then left the plant. (2:280–282, 323.)
She had not reported her stress to anyone in management.
(2:326.) On brief (at 28) Minette, implying impeachment, ob-
serves that during the compliance investigation Debra Wright
told the investigator, according to his notes (R. Exh. 1 at 12),
that she quit because the supervisor tried to embarrass wea-
vers in front of other weavers regarding job quality. Minette
wisely does not argue that the one statement appearing in the
Board Agent Finger’s notes constitutes a full description of
Debra Wright’s problem as she described it to him. It does,
however, correctly point to the source of her problem at Eliz-
abeth Weaving, Supervisor Webb. Moreover, the notes are
merely the interview notes by Agent Finger, not a statement
signed or adopted by Debra Wright, and with no contention
that the interview notes were intended to be a full descrip-
tion. At trial Debra Wright (with supporting testimony by
Douglas Wright) provided the full description.
During the trial Minette introduced (authenticity stipulated,
2:478) two pages of the medical history notes (R. Exh. 31)
maintained by Dr. J. A. Injejikian, the Wrights’ family phy-
sician (1:143, 217; 2:290; R. Exhs. 31, 32), concerning
Debra Wright. Although many of the words in the notes can
be read, Dr. Injejikian did not testify to interpret his notes
or to explain the basis for or significance of any entries or
prescriptions. For relevance, counsel stated that the notes
show Debra Wright has consulted the doctor since 1985 for
problems with ‘‘nerves’’ and that they also show she visited
the doctor only once (January 14) during 1991 before quit-
ting Elizabeth Weaving, whereas she testified that she had
been to see the doctor two or three times before quitting.
(2:478.) On brief (at 28) Minette omits the latter point.
Wright did not testify to two or three visits to the doctor,
although at one point (2:281) she started to describe an in-
jury to her arm and that Paige Dixon, who then handled per-
sonnel matters before being named human resources director
(2:434–435, 471), made an appointment for Wright the next
day to see the doctor. It is unclear from the limited testimony
whether the injury occurred on the job or elsewhere. If the
former, then ‘‘the doctor’’ no doubt would have been a doc-
tor (unlikely to be the Wrights’ family physician) retained by
Elizabeth Weaving.
In any event, the unexplained notes of Dr. Injejikian do
not support Minette’s argument, for any preexisting problem
Debra Wright had with either ‘‘nerves’’ or ‘‘anxiety’’ (both
terms appear in the notes for 1985) may well have been ag-
gravated by 1991 events at Elizabeth Weaving. On rebuttal
Wright testified that an anxiety attack is substantially dif-
ferent from, and more serious than, a problem with being
nervous in that with an anxiety attack the heart speeds up,
breath becomes short, and the person feels as if she is suffer-
ing a heart attack. (2:577.) She felt those symptoms in mid-
January, and Dr. Injejikian prescribed Buspar for her condi-
tion. (2:575–576.) The doctor’s notes (R. Exh. 31) reflect
that he indeed prescribed Buspar on January 14 for anxiety.
Minette asserts (Br. 28) that Wright visited the doctor on
January 14 to obtain treatment for a sore throat and to go
on a weight reduction program, implying anxiety was not
even one reason for the visit. That implied argument ignores
the very notes Minette cites. Debra Wright testified that she
went there for the anxiety problem and when Dr. Injejikian
checked her he found that she also had a sore throat. (2:578.)
As the notes reflect, weight was a problem she had consulted
the doctor about as far back as December 1985. His notes
also reflect that he wrote, on January 14, that Debra Wright
smoked. As Dr. Injejikian had been Debra Wright’s family
doctor for several years, he may well have made these in-
quiries on his own. In the absence of testimony by Dr.
Injejikian, there in no point in speculating on why the notes
are there or on what they mean. The important point, how-
ever, is that the notes confirm Debra Wright’s testimony that
she went to him on January 14 for anxiety and that he gave
her some sample Buspar pills. She testified that she did not
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
need to visit him again because she had the Buspar pills.
(2:580, 581–582.)
As I noted earlier in this decision, Debra Wright separated
from Douglas Wright on April 22 (the day she quit Elizabeth
Weaving) and moved in with her Mother (whose property
adjoins that of Douglas Wright). Minette’s final contention is
that the real reason Wright quit is because she and Douglas
Wright separated the very day she quit (2:324) and she quit
because she was emotionally upset over her dissolving mar-
riage. Thus, any anxiety attack was caused not by Minette
but by her marital problems. (Br. 29.) Acknowledging that
her marital difficulties were emotionally upsetting to her, that
she had stress at home as well as on the job, and that she
and her husband got along much better after the separation,
Debra Wright denies that her domestic problems caused the
stress at work and denies that she quit Elizabeth Weaving be-
cause she was separating from her husband. (2:324–326.)
She strongly asserts that she would not have quit her em-
ployment there simply because Douglas Wright worked
there. (2:343.)
Crediting Debra Wright, I find that she quit Elizabeth
Weaving not because of her problems at home, but because
of the stress caused on the job. The job stress, I find, re-
sulted when her slow rate of progress in learning operation
of the looms at Elizabeth Weaving prompted Supervisor
Webb to humiliate her before other employees. Such unpro-
fessional conduct by Webb caused Debra Wright to suffer
anxiety attacks. When Webb criticized her rather strongly
over the last few days, Wright had withstood all she could
and, fearing for her health, quit on April 22 because of the
stress created by the nature of the job and Webb’s unpro-
fessional method of supervision. Finding that Debra Wright’s
decision to quit her employment at Elizabeth Weaving on
April 22, 1991, was a reasonable decision, I further find that
her interim earnings at Elizabeth Weaving should not be pro-
jected until her next employment. Thus, her figures for the
second quarter of 1991 are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$6,040 $966 —— $966 $5,074
7. Third quarter 1991
a. Douglas Wright
For this quarter the parties are in agreement as to every-
thing except a dollar for interim expenses. Interim earnings
are stipulated at 2:396–397. Minette would not award mile-
age expense for 2 days when Wright was absent during this
quarter. The General Counsel makes no deduction for such
absence. I agree with Minette. That results in rounded figures
of:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$5,999 $5,101 $32 $5,069 $930
b. Debra Wright
The parties agree that the gross backpay here is $5285.
Because of Minette’s contention that Debra Wright incurred
a willful loss of earnings by quitting her employment at Eliz-
abeth Weaving during the previous quarter, the parties dis-
agree here on the correct amount of the interim earnings. As
the record reflects, after leaving Elizabeth Weaving, Debra
Wright diligently sought work elsewhere. Eventually, on Au-
gust 5, 1991, she found employment at Carpet Industries
where she worked as a weaver through September 20. On
September 21 Wright was injured in a car accident and was
sidelined from work for 2 weeks. When she was ready to re-
turn to work she learned that she and nearly everyone else
had been laid off permanently as a result of a near shutdown
of the plant. (2:287–290, 326–327; G.C. Exh. 3.) She imme-
diately began searching for new employment. (2:290.) Agree-
ing with the General Counsel, I find her interim earnings to
be $1662 and her deductible expenses (adjustment 5) to be,
as Minette agrees, $105. The resulting figures are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$5,285 $1,662 $105 $1,557 $3,728
The above figures are based on NLRB Region 11’s having
counted the third quarter as ending on September 20. Thus,
Wright’s injury and 2-week unavailability occurred during
the fourth quarter for our purposes. At trial the General
Counsel moved to amend the ACS to subtract for Debra
Wright’s unavailability. (1:7–12.) That was not finalized, and
the General Counsel’s posthearing adjustments and revised
appendix E do not reflect any adjustment for this unavail-
ability. Minette addresses it for the fourth quarter, and I do
likewise.
8. Fourth quarter 1991
a. Douglas Wright
(1) Facts
The major dispute here centers on the circumstances lead-
ing up to Wright’s discharge by Elizabeth Weaving on
(Thursday) October 10, 1991. Recall that Wright worked the
second shift at Elizabeth Weaving. (1:203–204; 2:306; R.
Exh. 24.) The second shift begins at 2 p.m. (2:438, 549.)
Elizabeth Weaving’s attendance rules (R. Exh. 10) call for an
employee, who is going to be tardy or absent, to contact his
supervisor at least 1 hour before the shift begins. Thus, under
the rules Wright needed to call Supervisor Harry Webb by
1 p.m. if Wright was going to be tardy or absent for his
shift. If there is no call, an absence is counted as unexcused.
(2:438.)
Douglas Wright cannot read or write. (1:152.) Paige
Dixon, who then handled personnel matters for Elizabeth
Weaving (2:435, 471), testified that she reviews the attend-
ance policy with all new employees and reads it to those
who are unable to do so themselves. (2:437–438, 468–470.)
Dixon does not know whether Wright can read, and was dis-
ingenuous in not directly answering whether she read it to
1019MINETTE MILLS, INC.
Wright, finally saying she read it to ‘‘them’’ (all employees,
apparently) because she does not know which ones cannot
read. (2:437, 470.) She concedes that with the number of em-
ployees there (approximately 110), she does not recall wheth-
er Wright indicated he understood. (2:470.) Wright testified
that, when he was hired, no one gave him a copy of the at-
tendance policy and no one explained it to him. (1:154.) Not
until his discharge did he learn that he was required to call
an hour before the shift. (1:154–155.)
Wright signed two earlier warnings. The first (R. Exh. 5)
was for an unexcused absence on May 6 for not calling in,
and the second (R. Exh. 6) was for an unexcused absence
on June 17. Although acknowledging his signature on both
documents (1:205, 207), Wright, who could not read what he
signed, testified that he received two warnings. The first was
when, after his request was denied for time off to attend the
funeral of a very close friend, he took off anyway and went
to the funeral. (1:205.) The second involved a dispute over
the amount of one paycheck and he told the supervisor to get
his ‘‘damn’’ money. The supervisor (Webb, apparently)
wrote him up for cursing him, ‘‘which I never cussed him.’’
(1:205–206.) No such warning is in evidence. There is in
evidence (G.C. Exh. 4) a company note excusing him for an
absence on May 7 for being at his doctor’s office for illness,
and a May 7 note by the doctor that Wright should be ex-
cused May 6 and 7. Presumably the June 17 absence was
when Wright attended the funeral. Wright asserts, without
contradiction, that during his employment no one told him
his job was in jeopardy. (1:225, 232.)
It is undisputed that Wright missed the first 3 days of
work the week of Monday, October 7, 1991. (Wright begins
his description by specifying October 6, a Sunday. 1:137. He
apparently meant that Monday. His error throws off his other
dates that week.) That Sunday night the only available family
vehicle developed severe engine problems, so on Monday,
October 7, Wright worked that day and until about midnight,
by himself, replacing the engine. (1:137–140, 222.) Around
1 p.m. that Monday, Wright testified, he called Elizabeth
Weaving and spoke to Paige Dixon, the person who handled
personnel matters. Dixon told him to call back at 1:30 p.m.
when Supervisor Webb arrived and speak to him. (Webb
confirms that he arrives about 1:30 p.m. 2:553.) Wright did
so, described the situation, and explained that he had no way
to get to work. Webb said that would be fine. (1:138–139,
222.)
The heavy work on Monday aggravated Wright’s own
problem, and Tuesday morning, October 8, Wright awoke
with bleeding hemorrhoids. (1:140, 223.) That morning he
called the doctor’s office and the earliest appointment he
could get with Dr. Injejikian was for 2:30 p.m. that day. Suf-
fering intense pain Wright passed the time either in the bath-
tub or in bed. (1:141.) Around 1 p.m. he asked his wife to
call Elizabeth Weaving. He went to the doctor that afternoon,
received some medicine, and returned home to bed. (1:141–
142, 223.) Debra Wright testified that she called for Webb
between 1 and 1:30 p.m. As Webb had not yet arrived she
left a message with the personnel director, Paige Dixon, that
Wright would not be in that day because he was suffering
from bleeding hemorrhoids. She said nothing about his pos-
sibly being in later that day. (2:306–307, 338–339.) She was
not aware of any policy requiring a call by 1 p.m. (2:339–
340.)
According to Webb, Debra Wright called the first day
about 1:30 p.m., but neither his memory nor his notes reflect
what she said. (2:553–555; R. Exh. 26.) On the second day
he again received a call from Debra Wright. She advised
Webb that Wright was working on their vehicle. He told her
he needed to talk to Wright. She said Wright possibly would
be in later (to work, apparently), but he never showed and
Webb never heard from him. (2:552–554.) For an unemploy-
ment hearing Dixon compiled a list (R. Exh. 25) of dates
from documents, but the data for the events here come from
the document (R. Exh. 26) completed by Webb. Dixon testi-
fied that she has no personal knowledge of the calls or
whether she took any of the calls because that was several
years ago. (2:443, 472.)
On Wednesday (October 9, the third day), Wright testified,
the bleeding was even worse. Although his wife called early
that morning, she could not get an appointment with Dr.
Injejikian for Wright until 4 p.m. that day. At that appoint-
ment the doctor, after giving him stronger medicine, told him
that if his condition persisted he would require surgery. Ear-
lier that afternoon his wife called and reported his condition
to Elizabeth Weaving. (1:142–145, 223.) Debra Wright testi-
fied that she again called between 1 and 1:30 p.m. and re-
ported essentially as the previous day. (2:306–307, 339.)
Webb records that no word was received on October 9. (R.
Exhs. 25, 26; 2:555.)
On Thursday, October 10, Wright, still suffering and con-
fined to his bed, had his stepson, David C. Irvin (about 17
as of the hearing), call the plant around 1 p.m. to say that
Wright was under a doctor’s care and unable to report for
work but needed his paycheck to buy more medicine. Irvin
went to the plant, but returned with the message that Wright
had been terminated and had to turn in his uniforms to get
his paycheck. (1:145–147.) Irvin confirms this. (1:234–237.)
Webb testified that when he gave the check to Wright’s step-
son that Irvin never said what was wrong with Wright.
(2:554.) Irvin asserts that he told personnel when he called
and Webb in person about Wright’s hemorrhoid problem.
(1:235–237.) Wright was discharged effective October 10,
1991. (2:453, 555; R. Exh. 26.)
Under Elizabeth Weaving’s attendance policy (R. Exh.
10), eight events are recognized as excuses. The first is a
note signed by a doctor stating that the employee was too
sick to work. Number 8 is ‘‘Car trouble.’’ (2:474.) Dixon
testified that no medical slips were ever presented to her con-
cerning Douglas Wright for this week. (2:449, 475.) Wright
testified that he got a slip from the doctor on his first visit.
(1:151.) He does not assert that he ever delivered it to Eliza-
beth Weaving, not even when he went there some 3 to 4
months later and spoke to Webb about reemployment.
(1:164.) Apparently Wright misplaced the doctor’s slip, for
during the hearing, Wright testified, his wife went to the doc-
tor’s office and secured another. (1:151.) Wright apparently
was referring to a January 19, 1994 slip (G.C. Exh. 6) mere-
ly reciting, over the stamped name, address, and telephone
number of Dr. Injejikian, that ‘‘Mr. Wright was under the
Doctor’s care from 10–7–91 to 10–15–91 for hemorrhoids.’’
The parties stipulated to the authenticity of the note.
(2:483.) Minette did not object to admissibility, stating that
its argument is that the note is outweighed by the doctor’s
chart record (R. Exh. 32) for Wright listing only the date of
October 11, 1991, for a consultation with Wright about his
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hemorrhoids. (2:483–485.) Dr. Injejikian’s notes (R. Exh. 32)
reflect an entry dated October 11 that Wright ‘‘needs surgery
sooner or later’’ for his hemorrhoids. The notes also appear
to mention the need for an excuse for October 9 and 15, and
there is an illegible reference above the numbers ‘‘7 8 9
10th.’’ Consistent with the testimony (1:150), Dr. Injejikian’s
chart notes (R. Exh. 32) reflect that on October 26, 1992, he
performed a hemorrhoidectomy on Wright. Wright testified
that since then he has had no problem. (1:150.)
As Compliance Supervisor Bradshaw testified, Board
Agent Tom Finger conducted the interviews and obtained the
records for the compliance investigation, under Bradshaw’s
supervision, during the spring of 1993. (1:15, 69, 72, 99.) As
part of his investigation, Finger made notes of interviews
with Debra Wright (R. Exh. 1) and with Douglas Wright (R.
Exh. 2). Although Douglas Wright confirms that Finger
interviewed him (1:147), the initial interview, in which dis-
cussion Elizabeth Weaving was a topic, appears to have been
by telephone. (1:148.) Later Finger interviewed Wright in
person at Wright’s home. On that occasion Finger may have
made notes, for Wright asserts that he gave a ‘‘statement.’’
Any notes were not in affidavit form, however, for the Gen-
eral Counsel announced that none was taken during the in-
vestigation. (1:188.) Wright testified that he met three times
in person with Finger and spoke with him over the telephone
three or four times. (1:187.)
What all this leads to is Minette’s contention that Wright
has been loose with the truth. Thus, in his notes (R. Exh. 2
at 13) (apparently part, possibly all, of these notes are the
telephone notes) Finger records the reason for Wright’s Octo-
ber 10 departure (from Elizabeth Weaving) as being a layoff
resulting from a limited reduction in force (only two employ-
ees affected). This is followed by a note that (Wright) would
not accept a fixing job on the ‘‘jackhead’’ loom, because it
involved climbing a 15-foot ladder, harder work for the same
pay rate.
According to Wright, he never mentioned a layoff to Fin-
ger, but said he had been fired or terminated because of his
hemorrhoids. (1:148, 220–222.) Bradshaw acknowledges that
Finger’s notes at this point say nothing about termination for
absenteeism. (1:101.) Respecting the jackhead looms, Wright
explains that about 2 weeks before his discharge Webb want-
ed Wright to transfer to be a fixer for the jackhead looms.
That would require training, and work on the jackheads in-
volved climbing up and down a 15-foot ladder, and exercise
which would aggravate Wright’s already tender hemorrhoids
a fact which Wright reported to Webb. Webb appeared to get
angry that Wright would not transfer. Wright told Finger of
Webb’s apparent anger and that Wright believed the real rea-
son Elizabeth Weaving fired him was because he did not
take the job fixing the jackhead looms. (1:148–149, 220–221,
229.) He denies telling Finger that a weaver was laid off,
causing Wright to lose his job when he did not want to work
on the jackhead looms. (1:220–221.) Finger’s notes reflect
that Wright worked with just one weaver. Minette subpenaed
Finger (R. Exh. 36), but its January 14, 1994 request (R.
Exh. 37) to Acting General Counsel Daniel Silverman to per-
mit Finger to testify was denied by Silverman’s letter (R.
Exh. 38) of January 24. Supervisor Webb’s termination paper
for Douglas Wright says nothing about any jackhead looms.
(2) Discussion
First, I do not believe Supervisor Webb or Human Re-
sources Manager Dixon. Minette argues (Br. 33) that Webb
has nothing to gain or lose here. That suggests a gain or loss
in matters respecting his job. Aside from demeanor, a factor
I earlier noted, Webb’s own termination memo (R. Exh. 26)
about Wright suggests animus. Thus, he writes that Wright
not only was ‘‘poor’’ in everything from attendance through
quantity and quality (yet he apparently had never told Wright
he thought so), but that he also had a ‘‘bad attitude.’’ Webb
may not have displayed this animus to Wright when the lat-
ter sought reemployment some 3 to 4 months after his dis-
charge, but, I find, it was there. The fact is, I find, Super-
visor Webb developed a personal distaste for Wright, and he
padded his memo with negatives (about matters in addition
to attendance) as his own form of punishment.
Second, the Government’s version, based mostly on testi-
mony by the Wrights, has all the appeal of stale bread. Nev-
ertheless, crediting the essence of the Wrights’ testimony, I
find that they made calls to Elizabeth Weaving as they de-
scribed. The burden was on Minette to show deliberate or
gross misconduct demonstrating that he no longer wished to
work at Elizabeth Weaving. Even Minette’s version of the
evidence fails to show that. It seems clear, and I find, that
Wright did suffer from bleeding hemorrhoids beginning
Tuesday, October 8, 1991. That resulted from the heavy
work Wright did the day before. In making his own notes
(possibly later that week), Webb confused the days and the
callers, but he does show that he received a call about car
trouble. That is consistent with the version of the Wrights.
It is not at all clear that Douglas Wright visited Dr.
Injejikian before Friday, October 11. I note that the statement
(G.C. Exh. 6) obtained by Debra Wright on January 19,
1994, the first day of this hearing, does not bear Dr.
Injejikian’s signature. I suspect that ‘‘under the Doctor’s
care’’ is an elastic phrase capable of covering telephone calls
to the office or even the pain period before the patient has
seen the doctor. Despite these shortcomings, Dr. Injejikian’s
finding on October 11 was that Wright needed surgery
‘‘sooner or later.’’ That the surgery came a year later, in Oc-
tober 1992, does not detract from the existence on October
11 of bleeding hemorrhoids. As Wright had them then, he
well could have had them since Tuesday morning, October
8.
Several side issues have been given the artificial appear-
ance of being issues of outcome determining substance. I
need not resolve these paper issues. Thus, the actual se-
quence of events respecting Board Agent Finger’s interviews
and the topics raised I need not resolve, even though testi-
mony by Finger would have helped to clarify the evidence.
Similarly, while testimony by Dr. Injejikian would have been
helpful, it was not critical to a resolution. It is not even nec-
essary to resolve the possible conflict between the Wrights
concerning whether they ended their separation or whether
they have divorced and are living separately. Respecting the
matter in issue, if they permanently separated on April 22,
1991, it is unclear how Debra Wright was assisting Douglas
Wright on October 8 and 9 in calling Elizabeth Weaving.
Douglas Wright’s testimony, however, can be interpreted as
meaning that they divorced after he was fired in October
from Elizabeth Weaving. (1:219.) All these side issues are
distracting, but they do not prevent a decision. Minette failed
1021MINETTE MILLS, INC.
to show that Douglas Wright knowingly disregarded any at-
tendance rules at Elizabeth Weaving or acted in a manner
showing he had no interest in his job at Elizabeth Weaving.
Indeed, as for matters he had control over (such as calls to
Elizabeth Weaving), the credited evidence shows that Wright
acted in a manner designed to preserve his interim employ-
ment at Elizabeth Weaving.
Respecting the appropriate backpay figures for this fourth
quarter of 1991, I agree with Minette (Br. 58) that Wright
should receive no backpay for the week ending Saturday,
October 12, 1991, because he was unavailable for work that
week. As reflected in appendix A at 7, to the ACS, the rep-
resentative hours for that week are 36.25 regular hours (times
$10.54) and 1.6 overtime hours (times $15.81). Accordingly,
I shall deduct from $5494 the sum of $407. That yields quar-
terly figures of:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$5,087 $958 $2 $956 $4,131
b. Debra Wright
As earlier noted, the ACS and the General Counsel’s
posthearing revisions make no adjustment for the time Debra
Wright was unavailable (as a result of an automobile acci-
dent on September 21) for work the first 2 weeks of the
fourth quarter of 1991. Agreeing with Minette (Br. 42–43),
I find that her gross backpay should be reduced from $4566
to $3800. Other contentions of Minette are a repetition of ar-
guments I have resolved against Minette earlier. Also, the
record reflects, and I find, that Debra Wright diligently
sought new employment after her layoff from Carpet Indus-
tries following her automobile accident. She next found em-
ployment at Stonecutter Mill Corporation on June 1, 1992.
For the fourth quarter of 1991 I find her figures to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$3,800 —— —— —— $3,800
9. First quarter 1992
a. Douglas Wright
Minette’s contention here (about employees on temporary
layoff being included in the representative group so as to re-
duce the gross backpay) I have rejected earlier. The parties
otherwise appear to agree that the gross backpay would be
$4046. I find that it is. After Dr. Injejikian released Douglas
Wright on October 14 or 15 to return to work, Wright dili-
gently sought other employment, and Minette does not con-
tend otherwise. Eventually he found work at Stonecutter
Mills Corporation on May 27, 1992. Aside from Minette’s
contention about his incurring a willful loss of earnings by
getting fired by Elizabeth Weaving (a contention I have
found unsubstantiated), the parties appear to agree that
Wright’s interim earnings for this quarter are zero. Thus, I
find the figures for this quarter to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$4,046 —— —— —— $4,046
b. Debra Wright
Already having rejected Minette’s contention for the rep-
resentative group of employees, I find the gross backpay fig-
ure to be $4114. Other than its rejected contention, Minette
apparently does not dispute this figure. Minette also renews
its rejected contention that Debra Wright unjustifiably re-
signed from Elizabeth Weaving. Otherwise, Minette appar-
ently does not dispute that Debra Wright had no interim
earnings during this first quarter of 1992. Accordingly, I find
the figures to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$4,114 —— —— —— $4,114
10. Second quarter 1992
a. Douglas Wright
Other than its previously rejected contentions about the
representative group and Wright’s discharge by Elizabeth
Weaving, the only issue Minette raises here pertains to ex-
penses. At footnote 12 of revised appendix D, the General
Counsel claims mileage expense of $363 (58 miles x 25 days
x 25 cents per mile). Contending that Wright worked only
17 days during the quarter, with his last day on June 20, Mi-
nette asserts (Br. 61–62) that the correct figure, when round-
ed, is $247. Minette cites no reference in support of its claim
that Wright worked only through June 20. The evidence fails
to show that. Accordingly, I find the quarter’s figures to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$5,325 $1,402 $363 $1,039 $4,286
b. Debra Wright
The only new issue here pertains to expenses. At footnote
12 of revised appendix E (fn. 12 itself appears on the origi-
nal app. E) the General Counsel claims mileage expense of
$302 for Debra Wright’s job search of 1208 miles during the
second quarter. For most of this search the Wrights traveled
together. (2:343.) The expense is claimed as a reduction from
interim earnings of $1408. Minette characterizes the 1208
miles as a ‘‘guess,’’ quoting a term counsel suggested to the
witness following her description of the process she and
Douglas Wright had used to estimate the mileage. As Debra
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wright had a basis for arriving at the number, it was an esti-
mate rather than an unsupported guess. (2:328–329.)
The real issue, however, is whether Wright is entitled to
any expense credit. Recall two qualifications respecting ex-
penses. First, they are used only as a deduction from interim
earnings. Second, they are allowable only to the extent they
exceed what would have been incurred by the discriminatee
had she never been fired by the respondent, Minette here.
NLRB Casehandling Manual (Part Three), section 10544.
Counting 65 workdays in the quarter, times 28 roundtrip
miles a day to Minette, equals 1820 miles a greater distance,
and expense, than that of the job search. Accordingly, Debra
Wright’s job search expense is disallowed. I therefore find
the quarter’s figures to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$6,172 $1,408 —— $1,408 $4,764
11. Third quarter 1992
a. Douglas Wright
Other than Minette’s standing contentions about the rep-
resentative group and willful loss of earnings by being fired
at Elizabeth Weaving, positions I have found without merit,
the only issue here is expenses. (The General Counsel’s fn.
13 to revised app. D adjusts for a period Wright was unavail-
able in this quarter.) Minette counts travel days of 40, where-
as the General Counsel (revised app. D fn. 14 and adjustment
30) claims 49 days. I count 41 days based on the attendance
chart’s (R. Exh. 20) showing of 8 days of absence (1 in July
and 7 in September). The General Counsel apparently did not
factor the 8 days of absences into the Government’s calcula-
tion. Thus, the expense is 58 miles x 41 days x 25 cents
equals $595. I therefore find the numbers for this quarter to
be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$4,174 $3,334 $595 $2,739 $1,435
b. Debra Wright
The parties agree on the gross backpay, but differ some-
what on the interim earnings. At trial the parties stipulated
(2:394–395) that an extra $272.14 should be added to Debra
Wright’s interim earnings, prorated over the third quarter and
fourth quarter of 1992. The General Counsel indicated that
more of that would be added to the fourth quarter. General
Counsel’s adjustment 18, however, does the reverse. Minette
puts the majority into the fourth quarter. (Br. 10 fn. 3, 48–
49.) As an equal division seems to fit the time frame better
(Debra Wright left Stonecutter October 29, 1992), I shall di-
vide the sum, and add $136 to each quarter’s interim earn-
ings. Although there is no impact in the third quarter, be-
cause interim earnings exceed the gross backpay, it will
made some difference for the fourth quarter. I therefore find
the third quarter’s figures to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$3,678 $4,295 —— $4,295 ——
12. Fourth quarter 1992
a. Douglas Wright
What differences there are in the numbers here are much
ado about nothing, for there is no net backpay for this quar-
ter (mainly because Wright was off work for 6 weeks after
his surgery). Although Minette asserts (Br. 66) that Wright
had only 18 days of mileage expense during the quarter, the
cited references (R. Exh. 20; 2:417–418) do not support the
assertion. The attendance calendar (R. Exh. 20) notes only 2
days of absence, other than the weeks lost because of sur-
gery, and the General Counsel, at footnote 16 of revised ap-
pendix D, adjusted the travel days from 35 to 30 to reflect
the plant’s shutdown for the entire Christmas week. As the
30 days appears to match the attendance calendar, I find
$435 (30 days x 58 miles x 25 cents per mile) to be the cor-
rect figure. Accordingly, I find the appropriate figures to be:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$2,737 $4,088 $435 $3,653 ——
b. Debra Wright
To compute gross backpay, both parties subtract for the 7
days Debra Wright lost from October because, apparently, of
injuries sustained in a car accident (2:332, 412–413; R. Exh.
22), but they subtract using different methods. The General
Counsel employs (adjustment 17) a method which converts
the percentage of the representative hours multiplied by the
incentive rate for the third quarter representative group at
Minette. The General Counsel’s unexpressed rationale for the
Government’s choice appears to be that the third quarter rep-
resents the last full quarter and is, therefore, a more rep-
resentative number. In contrast, Minette uses the incentive
rate earned by the fourth quarter representative group. (These
incentive pay rates are listed in appendix C to the ACS.)
Minette’s unarticulated reason for choosing the fourth quarter
group would appear to be that it applies because that is the
quarter in which the unavailability occurred.
One interesting aspect of the difference is this. Because
the third quarter group had two earners, one modest and one
high, the average rate was $10.93. (App. C at 1.) But in the
fourth quarter R. D. Turner was the only incentive earner,
and she (or he) earned the highest rate of all $14.15. (App.
C at 2.) Because the unavailability occurred in the fourth
quarter, I shall use the $14.15 incentive rate.
The parties also differ respecting the hours to be applied.
Both use the representative hours (38 hours for each of the
2 weeks involved), but the General Counsel applies a per-
1023MINETTE MILLS, INC.
centage (based on 8 days rather than 7) of 76 hours and mul-
tiplies the resulting number of hours (60.8) times $10.93 to
yield a deduction of $664.54. (Had 7 days been used the
lower percentage (73.68421) times 76 hours would have pro-
duced 56 hours. That times $10.93 would have yielded
$612.08.) Minette applies 53.2 hours multiplied by $14.15
for a total exclusion of $752.78. I find 53.2 hours to be cor-
rect because that is 95 percent of 56 hours (as 76 hours is
95 percent of 80 hours). Thus, I find the gross backpay to
be $6149 (the starting point of both parties) less $753, or
$5396.
For interim earnings the parties, as noted earlier, differ on
proration of the $272, and I found it more appropriate to di-
vide and apply it in equal parts. Thus, adding $136 to $3497,
I find interim earnings to be $3633. The parties agree that
expenses are $238. That results, I find, in the following fig-
ures for the quarter:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$1,5396 $3,633 $238 $3,395 $2,001
13. First quarter 1993
a. Douglas Wright
Aside from Minette’s rejected contention about the rep-
resentative group, the gross backpay here is $2883. The Gen-
eral Counsel has subtracted for time Wright was unavailable
during the quarter. (Fn. 17 of revised app. D; adjustment 28;
2:417.) Minette would reduce its own figure on interim earn-
ings from its expression at trial (2:417), there coinciding with
the General Counsel’s $3500, based on its contention that the
backpay period actually ended earlier, on February 11. (Br.
68.) Again, any differences are immaterial, for there is no net
backpay due in any event. Minette incorrectly limits ex-
penses to 20 days, whereas the General Counsel (fn. 18, re-
vised app. D; adjustment 29) properly allows them through
the period of projected earnings, giving total allowable ex-
penses of $493. Thus, the numbers are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$2,883 $3,500 $493 $3,007 ——
b. Debra Wright
As discussed much earlier, Minette (Br. 49–50) would end
the backpay period at February 11. Because the General
Counsel properly fixes the end on February 19, I find the
gross backpay to be the Government’s claim of $2856. As
stipulated by the parties (2:393), interim earnings were
$2323. The General Counsel claims allowable expenses of
$210 30 days of traveling 28 miles roundtrip to Reeves
Brothers, during January and February, at 25 cents per mile.
Minette would limit allowable expenses to $168 on the basis
that only 24 days should be counted, apparently subtracting
6 workdays by ending the liability period at February 11. I
find allowable expenses to be zero. Neither party states why
it lists this mileage expense. The mileage, as specified earlier
in this decision, is identical respecting Reeves Brothers and
Minette. As Debra Wright drove no farther to Reeves than
she would have to Minette, she is not entitled to offset,
against any interim earnings, any of her travel expense to
Reeves. Thus, the numbers for Debra Wright’s final quarter
are:
Gross
B/P I/Earnings Expenses Net I/E Net B/Pay
$2,856 $2,323 —— $2,323 $533
F. Recapitulation
Van Douglas Wright
1990/2d 1990/3d 1990/4th 1991/1st 1991/2d 1991/3d
Gross Backpay $3,910 $5,523 $4,979 $5,138 $7,562 $5,999
Interim Earnings 1,265 3,928 3,787 3,969 5,066 5,101
Expenses —— —— 7 29 28 32
Net I/E 1,265 3,928 3,780 3,940 5,038 5,069
Net Backpay 2,645 1,595 1,199 1,198 2,524 930
1991/4th 1992/1st 1992/2d 1992/3d 1992/4th 1993/1st
Gross Backpay $5,087 $,4046 $5,325 $4,174 $2,737 $2,883
Interim Earnings 958 —— 1,402 3,334 4,088 3,500
Expenses 2 —— 363 696 435 493
Net I/E 956 —— 1,039 2,638 3,653 3,007
Net Backpay 4,131 4,046 4,286 1,536 —— ——
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Debra Carol Wright
1990/2d 1990/3d 1990/4th 1991/1st 1991/2d 1991/3d
Gross Backpay $3,200 $5,558 $4,127 $4,827 $6,040 $5,285
Interim Earnings 271 2,756 3,624 2,966 1,662 966
Expenses 14 281 112 —— —— 105
Net I/E 257 2,475 3,512 2,966 1,557 966
Net Backpay 2,943 3,083 1,861 5,074 3,728 615
1991/4th 1992/1st 1992/2d 1992/3d 1992/4th 1993/1st
Gross Backpay $3,800 $4,114 $6,172 $3,678 $5,396 $2,856
Interim Earnings —— —— 1,408 4,295 3,633 2,323
Expenses —— —— —— —— 238 ——
Net I/E —— —— 1,408 4,295 3,395 2,533
Net Backpay 3,800 4,114 4,764 —— 2,001 533
Total Net Backpay Due
For Douglas Wright the General Counsel claims a total of
$24,623 (plus interest), but Minette asserts (Br. 68) that,
even with interest, the amount due is barely more than
$12,000. The General Counsel seeks $33,505 (plus interest)
for Debra Wright, while Minette would limit her to $23,824,
including interest. Differing from both parties, my above tab-
ulation yields the following totals of net backpay due (plus
interest, and less taxes required by law to be withheld):
Van Douglas Wright $24,090
Debra Carol Wright 32,516
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Minette Mills, Inc., Grover, North Caro-
lina, its officers, agents, successors, and assigns, shall pay
backpay as follows, with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), and less
taxes required by law to be withheld:
Van Douglas Wright $24,090
Debra Carol Wright 32,516