My Store, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1970

181 N.L.R.B. 321 (N.L.R.B. 1970)

MY STORE, INC. 321
My Store, Inc. and United Retail Workers Union
(Independent ). Case 14-CA-3050
. February 27, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On May 25, 1964, the National Labor Relations
Board issued a Decision and Order in the
above-entitled , case' in which it found that
Respondent violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended. The
Board's Order directed Respondent, inter alia, to
offer to the unfair labor practice strikers who made
unconditional requests for reinstatement, immediate
and full reinstatement to their former or
substantially equivalent positions, and to make them
whole for loss of pay resulting from the failure to
reinstate the, unfair labor strikers, on request.
Thereafter, the Board's Order was enforced in full
by the United States Court of Appeals for the
Seventh Circuit, including its reinstatement and
backpay provisions.' Subsequently, Respondent's
petition to the Supreme Court of the United States
for a writ of certiorari was denied by the Court.3
Upon a petition filed by the Board on October 17,
1966, the Seventh Circuit Court of Appeals, on
April 22, 1968, adjudged Respondent and its
President, Pasquo Podeschi, in civil contempt for
making invalid offers of reinstatement "willfully and
contumaciously with knowledge that they were not
in compliance with the Board's order . . . enforced
by the Decree of this court . . . ."d Thereafter, on
June 14, 1968, the Court adjudged that the terms of
purgation contained in the April 22 order were
satisfied and remanded the case to the Board to
determine "what specific sums in backpay are due
what employees" of Respondent.'
Pursue nt to a backpay specification and
appropriate notice issued by the Regional Director
for Region 14, a hearing was held before Trial
Examiner John M. Dyer for the purpose of
determining the amounts of backpay due to the
discriminatees. On June 17, 1969, the Trial
Examiner issued his Supplemental Decision, which
is attached hereto, in which he awarded specific
amounts of backpay to 20 discriminatees.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Supplemental Decision and a supporting
brief. The General Counsel filed cross-exceptions to
parts of the Supplemental Decision and a supporting
brief.
'147 NLRB 145
'345 F 2d 494 (C A 7)
'382 U S 927
'F 2d (C A 7)
'F 2d (C A 7)
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
entire record in this case , including the
Supplemental Decision , and the exceptions and
briefs, and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner to the
extent consistent herewith.
1. We agree with the Trial Examiner that the
question of the validity of Respondent 's offers of
reinstatement is res judicata . Despite the Board's
court-approved order that Respondent reinstate
those unfair labor practice strikers who had made
unconditional offers to return to work on July 11,
1963, discharging replacements , if necessary,
Respondent made offers to the approximately 20
strikers on a staggered basis, to no more than three
employees at a time , while retaining eight
replacement employees , during the
September-October 1963 period . Thereafter, the
Board petitioned the Court for adjudication of
Respondent in civil contempt, maintaining that the
offers to all strikers were invalid The Court, as
noted above , specifically found that the offers were
invalid and made "willfully and contumaciously with
knowledge that they were not in compliance" with
the Board ' s order.
Respondent was only required to make new, valid
offers of reinstatement to 12 strikers , which it did in
purgation of the civil contempt adjudication, since
the Board had informed the Court that it wished to
consider herein the status of the remaining
discriminatees in light of the holding in N.L.R B v.
Rice Lake Creamery Co.. •365 F.2d 888 (C.A.D.C.).
While the question of the validity of Respondent's
offers of reinstatement is res judicata , in any event,
we agree with the Trial Examiner that the offers
were invalid as not giving the discriminatees
adequate time within which to respond . See, e.g.,
Betts Baking Companv, 173 NLRB No. 157;
Harrah 's Club, 158 NLRB 758; Thermoid
Company, 90 NLRB 614. Therefore , since it is
apparent that Respondent was not misled by the
strikers ' responses to the offers , we adopt the Trial
Examiner's treatment of the reinstatement and
backpay rights of the eight employees whose status
he determined in light of the holding in Rice Lake
Subsequent to the Trial Examiner ' s Supplemental
Decision herein, the Board, in Southwestern Pipe,
Inc., 179 NLRB No. 52, reversed prior law and
held, in the language of a companion case , O'Daniel
Oldsmobile , Inc., 179 NLRB No. 55, that "where
striking employees make an unconditional offer to
return to work and the employer without a
discriminatory motive, offers reinstatement to them
as less than a group , backpay is tolled as to those
181 NLRB No. 47
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers who receive offers of reinstatement but
refuse then to return to work." (Emphasis supplied.)
In light of those decisions, we granted Respondent's
motion for permission to file a supplemental brief
herein, since several of the strikers had refused
Respondent's piecemeal offers of reinstatement,
asserting their desire to return as a group. For the
following reasons, we do not agree with
Respondent's contention that backpay liability must
be tolled as of the date each refused its seriatim
offers of reinstatement in September-October 1963.
Since the Court herein specifically found that
Respondent's motive in offering reinstatement on a
staggered basis, as indicated by its "animosity" to
the Union, militated against a finding that such
offers were valid, it seems clear that backpay cannot
be tolled, even though several discriminatees insisted
on returning as a group. Not only does the rule set
forth in Southwestern Pipe and O'Daniel
Oldsmobile require the absence of a discriminatory
motive, but i^ is clearly inapplicable to a situation
where, as here, a Court has found that Respondent
made such staggered offers of reinstatement
"willfully and contumaciously with knowledge that
they were not in compliance" with the Board's
court-approved order. Finally, while the Board, in
Southwestern Pipe, specifically noted that its new
position in this area is consonant with that taken by
the present court in N.L R B. v. Robert S Abbott
Publishing Co , 331 F.2d 209 (C.A. 7), where it
disagreed with the Board's now-reversed rule, the
same Court, in the civil contempt proceeding herein,
distinguished Abbott in much the same manner as
O'Daniel Oldsmobile describes the holding of
Southwestern Pipe, by saying that Abbott involved
an employer who had exhibited no antiunion
animus.
2. We adopt the Trial Examiner's findings and
determinations of backpay due the following
discriminatees except where modified herein:
ORDER
On the basis of the foregoing Supplemental
Decision and Order and the entire record in this
case, the National Labor Relations Board hereby
orders that Respondent, My Store, Inc., Taylorville,
Illinois, its officers, agents, successors, and assigns,
shall pay to the employees involved in this
proceeding as net backpay the amounts awarded to
them in this Supplemental Decision and Order. It is
further ordered that the rights to reinstatement and
backpay of certain employees as set forth herein be
reserved for periods beyond the scope of this
Supplemental Decision and Order.
MEMBER JENKTNS, concurring:
For the reasons expressed in my dissent in
Southwestern Pipe, Inc, 179 NLRB No. 52, 1
concur in the result herein.
'The Trial Examiner concluded that Shanks did not take himself out of
the labor market for 12 weeks during the first quarter of 1965 when he
attended a welders school run by the Illinois State Employment Service
We disagree and hold that Shanks is only entitled to I week of backpay
for the first quarter of 1965 The award as stated reflects this correction
'While concluding that Smith was entitled to this amount plus interest,
the Trial Examiner , in Appendix Q, inadvertently wrote "less interest" We
correct this obvious oversight so that page in of Appendix Q reads "Total
to June 30 , 1968, plus interest"
The Trial Examiner concluded that Walker was entitled to full backpay
for the first and second quarters of 1966, less interim earnings, if any
However, since Walker testified that her doctor told her she could only
work half a day until the fall of 1966 , we shall reduce the backpay for
those quarters to reflect this limitation Therefore , the net backpay for the
first and second quarters of 1966, in Appendix S, shall read $391 30 for
each quarter and the total net backpay , as noted above , $2,575 97 As in
the case of Smith, the Trial Examiner inadvertently wrote "less interest"
after the total rather than "plus interest " in conformity with the Board's
long-established rule
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
STATEMENT OF THE CASE
Carolyn (Fleming) Anderson $ 1,564.51
Harold E. Banfield 13,834.71
James Michael Cooper 1,760.27
Arlin Farthing 5,974.60
Bernice Garmon 6,891.37
William A. Ginger 343.30
Robert L. Kearney 8,432.48
James W. Lindsey 0.00
Richard E. Mahan 1,002.67
Joseph Niewinski 7,380 16
Delores M. Reed 6,899.90
Kenneth W. Reed 573.16
William J. Rhymes 480.95
Frank J. Sartore, Jr. 11,494.76
Lonnie J. Sartore 270 99
Joseph Sedlacek, Jr. 5,012.01
Charles A. Shanks6 4,589.79
Lorraine Smithy 4,782.84
Donald E. Spindel 3,582.75
Florence Walkers 2,575,97
James M. Waterman 0.00
Billy L. Wiggs 9,571 55
JOHN M. DYER, Trial Examiner: On December 2
through 5, 1968, and January 20 through 23, 1969, I
conducted a supplemental hearing in the above-entitled
matter, based upon a backpay specification, as amended,
issued by Region 14 on behalf of the Board on October 2,
1968, and on Respondent's answer as amended. This
supplemental proceeding was held in Taylorville, Illinois,
except for January 20, when the hearing was held in St
Louis, Missouri. All parties were afforded full opportunity
to appear, to examine and cross-examine witnesses,' and
to argue orally. General Counsel and Respondent have
filed extensive briefs which have been considered.
Due to various positions taken by the parties and
because of the complexity of the issues involved, it seems
appropriate to set forth in considerable detail a
chronological statement of the events which have taken
place in this case before turning our attention to the
special defenses alleged by Respondent and consideration
'Certain lines of inquiry proposed by Respondent were foreclosed on a
determination that they were resjudicata, having been determined by the
Board and the United States Court of Appeals for the Seventh Circuit in
prior proceedings in this case
MY STORE, INC. 323
of Respondent's defenses to each of the individual
discrim in atees.
Organization of Respondent's employees by the United
Retail Workers Union (Independent), herein called the
Union, began in December 1962. Following the filing of
an NLRB petition, an election was held at Respondent's
Taylorville store on February 21, 1963, which the Union
won On February 26, the Union filed various unfair labof
practice charges against Respondent, which were
subsequently dismissed for lack of prosecution when the
parties began negotiating for a contract. On May 2, 1963,
the Union struck Respondent and on May 8, filed the
charges in this matter.
On September 10, 11, and 12, 1963, Trial Examiner
Saunders held an unfair labor practice hearing in this
case, and on December 9, 1963, issued his Decision in
which he found that Respondent had violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended. In its Decision and Order of May 25, 1964,
the Board affirmed the Trial Examiner. In general terms,
it was found that Respondent had discriminatorily
interrogated its employees prior to a comparison check
being made of the union authorization cards against
signatures submitted by Respondent. After the Region
determined the signatures were authentic, Respondent
lectured its employees about denying that they had signed
the cards and threatened to withdraw privileges from
them. Thereafter Respondent discriminatorily cut the
hours of employment of some of the union adherents and
violated Section 8(a)(5) in its negotiations with the Union
It was further determined that the strike which began
May 2, 1963, was motivated by Respondent's unfair labor
practices and as a consequence the striking employees
were due reinstatement and backpay, since the Union on
July 11, 1963, made an unconditional offer on behalf of
the strikers to return to work Respondent advised the
Union it would consider the offer and respond later.
Thereafter Respondent said it would take back the
striking employees two or three at a time on a seniority
basis as economic conditions warranted and as additional
help was needed. Respondent expressed no willingness to
discharge any of the replacement employees it had hired
during the strike, and in fact Respondent hired additional
employees after the Union's July II unconditional offer to
return
In its Decision the Board modified the Examiner's
recommendations by enlarging on his Recommended
Remedy The Board as a part of its Remedy ordered
Respondent to offer the unfair labor practice strikers,
whose July 11 unconditional application for reinstatement
was unlawfully rejected, immediate and full reinstatement
to their former or substantially equivalent positions
without prejudice to their seniority and other rights and
privileges, discharging, if necessary, any replacements in
order to provide work for the strikers. The Board also
ordered Respondent to make the strikers whole for any
loss of pay they might have suffered by reason of the
discrimination against them in accordance with the
method of computation in F. W Woolworth Company, 90
NLRB 289, and to pay interest on the backpay in the
manner set forth in Isis Plumbing & Heating Co , 138
NLRB 716.
The Board petitioned the United States Court of
Appeals for the Seventh Circuit (herein called the Court),
for enforcement of its Decision. The Court heard
argument by respective counsel on January 15, 1965, and
on April 7, 1965, handed down its decision granting
enforcement of the Board's Decision and Order The
Court approved the findings of interrogation and threat
violations and the discriminatory cut hours and said that
substantial evidence supported the Board's finding that
Respondent had violated Section 8(a)(5) of the Act by
failing to bargain in good faith with the Union citing a
number of indicia supporting this finding. In regard to the
strike the Court stated that it found substantial evidence
to support the Board's findings that the strike which
began May 2, was at least in part a result of Respondent's
unfair labor practices and that the Union made an
unconditional offer on behalf of the strikers to return to
work I It further found that since Respondent failed to
discharge replacements and take back the strikers, it had
violated Section 8(a)(3) of the Act and that the Board's
Order of reinstatement for the strikers with backpay and
interest was justified
On April 15, 1965, Respondent filed a motion with the
Court asking for an extension of time to prepare and file
a petition for rehearing on this matter with the Court
Respondent filed its petition with the Court on April 27
and on June 4 the Court denied it. On July 6, 1965, the
Court entered its decree enforcing the Board's Order and
ordering Respondent to abide by and perform the
direction of the Board contained in the Order.
On August 19, 1965, Respondent filed a motion for
rehearing and reopening the record in this matter with the
Board . On August 24, 1965, the Regional Office of the
Board filed its opposition to Respondent's motion. The
Board denied Respondent's motion on October 22, 1965.
On September 7, 1965, Respondent filed a petition for
a writ of certiorari with the Supreme Court, which was
denied on November 22, 1965.
On October 17, 1966, the Board, after consideration of
the matter as it existed at that time, filed with the Court a
petition for adjudication of the Respondent in civil
contempt, asking that contempt proceedings be initiated
against My Store, Inc , and Pasquo Podeschi,
Respondent's president, for their willful violation of the
Court's decree of July 6, 1965. On October 25, 1966, an
Order to Show Cause was issued on the Board's verified
'The Respondent in a footnote on page 93 of its brief, states that my
"impression" as to whom the Board ordered reinstatement was wrong and
differed from the Board's Order which provided for reinstatement to the
employees "who on or about July 11, 1963, made unconditional request for
reinstatement " Respondent maintained its position that the offer to return
to work comes from a written offer signed by a number of striking
employees on July 13 Respondent is in error as previously pointed out to
Respondent during the hearing and again here Trial Examiner Saunders'
Decision determined that on July 11 the Union at the conclusion of a
negotiation session which took place that day, made an unconditional offer
on behalf of the employees on strike to return to work Trial Examiner
Saunders found that the Respondent advised the Union it would consider
this offer and would advise it of its position on a later date It was this
finding that the Board approved in its Decision when in The Remedy it
stated it would order Respondent to offer the unfair labor practice strikers
whose unconditional application for reinstatement was unlawfully rejected
on or about July 11, 1963, immediate reinstatement to their former or
substantially equivalent positions in the Order, which is meant to enforce
its Remedy , the Board refers to the employees who made an unconditional
request for reinstatement , but this refers back to the offer made on behalf
of the employees by the Union on July It, and not to the later document
signed by some of the striking employees In the Court 's opinion of April
7, 1965, enforcing the Board Order the Court stated inter alia. "and that
the union made an unconditional offer on behalf of the strikers to return to
work " This would refer to the July II offer found by the Trial Examiner
as confirmed by the Board and would not refer to the piece of paper
submitted in the prior proceeding as G C Exh 14
Therefore Respondent ' s assumption is incorrect and the matter as to
who made the application and how, has been decided by the Board and
enforced by the Court and is res /udtcata
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition to Respondent and Pasquo Podeschi.
Respondent filed its answer to the Board's contempt
petition and on November 22, 1966, the Board filed its
reply to Respondent's answer. In its reply, the Board
admitted that between September 20 and October 9, 1963,
Respondent mailed letters offering reinstatement to 7
employees including Billy Joe Rhymes, Florence Walker,
Richard Mahan, Lorraine Smith, and Bernice Garmon,
but alleged that Respondent's offers to these unfair labor
practice strikers were as defective as the offers which
Respondent made to the 13 employees named in
paragraph V(2) of the Board's contempt petition. The
Board cited Respondent's answer as admitting the
September-October 1963 offers to all the employees were
made on a staggered basis to no more than three
employees at a time, while Respondent continued to retain
eight replacement employees. The Board stated that such
staggered offers were not bona fide and were made to
deter the employees from accepting the offers
Maintaining that the offers to all were thus invalid, the
Board differentiated between the two groups of
discriminatees by stating that issues of public policy which
the Board should decide in the first instance subject to
Court review, precluded asking for contempt citations
regarding reinstatement rights of the 7 employees, whereas
the facts were so clear as to the reinstatement rights of the
other group of 13 employees, that contempt citations were
clearly warranted. As to the group of seven the Board said
it would consider the issues appropriate to remedy for
them in a regularly constituted backpay proceeding and
present its conclusions to the Court in an enforcement
context.
A hearing on the contempt petition was scheduled by
the Court for December 1, 1966, and on December 9,
1966, the Court issued an order of reference to a Master.
On December 13, Respondent objected to the order of
reference because it felt the validity of the offers of
reinstatement should not be determined by the Master. On
December 22, 1966, the Board's proposed form of order
which provided that the Master decide the validity of the
offers was signed by the Court. Respondent then moved to
amend the order of reference to drop the question of the
validity of its September-October 1963 offers to the
employees and the Board filed in opposition to
Respondent's motion. On February 3, 1967, the Board
made a motion for discovery of Respondent's books and
records to check Respondent's claim that the 1963 offers
were made on the basis of skills and seniority. On
February 7, 1967, a pretrial conference with the Master
was scheduled
In a letter to the Master, Respondent on February 10,
1967, said that the offers of reinstatement to the strikers
commenced on September 23, and were concluded on
October 9, 1963, and acknowledged that the good faith of
the offers was before the Master for decision.
On February 21, 1967, the Board responded to
Respondent's letter to the Master and pointed out that the
second set of reinstatement offers (September 23-October
9, 1963), as Respondent admitted in its answer to the
Board's contempt petition, were made on a piecemeal
basis, without regard to Respondent's obligation to
discharge the replacement workers to make positions
immediately available for the discriminatees. The Board
said it would show that these acts of Respondent were
almost exactly the same as those first offers made in July
1963, already found unlawful by the Board and the Court
Following various pretrial procedures the hearing was
held before the Special Master on May 9 through 11,
1967 Following the hearing proposed findings and briefs
were filed by the parties, and the Master on November 2,
1967, filed his report with the Court.
The Board filed extensive exceptions to the Master's
report particularly noting Respondent's position that its
September-October 1963 offers, which occurred before the
Court's enforcement decree, absolved it from making any
further offers of reinstatement. The Board maintained that
Respondent by failing to discharge replacements and take
back the discriminatees had repeated its July 1963 actions,
which had been found violative of Section 8(a)(3) of the
Act, and in relying on its September-October 1963 offers
Respondent was in contempt of the Court's enforcement
decree.
On February 23, 1968, the Court issued its order
adjudging Respondent My Store and its President
Podeschi in civil contempt of the Court's previous order
enforcing the Board's Order In its opinion the Court
stated, "We hold that the offers of reinstatement made by
Respondent (in September-October, 1963) were not valid
and that the offers were made willfully and
contumaciously with knowledge that they were not in
compliance with the decree of this court entered July 6,
1965
Thereafter Respondent submitted to the Court an
"Emergency Motion" with a memorandum stating that it
was in a dilemma as to which employees were due offers
of reinstatement. In response thereto the Board submitted
its memorandum of March 8, 1968, identifying the
employees to whom Respondent should offer
reinstatement in purgation of the contempt citation
In this memorandum the Board maintained that the
orders were clear and that reinstatement offers were
immediately due 12 employees: Harold E. Banfield, Mrs.
Carolyn (Fleming) Anderson, Robert L. Kearney, Delores
M. Reed, Frank J Sartore, Jr , Joseph Sedlacek, Charles
A. Shanks, Donald Spindel, James Waterman, William
Wiggs, Arlin Farthing, and Kenneth W. Reed The
memorandum noted that James Michael Cooper, who
originally was believed not to have received a letter from
Respondent offering reinstatement, was sent such a letter
dated September 26, 1963, subject to reply by him by
October 1, 1963. Cooper's name was therefore put with
the other group of employees which includes Billy Joe
Rhymes, Florence Walker, Richard Mahan, Lonnie
Sartore, Lorraine Smith, Joe Niewinski, and Bernice
Garmon. The memorandum again noted that this second
group of discriminatees would be considered separately by
the Board to determine in the light of the decision in Rice
Lake Creamery Company, 365 F.2d 888, 896-897, their
contemporaneous reactions to Respondent's invalid,
staggered, September-October 1963 offers, since the
contemporaneous reactions of these eight discriminatees
could possibly raise issues of public policy as to whether
they were due other offers of reinstatement. Because there
were these questions, the Board had not submitted these
eight cases in a contempt context as they did not appear
to be as clear as the other group. In Rice Lake, the
enforcing court noted that the responses of some unfair
labor practice strikers to defective offers of reinstatement
"could reasonably have led the Company to believe that
these men would take some further step if reinstatement
were desired." It was the question of the responses of this
group of eight which the Board said it would consider in
the context of a backpay proceeding and determine
whether they had foregone their rights of reinstatement
and possibly shortened their backpay periods or whether
Respondent still owed them or some of them valid
MY STORE, INC. 325
reinstatement offers.
Respondent filed a petition for rehearing with the
Court, and the Board on April 2, 1968, filed its answer in
opposition to Respondent's petition.
The petition for rehearing was denied and on April 22,
the Court ordered Respondent's President Podeschi, under
pain of attachment and arrest, to comply with the Board's
Order as previously enforced by the Court's decree of July
6, 1965, within 10 days by making bona fide and valid
offers to the group of 12 employees
On April 30, Respondent by motion asked the Court to
find that President Podeschi had purged himself of the
contempt by causing Respondent to make offers of
reinstatement to the 12 named discriminatees. The Board
agreed that the offers to the 12 had been made and on
May 27, 1968, the Board submitted to the Court its
proposed Adjudication and Order on Civil Contempt. On
June 14, 1968, the Court issued its order rejecting at that
time the Board's proposed order and determining that
Respondent and President Podeschi had satisfied the
terms of the contempt decree contained in the Court's
April 22, 1968 order. The Court remanded the case to the
Board for appropriate backpay proceedings while
reserving jurisdiction for further appropriate proceedings.
As previously stated the Regional Director of Region
14 on behalf of the Board issued the backpay specification
herein on October 2, 1968, alleging certain amounts of
backpay due the discriminatees. This 17-page specification
with 23 appendices originally set the hearing date for
October 28, 1968, in Taylorville, Illinois The hearing was
rescheduled several times and was heard before me on the
dates set forth above
During the first part of this hearing in December 1968,
Respondent requested a long postponement so that it
could conduct an investigation of the job searches made
by the discriminatees. Respondent said it could not
otherwise adequately defend its position, asserted to most,
if not all of the discriminatees, that they had made an
inadequate or no job search After completing 4 days of
hearing in which all of the discriminatees but Banfield
were made available for Respondent by the General
Counsel, I granted a continuance of a month and one-half
to enable Respondent to investigate the information made
available to it with provisions for recall of the witnesses
for further examination When the hearing resumed on
January 20, 1969, Banfield was available for the entire
day and was released when Respondent indicated it was
through with him. Respondent did not find it necessary to
recall all the discriminatees.
The parties waived oral argument at the conclusion of
the hearing Upon the entire record in this case including
my evaluation of the reliability of the witnesses, based
both upon the evidence received and my observation of
their demeanor, I have made the findings and conclusions
set forth below
In its answer and amended answers, in addition to
alleging particular defenses to individual alleged claims,
Respondent offered five special defenses which I will
consider first. As a preliminary to considering these
defenses, it is necessary to understand how and under
what conditions the Union provided funds for the striking
discriminatees.
1. RESPONDENT'S SPECIAL DEFENSES AND rHE
BACKGROUND INFORMATION PERTINENT THERETO
The Union's National Executive Director Mel Waters
testified that he had been the Union's chief executive
officer since 1954 and that the Union's constitution and
bylaws (copies were made available to the parties) contain
no references to strike benefits nor how they are to be
paid While he has been the Union's chief executive, the
Union has granted strike benefits on only two occasions
with the first being in an economic strike called against
Jewel Tea Company at DeKalb, Illinois. In that situation
the decision to pay strike benefits, as a matter of union
policy, was made by the Union's board of governors. The
second occasion was at My Store when the strike began
there on May 2, 1963, and on that occasion Waters
determined that the Union would pay benefits and the
amounts. After setting this policy he later informed the
Union's board of governors who acquiesced in his
decision.
According to Waters, he met with the Union's area
employees several days before the My Store strike and
gave them a report of the contract negotiations which had
taken place between the Union and My Store to that
point. Waters testified without contradiction that he
informed the employees the Union had no doubt that
Respondent had been bargaining in bad faith and
consequently had committed unfair labor practices, and
that the Union would file charges with the Board. Waters
said that if their charges were sustained, the striking
employees might be entitled to backpay from Respondent
and this seemed to be an ideal situation in which the
Union could loan the employees the amount of their
weekly take-home pay and the employees would reimburse
the Union when Respondent paid them backpay.
The employees voted to strike. Waters testified
specifically that the employees by a show of hands agreed
to the strike benefit plan he proposed
In the DeKalb economic strike which occurred in 1960,
the Union advanced the amount of the gross backpay to
the employees but withheld income tax and social security
payments, which sums were forwarded to the appropriate
places and withholding forms were given to the strikers
showing what had been done
At My Store, the Union proposed not to withhold
income tax or social security payments, since it felt that in
an unfair labor practice context, the employer would be
held liable for the gross amount of wages and for the
amount of social security and income tax withholdings
and that this matter would be settled at the conclusion of
the case.
In May 1963, the Union started disbursing checks to
the striking employees in the amount of their net
take-home pay. According to Waters, at that time the
Union's secretary-treasurer was in a position of
semiretirement, wherein she would work some periods of
time but would not work others. According to Waters,
there was divided responsibility to the overseeing of how
these amounts were reported. The Union's records show
that for the second and third quarters of 1963 it deducted
social security payments and withholding taxes for these
striking My Store employees and reported these amounts
in its quarterly income tax returns and in an account it
had with the Division of Unemployment Compensation
for the State of Illinois. By the fourth quarter of 1963, the
Union discovered these bookkeeping practices and filed
amended returns with Federal income tax authorities and
with the Division of Unemployment Compensation for the
State of Illinois, which were approved and the Union
credited with the amounts erroneously reported
The Union treated all of the employees at My Store the
same with three exceptions James Cooper, who Mel
Waters states had a problem in trying to determine his
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precise net take-home pay since he occasionally worked
on Podeschi ' s farm and would receive extra sums from
Podeschi in addition to his regular store pay, was given
$30 a week extra by the Union to make up for the extra
sums from the farm and as some remuneration for his
additional work as picket captain in running the strike
and seeing to it that picket line procedures were observed.
After Cooper left the picket line in the third quarter of
1963, the Union appointed Frank Sartore , Jr , and Jack
Banfield as cocaptains and split the duties between them
giving each $ 15 per week in addition to the amount of
their net take-home pay. The Union reported these weekly
amounts of $30 and $15 as income and gave the
employees Federal tax forms 1099 in regard to the
amounts they had earned in this manner.
In 1964 , the Union had all of the striking
discriminatees make out new Federal W -2 forms on the
basis that there was a change in the income tax that year
and with marriages , births, etc ., a new computation of
take-home pay was needed to better determine the
amounts each should receive
One theme in Respondent 's special defenses is that the
Union ' s payment to these striking discriminatees made
them union employees and took them out of the labor
market during the periods of time the payments were
made In support of its position , in addition to some of
the facts stated above , Respondent adduced testimony that
the Union on occasion hired outside persons as pickets
and paid them amounts of money for the hours they
picketed . Respondent analogized that since these outside
persons were by its definition union employees , and since
the striking discriminatees picketed too, then the striking
discriminatees were on the same basis as the hired pickets
and that made them union employees
To further bolster its position , Respondent offered in
evidence social security forms which showed the amounts
reported to Social Security by the Union for the striking
discriminatees during the second and third quarters of
1963 and the Union 's records which showed social security
and income tax amounts appearing withheld from the
striking discriminatees by the Union . These latter forms
show that the amounts were not to be reported for the
fourth quarter of 1963.
In rebuttal to Respondent ' s position , the Union's
income tax reports for various years were produced along
with a reconciliation of an investigation made during 1965
by the Internal Revenue Service into the question, among
others, of the amounts of the loans made to the striking
employees.
General Counsel ' s Exhibit 42, a copy of the Union's
quarterly report of wages taxable under the Federal
,Insurance Contribution Acts for the fourth quarter of
1963, shows the amounts previously reported for the
striking discriminatees in the second and third quarters for
1963 as having been reported erroneously as wages. The
later reconciliation appears to show the Union's
explanation of its prior reports as erroneous was accepted
by the Internal Revenue Service . The Union also
produced a form from the Division of Unemployment
Compensation for the State of Illinois crediting the Union
for the amounts of unemployment compensation which the
Union had originally made to the State for the striking
discriminatees . These amounts were credited to the
Union's account as having been erroneously paid.
The Union ' s Chief Executive Waters testified that the
Union did not consider the striking discriminatees as its
own employees , including Cooper , Banfield , and Sartore,
even though they were paid an additional and apparently
nonreturnable sum. None of the discriminatees including
Cooper , Banfield , and Sartore were eligible for or
participated in any Union provided benefits of the type
which employees of the organization normally enjoyed
such as pensions , health and welfare contributions,
hospitalization , and other fringe benefits . The Union
considered the discriminatees essentially as locked-out
strikers who were receiving strike benefits which would
eventually be repaid to the Union, and not as its
employees.
When the loan arrangement was reported to union
counsel in latter 1963, he asked the Union to prepare and
have the strikers sign loan agreements specifying the terms
of the loans. Loan agreements were prepared and signed
by the discriminatees under the terms of which they
agreed to repay the amount of the loans received from the
Union from any sums that they would receive as backpay
from the Respondent . Some of these forms were
backdated to the initial point of the strike and other
copies of the forms were received and signed later.
With this summary of the evidence pertinent to the
amounts of money furnished the discriminatees by the
Union and with the chronology of the events set forth
above, we now turn to Respondent ' s five special defenses
as alleged in its answer to the backpay specification.
A. Respondent 's First Special Defense
As its first special defense Respondent alleges that from
September 1963 until July 1966, Harold Banfield and
Frank Sartore , Jr., were employed by the Union, paid a
regular weekly salary , helped to direct the picket line, and
were directed in their activities by the Union, and while so
employed these two men were loaned sums of money in
excess of $ 10,000 by the Union. Respondents stated that
concurrently there was in full force and effect, title V,
section 503, of the Landrum -Griffin Act, which proscribes
the making of any loans directly or indirectly by a labor
organization to any officer or employee of such
organization in excess of $2,000 and provides for criminal
sanctions by fine and/or imprisonment . Respondent states
that by reason of these illegal acts of Banfield and Sartore
in connection with the Union and which are violative of
stated United States public policy, that they are and
should be disqualified from receiving remuneration of any
form or backpay from Respondent.
During the hearing herein , General Counsel moved to
strike this special defense on the basis that it required a
finding that a criminal violation of the United States
Code, title 29 , section 503, existed , and since there had
been no such adjudication in regard to Banfield or
Sartore, the Trial Examiner was being asked to make an
adjudication of a criminal violation and then determine as
a matter of public policy that backpay should not be
granted . The General Counsel rightly observed that
neither the Trial Examiner nor the Board have such
jurisdiction.
During the hearing Respondent stated this was not a
criminal proceeding but that its defense recited facts and
on its interpretation of those facts these two men were
employees of the Union who had received loans in excess
of the stated amounts and that to allow them to recoup
funds from Respondent would be violative of the public
policy of the United States as enunciated by Congress in
this particular statute. Respondent maintains that the
criminal provisions are accidental or incidental to such a
finding and urges that on the facts it proposes , the Trial
Examiner could determine that the actions of the two men
MY STORE, INC.
contravened United States public policy and to award
them backpay would flaunt public policy.
During the hearing I stated that I felt Respondent was
asking me to find and conclude that the two men together
with the Union had committed an illegal act, and that
such a determination was certainly beyond my
jurisdiction Such a finding would be a necessary
prerequisite to conclude that the actions were against
public policy and that payment of backpay would affront
such public policy However I asked the parties to brief
this question and held in abeyance ruling on this motion.
In its brief Respondent states that assuming the amount
received from the Union by Sartore and Banfield was a
loan and since they received an additional amount of
money for their work on the picket line that such
additional moneys must be considered wages. for tax
purposes, that automatically with this determination the
quoted part of the Landrum-Griffin Act has been violated
and their actions would conflict with public policy. In
support of its position Respondent noting that the
Supreme Court has directed the Board not to
singlemindedly consider only its own remedial acts, but to
consider other equally important congressional purposes,
cites Offner Electronics, Inc., 134 NLRB 1064, in which
the Board denied its remedial relief to an employee found
to have committed the crime of embezzlement and
Southwestern Greyhound Lines Inc, 22 NLRB 1, in
which an employee who had committed theft was
disqualified from remedy To vitiate the contrary fact that
in these two cases criminal prosecutions had already
determined the guilt of the individuals involved,
Respondent cites Iowa Beef Packers v. N L.R B , 331
F.2d 176 (C A. 8, 1964). Respondent says that therein the
court reversed the Board's remedy with respect to
reinstatement and backpay to an employee who had
"deliberately falsified his testimony while on the stand at
the hearing and in the unfair labor practice charge which
he filed " Respondent refers to this as "the crime of
penury " Respondent states that no criminal proceedings
were initiated there and that the Trial Examiner
determined the person had committed perjury in the
hearing Respondent concludes that since neither the
burden of criminal prosecution or the burden of finding
proof beyond reasonable doubt was needed there, it should
not be needed by the Examiner in the present proceeding
General Counsel 's brief argues that the cited statute is a
criminal statute and in order to determine that Banfield
and Sartore should not receive backpay, a finding that
they had criminally violated the statute would have to be
made as a necessary premise on which to base the
conclusion that- the loan by the Union in this case was
contrary to stated public policy. The General Counsel also
refers to the statutory prohibition in section 603B of the
cited Act, which states that nothing in the titles of the Act
should be construed to confer any rights, privileges,
immunities , or defenses upon employers , or to impair or
otherwise affect the rights of persons under the Act. On
this basis General Counsel insists that even if there had
been an adjudication that the two striking employees and
the Union were guilty, this statutory prohibition would
preclude Respondent from raising it as a defense.
General Counsel also refers to the historical
background for this particular part of the statute in that
the McClellan committee hearings disclosed that large
loans had been made to union officials from the union
treasury and that the intent and purpose of the statute was
not to interfere with nor make it a criminal act for a
union to pay strike benefits to persons engaged in unfair
327
labor practice strikes with the contingency that they
compensate the Union if they in turn were compensated
for loss of employment by their employer.
General Counsel also argues that the criminal sanctions
are not accidental or incidental to this particular part of
the Landrum-Griffin Act but are an integral part of it and
that only the Attorney General may prosecute such
alleged violations in a court of competent jurisdiction.
I have considered the arguments and have determined
that I must grant General Counsel's motion to strike this
first special defense of Respondent. As I pointed out to
Respondent during the hearing, the words of the statute
and the surrounding circumstances make it quite evident
that in order for me to arrive at the position Respondent
desires, I would first have to determine that Banfield and
Sartore had engaged in criminal acts. Clearly this is
something I cannot do. Secondly, the cases cited by
Respondent in its brief are inappropriate since they
involve cases in which the guilt of persons has previously
been adjudicated by a court of proper jurisdiction.
Respondent's citation of the Iowa Beef Packers case is
also inapposite. In that case the Trial Examiner,
according to the court, determined the individual had
given false testimony primarily from the individual's
admission that he had lied in making the allegations of
the charge which he signed under oath. On the basis of
this determination the Trial Examiner there found the
man should not be granted reinstatement.
The present case clearly is not the same as the Trial
Examiner there determining principally from the
individual ' s admission that he had lied or in Respondent's
words had committed the "crime of perjury " What
Respondent asks me to do here is to determine the
intention of a criminal statute and that it would apply to
the particular facts in this case , that is that the amounts
here advanced as strike benefits would fall within the
purview of the statute Such a determination is clearly a
matter for statutory interpretation by a court of
competent jurisdiction Respondent ' s interpretation
basically would make the loan a criminal violation,
whereas if the amounts were not to be repaid to the Union
and were an outright strike subsidy or gift, there would be
no criminal intent This would appear to be the reverse of
what the Congress sought.
I reject Respondent's application of Iowa Beef Packers
to the present case . In the absence of a clear-cut decision
by a court of competent jurisdiction interpreting the
statute to apply to the facts here and with no criminal
finding as to the involved parties I could not and can not
determine whether as a matter of public policy backpay
should be forbidden to the two individuals. I would be
further deterred by the statutory prohibition quoted by
General Counsel, that violations of the Act with one
exception are not a matter of defense for an employer in
regard to other violations of the Act.
General Counsel's motion to strike Respondent's first
special defense is granted.
B. The Second Special Defense
Respondent' s second special defense is aimed at the
group of eight discriminatees not named in the contempt
orders issued by the Court on April 22 and June 14, 1968.
Respondent in its answer states that in the contempt
action the Board sought to adjudicate the rights of
employees to backpay as well as reinstatement rights
although Respondent says the Board sought to exclude
those not named in the contempt order from such
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration Respondent then states:
Although all striking employees were before the Court
for adjudication of their rights in the premises the
Court in its final order of June 14, 1968, remanded this
case to the Board for further proceedings to determine
"what specific sums in backpay are due what employees
of My Store Inc., named in the April 22, 068
contempt order." As a result of such decree, employees
not named in the aforesaid decree have by order of the
United States Court of Appeals for the Seventh Circuit
been excluded from consideration for any backpay in
these proceedings, and the order of the aforesaid court
enforcing the original Board Order entered July 6, 1965,
has been amended to exclude therefrom striking
employees not named in the order of April 22, 1968."
As a corollary to this second special defense, Respondent
urged as to each of the eight that it had made proper
offers of reinstatement to them and it sought during the
hearing to litigate the propriety of its September-October
1963 offers of reinstatement to each of these
discriminatees
On motion by the General Counsel I ruled such latter
inquiry by the Respondent out of order, as an attempt by
Respondent to go behind the Court's contempt decree as
an attack upon a question that had been resolved and was
res judicata
Taking the latter matter first it is undisputed and
Respondent admits that it made staggered offers of
employment to all of the striking discriminatees here
involved in the September-October 1963 period. It was
this precise practice that the Court held invalid when it
said: "We hold that the offers of reinstatement made by
Respondent were not valid and that the offers were made
willfully and contumaciously with knowledge that they
were not in compliance with the decree of this Court
entered July 6, 1965 "
The language used by the Court does not permit any
circumspection as to the validity of the offers, nor does it
look for any conjecture as to what Respondent meant.
The Court conclusively determined that the offers made
on the admitted staggered basis, with no adequate
justification offered by Respondent for its action, were not
made in compliance with its decree and are invalid offers
As noted in the chronological history of this case,
supra, from the inception of the contempt action the
Board informed the Court that there might be some
question as to whether the discriminatees not named in its
petition for contempt by their answers to Respondent's
invalid September-October 1963 offers, might have led
Respondent to believe that they would do something
further if they desired reinstatement. The Board drawing
on its experience with the United States Court of Appeals
for the District of Columbia Circuit in N L R B v Rice
Lake Creamery Company, 365 F.2d 888, and in accord
with the principles of equitable estoppel, stated that it was
not asking the Court to find contempt as to these specific
8 cases, but that as to the 12 named discriminatees it felt
that Respondent ' s actions to them and their responses,
were so openly contemptuous of the Court's decree that it
believed it was warranted in seeking a determination of
the contempt issue by the Court in that defined area. This
position of the Board was spelled out in the Board's reply
to Respondent's answer to the Petition for Adjudication of
Civil Contempt, filed by the Board with the Court on
November 22, 1966, and other documents cited above.
This position of the Board was preserved throughout the
contempt proceedings
Respondent's position that the Court in its June 14,
1968, order in the contempt proceedings, has amended its
enforcement decree of July 6, 1965, is untenable The
contempt proceedings have determined that Respondent
has contumaciously disobeyed the Court's enforcement
order, not that it has obeyed it The civil contempt order
by the Court was an exercise of the Court's power to
secure enforcement of that decree where Respondent has
contumaciously rejected the Court's order. As fully
explained there were other areas in which there was a
question as to whether what Respondent and the other
parties have done has satisfied the Court's order Since
there was a question, the Board did not seek to present it
to the Court in a contempt setting but said that it would
seek the answers in a backpay proceeding and present its
determination to the Court in an enforcement context so
that the Court could pass on the questions in a less
demanding atmosphere than that of contempt Thus the
limiting of the contempt area can not be equated with
dropping or negating parts of the July 1965 enforcement
decree
This present position of Respondent was not raised
during the contempt proceedings and appears now to be a
complete misreading of the nature of the actions taken
and the decisions rendered by the Court The Court could
not have and did not determine that all of the enforcement
questions have been decided in this contempt proceeding,
since not all of the questions were before the Court.
To equate the Court's enforcement of its July 6, 1965,
decree by this Contempt Order, with an adjudication that
the eight discriminatees are not due offers of
reinstatement or backpay, is a feat worthy of the minister
in Senator Sam Ervin's story, who disliked the then
current feminine hair style of wearing a bun or knot of
hair on the top of the head According to Senator Ervin,
the minister preached a foot-stomping sermon based on
what he said was the biblical injunction "Top Knot Come
Down " After the sermon, when challenged as to the
biblical origin of the topic, the minister cited a particular
portion of the Bible and when the questioner looked up
the reference he read the phrase in the entire context as
"And let him who is on the roof-top not come down "
C. Respondent's Third Special Defense
Respondent offers as its third special defense, a plea
that since the final decree of the Court enforcing the
Board 's Order was entered July 6, 1965, and the backpay
specification herein was not issued until October 2, 1968,
the Board has unconscionably delayed in issuing the
backpay specification, leadirg to great hardship to the
Respondent as well as an unnecessary and unjust liability
for backpay claims. The Respondent asked that no
backpay or interest be allowed beyond January 1, 1966, a
time which it considers reasonable for the enforcement of
the backpay order in this proceeding Respondent states
that this time lapse is contrary to the Administrative
Procedures Act requiring reasonable dispatch in
conclusion of administrative matters.
In answer to this defense General Counsel citing a great
number of cases claims that the "reasonable dispatch"
phrase bears on the requirement that an agency should not
deny relief or fail to conclude a matter by inaction The
General Counsel also notes that the defense of laches is
not available against a suit brought by a Government
agency to enforce a public right and that this backpay
proceeding is in vindication of public policy and a public
right and that further it would be inequitable to require
MY STORE , INC 329
discriminatees to suffer a loss caused by the action or
inaction of others. The General Counsel also cites the W
C Nabors Co case, 323 F.2d 686, 688-689 (C.A 5), cert.
denied 376 U.S 911, to show that a time lapse much
greater than that involved in this proceeding has been
tolerated.
Again referring to the chronological history here, it
should be obvious that any delay between the issuance of
the Court's 1965 order and the issuance of the backpay
specification was not brought about by the Board, but
rather by Respondent's wrongful insistence that it had
terminated the backpay periods for all of these individuals
by its September-October 1963 offers to them The Board,
by originating the contempt proceeding proved to the
Court's satisfaction that those offers were invalid and
were in contempt of the Court's 1965 order Thus it has
been Respondent ' s position and actions which have
produced the interim amount of time and held open the
backpay period which finally terminated for some of the
discriminatees when under the contempt citation,
Respondent made offers to 12 discriminatees in April
1968. For the Board to have begun a backpay proceeding
in a situation where Respondent had not tolled at least
some of the backpay claims by a valid offer of
reinstatement would have been an exercise in futility since
other such proceedings would have been necessary to
determine amounts until the offers were finally made
Respondent by its position on making reinstatement offers
has determined some outside limits of the backpay
periods Without some limits a backpay proceeding would
be of little value If blame is to be attached to one of the
parties for the length of the backpay period, it must be
affixed to Respondent
The Court's final order in this contempt proceeding was
issued in July 1968 which means that only a little over 3
months elapsed between the Court's order enforcing its
prior order by contempt and the issuance of the backpay
specification herein. Considering the number of
discriminatees and the volume of information involved,
this period of a little more than 3 months could not be
held an undue prolongation of this matter Considering
that Respondent took many time consuming but
legitimate legal steps , requesting rehearing and
reconsideration of numerous matters and decisions, and
was finally forced by a contempt decree to make some
valid offers of reinstatement, thus tolling some of the
backpay periods in 1968, and here is complaining of
"unconscionable delay" by the Board, would seem to call
for application to it of-the Hebrew word "Chutzpah,"
which I have heard defined as that degree of consummate
gall it would take for a person admittedly guilty of
murdering his father and mother to ask for mercy --i the
ground that he is an orphan
D. Respondent 's Fourth and Fifth Special Defenses
Respondent alleges that the discriminatees who were
union employees received sums of money from the Union
and that during such periods they were not in the labor
market and the amounts received are interim earnings
which should be deducted from backpay claims.
Respondent also claims that interest on the backpay
claims should be remitted to the extent of the sums
received from the Union , since the employees were not
deprived of the moneys which they otherwise would have
received from Respondent.
Alternatively Respondent states that if it is determined
that the amounts received from the Union were a loan
against the amount of backpay to be received, that the
Board should not allow interest on backpay since the
employees were not deprived of their money and to allow
interest would be to allow an unjust enrichment to the
employees.
As discussed in regard to Respondent's first special
defense, at the inception of the strike the Union
established the policy of paying strike benefits in the
amount of regular take-home pay for the employees in the
form of a loan to be repaid to the Union in the event that
the striking employees received backpay following Board
proceedings The Union adequately explained why for
certain periods the Union's quarterly income tax reports
carried the striking employees in the same manner that it
carried the Union's regular employees. The problem
occurred due to inadequate supervision of the Union's
records because of the semiretirement status of the
Union's then secretary-treasurer. The Union corrected its
procedures and received credit not only from the Federal
Government for an overpayment in those areas, but also
from the State of Illinois in regard to unemployment
compensation payments. Thus, the indicia in this area
relied on by Respondent was fully' explained and met and
therefore no longer preponderates
Respondent also points to the fact that the
discriminatees walked picket lines, were given orders by
some union officials as to when to appear on the picket
line and when and where to picket, and picketed at other
locations. Respondent states that since the Union hired
pickets who were the Union's employees and who
performed the same duties as the discriminatees that the
discriminatees status is the same as that of hired pickets,
i.e., union employees. Additionally Respondent points to
certain employees who worked I or 2 days in other
locations and turned the sums received from these other
employers over to the Union, and the Union advanced
them the full amount of the employees' take-home pay on
the continuing loan basis. There are other contradictory
indications such as some employees supposedly being
docked for parts of their take-home pay when without
adequate explanation they were absent from the picket
line. On the other hand, we have employees who were sick
for long periods of time or who were absent for other
reasons and continued to be advanced the full amount of
their take-home pay as a loan
In determining the status of the striking discriminatees
we also have the following facts the notes signed by the
discriminatees agreeing to repay the loan amounts to the
Union; the striking employees did not receive benefits
such as the Union's regular employees received in the
nature of hospitalization and other fringe benefit
coverages; nor were the discriminatees covered by
unemployment insurance nor did they engage' in the
normal work the Union's regular employees engaged in
The principal indicia relied on by Respondent is that the
duties of hired pickets and the discriminatees were the
same with the distinction that hired pickets were paid on
an hourly basis for the time they actually picketed. But
the Union did not withhold income tax or social security
payments nor pay unemployment insurance on the
discriminatees
The only apparent exception would be made the extra
amounts paid Sartore, Banfield, and Cooper by the Union
as set forth above. The Union did prepare Federal income
tax forms for these three men for the amounts they
received over and above their loan take-home pay
The burden is on Respondent to prove that the amounts
received from the Union by the striking employees were in
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the nature of pay for interim employment and not strike
benefits which were in this context to be repaid. In
attempting to carry its burden of proof, Respondent
produced only the social security and tax forms which
showed the initial payments being made by the Union on
behalf of the striking employees. This amount of proof
was more than countered by the proof brought by the
General Counsel, that these amounts were set aside in
error and were subsequently corrected by the Union. The
only other evidence offered by Respondent was that paid
pickets performed similar duties to those of the striking
employees. The major exception to this is the amounts
over and above the amount of take-home pay received by
Cooper, Banfield, and Sartore. The General Counsel met
Respondent's evidence by showing that the discriminatees
received the amounts as a loan from the Union in the
form of a strike benefit which was not payable as an
hourly rate but was available as a loan while they
supported the strike
The evidence regarding filling out Federal income tax
forms was met by notation of the 1964 changes in the
Federal income tax law which warranted a revision of the
amount of take-home pay the discriminatees would have
received, in addition to the changes in status of taxpayers
by virtue of marriage, births of dependents, etc.
Strike benefits as such have been held by the Board not
to constitute interim earnings. See Lozano Enterprises 152
NLRB 258, 260, 264; Standard Printing Company of
Canton. 151 NLRB 963, Rice Lake Creamery Co ,
supra In this case the obligation on striking employees to
repay the Union for the amounts advanced seems all the
more reason to hold that these sums are not interim
earnings and the Union was not the discriminatees'
employer.
In summary, the discriminatees were not performing
services for the Union in the same sense that union
employees customarily provide their services. Secondly,
the discriminatees' obligation to repay the Union, which I
recognize from the testimony of Waters and the
discriminatees, and from the obligation of the instruments
signed by them, obviates an employer-employee
relationship. I conclude therefore that the amounts of
money advanced by the Union to the discriminatees,
which is to be repaid by them from any amounts received
as backpay, do not constitute interim earnings and that
the discriminatees were not employees of the Union
There is one exception to this finding and that is that
the additional sums of money received by Cooper,
Banfield, and Sartore for the periods concerning which
they testified, apparently were not included in the sums to
be repaid by these three men. Both the Union and these
men considered these sums apart from their take-home
pay since the Union filed Federal wage information forms
concerning these amounts and did make a Federal form
available to the men for their reporting purposes. There is
no specific testimony as to what period of the working
day these sums were meant to cover These sums
apparently were meant to compensate the three
discriminatees for extra efforts which they put forth in
guiding the picket line These are sums which they would
not have received if they had not been out on strike In
this particular, I think Respondent has a legitimate claim
to offset these amounts against gross backpay for those
periods in which I determine that the employees were in
the labor market.
In regard to the question of interest both as to the
fourth and fifth special defenses, I find first of all that I
am bound by the Board's decision awarding interest and
by the decision of the Court enforcing the Board's Order.
There is no showing that this point was raised in the prior
proceedings and the question would appear settled and res
judicata Secondly, Respondent wants to inure to its
benefit, the Union's grant of interest-free loans which
were made to the discriminatees to enable the
discriminatees and the Union to attempt to achieve their
common end in exercising their rights under the Act.
Certainly the Union by providing strike benefits to the
discriminatees did not intend to finance Respondent's
unfair labor practices. Respondent, because of its unfair
labor practices, has been ordered inter alia to provide the
discriminatees with backpay and legitimate interest
thereon for the sums these discriminatees lost by reason of
Respondent's unfair labor practices. Here if there were
any unjust enrichment it would be to Respondent if
Respondent's plea were granted. The principles of equity
would deny to the one causing the injury a reward for that
injury I see no unjust enrichment here but if there is a
question of a windfall it should go to the aggrieved party
and not to the transgressor of the aggrieved's rights
To consider this in another light, if each of the
discriminatees had a rich uncle who advanced the
discriminatee a loan in the amount of, or even greatly in
excess of, his weekly take-home pay or the gross amount
of his eventual backpay, Respondent presumably would
claim that the beneficence of the rich uncle should inure
to it and attempt to litigate the interest question since the
discriminatee would have had money with which to look
after himself in the interim. The manner in which the
striking employees received their loan and the amount of
it would appear to be none of Respondent's business
unless the amounts were received as interim earnings.
Here, I have held that these amounts were not in the
nature of interim earnings and the arrangement between
the union and the striking employees would appear to be
of a personal nature into which Respondent should not
intrude nor claim for itself any diminution of what it owes
the discriminatees by reason of such personal
arrangement.
The matter here dealt with is separate and distinct from
the questions raised in each individual case hereafter, that
is, whether the discriminatees were available for and
seeking work, or whether they withdrew from the labor
market.
The General Counsel analogized the amounts
discriminatees received from the Union, to the payments of
unemployment compensation which the Supreme Court in
N.L R B v. Gullett Gin Company. 340 U.S. 361, found
to be collateral benefits and not deductible from gross
backpay. The Supreme Court's rationale in that
proceeding seems applicable to the present proceeding
11. THE INDIVIDUAL DISCRIMINATEES AND THE
SEPARATE DEFENSES TO THEM
In addition to its "Special Defenses" Respondent
advanced some defenses to individual claims which were
asserted against groups or most of the discriminatees.
Rather than repeat these defenses , the answers thereto,
and a discussion of them in each instance , I will set forth
in general the positions and arguments made and the basis
for the conclusions I reached regarding the individual
situations.
As noted above Respondent sought to relitigate the
validity of the September -October 1963 offers it made to
the eight discriminatees not included in the contempt
action I held that the Court had determined that the
MY STORE, INC.
admittedly staggered offers to all discriminatees was
invalid and contumacious of its decree and res judicata
could not be further litigated. The question remaining as
to these eight, as enunciated by the Board before, during,
and after the contempt proceedings, was whether,
following the principles enunciated by the U. S. Court of
Appeals for the District of Columbia Circuit in Rice Lake
Creamery, supra, the responses of the discriminatees to
those offers could reasonably have led Respondent to
believe that the discriminatees would take some further
step if they desired reinstatement.
In applying fully the Rice Lake Creamery Co test, the
first apparent distinction is that in the instant situation the
adequacy of the form of offer to the discriminatees is
contested where in Rice Lake Creamery Co it was not.
The offers here were made in the following manner:
331
Date
Dear Sir,
Circumstances are such that we now find it possible
to again offer you the opportunity of returning to work
at the Taylorville My Store. This offer is made with the
understanding that you would be given the same job,
hours of work, rate of pay, and other conditions as they
were when you went on strike.
This offer is made subject to your reply not later
than ..
Taylorville My Store,
Inc
Marcel R . Podeschi
The letters to the discriminatees were dated as follows:
Discrimmatee Letter Date Date Revd Reply Date
In Letter
1. William Rhymes Fri. 9/20/63 No recollection
by Rhymes but
envelope shows
a notice re
registered ltr. del.
n Mon. 9/23
By 7 a,m
Monday
9/23/63
2. Richard Mahan Mon. 94304 63 1042/63 10 /2 /63
3. Florence Walker 9 /30/6 3 1 0/ 1 / 63 10/ 2 /63
4. James Michael Cooper 9 30 63 ? 1044463
Lorraine Smith ues. 10 1 63 1 0[2/63 1043463
6. Joseph Niewinski We . 10 2 63 10/4/63 10/5/63
7 Bernice Garmon Mon. 10/7 / 63 10/8 1 63 10 /9/63
8. Lonnie Sartore Late September 2--3 days
When these offers were made, Mahan, Cooper, and L.
Sartore were employed at other jobs, with Cooper in
Moline, Illinois, L. Sartore in Chicago, Illinois, and
Mahan at Peabody Coal Company in Kincaid, Illinois,
near Taylorville. The remaining five were on the picket
line.
The Board stated in Betts Baking Company, 173
NLRB No. 157;
Offers of reinstatement requiring acceptance within 4
days have been held to be invalid, as allowing the
discriminatees an unreasonably short period of time in
which to make arrangements to begin work. Thermoid
Company, 90 NLRB 614; Harrah's Club, 158 NLRB
758. We can perceive of no ground for distinction
between such offers and those in the case at bar, for in
each case the discriminatee would have been required to
leave his present job while giving less than reasonable
notice. See Thermoid Company, supra
Applying this rationale to the instant case it appears
that the offers made here were unreasonably restricted.
Marcel Podeschi, when questioned about the additional
time given Cooper, testified that he did not know why he
gave Cooper more time and did not remember whether
Cooper was going to school or whether he wanted to be
sure that Cooper got home for the weekend.
This testimony indicates to me that Marcel Podeschi
was aware that Cooper, who had been in charge of the
picket line and left for a job with Jewel Tea Company in
Moline, Illinois, was working out of town at the time
Podeschi made the offer It seems that the offer was sent
to Cooper's mother's address in Taylorville but Cooper
testified without contradiction that he never received the
offer and consequently made no reply.
Even those five discriminatees who were then picketing
were reasonably entitled to more than 1 day in which to
consider Respondent's staggered •offer, and first seeing the
letter on the afternoon before their reply was due, I find,
is an inadequate period in which to give the offer the
consideration it deserved and clearly was inadequate for
those then employed elsewhere.
I therefore find and conclude that the offers to these
eight discriminatees were additionally invalid as not giving
them adequate time within which to respond to the offer.
Consequently I find that the eight discriminatees were not
bound to reply to the offer within the time limit set by.
Respondent. Respondent nowhere indicated that it would
consider individual requests for additional time and the
staggered basis used by it in making the offers indicates
that such requests would have been refused. Additionally I
base this conclusion on Marcel Podeschi's testimony
denying that any of the discriminatees (other than L.
Sartore) responded to the offers, despite testimony from
some of the discriminatees that they did talk to Podeschi
within a few days of receipt of the letters. This point
which will be covered further, infra, leads me to conclude
that Podeschi did not consider any responses not coming
to him prior to the time limit he established Further I do
not feel it is incumbent on the discriminatees to request
additional time and thereby cure the defects in
Respondent's written offers, and attempt to render them
valid, particularly where the indications are that such
requests would have been refused
Despite Respondent's offers thus being invalid on two
bases, we still have the question of whether the
discriminatees' replies should be held to toll their backpay
periods.
Lonnie Sartore replied to Respondent's offer, saying
that he was employed elsewhere, and refused the offer. On
the basis of this reply the General Counsel concluded that
L. Sartore's backpay period was tolled, and therefore his
backpay period runs only until September 30, 1963. The
specific facts on Sartore as to total backpay will be set
forth below, but I find that the tolling of his backpay at
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time is proper
Rice Lake Creamery Co. states that despite the
invalidity of the offers, we should consider the action or
inaction of the employees and their union as well as
Respondent ' s conduct in determining whether backpay
and reinstatement remedies are suitable in the
circumstances . Basically then the question appears to be
one of equitable estoppel , in that we are to determine
whether , despite the invalidity of the offers , Respondent
could have been misled by either the answers of the
discrimmatees or the fact that they did not answer, into
believing that the next step was up to the discriminatee if
he wanted reinstatement . If Respondent could reasonably
believe that the discriminatee would perform some further
act if he truly wanted reinstatement, then Respondent may
have been lulled into not correcting his invalid offer or
making a further offer to the discriminatees
In applying this test in this case, I have concluded,
supra , that the eight discriminatees were under no duty to
respond to the offers since they were not given an
adequate time within which to reply. I therefore conclude
and find that Respondent reasonably could not have been
misled by the discrimmatees who did not reply to its
offers.
It was admitted by both Respondent and the
discriminatees that Cooper and Mahan did not reply to
the offers . Since neither of them has received a valid offer
of reinstatement from Respondent which would serve to
toll backpay , I find that their backpay periods are still
running and that it will effectuate public policy to hold
Respondent to present and continuing liability until
Respondent makes a valid offer of reinstatement to these
two men . It is likely that the offers may be refused by
them since each of them appears to have secured
reasonable employment elsewhere, but each of them is due
the opportunity of deciding when a valid offer is made
whether they wish to return to Respondent's employ or
not.
Mrs. Bernice Garmon testified that l or 2 days after
receiving the letter she saw Marcel Podeschi at the picket
line and told him she could not return to work until the
strike and everything was settled.
Joseph Niewinski testified that after receiving
Respondent ' s offer he engaged in a conversation with F.
Sartore and Banfield in which they expressed the idea they
would not go back unless it was in a group . He states that
F. Sartore handed his letter and some others to Marcel
Podeschi and though he does not recall what the others
said , he told M Podeschi he would not be back.
William J . Rhymes did not receive Respondent ' s letter
until after its stated deadline of 7 a.m . Monday,
September 23, 1963. Rhymes testified that later that week
he was with F . Sartore and Billy Wiggs on the picket line
when M . Podeschi approached , F Sartore told M
Podeschi they could not come back the way things were
right then and if they came back it would be in a group.
Podeschi checked both Wiggs and Rhymes who agreed
that was their answer.
Lorraine Smith testified that after getting Respondent's
offer she discussed it with fellow discriminatee Carolyn
(Fleming ) Anderson and they agreed they should only go
back as a group . Mrs. Smith then telephoned M. Podeschi
and told him she wanted to come back but could not
under the present circumstances . Since Respondent ' s offer
called for the same job and other conditions it seems clear
that Mrs. Smith meant the staggered offers of
employment.
Florence Walker testified that she was sick when she
received Respondent 's offer and later telephoned M.
Podeschi and said she could not return to work due to her
health and the strike.
Each of these five discriminatees appeared on the picket
line after these offers, so it seems apparent Respondent
would have been on notice that they were still part of the
group continuing to protest Respondent ' s unfair labor
practices.
If there were nothing more, I would have some
questions concerning the responses of Niewinski, Mrs.
Smith, and particularly Mrs. Walker. However as its last
witness during the hearing , Respondent called Marcel
Podeschi who after testifying as to his issuance of
Respondent 's September-October 1963 offers to the group
of eight discriminatees stated that he received a reply only
from L. Sartore and denied that he had received any
replies from the remaining seven employees. Marcel
Podeschi ' s unequivocal testimony in this regard means
either that he did not receive the replies from these five
employees as they testified, or that since the replies were
after the time limit he imposed , he did not consider them
as replies to Respondent 's offer.
The question of whether Respondent could have been
misled into action or inaction on its part by the replies of
these seven employees must be answered negatively based
solely on Respondent 's testimony . Where Respondent says
it got no answers , then obviously it could not have relied
on answers from the discriminatees to its detriment.
Moreover Respondent ' s resistance to making new valid
offers to other discrimmatees until forced to do so by the
Court' s contempt order is a fair indication that
Respondent was not relying on the discriminatees to do
anything further , but rather considered the matter closed
after it made its September -October 1963 offers
I therefore conclude and find that Respondent could
not reasonably have been misled by the discriminatees'
replies or lack of replies since Respondent denied that it
received any replies. Since Respondent has not made valid
offers of reinstatement to any of this group of eight
discriminatees , I find and conclude that such offers are
due each of them excepting L. Sartore and that the
backpay period of each of them will not be tolled until
such offers are made. Therefore, the amounts of backpay
I hereinafter find due and owing to each of the seven
discriminatees excepting L. Sartore are interim amounts,
figured only through the second quarter of 1968, and I
hold that until satisfied by a valid offer of reinstatement
Respondent ' s obligation to each of these discriminatees
continues to run.
As to some of the discriminatees , Respondent notes
that their interim earnings were much in excess of wages
they would have received if they had remained employed
by Respondent, apparently suggesting that they had found
better employment and impliedly that they would have
rejected any offer to return as in actuality Lonnie Sartore
refused Respondent 's September 1963 offer of
reinstatement.
In adopting a remedy for a discriminatee, the Board
has considered not only the effect of the discrimination on
the individual , but also the effect on Respondent 's other
employees. The Board has determined that the most
suitable method of vindicating public policy and
demonstrating that the rights of all must be protected is to
restore as nearly as possible the status quo prior to the
discrimination . To show that employees may not be
dismissed discriminatorily in violation of the Act, the
remedy obviously called for is to put the discriminatees
MY STORE, INC. 333
back in the positions they would have held absent the
discrimination and to make them whole for losses they
may have suffered by reason of the discrimination. The
concept of the same or "substantially equivalent" job as
prescribed by the Board means that the discriminatee is to
be reinstated to the same job he had, but if through
technological change or improvement that job has been
abolished, then he is to be placed on a reasonably or
substantially equivalent job
In the present instance Respondent seems to take the
position that, since some of the discriminatees found jobs
that might appear to be better than those they held with
Respondent, their backpay period should be cut.
The Board has held for good reason that the backpay
period is coextensive with Respondent's duty to offer
reinstatement to the discriminatee. Respondent has it in
its power by making a valid offer of reinstatement to toll
the running of the backpay period The individual
discriminatee might lose a present job, be dissatisfied with
it, or have personal problems which might induce him to
return from a distant job to one with Respondent There
are untold reasons which might weigh upon the
discriminatee and lead him to choose to return to
Respondent when the valid offer is made. It is not for
Respondent or me to decide what the individual might do
The obvious and proper answer is to make the valid offer
and get the discriminatee's response. Secondly the
employees still employed by Respondent are entitled to
know, and in such case, have demonstrated for them, that
where rights of employees are violated and employees are
discriminatorily discharged, they are due and will be made
valid offers of reinstatement by the Respondent. This is a
part of reestablishing the status quo and demonstrating to
those concerned that their guaranteed rights under the Act
will be protected.
Backpay should run coextensive with the offer of
reinstatement because if the discriminatee is earning more
after his expenses than he would have earned from
Respondent, he is due no backpay for such periods But if
the discriminatee is earning less than what his gross
backpay would be, he is due the differences as backpay.
Age, job opportunities in the area, physical condition, and
other factors will determine whether the individual's
interim employment is better or worse than what it would
have been if he had remained with Respondent It is
because of Respondent's discriminatory action or inaction
that the discriminatee was placed in the position of
searching for and finding work. No hardship is worked on
Respondent by making the backpay period coextensive
with Respondent's making a valid offer of reinstatement,
an act Respondent always has within its power to make at
any time
In this case the backpay periods, except where
individual discriminatees have removed themselves from
the labor market, are coextensive with Respondent
making a valid offer of reinstatement to the discrimmatee,
and where a valid offer of reinstatement has not been
made, the backpay period will continue to run until such
an offer is made
Respondent made a number of contentions regarding
the discriminatees' search for work, based mainly on a
quarterly approach as to what the discriminatee did in
each calendar quarter. Where discriminatees searched
mainly in the Taylorville area, Respondent insisted that
the labor market should be considered as embracing
Decatur and Springfield, Illinois Where some
discriminatees searched mainly in those areas, Respondent
insisted they should have looked for work in the
Taylorville area
The General Counsel produced an expert witness who
testified that the State of Illinois considered the
Taylorville, Springfield, and Decatur areas as separate
labor market areas. Beyond this the witness produced
figures from the State's records regarding job openings
and job applications on file with the Illinois State
Employment Service, for the relevant periods in the
Springfield area, which showed that applicants for jobs in
the general field for which the discriminatees were
qualified, were from two to four times as many as there
were available jobs. These factors together with the ages
of the discriminatees and other factors must be considered
in determining whether the discriminatees were in the
labor market or not.
One vital question affecting this inquiry is the fact that
the discriminatees here were not in the position that some
discriminatees might find themselves, that is, out of work
with no means of supporting themselves or their families
and a consequent necessity of taking any and all types of
work to make ends meet.
Here the discriminatees were receiving the amount of
their take-home pay from the Union as a strike benefit
loan and consequently were not in dire circumstances.
They continued receiving the loans through the first part
of 1966 unless they left the picket line for jobs elsewhere.
There are questions as to whether they sought work and
were in the labor market in that 3-year period The fact
that some of them may not have searched as diligently for
work before the Union ceased making the loans as they
did afterwards is an indication of the impelling necessity
to obtain employment and does not mean that they were
not searching for reasonably equivalent employment prior
to that time.
In not considering the question of the discriminatees'
work search on a straight quarter by quarter basis, I am
following the Board's standard as set forth in Cornwell
Company. Inc , 171 NLRB No 43. There the Board said:
The Trial Examiner did not discredit Longest's
testimony regarding her search for employment during
this period of time, but nevertheless found, incorrectly
in our opinion , that "there is no substantial evidence in
the record" that a search for work was made from July
1965 to April 1966. Moreover, by this finding, the Trial
Examiner appears to have relieved the Respondent
from the burden which the law imposes on it to prove a
willful loss of earnings and to have incorrectly shifted
to the General Counsel the burden of establishing the
contrary.
As the Board stated in Mastro Plastics: Mastro Plastics
Corp . 136 NLRB 1342, 1346, enfd 354 F.2d 170 (C.A. 2,
1965), cert. denied 384 U.S. 972 (1966).
[W]hile the general burden of proof is upon the General
Counsel to establish the damage which has resulted
from Respondent's established discriminatory discharge,
i.e., the gross backpay over the backpay period, the
burden of proof upon the Respondent as to diminution
of damages, whether from the willful loss of earnings by
the failure to either look for or keep a substantially
equivalent job or from the unavailability of a job at
Respondent's plant for some reason unconnected with
the discrimination
In this case, it is clear that the General Counsel has
carried his burden of establishing the gross backpay over
the backpay period, and Respondent does not except to
the Trial Examiner's findings in that regard. Therefore,
the burden passed to the Respondent to establish that the
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gross backpay should be diminished due to a willful loss
of earnings by the discriminatee. And if the theory
asserted to prove the necessity for diminution of backpay
was that Longest was chargeable with willful loss of
earnings through failure to look for suitable alternate
employment, it was incumbent upon Respondent to
demonstrate by a fair preponderance of evidence that
Longest did not make reasonable efforts, when considered
in the light of all the surrounding circumstances, to seek
out work that might have been available to her. On the
record taken as a whole, we find that Respondent has not
met that burden. -
We note preliminarily that the Trial Examiner tolled
backpay for specific quarters in which he found that there
was "no substantial evidence that Longest applied for
work." But in treating each quarter as a completely
severable period, divorced from all others, for the purpose
of determining the reasonableness of Longest's job seeking
efforts, the Trial Examiner adopted and applied an
incorrect standard. From the fact alone that in a given
quarter a discriminatee has made no specific job
application, it does not necessarily follow that the
discriminatee during that particular quarter has
abandoned efforts to find suitable employment and in
effect has withdrawn from the labor market. A
discriminatee who has otherwise made reasonable efforts
to seek out new employment is not required in each
specific quarter to repeat job applications which from her
past efforts she knows are foredoomed to futility in order
to protect her claim of backpay for that particular
quarter Rather, the entire backpay period must be
scrutinized to determine whether throughout that period
there was, in the light of all surrounding circumstances, a
reasonable continuing search such as to foreclose a finding
of willful loss.
In this case Respondent does not dispute that the gross
backpay is correctly computed as set forth for each of the
discriminatees in the appendices to the backpay
specification. Respondent' s claims, other than those set
forth in the defenses heretofore considered, are essentially
that various discrimmatees were not in the labor market
or should have made better or more frequent searches for
work, further reduced their expenses, and that some quit
jobs without sufficient cause. Since each of these defenses
is part of Respondent's burden of proving willfull loss of
earnings , in each case it is incumbent on Respondent to
adequately demonstrate its claims by preponderant
evidence.
With these principles in mind we turn now to an
examination of the evidence bearing on each of the
discriminatees Most of the discriminatees relied heavily
on what were called "job search forms" sent by the
Board 's Regional Office to discriminatees for their
preparation and return to the Board's office during the
interim years. These forms were sometimes filled out by
the discriminatees but in each case were signed or initialed
by them and set forth places where they applied for work
and places where they obtained employment and their
expenses.
Respondent introduced a number of these forms in
evidence, principally as admissions against interest and
General Counsel introduced many of them, principally as
past recollection recorded. It appeared that in most cases
these forms were the records, or were transcribed from
records, the discriminatees had kept of their job search
and appeared to me to be the most reliable sources of
information obtainable concerning what the discriminatees
had done in the 5-1/2 years prior to this hearing
General Counsel alleged that the backpay period
following the strike starts on July Il, 1963, while
Respondent maintained that the date should be July 13. 1
have accepted the General Counsel's date since that is the
date found by the Board and accepted by it and the Court
as the date the Union made an unconditional offer on
behalf of all the striking employees to return to work
During the hearing Respondent agreed that it must accept
the July 11 date as binding on it
A. Carolyn (Fleming ) Anderson
Respondent's answer claimed that Mrs. Anderson made
no attempt to obtain employment from July 13, 1963,
until June 1, 1965. In its brief Respondent modified this
position alleging that the record shows she made no
search for work from the third quarter of 1963 through
the first three quarters of 1964. Respondent's brief also
states she admitted no job search through December 15,
1964, citing a transcript reference. Respondent took the
position that her search during the fourth quarter of 1964
was inadequate and that she should have accepted a
proffered job in Decatur, Illinois, in December 1964
Respondent makes no claim that Mrs Anderson's search
for work in the first quarter of 1965 is inadequate but
states that what she would have earned from the proffered
job should be credited against backpay
The General Counsel alleged that Mrs Anderson is due
backpay from July 11, 1963, to May 22, 1965, when she
informed her employer she was to be married and would
leave the area She received her strike benefit loan from
the Union until she secured employment with Mallory
Company in Pana, Illinois, during the first quarter of
1965.
Concerning her search for work, Mrs Anderson
acknowledged on one of her job search forms,
Respondent's Exhibit 6, that she did not search for work
from July 11, 1963, through June 30, 1964. On
Respondent's Exhibit 59, another of her job search forms
she acknowledged that during the third quarter of 1964
she took a 1-week vacation and on Monday, September
28 looked for work at the State employment office in
Springfield , Illinois, but was not referred to any jobs by
that agency.
Mrs Anderson did not recall where she searched for
work during the fourth quarter of 1964, but acknowledged
that her job search forms for the fourth quarter of 1964,
Respondent's Exhibit 60, and General Counsel's Exhibit
65, were completed at that time and represented her
efforts to obtain employment. The forms show that in
October 1964 she applied for work at five places and in
November at the State employment office in Decatur,
Illinois, and one other place In December, after applying
again at the State employment office in Decatur, she was
referred to a job at Art's Superette in Decatur, but
refused the job since the pay was so low that her expenses
in driving back and forth to Decatur would not have
justified taking the job She also applied for work with the
State of Illinois in late December. The date on the form is
December 30, 1965, but since this form is for the fourth
quarter of 1964 and she was no longer in the area in
December 1965, I find the date was listed in error and
should be 1964. Since Respondent makes no claim of an
inadequate search for the first quarter of 1965 and she
secured work in that quarter and continued in
employment at Mallory's until the specification states her
backpay terminated, we will go no further into her work
search
MY STORE , INC. 335
One of Respondent's claims that Mrs. Anderson
admitted not searching for work until December 15, 1964,
which it states is confirmed by the record, comes from
Respondent's erroneous interpretation of what Mrs
Anderson said. The transcript shows only that Mrs.
Anderson said she walked on the picket line 5 days a
week and contains no admission that she did not search
for work.
From Mrs. Anderson's testimony and the evidence of
the job search forms, it appears evident that she did not
begin looking for work until the last week of the third
quarter of 1964. From that time on she appears to have
made an honest, sincere effort to secure other suitable
employment, culminating in her securing a job at
Mallory's where she had previously applied. Respondent
offered no evidence beyond its cross-examination of Mrs.
Anderson and its exhibits of her job search forms to
support its claim that her job search in the fourth quarter
of 1964 was inadequate. Nor did Respondent offer any
evidence to disprove Mrs. Anderson's testimony that the
job offered her in Decatur, at Art's Superette, was
inadequate due to the low wages and the expenses that
would have been involved.
I therefore conclude and find that Carolyn (Fleming)
Anderson withdrew herself from the labor market from
July 11, 1963, until the last week of the third quarter of
1964 and that thereafter she was in the labor market and
made a sincere and reasonable search for work.
Accordingly, I find and conclude that the claim for
backpay during the period she was out of the labor
market must be disallowed and therefore find that
Respondent is liable for her gross backpay, less net
interim earnings and expenses as more fully set forth in
Appendix A to this Decision from the last week of the
third quarter of 1964 through May 22, 1965 ' I find that
Mrs. Anderson is due the sum of $1,564.51 plus interest.
B. Harold E. Ban field
Respondent's answer asserted that Banfield made no or
an inadequate job search until May 20, 1966, when he
obtained employment with the A & P Company in
Taylorville, Illinois. It further alleged that without
sufficient reason he quit a job in June 1966, thereby
incurring willful losses which should be allowed against his
backpay claims, and that he had no expenses chargeable
to it.
Respondent's brief amplifies its allegations and stoops
to name calling, inexact phrasing, and unsubstantiated
charges to prejudice Banfield's claims During the hearing
Respondent alleged and examined Banfield as to whether
or not he lost the A & P job partly because he imbibed
alcoholic spirits while on the job After making this claim
through its questions and having it denied by Banfield,
Respondent made no effort to support it, even though the
A & P manager was apparently available for testimony,
the store being within a few blocks of the hearing room..
Respondent further attacks as vague Banfield's job
search after 1966 and asserts in essence that he should
have made better efforts to retain jobs he held thereafter.
As set forth in the backpay specification, the General
Counsel alleges that Banfield's backpay period ran from
July 11, 1963, until April 30, 1968, when he received and
'In Appendix A to this Decision I am correcting an apparent mistake in
Appendix B of the backpay specification which seeks gross backpay for 11
5/6 weeks in the second quarter of 1965 under the apparent assumption
that the cutoff date was June 22, rather than May 22, 1965
rejected Respondent's valid offer of reinstatement.
Banfield admittedly had a poor independent recollection
as to his job searches in that 5-year period and relied
principally on his job search forms Respondent's Exhibit
31, Banfield's job search form for the third quarter of
1963, has two entries for July and August stating that he
was offered a part-time job at the Taylorville A & P
which he refused because it was part time and because of
the strike. Respondent's Exhibit 32, Banfield's job search
form for the fourth quarter of 1963, shows only that he
refused a job in Jacksonville, Illinois, because it was too
far to drive. Respondent's Exhibit 33, his job search form
for the first quarter of 1964, states that he did not look
for work that quarter. Respondent's Exhibit 34, his form
for the second quarter of 1964, contains a statement that
a Haase olive salesman offered him a job at Cloyd's Food
Market in Decatur, Illinois, which he refused because it
was too far to drive. (Other discriminatees report this
same offer which from the testimony of Banfield and
others was not a job offer but rather information that a
job was or might be available at that location.)
Respondent's Exhibit 35, Banfield's job search form for
the third quarter of 1964, states he was offered a
meatcutter job at a store in Pawnee, Illinois, which he
refused because he had to stay on the picket line. (Other
discriminatees reported the same offer which apparently
was made on the picket line by an unidentified individual
the discriminatees took to be the owner or manager of a
grocery store ) Banfield also refused "because had to stay
on picket line," a part-time trash collecting job.
General Counsel's Exhibit 49, Banfield's job search
form for the fourth quarter of 1964, shows 18 applications
for work during that quarter at various grocery stores,
contractors, and other establishments General Counsel's
Exhibit 50, his job search form for the first quarter of
1965, shows 18 applications for work, some at
establishments where he had previously applied, but most
at other places. Banfield's job search forms for the second
quarter of 1965, through the first quarter of 1966, General
Counsel's Exhibit 51, show respectively by quarter, 12, 16,
11, and 12 applications. In these four quarters, Banfield
revisited most of the places he had applied previously but
added some new prospective employers. Banfield during
this time continued to receive his strike benefit loan and
the additional $15 which I have heretofore determined
should be considered as interim earnings since it was so
treated by the Union and the discriminatees and
represents sums he received for additional efforts of
directing picket activities
In April 1966 the Union informed the discriminatees
that it was going to discountinue paying the strike benefit
loan and the job search form of Banfield (G. C. Exh 52),
as well as forms of other discriminatees for this second
quarter of 1966, reflects an increased search for
employment. Banfield's form shows 19 applications before
he got a job as a produce manager at the Taylorville A &
P store on May 20, 1966, and a job at Kroger's grocery
store thereafter.
Banfield's forms and his testimony indicate to me that
from the inception of the strike and particularly after he
and F Sartore starting sharing responsibility for the
picketing, through the third quarter of 1964, he was not
interested in leaving the picket line for employment
elsewhere, but in effect withdrew from the labor market
and involved himself solely with the strike. When the
Union in the fall of 1964 made it clear to the
discriminatees that they had to actively seek employment
to be considered in the labor market, Banfield and some
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
others for the first time started to really search for other
work. I have concluded from the testimony here and find
that Banfield was not in the labor market through the
third quarter of 1964, and accordingly determine that his
backpay claims for the period from July 11, 1963, through
September 30, 1964, should not be allowed
Respondent asserts that Banfield by refusing a job offer
in Pawnee, Illinois, in the fall of 1964 incurred a willful
loss and should have projected earnings there credited
against his backpay claim, and alleges that Winn-Dixie
Stores, Inc , 170 NLRB No. 198, and other cases support
its position.
Respondent has assumed wrongly that a specific job at
a definite wage was offered Banfield by someone capable
of doing so Respondent offered no testimony or
independent evidence on this point, relying only on
Banfield and his job search form Secondly, Banfield
chose to remain on the picket line at that time, thus
continuing to engage in his Section 7 rights to picket
Respondent. The Winn-Dixie case is inapposite since there
the individual was not engaged in picketing but rather as a
discriminatee was supposedly in the labor market actively
searching for a job. To attempt as Respondent here does
to apply Winn-Dixie to this situation would mean that
strikes could be broken easily if there was a duty on a
striker who was engaged in the protected activity of
picketing to take any reasonably suitable job that was
offered him or be ever after debarred from backpay even
if he went thereafter into the labor market actively
searching for work. In this instance I find, and Banfield
confirms by his written statements, that he was not then
seeking employment but rather was continuing the
protected right of picketing his employer. Therefore, we
cannot penalize him for engaging in his Section 7 rights as
Respondent would have us do by its request in this
instance.
Respondent attacks Banfield's job search for the six
quarters preceding the second quarter of 1966, on the
grounds that he did not apply at the State employment
offices for assistance and it feels that it is incredible that
he found no job until the second quarter of 1966 The fact
that F. Sartore and Banfield on some occasions went job
hunting together does not impress me that they were
trying to avoid employment
Respondent apparently harbors a number of suspicions
concerning Banfield, but I find no evidence to support its
claim that his search for work during those six quarters
was inadequate. The fact that his search for work
intensified when the Union informed the discriminatees it
was going to stop making the strike benefit loans is a
natural consequence, but does not mean that his job
search prior to then was unreasonable or not made in
good faith.
Respondent's position that it is incredible Banfield
would have earned no money until 1966 is not a fair
commentary based on the situation Banfield was receiving
the strike benefit loan from the Union and was able to
support his family in the interim There was an impetus
from the Union and his own natural desires to seek
employment comparable to that which he had. He was not
in the position of being driven to seek work because he
had no means, but rather was in a situation where he
could look for work and not be forced to accept the first
thing that came along unless it were of a reasonably
equivalent nature to his former job. As noted above, I
have determined that the weekly $15 amounts he received
from the Union over and above the amount of the loan
for helping to direct the picket line should be considered
as interim earnings and deducted from gross backpay I
therefore direct that the amount of $195 be deducted from
the amount of gross backpay due for each quarter from
the fourth quarter of 1964 through the first quarter of
1966, and that $105 be deducted from his gross backpay
in the second quarter of 1966, representing the amounts
paid Banfield for the 7-week period until the Union
stopped making loans to the discriminatees
Banfield's intensified search for work in the second
quarter of 1966 finally led to a job as produce manager'
with the A & P store in Taylorville As a -meatcutter this =
job appears to be of a lower rank and according to
Banfield, although he had helped arrange produce at
Respondent he had no training in ordering produce and
was the only employee assigned to the produce',
department at A & P. After working more than a week,
Banfield on a Saturday morning asked the manager if he
could leave work at noontime to go with his brother to
visit a third brother in Missouri. According to Banfield,
the brother in Missouri was considering buying a local
electric and plumbing company and the three brothers
would work at the trades, share in the business, and own
parts of it. Apparently the arrangements were for them to,
meet in Missouri late Saturday or early Sunday, check
out the other business, and determine whether to go
through with the matter. The A & P manager refused and
both he and Banfield became angry with the manager
saying he was doing a substantial portion of Banfield's
work, presumably referring to ordering the produce.
Banfield is uncertain whether he quit or was fired, but in-,
any event he was told to come back within a couple of,,
hours to get his check Banfield left that day for Missouri•i
with his brother and the three checked out the business
The purchase was not made and shortly after his return
Banfield started to work at the Taylorville Kroger store:,
filling in as a butcher He worked there for a couple of,i
weeks but was displaced due to the transfer of a more;,'
senior employee from another city. . n
Respondent urges that Banfield's quitting or loss of the.,
A & P job amounts to willful loss of earnings which
should exclude him from further consideration for.
backpay In urging its position, Respondent states that
apparently Banfield knew little or nothing about electricity
or plumbing, was not going to put up any money toward
the purchase of the business, but merely went to check it
over with other members of his family Respondent states
that apparently Banfield made no prior arrangements to
have his job covered by someone else, nor make his
request of management sufficiently in advance so that .
other arrangements could be made.
To a certain extent I find myself in agreement with
Respondent that Banfield's actions appear not to be those
of a cautious, prudent man, but at the same time
Respondent did not introduce evidence and I do not know
when the arrangements were made for the brothers to go
to Missouri, how soon this business opportunity occurred
before they were to go, or how long they had to act on it.'
It would seem that Banfield could have been more
considerate in trying to make some arrangements before
10 o'clock on Saturday morning, but at the same time I
cannot fault him for trying to improve his position by
getting into the electrical or plumbing trades. The Board
has held many times that it will not penalize an individual
who attempts to start in business for himself and is
thereafter unsuccessful. This trip by Banfield was a
preliminary step to engaging in business and although the
manner in which he arranged to go appears improvident,
there is no evidence on that point and I do not feel that
MY STORE , INC. 337
his actions should foreclose him from further backpay. He
very quickly got a job at the Taylorville Kroger store as a
butcher after the A & P matter
General Counsel's Exhibits 52 and 53 must be read
together for a full picture of Banfield's job search in the
third quarter of 1966. Banfield held a couple of jobs in the
Taylorville area after being laid off at Kroger's and
searched for other work before his brother-in-law
employed him at the E & E Baler Company in Chicago,
Illinois, in the latter part of that quarter. It was while
working there that his brother-in-law gave him the names
of some Chicago companies which were not accepting
employment applications and Banfield included several of
them on General Counsel's Exhibit 53 although he did not
personally apply for employment He did, however, make
applications at a number of places both in the Chicago
area and in Taylorville during this quarter.
Banfield made this disclosure before being questioned
about the job search forms by Respondent and testified
that this was the only occasion on which he had listed
companies where he had not personally applied
Respondent was in no way misled by this form, but
nevertheless requests that I infer that the balance of the
job search information supplied by Banfield was false.
Such an inference is not justified where as here the
individual under no duress fairly disclosed that the
information was not completely accurate and made no
attempt to deceive Respondent
I will allow Banfield's travel expenses of 440 miles
incurred in his travel to and from Chicago, Illinois, in the
third quarter of 1966 and the 220 miles claimed for the
fourth quarter of 1966 during which he was employed by
his brother-in-law in Chicago. He did not return to
Chicago after spending Christmas with his family because
of icy road conditions and was not needed by his
brother-in-law thereafter. Respondent argues that he
should have gone by train to protect his job, but there is
no showing he would not have needed his car thereafter or
that the work would have continued. Banfield's testimony
is that there was no ill feeling between them and work
became slack
The General Counsel had no job search form from
Banfield for the first quarter of 1967 and Banfield did not
recall where he had looked for work in that quarter, but
did testify that he was seriously attempting to find work
and did apply for jobs. At that time Banfield was
receiving no money from the Union and having a wife and
family would have been compelled to search for work in
order to support them. Respondent offered no evidence
that Banfield did not search for work during that quarter
or absented himself from the labor market and based on
his diligent searches in 1966 I conclude that there is no
proof that Banfield did not continue to search for work.
During the second quarter of 1967 Banfield went to his
sister's home in Lancaster, Ohio, and got a job at the
Lancaster Electric Plating Company. During that quarter
the contempt proceedings in this matter began in
Taylorville, and Banfield left Lancaster and returned to
Taylorville to testify.
Following the hearing Banfield tried to reestablish
himself in Taylorville and sought jobs at a number of
places in the immediate area during the second and third
quarters of 1967, and got a job at the B & B Tire Shop in
Taylorville where he worked until he was discharged the
day before Christmas 1967. Banfield's job consisted of
buffing old tires in preparation for their being retreaded
until he was given the job of running the tire molds when
his predecessor in that job left. Banfield stated the job
entailed putting tread rubber on the tire casing, placing it
in a frame and putting the frame in the mold and then,
after it had been heated, removing the hot frame and tire
from the mold and breaking it down According to
Banfield the tire and frame weighed approximately 100
pounds and had to be held away from the body because it
was so hot it would burn. He then weighed about 120
pounds and after doing the job for a few days, found that
physically he was incapable of continuing and so informed
the owner. The owner told him he had no other work for
him and let him go.
Respondent analogized his job there to the problem of
picking up and moving a quarter side of beef in his job as
a meatcutter The difference according to Banfield was
that in moving a quarter side of beef you could wrap your
arms around it, hold it next to your body, and move it
some 10 to 12 feet and be done with lifting while cutting it
up. The difference in the two positions seems self-evident,
and I find no fault in Banfield as regards his losing this
job.
A few days after Christmas 1967, Banfield's sister in
Ohio asked him to return to her home to aid her in taking
care of her husband who at that point was mentally
incapable of caring for himself due to an operation.
Banfield returned to Lancaster, Ohio, around January 3,
1968, and testified that his sister told him he should have
no trouble in getting back his old job at Lancaster Electric
Plating Company. Within a short time Banfield contacted
the company and was told that he could come back to
work anytime he wished. Banfield however stayed with his
brother-in-law, taking care of him, until he started work
at Lancaster Electric Plating around February 5.
For that period of 5 weeks, Banfield took himself out
of the labor market, since according to his testimony he
apparently could have had his job at Lancaster Electric
Plating almost immediately after his return to Lancaster,
Ohio In line with procedure of eliminating such periods, I
am deducting 5 weeks' gross backpay from the first
quarter of 1968 and allowing only an 8-week period
against which net interim earnings are deducted
There are no medical expenses claimed which would not
have been dissipated by payment of premiums for
coverage of dependents for the backpay period.
I conclude and find that Banfield's backpay period
commences with the fourth quarter of 1964 and runs
through April 30, 1968, when he received a valid offer of
reinstatement from Respondent. I find that Banfield was
in the labor market during this period, engaged in seeking
employment, and did not incur any willful loss of
employment of interim earnings and that Respondent's
many claims against Banfield have not been established by
competent evidence.
I have set forth the amount of interim earnings and
expenses allowed together with gross backpay for the
periods in which it is to be credited in Appendix B to this
Decision and have therein found that total net backpay of
$13,834.71 plus interest is due and owing Banfield by
Respondent.
C. James Michael Cooper
Respondent agrees with General Counsel that it owes
Cooper the backpay amounts claimed for the first two
quarters of 1963, during which time his hours of work
were discriminatorily cut by Respondent.
Besides the "special defenses," Respondent in its
answer claimed that Cooper c'id not look for work until
he secured a job with Jewel Tea Co in Moline, Illinois,
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he quit such job 3 weeks later, incurring a willful
loss. Respondent modified this position in its brief
acknowledging that Cooper remained employed through
the second quarter of 1964 when he left the labor market
to attend college.
The backpay specification while claiming that the
backpay period remains open since Cooper was never
given a valid offer of reinstatement by Respondent,
acknowledges that through June 30, 1968, backpay other
than the first two quarters of 1963 is presently due only
through the second quarter of 1964.
As noted above I have found and concluded that
Respondent must make a valid offer of reinstatement to
Cooper and the others in his position to toll the backpay
period It may be unlikely that Cooper would accept the
offer, but we will not know until it is made, and
accordingly I determine in this proceeding only the
amount due and owed him through June 30, 1968.
Respondent claims that "Cooper admittedly did not
look for work until he took the Jewel Tea job in Moline,
Illinois." The transcript shows no such admission. Cooper
testified that he took a trip to Moline, Illinois, for a job
interview with Jewel Tea and returned to Taylorville
before being informed that he could have the job. He
began work in Moline, Illinois, in early August.
Therefore the period in question is 3 weeks, from July
11 through 31. General Counsel claims that although
Cooper was in charge of the local picket line, he was still
in the labor market and seeking employment as
particularly shown by his trip to Moline seeking work
Neither General Counsel nor Respondent questioned
Cooper as to his job search during the 3-week period.
Therefore with no admission that he was not in the labor
market, Respondent has produced no proof of willful loss
or absence from the labor market, and I find and
conclude that in addition to its admitted liability,
Respondent is liable for backpay for Cooper from July 11,
1963, through the second quarter of 1964 In accordance
with my earlier conclusions, I will deduct as interim
earnings the sum of $30 per week Cooper received over
and above the amount of his strike benefit loan from the
Union for that 3-week period.
I further find and conclude that the expenses claimed as
more fully set out in Appendix C to this Decision are just
and proper and that through June 30, 1968, Cooper is due
from Respondent the amount of $1,760 27 plus interest as
backpay to that date
D. Arlin Farthing
Besides the special defenses, Respondent claimed that
Arlin Farthing voluntarily quit a job with Jewel Tea Co.
in Taylorville in September 1963, and that his expenses
for his job at Wagner Casting Company are excessive and
not properly chargeable to it Respondent did not raise the
issue of adequacy of job search until the hearing in this
matter and testimony was taken on this question.
Respondent's brief claims that admittedly Farthing did
not start looking for employment until the fourth quarter
of 1964 and that it appears to Respondent that he did not
look for work until he got his job at Wagner Castings late
in the first quarter of 1965.
Farthing who appeared to be middle aged, testified he
worked for Jewel Tea Co in Taylorville on an "on-call"
basis and turned over the amounts he occasionally earned
to the Union which loaned him the amount of his weekly
take-home pay as a strike benefit.
In regard to his search for work, Farthing testified that
he did not hunt for jobs or have time to look for work
until around September 1964 when he got I day a week
off from picketing to look for work. General Counsel
claimed that the amounts Farthing received from various
contractors for painting houses showed that he was in the
labor market However, Farthing testified that what he
received from contractors was the result of his
"moon-lighting," working after picketing hours and on
Sundays.
It seems clear to me from Farthing's testimony that he
did not look for a comparable full-time job until the
fourth quarter of 1964, and that any job search he made
prior to that time and the jobs he had were part-time
"moonlight" jobs. I will therefore disallow backpay from
July 11, 1963, through the third quarter of 1964,
determining that Farthing was not in the labor market
during that period
During the hearing the job search forms filed by
Farthing were turned over to Respondent. Respondent
indicated that it would check further into the information
thus obtained during the recess which was later granted.
Neither Respondent nor the General Counsel thereafter
sought to produce any further information in regard to
Farthing, nor were his job search forms placed in
evidence Since Farthing testified that he did look for
work after the third quarter of 1964 and did get a job at
Wagner Castings, and since Respondent has offered no
affirmative proof that Farthing did not search for work
during the fourth quarter of 1964 and the first quarter of
1965, I find and conclude that Respondent did not
substantiate its claim that Farthing did not search for
work or made an inadequate search for work during the
fourth quarter of 1964 and the first quarter of 1965.
As to his travel expenses in working at Wagner
Castings, Farthing testified he worked on a second shift
which differed by an hour from the only other Wagner
Castings second-shift man he knew who lived in
Taylorville The Wagner plant is some 26 blocks from the
G E. or Borg-Warner plants in Decatur and Farthing said
he knew of no one who would go that far out of the way
in a carpool even if their hours agreed Therefore Farthing
drove the 65-mile round trip by himself maintaining it was
the most efficient and suitable means of transportation for
him.
Respondent's brief claims that there were carpools and
buses which Farthing could have used although it offered
no proof as to these claims. It maintained that it should
be liable only for the lowest feasible amount which could
be paid.
Besides the dearth of proof to back its claim, to accede
to Respondent's position I would have to determine that
the innocent victim of Respondent's discrimination should
have used an unproven putative carpool or bus system and
not the means of transportation which most suited
Farthing in traveling in the afternoon and at night (second
shift) between Taylorville and Decatur.
I find that the expenses incurred by Farthing in driving
his car while working at Wagner Castings in Decatur,
Illinois, are just and reasonable as set forth in Appendix
D to this Decision and therein deducted from his interim
earnings
I conclude and find that Arlin Farthing's backpay
period runs from the fourth quarter of 1964 through April
30, 1968, when Respondent made a valid offer of
reinstatement to him and that Respondent is liable for his
total net backpay of $5,974.60 plus interest, as more fully
set forth in Appendix D to this Decision.
MY STORE , INC. 339
E. Bernice Garmon
Respondent's answer alleges that Mrs Garmon made
no job search from July 1963 through July 1966. In its
brief Respondent modifies this position to allege that after
looking for a job on one occasion in the third quarter of
1963 she did not look for work until October 12, 1964,
and that her job search was inadequate until the second
quarter of 1966.
I have previously determined that Mrs. Garmon is due
a valid offer of reinstatement by Respondent and that her
backpay will continue to run until such an offer is made.
Therefore backpay in this proceeding is computed only
through June 30, 1968.
Mrs Garmon relied on her job search forms for her
testimony concerning her work applications She applied
for a job at the State courthouse in Springfield, Illinois, in
July 1963, but according to her job search forms, made no
other applications through the third quarter of 1964.
During this period of nearly 15 months, Mrs. Garmon
picketed Respondent and received her strike benefit loan
from the Union. On this showing, I conclude and find that
after the first application, Mrs Garmon became
uninterested in seeking employment and consequently
removed herself from the labor market for this 15-month
period, excepting only the first week. I will therefore allow
only I week's backpay for the third quarter of 1963 and
disallow the other quarters through the third quarter of
1964.
Around the beginning of the fourth quarter of 1964, the
Union emphasized that the discriminatees must conduct
an active search for work, and Mrs. Garmon according to
her job search form, made two applications at the State
employment office in Decatur and at some seven other
places. Her job search form for the first quarter of 1965
shows one application at Mallory's in Pana and another at
the State employment office in Decatur and that she was
ill for 2 weeks (deducted from her gross backpay claim in
the backpay specification) Her job search form for the
second quarter of 1965 (Resp. Exh. 54) shows that she
worked 1 day on the election board for the town of
Taylorville and that she had her application for
employment on file at the State employment office in
Decatur, and took a 1-week vacation. In line with the
practice of excluding periods of illness and vacations I will
reduce the gross backpay period in this quarter by I week
In the third quarter of 1965 she applied at seven places
including the Decatur (State) employment office and was
off sick 1 week. In the fourth quarter of 1965 she was sick
2 weeks and made five applications including the State
employment office. In the first quarter of 1966 she applied
at five places, again including the State employment
office.
In April 1966 the discriminatees who were still
picketing were informed that the Union was planning to
discontinue the strike benefit loans. Mrs. Garmon
intensified her job search in this quarter and made some
23 applications for work and did work for the Fuller
Brush Company for a while but quit when she found that
her income was not meeting her automobile expenses.
When her efforts to obtain work were not successful, she
lowered her sights and made an application for a job as a
domestic helper in caring for an older lady. The Union
continued loans for some five discriminatees including
Mrs. Garmon who had not been able to secure
employment.
She finally secured a job in the kitchen of the Green
Gables restaurant where she has since been employed In
the second quarter of 1968 she became a waitress there
and her interim earnings for that period were amended to
reflect her earnings from tips.
In considering her job search and apparent inability to
secure employment until 1966, we must consider the fact
that Mrs. Garmon like her sister Mrs Walker is in the
category we call middle aged and her white-toned hair
may deter prospective employers from considering her
application. Indeed one of her job search forms showed
that at one employer there was no age limit but that
neither she nor her sister were hired since they were
considered overweight.
I believe that starting with the fourth quarter of 1964
Mrs. Garmon was sincerely interested in securing other
employment and considering her age, the reluctance with
which some employers view employee applicants who are
not young, and the fact that there did not appear to be a
supply of job openings in the area, I feel that Mrs.
Garmon's search was adequate. I believe she might have
made more applications in the first and second quarters of
1965, but on the other hand she did not take herself out of
the labor market during those or any other quarters since
the fourth quarter of 1964. Accordingly, I find and
conclude that Respondent has not 'proven that Mrs.
Garmon incurred willful losses by either .removing herself
from the labor market, or quit jobs without reasonable
cause, from the fourth quarter of 1964 through the second
quarter of 1968 and therefore is due backpay for that
period in the sum of $6,738 04 plus interest as more fully
set forth in Appendix E to this Decision. As noted above,
her backpay will continue to run until Respondent makes
a valid offer of reinstatement to her
Additionally I find that as a full-time employee she was
or should have been covered by Respondent's
medical-health insurance (applicable to full-time
employees after 60 days) and would have continued to be
so covered if Respondent had not discriminated against
her. Since she incurred medical expenses which would
have been reimbursed by this policy as more fully set out
in Appendix E to this Decision, and Respondent offered
no evidence that she would not have been covered, I find
that she is due $153.33 for such medical expenses from
Respondent. Therefore through June 30, 1968, Mrs.
Garmon is due a total amount of $6,891.37 plus interest,
and I so find
F William A. Ginger and James W Lindsey
The parties are in agreement that William A. Ginger is
due backpay for the first and second quarters of 1963
when his hours were discriminatorily reduced. I therefore
find that the amounts as set forth in Appendix F to this
Decision, for the first and second quarters of 1963 for
William A. Ginger are due and owing from Respondent
and the total amount of backpay is $343.30 plus interest.
The General Counsel originally contended that backpay
was due Ginger for the third and fourth quarters of 1963,
but in his brief amends his position stating that he believes
that the amounts as shown on Respondent's Exhibit 83,
which Ginger earned during those quarters is more than
the gross calculated. On this basis he asked that the
backpay specification be amended and the amounts
claimed for the third and fourth quarters of 1963 be
stricken.
I will grant General Counsel's motion to strike the
third and fourth quarters of 1963 but not for the reason
he advances. Respondent's Exhibit 83 shows that Ginger
was employed throughout the third and fourth quarters of
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963. There having been no allegation, showing, or finding
that Ginger's hours were decreased in those quarters and
it being demonstrated by this exhibit that Ginger did not
go on strike and was therefore not due any backpay as a
result of Respondent's refusal of the Union's offer for the
strikers to return to work, there can be nothing due him
for the third and fourth quarters of 1963. On that basis I
strike from Appendix G of the backpay specification the
figures for the third and fourth quarters of 1963.
The General Counsel originally claimed that James W
Lindsey was due an amount of backpay for the third
quarter of 1963 In his brief, General Counsel admits that
Respondent's Exhibit 83, which is a copy of Respondent's
payroll, shows that Lindsey was employed throughout the
third quarter of 1963. Similarly Lindsey did not go on
strike. There was no lessening of his hours, or an
allegation or finding of such, and he was therefore due
nothing. The General Counsel's motion to strike Appendix
I of the backpay specification in toto is granted.
G. Robert L . Kearney
Respondent's answer alleges that Kearney made no job
search from July 11, 1963, until he went in service in
1965. In its brief Respondent changed this position and
admitted he applied for jobs but stated that his job search
was inadequate and also maintained that his claimed
expenses in 1967 were too high.
The backpay specification claims Kearney's backpay
period , excepting the 2-year period he was in the service
(third quarter 1965 through May 1967), runs from July
11, 1963, through April 30, 1968, when he received a valid
offer of reinstatement from Respondent.
Kearney testified that he searched for work during the
time he walked the picket line. Respondent sought no
other testimony from Kearney about job search other than
questioning him about the job search forms it introduced
in evidence as Respondent ' s Exhibits 71 to 76.
Respondent ' s Exhibit 71, Kearney 's job search form for
the third quarter of 1963, contains a statement that
Kearney worked for Harper Oil Company of Taylorville
for not more than 3 weeks after the strike started
Subsequent to Respondent 's request of General Counsel
for Kearney 's job search information , General Counsel
turned over to Respondent , among other things, a letter
from Harper Oil Company which General Counsel stated
had some notations on the bottom that would be
indicative of interim earnings However since no showing
is made in Appendix H of the backpay specification that
there were interim earnings from this source and since
Respondent did not seek to introduce any such into
evidence , I conclude that whatever earnings Kearney had
from Harper Oil Company were considered by the parties
to be earnings of a part -time nature outside the scope of
regular interim earnings . Respondent 's Exhibit 71 further
shows that during the third quarter of 1963 Kearney
renewed his application for a job at Caterpillar Tractor
Company once each month . He testified he originally filed
an application with the company in 1962 before beginning
work at Respondent
Respondent ' s Exhibit 72, Kearney's job search form for
the fourth quarter of 1963 , again shows three visits to
Caterpillar Tractor at Decatur , Illinois, for his application
renewal and states this was the only place he looked for
work during that quarter.
Respondent ' s Exhibit 73, Kearney 's job search form for
the first quarter of 1964, again shows monthly
applications at Caterpillar Tractor in Decatur , and that
Kearney applied for work at the Illinois State employment
office in Decatur and at Firestone Tire Company as well
as at Peabody Mine No 10 in Pawnee and at the Hurtle
Texco Oil Company in Taylorville.
Respondent's Exhibit 74, his job search form for the
second quarter of 1964, again shows three applications at
Caterpillar Tractor Company, three applications at
Frank's Food Fair, and three applications at Clark's
Service Station In regard to these latter applications,
Kearney said that just about everytime he went to buy
groceries he would ask Sonny Bertucci, the manager of
Frank's Food Fair, whether he had any work and would
be told no.
Respondent's Exhibit 75, Kearney's job search form for
the third quarter of 1964, agains shows three applications
each at Caterpillar Tractor in Decatur, at Frank's Food
Fair, and Clark's Service Station in Taylorville During
this quarter, he also applied at Hopper Paper mill in
Taylorville, Allis Chalmers in Springfield, worked I day
for a concrete finisher, and was paid by his mother for a
1-week job of painting a house The State employment
office sent him for an interview to Cash Value Acme
Company but he was inexperienced in their work and was
not hired
Respondent's Exhibit 76, his job search form for the
fourth quarter of 1964, signed and dated in mid-December
of that quarter, showed applications in October and
November at Caterpillar' Tractor and one application at
Clark's Service Station in Taylorville. On this form
Kearney wrote that he had not looked for work since
October 31 when his wife died.
The transcript of this case shows no mention by any
party of any job search forms for the following two
quarters (first and second quarters of 1965) and Kearney
went into the service in June 1965 Respondent's brief
states that there were no forms for those quarters but
there is no mention of this, if it is a fact, by Respondent
during the hearing and it is not reflected in the transcript.
With nothing more and no admission that there were no
such forms and with no examination of Kearney on those
two quarters, and with his testimony that he did look for
work while he was on the picket line, I must presume that
Kearney continued to look for work during those quarters
since it is Respondent's burden of proof to show that he
did not do so
Similarly, Kearney returned from the service late in the
second quarter of 1967, and no job search forms were
offered by either party for the second or third quarters of
1967. From Kearney's interim earnings information in the
backpay specification it would appear that he got his job
at Baughman-Oster early in the third quarter of 1967
before going to work at Firestone. With no showing by
Respondent that Kearney was not looking for work in the
second and third quarters of 1967, and the fact that he did
get his first job apparently early in the third quarter, I
must presume that he renewed his job search when he
returned from the service during the 5 weeks claimed for
the second quarter of 1967.
Following the Board's doctrine that the backpay period
be considered as a whole and not by individual quarters,
based on the showing here, I must conclude and find that
Kearney did look for work and was in the labor market
from the third quarter of 1963 on. His search for work
during the early quarters was not very active or
aggressive, but nevertheless he was in and remained in the
labor market
Respondent presses one other point, that while Kearney
was employed at.Firestone in Decatur , Illinois, until late
MY STORE, INC. 341
in the first quarter of 1968, he drove to work by himself.
According to Respondent, Kearney should have taken the
chartered bus which cost $1.20 a day and that the expense
claim should be reduced to that figure. Kearney testified
that later when he could get in a carpool he did so
Kearney was on a 3 to I1 p.m. shift while driving by
himself and when he went to the 11 p.m to 7 a.m shift in
March 1968 he managed to get into a carpool.
Considering the hours of his shifts and the distance
traveled, I think that use of a private car is warranted and
that is the measure of his expenses, not the cheapest
measure of transportation, with its inconveniences, which
Respondent would have us adopt Since Kearney's interim
earnings at Firestone, even less these expenses, exceeded
his gross backpay by substantial amounts from the fourth
quarter of 1967 on, we are really only concerned with
these expenses for a 7-week period in the third quarter of
1967. So that Appendix G to this Decision will truly
reflect the changed circumstances following Kearney's
becoming a carpool member in March 1968, I will amend
the travel expenses for the first and second quarters of
1968 to reflect the reduced expenses even though they
make no difference in the backpay claim.
Finally I conclude and find that Kearney is due total
net backpay of $8,432.48 plus interest as particularized in
Appendix G to this Decision.
H. Richard E Mahan
Respondent alleges in its answer that Mahan did not
search for work in the third quarter of 1963 until he
obtained a job with Peabody Coal Company during that
quarter. Respondent's brief adds to this position that
Mahan incurred a willful loss and is entitled to no further
backpay when he quit that job in the first quarter of 1964.
Respondent's brief claims that the expense items for the
fourth quarter of 1964 and the first quarter of 1965 were
reduced by amendment to the specification No expenses
were claimed for the fourth quarter of 1964 and the
expense item for the first quarter of 1965 was increased by
amendment. Respondent presumably meant the fourth
quarter of 1963 and the first quarter of 1964 where the
expense amounts were reduced by amendment.
Respondent's brief makes another claim that Mahan
should have worked on Saturdays at Peabody Coal
Company and such work would have wiped out the claims
for the fourth quarter of 1964 and the first quarter of
1965. Since Mahan was not employed at Peabody Coal
Company after the first quarter of 1964, this allegation is
baseless. Similarly, baseless is another allegation of
Respondent that Mahan quit a large number of jobs. For
a while he was employed in the construction field where
layoffs are frequent.
The parties agree that Mahan is due the sums of
$173.26 and $140.10 for the first and second quarters of
1963 when his work hours were discriminatorily reduced
by Respondent and I find these amounts are due.
Because of Mahan's success in seeking and finding
work throughout the backpay period, there are only three
quarters (third quarter 1963, fourth quarter 1964, and the
first quarter 1965) when his interim earnings, less
expenses, did not exceed his gross backpay. As noted
supra, however, Respondent has not made a valid offer of
reinstatement to Mahan and his backpay period will
continue to run until Respondent makes him a valid offer.
Mahan's testimony shows that in 1963 he was working
for Respondent while going to school on a special high
school program (Distributive Education) and continued
working for Respondent after the strike started, until he
received his high school diploma, since the work hours
were credited toward his diploma. Immediately after
graduation Mahan left the job and engaged in picketing
Respondent. Mahan learned that a job was going to
become available at Peabody Coal Company and on the
advice of a friend he waited and filed his application with
Peabody when told to do so by his friend He was
successful in getting the job with Peabody about a week
later in August 1963. Mahan continued to work for
Peabody on the surface into 1964 when he was given the
job of "shooting coal" underground. After a few months
Mahan quit this job because he did not like working
underground Immediately after leaving this job he had a
succession of jobs with various construction companies in
the Taylorville area and continued earning an appreciable
amount more than his gross backpay from Respondent. It
was not until the fourth quarter of 1964 when construction
work slowed down that his interim earnings fell below
gross backpay. Mahan actively pursued employment and
was employed by three different contractors on one jobsite
at various times during the first and second quarters of
1965 before securing a job with Caterpillar Tractor
Company during the second quarter of 1965.
Respondent's main contention that Mahan's quitting of
the Peabody Coal Company job was without cause must
be denied on the basis of Mahan's testimony. Mahan said
that after being transferred to underground work he tried
it for a few months and just did not like working
underground. I will certainly not agree with Respondent
that Mahan's dislike for working underground in a coal
mine is not sufficient grounds for quitting such a job. I
find that Mahan did not incur any willful loss by quitting
such job and I further find and conclude that considered
as a whole, Mahan's record throughout the backpay
period convinces me that he was in and remained in the
labor market throughout the claimed backpay period
through June 30, 1968.
I conclude and find that through June 30, 1968, Mahan
is due backpay from Respondent in the amount of
$1,002.67 plus interest as more fully set forth in Appendix
H to this Decision.
I Joseph Niewinski
Respondent's answer alleges no specific defenses to
Niewinski's backpay claims other than its special defenses
and the matter of his right to reinstatement which I have
determined adversely to Respondent. In its brief
Respondent claims that Niewinski made no job search
until the fourth quarter of 1964 and that his job search
was thereafter inadequate until he obtained employment at
Circle Steel Co. in the third quarter of 1965.
General Counsel's Exhibit 29, one of Niewinski's job
search forms, contains his admission that he did not look
for work from July 11, 1963, to October 1, 1964.
Thereafter Niewinski sought employment at a quarry,
registered at two State employment offices, and in
mid-November 1964 got a job at Hedlund Mfg. Co. where
he was employed until laid off late in that quarter.
Niewinski testified he used his off days from the picket
line to apply for work at the Kroger store and other
places around Nokomis, Illinois, until he secured his job
with Circle Steel Co. In identifying General Counsels'
Exhibit 30, his job search form for the second quarter of
1965, Niewinski stated that the companies therein listed
were the ones he visited in the interim period while
searching for work until he got the Circle Steel job.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither party offered a job search form for him for the
first quarter of 1965. Since Respondent did not offer
evidence that Niewinski was out of the labor market for
the first quarter of 1965, 1 accept his testimony that the
listed companies on General Counsel ' s Exhibit 30 were the
ones that he visited in the interim quarters before securing
his job with Circle Steel and conclude that he remained in
the labor market in the intervening time between his jobs.
Accordingly, I find and conclude that Niewinski was in
the labor market from the fourth quarter of 1964 on and
made a sincere effort to obtain employment , and therefore
is entitled to backpay until a valid offer of reinstatement
is made him by Respondent On Niewinski ' s admission
that he did not seek work until the fourth quarter of 1964,
1 find and conclude that he was not in the labor market
from July 11, 1963, until September 30, 1964, and is
debarred from backpay for that period
As more fully set forth in Appendix I to this Decision,
I find and conclude that computed until June 30, 1968,
Respondent owes Niewinski $7,380. 16 in backpay, plus
interest . From the Appendix it would appear probable
that further amounts of backpay would continue to accrue
until Respondent makes a valid offer to Niewinski.
J. Mrs Delores M Reed
Respondent ' s answer alleges that Mrs. Reed made no
job search from July 1963 through the fourth quarter of
1964 and did not look for work in the last quarter of 1965
and the first quarter of 1966. It is also alleged that she
incurred willful losses by quitting a job without good
cause and that she should be debarred from backpay
thereafter.
Respondent ' s brief amplified its position by claiming
that she did not recall and apparently made no job search
in the first quarter of 1965 until she began work at
Mallory's in March 1965.
General Counsel claims that Mrs. Reed ' s backpay
period began July 11, 1963, and ended April 30, 1968,
when she refused Respondent ' s valid offer of
reinstatement Various periods when Mrs. Reed was ill
have been eliminated from the backpay specification.
Respondent ' s Exhibit 70-B, Mrs. Reed ' s job search
form for the third quarter of 1963, shows that while
shopping for groceries she asked for work at Frank's
Food Fair . After noting that this was the only place she
looked for work during the quarter, she added the
statement , " I really did not look for work."
Respondent ' s Exhibit 70-C, her job search form for the
last quarter of 1963, shows that she applied for work at
the A & P store in Taylorville and was offered and
refused a job at the Dinner Bell cafe because the pay was
low, and that these were the only places she looked for
work during that quarter
Respondent ' s Exhibit 70-D, her job search form for the
first quarter of 1964, shows she answered an ad for a
beauty salon but refused the work because the pay was
too low , and that this was the only place she looked for
work.
Respondent ' s Exhibit 70-E, her job search form for the
second quarter of 1964, states that she answered a blind
ad in the Taylorville paper for a grocery checker , but got
no response and understood from a friend that it was an
ad for Respondent . Again this was her only work search
during that quarter.
Respondent ' s Exhibit 70-F, her job search form for the
third quarter of 1964, states she did not look for work
that quarter and took a 2-week vacation.
In contrast , General Counsel' s Exhibit 73, her job
search form for the fourth quarter of 1964, shows Mrs.
Reed made applications at some 16 establishments
including the local paper company, cafes , and hospitals.
She testified that in the first quarter of 1965 she believes
she made applications at the State employment offices
and was ill a week before applying for a job at the
Mallory Company in February . She began work there in
March and remained employed there into the fourth
quarter of 1965.
Mrs. Reed testified that she read help wanted ads in the
local paper while without work and during the first
quarter of 1966 made efforts to obtain employment,
although she could not find her records for that period.
She said she was sure she applied for work at the State
employment offices in Decatur and Springfield. In the
second quarter of 1966 she started working for the IGA
store in Springfield and went later to G.E . in Decatur In
the third quarter she began working part time at the A &
P store in Taylorville and when she found she could get a
guaranteed part -time job with A & P and make more
money both because of a higher pay rate and no expenses,
she quit the G.E job. At the rate of pay she was earning
at G.E. she could have anticipated averaging about $800
per quarter less automobile expenses , while at A & P in
Taylorville she earned more than that and in excess of her
gross backpay until she was laid off in the third quarter of
1967.
Respondent claims that by quitting the G. E job in the
third quarter of 1966, she later (third and fourth quarters
of 1967) incurred willful losses Mrs. Reed ' s explanation
of why she quit G. E. is more than adequate and I would
imagine that Respondent might have objected if she had
kept the lower paying job at G. E. (with no guarantee of
future work ) and after travel expenses wound up with
interim earnings of $400 or so for the quarters thereafter.
After her layoff, Mrs. Reed applied at the State
employment offices and a number of other places before
beginning work for New Products, Inc., in Taylorville.
Thereafter, she got a job at Mallory's in Pana, Illinois,
where she remained employed through the balance of her
backpay period.
In looking at the backpay period as a whole, it seems
to divide itself into two segments with the demarcation
line the end of the third quarter of 1964. The sparse job
searches she made in the first five quarters do not appear
to me to be indicative of a sincere effort to obtain
employment . Her comment on the form for the third
quarter of 1963 seems apropos of this entire period, that
is, that she wasn ' t really looking for work . However, her
search thereafter appears to be a sincere effort to secure
employment . Certainly she was in the ' labor market
thereafter and I find and conclude that her backpay
period commences with the fourth quarter of 1964 and
runs through April 30, 1968. I find that Mrs. Reed's lack
of interest in obtaining employment for the five quarters
preceding the fourth quarter of 1964 bars her from
backpay for those quarters since she was not truly in the
labor market.
As a full- time employee of Respondent , Mrs. Reed was
covered by Respondent ' s medical insurance , and during
the hearing identified and testified to medical expenses she
had and paid during 1963 and 1965 which would have
been covered under her policy. Respondent objected to
part of these medical expenses during the hearing , stating
that a miscarriage might not be covered under its policy.
Respondent however did nothing further and offered no
evidence or testimony as to what would be covered. I have
MY STORE, INC. 343
determined by reference to General Counsel's Exhibits 47
and 20 that the policy considers a miscarriage in the same
category as pregnancy and provides fees for certain
obstetrical procedures besides the amount of the hospital
charges for medical care and treatment including board
and room Since Respondent offered no evidence in this
regard I will allow the maximum fee for the surgical
procedures of $40 against the doctor's bill of $50 and have
recomputed the amount due in Appendix J to this
Decision. The recomputation of the amounts shows that
$65 85 would have been paid rather than the $73 35
claimed, and added to the $482.14 from the other medical
bill gives a total amount of medical expenses due and
payable of $547.99
Respondent during the hearing raised the question of
whether Mr and Mrs. Reed received help in meeting her
medical expenses from any medical insurance he might
have had There were indications that they received such
assistance. If Mrs. Reed had not been discriminated
against and remained in Respondent's employ she would
have been covered by Respondent's policy and very likely
the Reeds would not have taken out coverage for her, at
additional expense to them Respondent dropped this
point and did not pursue it in its brief and under the
present circumstances, I find that Respondent would not
be entitled to any set-off, even if we knew how much the
Reeds received from her husband's policy
I find and conclude that Respondent owes Mrs. Reed
backpay in the total sum of $6,351.91 and medical
expenses in the amount of $547 99 for a total amount of
$6,899.90 plus interest, as more fully set forth in
Appendix J to this Decision.
K Kenneth W Reed
Kenneth Reed, in the same manner as Richard Mahan,
worked for Respondent while attending high school under
the "Distributive Education" program which gave some
high school credits for his work at Respondent He joined
the picket line for a short time after his graduation in
June 1963
Respondent's defense to Reed, as stated both in its
answer and its brief, is that Reed abandoned the picket
line, moved away, and did not offer to return to work and
therefore is due no backpay other than Respondent's
admitted liability to him for the discriminatorily reduced
hours in the first and second quarters of 1963. The parties
agree that Reed is due $161.78 and $127 04 for the first
and second quarters of 1963 respectively when his hours
were discriminatorily cut by Respondent.
Respondent's defense here is an ill-disguised attempt to
relitigate findings which are res judicata The Court
enforced the Board's Order and in its contempt action
ordered Respondent to offer reinstatement to Reed, which
Respondent did on April 30, 1968. Implicit in the findings
and the contempt citation is that Reed was covered by the
Union's July 11 offer on behalf of the strikers to return to
work and that Respondent owed Reed the offer of
reinstatement Respondent eventually made. Therefore, the
backpay period for Reed is that alleged by the General
Counsel from the first quarter of 1963 through April 30,
1968. Excepted from this period is the time of the strike
(May 2 - July 10, 1963) and the period of Reed's service
in the Navy, from July 29, 1963, until July 1967
Reed testified that prior to going in service he looked
for a job in Springfield, Illinois I find that he was in the
labor market and seeking work for the 2 1/3-week
backpay period claimed for him for the third quarter of
1963 He testified that when he returned from service he
took off 2 weeks before beginning to look for a job and
started working for Circle Steel the first day he started his
job search. He later switched to Hopper Paper Company,
where he was employed through the duration of the
backpay period. Since his 2-week period appears to me to
be in the nature of a vacation, it should be omitted from
the gross backpay specification. Accordingly I am
reducing the gross backpay claim for the third quarter of
1967 to 9 weeks, and find and conclude, as more fully set
forth in Appendix K to this Decision, that Kenneth Reed
is due the sum of $573 16 plus interest as backpay by
Respondent.
L William J Rhymes
Respondent's answer, other than the special defenses,
alleged that Rhymes did not offer to come back to work
This claim is again an attempt to relitigate an issue that is
res tudicata as pointed out above ' In its brief, Respondent
claimed that Rhymes made no job search until the fourth
quarter of 1963 and alleged that his automobile expenses
in connection with his job at Castor's in Springfield were
too high and should be pegged at what it called the
carpool rate of $1 per day.
Rhymes testified that he went on the picket line at the
beginning of the strike and did not seek employment until
he secured a job with Grain Inspector Leroy Smith in
October 1963. During the first quarter of 1964 he got a
job at Castor's in Springfield, Illinois, and used his own
automobile in traveling between Taylorville and
Springfield until he moved to Springfield during the
second quarter of 1964. He testified he did not get into a
carpool because he worked late and irregular hours during
the week and knew of no carpools that went from
Taylorville to his vicinity in Springfield and would
accomodate his late and irregular hours
I find and conclude that Rhymes was not in the labor
market during the third quarter of 1963 and therefore is
not entitled to backpay for that quarter. I further find
that he was in the labor market thereafter and is entitled
to backpay until Respondent makes a valid offer of
reinstatement to him His use of his automobile in
traveling to his job in Springfield was completely justified
by the circumstances and accordingly his expenses are
allowed as a deduction against interim earnings for the
less than two quarters he had such expenses
I conclude and find that Rhymes through June 30,
1968, is due $480 95 as net backpay plus interest from
Respondent as more fully set forth in Appendix L to this
Decision.
M. Frank J Sartore. Jr
In addition to its special defenses, Respondent's answer
alleged that Frank Sartore made no or an inadequate job
search from July 1963 until he began work for the
Taylorville A & P store in the second quarter of 1966. In
its brief, Respondent takes the position he made no job
search through the third quarter of 1964 and that
Sartore's job search until 1966 was not sincere or
adequate and that having refused a substantially
'Indeed Respondent appears to have contradicted its position that he did
not offer to return to work, since Respondent states it sent him a letter on
Friday, September 20, 1963, offering him reinstatement conditioned on his
acceptance by 7 a in Monday, September 23, 1963 By that latter date he
had only received a notice that the Post Office had a letter for him
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent job offered him by Mr. Pennington in
December 1963 he is debarred from backpay for incurring
a willful loss in the same sense as was discriminatee
Heasley in the Winn -Dixie case , 170 NLRB No. 198
Frank Sartore received $ 15 per week over and above
his strike benefit loan from the Union in the same manner
as Banfield For the reasons I cited with regard to
Banfield I will include such amount as interim earnings
for.the quarters where backpay is allowed.
In regard to his job search Sartore stated he had to rely
on the job search forms he submitted as true accounts of
what he did
Respondent's Exhibit 37, Sartore 's job search form for
the third quarter of 1963 , states he was twice offered a
part -time job by the A & P store in Taylorville which he
refused because of the strike and because the offer was
temporary and part time. Respondent ' s Exhibit 38, his job
search form for the fourth quarter of 1963 , states he was
offered a job as a meatcutter at a Jacksonville, Illinois,
store in December , but refused because it was too far to
drive. There is another entry that he was offered a job
with the Food Lane in Edinburg , Illinois, by Ray
Pennington but that hours , pay, or other details were not
discussed and, he told Pennington he was going to stay
with the strike at Respondent.
Respondent ' s witness Pennington testified that the job
as a meatcutter would have paid somewhere between $105
and $130 a week , and agreed in essence that Sartore
turned the job down to remain with the strike.
In regard to the Winn-Dixie case , discriminatee
Heasley was not a picket engaged in such protected
activities , but as a dischargee was supposedly in the labor
market searching for work It was in that context that the
Board decided Heasley should be penalized for not having
sufficient reason to turn down suitable interim
employment offered to him. Here Frank Sartore was
engaged in the protected activity of picketing the
Respondent which had discriminatorily refused him
reinstatement At the point that Sartore refused the job to
remain on the picket line , he determined to keep himself
out of the labor market and continued to engage in the
protected activity of picketing as did Banfield , supra. This
would not bar him from backpay when he entered the
labor market.
Respondent marked for identification as Exhibit 39, a
blank job search form , which from examination bore
indentations as though it had been beneath Respondent's
Exhibit . 38 while that document was being written. This
sheet of paper was apparently sent to the Board with
other job search forms, for periods before and after the
first quarter of 1964. Because of these circumstances and
a statement on Respondent ' s Exhibit 42 (his job search
form for the fourth quarter of 1964 ), that the group of
foregoing sheets contained the places he had looked for
work , and since Sartore, when asked about his job search
for the first quarter of 1964 , was unable to state whether
he had made any job search for that time, I stated on the
record that it appeared that Sartore apparently made no
job search during the first quarter of 1964.
Respondent ' s Exhibit 40 , his form for the second
quarter of 1964, contains two notations of job possibilities
mentioned to Sartore by drivers of various trucks stopping
by the picket line and telling pickets of job possibilities at
stores in other areas . Sartore did not follow up either of
the suggestions
Respondent ' s Exhibit 41, his job search form for the
third quarter of 1964 , states that Sartore was offered a fob
in Pawnee , Illinois, which he refused , " because had to stay
on the picket line ." The form also states that he received
I day's pay from an A & P store in Shelbyville , Illinois.
He testified that he relieved a friend who wanted to be off
for I day
On the basis of these exhibits and his testimony, I have
concluded that from the third quarter of 1963 through the'
third quarter of 1964 Frank Sartore withheld himself from
the labor market and continued to engage in and to some-,
extent direct picket line activities While thus engaged
Sartore was receiving his strike benefit loan and the added'
$15 per week which meant that he had better than $100
per week to support his wife and family of five children.
Since I find that Sartore did not seek employment=
during that five-quarter period , I further find that he is
not entitled to backpay for that period and so strike those
five quarters from the backpay specification
Beginning with the fourth quarter of 1964 , which-
appears to be when the Union emphasized to the
discriminatees that they were expected to look for work
while picketing , Sartore began actively searching for
work . General Counsel ' s Exhibit 58, his job search form
for the fourth quarter of 1964, and General Counsel's
Exhibit 59, his job search forms for the four quarters of
1965, show applications and repeated applications by
Sartore at various grocery stores, contractors , a garage,
gasoline service station , an appliance and radio shop,
lumberyard , Monsanto Chemical Company, Western Auto
Store, Montgomery Wards, Pepsi-Cola Bottlers, a
furniture store, a hardware store, an upholstery and
awning shop , a coal and gravel yard , an excavating and
plumbing shop , a towel service, and other such diversified
establishments General Counsel ' s Exhibit 60, his job
search forms for the first and second quarters of 1966,
continues to show such applications , while the form for
the second quarter shows a much higher rate of
applications , in some instances daily applications, at a -
number of establishments culminating in his obtaining
employment with the A & P store in Taylorville , where he
was still employed at the time of the hearing
These forms show that Sartore was averaging about
one application a week from the fourth quarter of 1964
through the first quarter of 1966 with a much stepped-up
rate thereafter.
Respondent derrogates F Sartore 's job search on the
basis that it feels he should have sought employment with
Pennington , since it states Pennington still had ads in the
paper for jobs . However, Respondent adduced no evidence
that butcher jobs were still available from the fourth
quarter of 1964 on. Other than its feelings , Respondent
offered no evidence that Sartore's job search in and after
the fourth quarter of 1964 was not a sincere effort on his
part to obtain employment Certainly he was in the labor
market and I find that his backpay period begins with the
fourth quarter of 1964, and continues through April 30,
1968, when he was given a valid offer of reinstatement by
Respondent.
I therefore conclude and find , as more fully set forth in
Appendix M to this Decision that Frank Sartore is due
total net backpay from Respondent in the amount of
$ 10,699 . 17 plus interest.
While employed at Respondent , Sartore was included in
its health and medical insurance and purchased dependent
medical insurance through the same source for his wife
and five children at a weekly rate. Sartore identified
various bills for medical and doctor's expenses for four of
his children and his wife, which stretch over the period
from 1964 on through 1968, as more particularly set forth
in Appendix M to this Decision.
MY STORE, INC.
During the hearing Respondent stated that the weekly
payment for the dependent insurance had increased from
$1.90 to $2 in March 1966. 1 have examined the amounts
set forth and allowed by the General Counsel for
dependent insurance premiums , and have corrected them,
making allowance for this increase by determining that
Respondent is due credit for, the amounts Sartore would
have paid for 147 weeks from May 3, 1963, until March
1„ 1966, at $1.90 per week and for 113 weeks from March
1, 1966 until April 30, 1968, at $2 per week or a total for
the, premiums of $505.30 for 260 weeks rather than 268 as
set forth in the backpay specification , which appears to be
a clerical error Deducting this amount from the gross
amount of medical expenses due and payable leaves a net
amount due of $798.74, which added to the total net
backpay brings the total amount due from Respondent to
$11,497.91.
I find that this amount is due and payable Frank
Sartore by Respondent since Sartore would have
continued to pay Respondent the insurance premiums for
medical insurance for his dependents and did incur the
expenses set forth in Appendix M to this Decision.
It is immaterial whether Sartore , to protect himself,
obtained medical insurance for his dependents for which
he paid during this interim period . Respondent is treated
as an insurer for • the amounts incurred by the
discriminatees which ordinarily would have been covered
but for the discrimination by Respondent . (See Rice Lake
Creamery cited, supra )
N Lonnie J Sartore
General Counsel claims and Respondent agrees that
Lonnie Sartore is due backpay of $132.15 and $101.75
respectively for the first and second quarters of 1963,
when his hours of employment were discriminatorily cut
by Respondent.
Respondent ' s answer and brief allege that L. Sartore
made no job search during the third quarter of 1963 until
he began work at Zenith Company in Chicago , Illinois,
and that no evidence of a job search was produced.
Appendix P of the Board 's backpay specification shows
that Sartore got his job with Zenith during the third
quarter of 1963 and earned $302 74 there during that
quarter and incurred travel expenses for his trip to
Chicago. General Counsel produced Lonnie Sartore at the
hearing and he testified that he secured his job at Zenith
in Chicago.
Although he was available for Respondent to examine,
Respondent did not examine or cross-examine Sartore
concerning his search for work during the third quarter of
1963.
Thus with a showing that L. Sartore did search for and
secure work during the third quarter of 1963, and with no
evidence or admission that he was not in the labor market
during that quarter, I conclude that Respondent has not
borne its burden of proof and that L. Sartore's claim for
backpay for the third quarter of 1963 which amounts to
only $37.09 must be allowed.
The total net backpay due Lonnie Sartore is $270.99
plus interest for the first three quarters of 1963 as more
fully set out in Appendix N to this Decision.
Sartore refused Respondent's offer of reinstatement
when it was made during the third quarter of 1963,
preferring to keep his job with Zenith in Chicago , Illinois,
and thus by his unequivocal refusal terminated
Respondent 's backpay liability at that point
0. Joseph Sedlacek, Jr
345
Respondent ' s answer , in addition to its special defenses,
stated that Sedlacek made no search or an inadequate job
search for employment from July 1963 through October
1965 and that he removed himself from the labor market,
thereby incurring a willful loss of earnings . Respondent
modified its position in its brief by stating that he made
no search through the third quarter of 1964 and that his
job search was thereafter inadequate Respondent specified
that his job search for the last quarter of 1964 was
questionable since he did not apply locally for work,
although admitting that he did look for work at a number
of other places . Respondent ' s other position concerns
Sedlacek 's quitting his job at the Firestone plant.
Respondent ' s Exhibit 69(f), one of Sedlacek's job
search forms, contains the statement that from July 11,
1963, through September 30, 1964 , he did not look
anywhere for work . On the basis of this statement as
confirmed by Sedlacek , I find that Sedlacek withheld
himself from the labor market from the third quarter of
1963 through the third quarter of 1964 and is thereby
debarred from backpay for those five quarters. In
Appendix 0 to this Decision I have stricken ' those five
quarters from his backpay period.
Respondent ' s Exhibit 69(g), and General Counsel's
Exhibit 69 , both job search forms for Sedlacek, show that
beginning with the fourth quarter of 1964, he sought
employment , repeatedly applying at the State employment
office in Decatur , took tests and physicals for a job at
Firestone Tire Company , sought work at three mines, the
Caterpillar Tractor Company , and Borg-Warner
Company. In the first quarter of 1965 Sedlacek made
several trips to the State employment office in Decatur,
applied for work at the Hopper Paper Division , and at a
coal mine before securing a job at Firestone in March
1965.
General Counsel ' s Exhibit 71, Sedlacek's job search
form for the second quarter of 1965, contains an entry
that he had to quit at Firestone since the "gas" he used in
building tires made him sick all the time . In testifying
concerning this, Sedlacek stated that he did not consult
either the nurse or any of the medical personnel at
Firestone nor did he consult his own physician in regard
to the sickness and/or rash which he felt was caused by
the "Benny " used in building tires. He testified that
during the 2 weeks or so he was employed there, he had
this reaction but used only a chap stick trying to cure
himself of it and not being successful , quit . Shortly after
quitting , the sickness and/or rash left him.
Respondent attacks Sedlacek ' s actions in not seeking
medical advice concerning his reaction and quitting, as an
unwarranted termination of employment which amounted
to a willful loss of earnings which should bar him from
any further backpay.
However, Respondent neglects the actual effects as
testified to by Sedlacek and what clearly to him was an
adverse part of this job The physical disability left him
after he resigned from this employment . Certainly there
should be no compulsion that an individual must take and
keep a job which was physically damaging to him. While
Sedlacek could have sought medical assistance and did not
do so, there is no warrant for inferring that medical
assistance could have taken care of the reaction and
allowed him to continue work. Allergic reactions are a
relatively new and continually expanding field of medicine
where results are not always immediate or forthcoming.
Sedlacek 's treatment of stopping work did effect a cure
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for him . While individuals might react differently or seek
assistance from various sources, I cannot conclude that
Sedlacek 's resigning this position was unwarranted in the
circumstances in which he found himself. Further after
pursuing this job which apparently paid a good rate from
the first quarter of 1965 with tests and physicals until he
got the job late in the second quarter , I do not believe he
would have left the job without giving this move careful
consideration . I therefore find that his resignation of the
Firestone job was not without cause, and did not amount
to a willful loss of earnings.
After leaving this job, Sedlacek continued to seek
employment General Counsel ' s Exhibit 70, his job search
form for the second quarter of 1965, shows he made
frequent and continuous applications at the Hopper Paper
Division of Georgia Pacific located in Taylorville , taking
various tests and being interviewed by the personnel
director on a number of occasions . In fact Sedlacek
pursued this course of frequent applications with this
company through the third quarter of 1965 almost to the
exclusion of applications at other establishments . In latter
September 1965 he applied for a job at Rene's Drug Store
in Taylorville.
In the last quarter of 1965, after working for Hogge
Electric Co. in Taylorville for apparently 1 day, Sedlacek
got a job with the A & P store in Taylorville where he has
continued to be employed.
Looking at the job search made by Sedlacek from the
fourth quarter of 1964 through the fourth quarter of 1965,
I am convinced he was making a sincere effort to obtain
employment during those five quarters. His search was on
a broad basis into the second quarter of 1965 when he
restricted it to a narrow field with his continuous
applications at Hopper Paper Company. Sedlacek, during
this period was receiving his strike benefit loan and was
not making a job search one might expect of a man with
no means Clearly he was seeking at least equal if not
better employment to what he had held . I find that he was
not wrong in doing so and that he is entitled to backpay
from the fourth quarter of 1964 through the second
quarter of 1968. After Sedlacek obtained his job with A &
P during the fourth quarter of 1965, his net backpay is
miniscule and following the third quarter of 1966 his
interim earnings exceeded gross backpay for the remaining
eight quarters.
I find and conclude , as more fully set forth in Appendix
0 to this Decision , that Joseph Sedlacek, Jr., is due a
total amount of net backpay of $ 5,012.01 plus interest.
P. Charles A Shanks
Respondent and General Counsel agree that Shanks is
due backpay for the first two quarters of 1963 when his
hours were discriminatorily cut, in the amount of $104 for
the first quarter and $186 for the second quarter.
Respondent claims in its answer that Shanks made no,
or an inadequate , job search from the third quarter of
1963 through the second quarter of 1965 In its brief,
Respondent modifies its position stating that it does not
wish to contest his job search in the fourth quarter of
1964 and the second quarter of 1965, but that his job
search from the third quarter of 1963 through the third
quarter of 1964 was inadequate and that he took himself
out of the job market during the first quarter of 1965
while attending a welders school for some 12 weeks
Shanks testified he began applying for jobs at other
employers in July 1963, although it was not until several
months after the strike started that a union official told
him the strikers had to apply for work . Respondent's
Exhibit 62, his job search form for the third quarter of
1963, shows that he applied at the Hopper Paper Co. in
Taylorville in July and September and that the company
was not then hiring . Respondent ' s Exhibit 63, his job
search form for the fourth quarter of 1963, shows an
application at the Illinois Electric Commission in
Springfield , Illinois, with the notation that he was not
qualified . Respondent's Exhibit 64, his form for the first
quarter of 1964, shows an application at the Caterpillar
Company in Decatur , Illinois, with a notation that they
would let him know and another application at the
Hopper Paper Co. with a notation that they were not
hiring Respondent ' s Exhibit 65, his form for the second
quarter of 1964, shows an application at Harper Oil
Company in Taylorville , an application at the Hopper
Paper Co. and an application at the A. C. Company in
Springfield , all with a notation that these companies were
not hiring . Respondent ' s Exhibit 66, his form for the third
quarter of 1964, shows an application at No. 10 mine,
near Pawnee, a $ 10 grasscutting job, and a $10 painting
job. In addition Shanks stated he registered at the State
employment office in Decatur , sometime during 1964,
although he could not recall just when, and took a 1-week
vacation in mid -July. Since the General Counsel has not
claimed gross backpay for other similar periods, I will
amend Appendix P of this Decision for the third quarter
of 1964 to allege gross backpay for 8 1/6 weeks at $55 75
instead of the 9 1/6 weeks claimed in the backpay
specification giving a gross backpay for the first part of
the third quarter of 1964 of $455.31.
Respondent ' s Exhibit 67, Shanks' job search form for
the fourth quarter of 1964, shows six job applications by
him at various places including the Illinois State
Employment Office, a coal mine, Caterpillar Tractor, and
at construction companies He was employed for a short
time in November at one of the construction companies.
This form also shows two applications at the State
employment office in the first quarter of 1965 plus
checking with the U.S. Civil Service Board of Examiners,
and additionally Respondent's Exhibit 68, Shanks' job
search form for the first quarter of 1965, states he took an
examination , passed the test, and went to welders school
for 12 weeks , during which he received a salary of $37 a
week and $27 a week from the Union which apparently
made up the amount of his previous earnings at
Respondent as a continuing strike benefit loan . The school
was put on by Manpower of the Illinois State
Employment Office at Springfield, Illinois. Part B of
Appendix R of the backpay specification does not show
any interim earnings from the school for this period,
which would appear to be in error, there not being any
other explanation. The same form shows that he started to
work for the S. N. Nielson Company at a figure of $3.30
per hour in April which would seem to indicate that the
welders school training paid off.
I will not find that Shanks took himself out of the
labor market during this quarter, but will amend the
specification to include the amount of $37 a week for the
12-week period as interim earnings and deduct the total of
$444 from the gross backpay for this quarter. It would
appear that since Shanks was paid either for attendance
or for work that he did at this school, that this should be
considered in the nature of employment and I have so
considered it
Considering Shanks' job search from the third quarter
of 1963 through the second quarter of 1965, the time in
which his interim earnings were less than gross backpay, I
MY STORE, INC. 347
find and conclude that Shanks was in the labor market for
the entire period. He did not display the same industry in
making applications through the third quarter of 1964 as
he did thereafter, but nevertheless he was in the labor
market searching for work and would have accepted
employment.
Since Shanks was receiving the strike benefit loan in
the amount of his take-home pay, he apparently did not
feel the necessity of looking for and accepting any
proffered job but apparently searched for a job at least
equal to if not better than his position with Respondent.
In the fourth quarter of 1964 he appears to have lowered
his sights and made a much wider search for employment,
to the extent that he forewent part of the loan to take
welders training to better equip himself for other
employment.
I have corrected in Appendix P to this Decision an
apparent typographical error in the listed expenses for the
fourth quarter of 1964, concerning which Shanks testified
he was driving 70 miles a day while working for Southway
Builders at a pay rate of approximately $14 per day.
As more fully set forth in Appendix P to this Decision,
I find and conclude that Shanks is due total net backpay
from Respondent of $4,915.11 plus interest.
Q. Mrs Lorraine Smith
Respondent ' s answer alleged defenses relative to Mrs.
Smith ' s rights to reinstatement which have been answered,
supra Mrs Smith not having received a valid offer of
reinstatement is due such and her backpay period will
continue to run until such an offer is made her by
Respondent . Therefore her backpay is only computed
through the second quarter of 1968.
In its brief Respondent takes the alternative position,
for the first time, that Mrs Smith made no real search
for work through the third quarter of 1964 and that her
search was inadequate until she secured employment at
Miller's Cleaners in the fourth quarter of 1965
Respondent attacked her memory as hazy, but she relied
principally on her job search forms for testimony of her
work search.
General Counsel ' s Exhibit 23-C, a job search form
which summarized her activity from 1963 through the
third quarter of 1964 , stated:
From July 11, 1963 until the fall of 1963 I did not
make any active search for work . I can't remember the
dates but I applied at Montgomery Wards, St. Vincent
Memorial Hospital but they had no jobs available It
seems like I went to two other places but I can't
remember them. I believe I put my application in at
Woolworth's when it moved across the square and at
Sangamon Paper Co.
I did not look for work then from the first of 1964
until October
From 1961 on , while employed full time by
Respondent , Mrs. Smith had an evening job of cleaning
Blakeley's store and continued this second job through her
present employment S In 1962 she had an operation and
was off a few months but was given permission by her
doctor to return to work full time. Respondent stated she
might not be covered by medical insurance since when she
returned Respondent had her on a part-time basis But as
a full-time employee prior thereto she was covered by
Respondent ' s medical insurance and Respondent offered
no evidence ' to the contrary or that she did not continue to
be covered by the policy.
In the fourth quarter of 1964 Mrs. Smith, on 3 days,
made 16 applications for employment (G. C. Exh. 24),
and started training at St Vincent's hospital so she could
get a job as a nurses' aide. She was involved in an
automobile accident and was unable to look for work in
the last 5 weeks of that quarter and the first 6 weeks of
the first quarter of 1965 and lost out on the hospital
training General Counsel claimed gross backpay for only
8 weeks and 7 weeks respectively for those two quarters
In the first quarter of 1965 she applied for work at some
eight places In the second quarter of 1965 she made some
16 applications, and in the third quarter 13 applications,
and 16 applications in the fourth quarter before securing
her fob at Miller's Cleaners.
As her holding two jobs verifies, Mrs. Smith is an
industrious gray-haired lady. She was walking a picket
line, receiving her strike benefit loan, and working a
"moonlight" job, and from what she says, was not really
interested in obtaining another job during parts of 1963
and 1964 Her job search beginning with the fourth
quarter of 1964 contrasts so sharply with her prior search
and her natural vigor that I believe she concentrated on
picketing and really took herself out of the labor market
until the fall of 1964. Therefore I conclude and find that
she is debarred from backpay from the third quarter of
1963 through the third quarter of 1964, but was in the
labor market thereafter and did seek employment and
accordingly is due backpay from the fourth quarter of
1964 until Respondent makes her a valid offer of
reinstatement. I find and conclude that she is due total net
backpay from Respondent of $3,742.88 plus interest
through June 30, 1968, and is entitled to reimbursement
for her medical expenses which she identified, as more
fully set forth in Appendix Q to this Decision, in the
amount of $1,039.96 This brings the total amount
Respondent owes her to $4,782 84 plus interest through
June 30, 1968, and I so find
R Donald E Spindel
The parties agree that Spindel is due $200 28 and
$153 60 from Respondent respectively for the first and
second quarters of 1963, during which periods Respondent
discriminatorily cut Spindel's hours.
Respondent alleged that Spindel's job search was
minimal through the third quarter of 1964 and although it
widened thereafter, continued to be inadequate until he
became employed by the Komar Co., in the second
quarter of 1965.
Spindel who lived in Nokomis, Illinois, where his
stepfather had a farm, began to work at Respondent's
store in 1961, and on a number of occasions worked for
his stepfather on the farm at nights and weekends. He
stated that while employed by Respondent, he also worked
for his uncle at the C & W Garage in Nokomis in his off
hours from Respondent.
In regard to his job search, Spindel testified he did not
find out that he had to make a job search until some time
after the strike began, but he did not believe it was as
much as a year after He stated he looked for work on
some occasions in 1963, but could not recall whether he
looked for work any place other than with his uncle at the
garage or with his stepfather on the farm. Spindel relied
mainly on his job search forms for testimony as to where
he made work applications
'1 granted a motion to delete as interim earnings , her income from this
part-time "moonlight" job at Blakeley's
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel ' s Exhibit 35, his job search form for
the third quarter of 1963, shows that he earned $3 as a
farm laborer from his stepfather in August 1963, and was
unable to find work with his uncle at the C & W Garage
in September . His job search form for the fourth quarter
of 1963 shows he worked for 2 weeks as a farm laborer
for his stepfather in November. Spindel's job search form
for the first quarter of 1964 shows he earned some $70
working for his stepfather on the farm on two different
occasions . His job search form for the second quarter of
1964 shows he worked for his stepfather on three different
occasions during this quarter earning over $80 and that he
earned $25 for hauling furniture . His only application for
work in this time was at the Circle Bone Company in
Springfield , Illinois, in April 1964 . Spindel ' s job search
form for the third quarter of 1964 shows he worked for
his stepfather as a farm laborer on five occasions during
this quarter earning over $ 135. His job search form for
the fourth quarter of 1964 again shows earnings for work
as a farm laborer for his stepfather on three occasions in
October , and shows two applications for employment at
each of the State employment offices in Decatur and
Springfield and six applications at various other employers
in the area . The last page of General Counsel's Exhibit 35
appears to be a recapitulation of the previous forms and
states that the foregoing sheets show the places where he
looked for work or worked until mid -December 1964.
Respondent claimed in its brief that there was no job
search for the first quarter of 1965 but General Counsel's
Exhibit 36, which is entitled "A Job Search Form For the
Second Quarter of 1965," actually shows job applications
for the first and second quarters of 1965 This form shows
that Spindel made applications with the State employment
offices in Decatur and Springfield and at seven other
employers before beginning work with the Komar
Company on May 18, 1965, where he continued to be
employed throughout the backpay period.
On the basis of Spindel 's testimony and the information
shown by his job search forms, I have concluded that in
working for his stepfather from 1963 through 1964,
Spindel continued the odd job or part -time work he had
performed for his stepfather prior to the time of the
strike . I believe Spindel did not understand he had to
search for work until the fourth quarter of 1964 His job
search forms show he then began making applications for
work . Spindel was receiving his strike benefit loan from
the Union until he began working for the Komar Co., and
I believe his search for work through the third quarter of
1964 consisted only in looking for and finding occasional
odd jobs or part -time jobs which he performed after his
picket line duty. I have concluded that Spindel was not
truly in the labor market attempting to obtain reasonably
equivalent employment from the third quarter of 1963
through the third quarter of 1964 , and is thereby debarred
from backpay for those five quarters. I conclude and find
that from the fourth quarter of 1964 on, Spindel was in
the labor market sincerely trying to obtain work. On the
basis of these conclusions I am deleting as interim
earnings any amounts earned by Spindel from his
stepfather from the third quarter of 1963 on, but since I
am not allowing backpay for the five-quarter period set
forth above the deletion of these small amounts has no
affect on backpay except in the fourth quarter of 1964
which means he had no interim earnings in that quarter
I therefore conclude and find as more fully set forth in
Appendix R to this Decision that Spindel is due total net
backpay of $3,582.75 plus interest from Respondent
S. Florence Walker
The parties agree that Mrs. Walker is due backpay of
$156.20 and $84.75 for the first and second quarters of
1963, respectively , when her hours were discriminatorily
cut by Respondent , for a total of $240.95 for those two
quarters . (Respondent ' s admission in its brief that the
adjudicated amount is $260 is in error.)
Besides its defenses regarding her availability for
reinstatement , decided adversely to Respondent above,
Respondent without supporting evidence claims that Mrs.
Walker would have been terminated during the backpay
period because of the duration of her illness and therefore
must be considered as withdrawn from the labor market
and, further it believes she was not eligible for medical
insurance since she was not a full-time employee before
she went on strike.
Mrs Walker identified her medical bills and they were
received in evidence . She began to work for Respondent 8
hours a day, 6 days a week, on September 13, 1962, and
continued such full-time employment until Respondent
discriminatorily cut her hours during the first quarter of
1963. So for more than 4 1/2 months she was a full-time
employee and therefore qualified for Respondent ' s medical
insurance (60-day qualification period ). Respondent's
attempt here to disqualify her because of its
discrimination is ludicrous.
In Appendix U of the backpay specification , a number
of quarters were deleted due to Mrs Walker's illness and
only four quarters ( fourth quarter of 1965 through the
third quarter of 1966) are claimed , since at other times and
through June 30, 1968, she has been ill and unavailable
for work . A further claim by Respondent that she was not
available for full-time work throughout the backpay
period is not substantiated by the evidence , although for
the fourth quarter of 1964 the claim is for half time since
as she testified her doctor would only allow her to work
or picket on a half-day basis during that quarter
She testified she returned to the picket line and was
available for work. She remained under her doctor's care
and after January 1, 1966, was available on a full-time
basis until the third quarter of 1966 when she again
became ill.
Respondent produced no evidence of any company
policy regarding employees who are sick , and in the
absence of any testimony which would demonstrate that
Respondent would have terminated Mrs. Walker, I find
that her backpay period continues and that she was
available for employment as per her testimony.
Respondent did not show that Mrs. Walker did not make
an adequate search for employment.
I therefore find and conclude that Mrs Walker is due
$2,738.88 plus interest from Respondent as backpay
through June 30, 1968, as more fully set forth in
Appendix S to this Decision . I further find as also set
forth in Appendix S to this Decision that she is entitled to
reimbursement for her medical expenses in the amount of
$619.43, making a total amount due from ' Respondent
through June 30, 1968, of $3,358 31 plus interest
T James M Waterman
The General Counsel alleged that Waterman's backpay
runs from July 11, 1963, until April 30, 1968, when he
received a valid offer of reinstatement , excepting the
period when Waterman was in the service from October
28, 1963, until October 27, 1966
MY STORE, INC. 349
Appendix U of the backpay specification makes no
claim for backpay for Waterman after the third and
fourth quarters of 1963 since after his return from the
Army his net interim earnings were considerably in excess
of what his gross backpay would have been.
In regard to the third and fourth quarters of 1963,
Waterman testified specifically on two occasions that he
did not look for work at any time while he was on the
picket line and went straight from the picket line into the
Army.
It seems apparent therefore that in the absence of any
search for work Waterman excluded himself from the
labor market and is thereby debarred from backpay for
the third and fourth quarters of 1963 and I so find.
I therefore find and conclude that Waterman is not due
any backpay since he was out of the labor market until
his entry into the Armed Services and following his
discharge from the Army his net interim earnings were in
excess of his projected gross backpay. Respondent's
obligation to Waterman was concluded by its offer of
reinstatement to him on April 30, 1968, which he rejected.
U. Billy L Wiggs
Respondent alleges that Wiggs' search for work from
the third quarter of 1963 through the third quarter of 1964
.was inadequate and that until he secured a job with th-S
N. Nielson Co. in the first quarter of 1965 his job search
was questionable. In May 1964 Pasquo Podeschi offered
Wiggs a job on Podeschi's farm, which Wiggs refused,
and Respondent alleges that this refusal resulted in a
willful loss of interim earnings which should debar Wiggs
from further backpay.
Wiggs testified that he had previously worked on
Podeschi's farm before working in the store and that his
efforts on the farm had not pleased Podeschi then and
since he was not a farmer, he did not believe he could
please Podeschi now. Additionally Wiggs had since
married and was living in town and did not want to take
the farm job which meant working long hours, 7 days a
week for $55 or $60, and would entail giving up their
house and moving to the farm. Wiggs' salary at the store
was over $90 for 6 days a week.
Under these circumstances I find that the farm job was
not substantially equivalent to his job at the store nor was
it equivalent to an offer of reinstatement Wiggs was
within his rights to refuse the job offer and such refusal
will not bar backpay.
Wiggs testified that he tried to get off the picket line
and get a job because he considered picket line duty
boring Mainly he relied on his job search forms in
testifying as to his job search. Respondent's Exhibit 43,
his job search form for the third quarter of 1963, shows
that he asked his brother who was manager of a grocery
store in Benton, Illinois, for employment but his brother
was not sure he could hire him and the salary of $1.17 per
hour was too low. He also applied for work at Frank's
Food Fair during this quarter. Respondent's Exhibit 44,
his form for the fourth quarter of 1963, shows he applied
at the State employment office in Springfield, Illinois, at
the fairgrounds in Taylorville, and applied for a
salesman 's job with Wearever Cookware Co., which he
did not accept because of the cost of the sample kit He
also applied at Lincoln Service for a course in preparation
for civil service exams but was unable to take it because
of the cost. Respondent's Exhibit 45, his job search form
for the first quarter of 1964, shows as the only application
for that quarter that in response to a newspaper ad he
applied for a job with Fuller Brush Co , but turned it
down because of the amount of money needed for a
sample kit Respondent's Exhibit 46, his job search form
for the second quarter of 1964, shows that he worked for
his brother I day and refused the job on the farm offered
by Podeschi. Respondent's Exhibit 47, his job search form
for the third quarter of 1964, shows that he worked as a
ditchdigger and applied for work at a service station
In the fourth quarter of 1964 he began working part
time at a service station after picket duty and on
weekends Respondent's Exhibit 48, his job search form
for the fourth quarter of 1964, plus four entries made in
error on Repondent's Exhibit 44, show that Wiggs made
applications at some 13 establishments during this quarter.
Respondent's Exhibit 49, although labeled as Wiggs' job
search form for the second quarter of 1965, contains
information on jobs and job searches in the first and
second quarters of 1965 and shows that while still working
part time at Mel Clark's Service Station he made some
three applications for work before being hired by the S.
N. Nielsen Co. on March 9.6 Nielsen is a Chicago
construction contractor who had a project going in the
Taylorville area.
After being laid off by Nielsen in the third quarter of
1965, Wiggs worked for the A & P store in Taylorville
until he secured his present job late 'm the fourth quarter
of 1965 with Clark Oil Co. in Springfield, Illinois.
On the basis of Wiggs' uncontradicted testimony that
his job with Mel Clark's Service Station consisted of
evening and weekend work (moonlighting) I find that the
inclusion as interim earnings of the amounts he received
therefrom in Appendix W of the backpay specification
was erroneous and I strike such amounts from his interim
earnings.
Wiggs testified that since his job at Mel Clark's Service
Station was part time and he wanted more work and
wanted particularly to get off the picket line, he continued
to seek other employment
Considering Wiggs entire backpay period, I have
concluded that although his search for work was not
aggressive from the third quarter of 1963 through the
third quarter of 1964, he was in the labor market during
that time and made sincere if infrequent attempts to
secure other employment. His search for work thereafter
became more aggressive and was successful. I find and
conclude that Wiggs is due backpay from the third
quarter of 1963 through April 30, 1968, when he refused
Respondent's offer of reinstatement.
I find and conclude as more fully set forth in Appendix
T to this Decision that Wiggs is due total net backpay of
$9,571.55 plus interest from Respondent
During the hearing, Appendix W of the backpay
specification was amended to include medical bills for
Wiggs' wife and twin boys, incurred in 1964 However the
calculations by General Counsel allowed against the sums,
a payment of premiums for dependent insurance at $1 90
'Respondent 's brief urges that since Wiggs was getting $3 30 per hour
with Nielsen his interim earnings for the second quarter (17 workdays left
in March from March 9) should be $448 80 rather than the $121 60 shown
in the backpay specification Respondent did not raise this question during
the hearing when it could have been explored and determined, and due to
the many factors which affect construction work, weather , work available
every day, etc, I find that it is now too late to raise the question
Respondent apparently assumes that work was available every day for
Wiggs and this is not an assumption I can make after the proceeding,
when Respondent forewent its opportunity to discover if there were any
facts to bolster its present assumption I will not change the amount of
interim earnings as urged by Respondent.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a week for only 78 weeks, which is not coextensive with
the backpay period claimed. With Respondent as an
insurer (supra re F. Sartore, Jr. as per Rice Lake
Creamery), Respondent is entitled as an offset to the
amount claimed , the entire amount of premiums
throughout the backpay period. The offset figures as
shown in Appendix M (Frank Sartore, Jr.) amount to
$505 30 made up of 260 weeks with 147 weeks at $1.90
per week and 113 weeks at $2. Thus the amount for
premiums for 260 weeks would more than offset the
amount of the claim here. I therefore find there is no
amount due Wiggs on his claim for dependent medical
expenses
RECOMMENDED ORDER
On the basis of the findings and conclusions set forth
above, it is hereby ordered that Respondent, My Store,
Inc., its officers, agents, successors, and assigns, pay the
employees listed below the amounts set opposite their
names, plus interest as prescribed, as backpay, making the
normal deductions for income tax and social security
benefits, except that such deductions shall not be made
from the amounts determined
medical expenses
as reimbursement for
Carolyn (Fleming) Anderson S 1,56-+ 51
Harold E. Banfield 13.534 71
James Michael Cooper 1, 60 27
Arlin Farthing 5,974 60
Bernice Garmon 6,891 37
William A Ginger 343.30
James W Lindsey 0.00
Robert L. Kearney 8,432 48
Richard E. Mahan 1 ,002.67
Joseph Niewinski 7,380 16
Delores M, Reed 6,899.90
Kenneth W. Reed 573.16
William J. Rhymes 480.95
Frank J Sartore , Jr. 11,494 76
Lonnie J. Sartore 270.99
Joseph Sedlacek, Jr. 5,012 01
Charles A. Shanks 4,915 11
Lorraine Smith 4,782 84
Donald E . Spindel 3,582 75
Florence Walker 3,358.31
James M. Waterman 0 00
Billy L Wiggs 9,571 55
APPENDIX A
NAME: ANDERSON (FLEMING), CAROLYN , Social Security No. 336-34-6920
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1965-1 Mallory
Pana, Ill. 119.20 36.00 83.20
1965-2 Same 365 99
(Taylorville to Pana, III.
360 mi . at 10 cents)
111.60 254.39
B BACKPAY
CALENDAR WEEKS AND GROSS
(Taylorville to Pana, Ill.
1116 mi. at 10 cents)
NET INTERIM ET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1964-3 1 at 55.65 55 65 None 55.65
1964-4 13 at 55.65 723.45 None 723.45
1965-1 13 at 55.65 723 45 83.20 620.25
1965-2 7 at 55.65 389 55 254.39 135 16
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $1564.51
MY STORE, INC. 351
APPENDIX B
NAME: BANFIELD, HAROLD E., Social Security No. 328-22-7047
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1966-2 A & P
Taylorville, Ill.
142.80 None
Kroger
Taylorville, Ill.
361 20 None 504.00
1966-3 South Fork
Garage Bulpitt, Ill.
Attilio
Casanova Tovey, Ill.
38.00
70.00
None
None
E & E Baler Co.
Chicago, Ill.
306 25 370 25
440 mi. at 10 cents
per mi. 44.00
1966-4 E & E Baler Co. 1440.00 220 mi. at 10 cents 1418.00
Chicago, Ill. 22.00
1967-2 Lancaster Electric Plating 334.80 430 mi. at 10 cents 291.80
Lancaster, Ohio 43 00
1967-3 B & B Tire Shop
Taylorville, 111.
622.91 None 622.91
1967-4 Same 1174.09 None 1174.09
1968-1 Lancaster Electric Plating
Lancaster, Ohio
586.71 43.00 543.71
1968-2
B BACKPAY
Same (April only) 227 75 None 227 75
.
CALENDAR NUMBER OF WEEKS GROSS NET INTERIM NET
QUARTER AND PAY RATES BACKPAY EARNINGS BACKPAY
1964-4 13 at 105 14 1366.82 195.00 1171.82
1965-1 13 at 105.14 1366.82 195.00 1171.82
1965-2 12 at 105.14 1261.68 195.00 1066.68
(6/11-6/17 Illness in family, not available for work)
1965-3 13 at 114.29 1485.77 195.00 1290.77
1965-4 13 at 114.29 1485.77 195 00 1290.77
1966-1 13 at 114.29 1485.77 195.00 1290.77
1966-2 13 at 114.29 1485.77 504.00 105.00 876.77
1966-3 13 at 114.29 1485.77 370 25 1115.52
1966-4 13 at 114.29 1485.77 1418.00 67 77
1967-1 13 at 114.29 1485.77 None 1485.77
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1967-2 13 at 114.29 1485.77 291.80 1193.97
1967-3 13 at 114.29 1485.77 622.91 862.86
1967-4 13 at 114.29 1485.77 1174.09 311 68
1968-1 8 at 114.29 914.32 543.71 370.61
1968-2 4 1/3 at 114 29 494.88 227.75 267.13
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $13,834.71
APPENDIX C
NAME: COOPER, JAMES MICHAEL, Social Security No. 328-36-0119
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-1 My Store 311.57 None 311.57
1963-2
Taylorville, Ill
Same 107.52 None 107.52
1963-3 Union 90.00 382 51
Jewel Tea 329.51 37 00
963-4
Moline, Ill.
ame 02.85
(Round trip
Taylorville, Ill
to Moline, III.
370 mi. at 10 cents)
None 02.85
1964-1 Same 1141 00 None 1141 00
1964-2 Same 915.69 37.00 878.69
. BACKPAY
CALENDAR EEKS AND ROSS
(Round trip -
Moline, Ill. to
Springfield, Ill
370 mi. at 10 cents)
NET INTERIM ET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 85.71 685 68 311.57 374 11
(2/7-3/28)
1963-2 5 at 85 71 428 55 107.52 321.03
(4/4-5/2)
1963-3 11 1/2 at 85.71 985.67 382.51 603.16
1963-4 2 1/3 at 85.71 199.70 802.85 389 16
10 2/3 at 93.00 992.31
1964-1 13 at 93.00 1209.00 1141.00 68.00
1964-2 13 at 93.00 883.50 878.69 4.81
TOTAL NET BACKPAY (INTEREST TO BE ADDED) P-, 760.27
MY STORE. INC.
APPENDIX-D
NAME: FARTHING, ARLIN, Social Security No 344-07-9393
353
A EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER , EARNINGS EXPENSES EARNINGS
1965-1 Wagner Castings 143.10 45.00 98.10
Decatur , III. (Taylorville-
1965-2 Same 1047.23
Decatur, Ill.
450 mi. at 10 cents)
39.00 657.23
965-3 ame 293.47
(300 mi . per wk.
at 10 cents X
13 wks.)
390.00 03 47
1965-4 Same 1149 .90 390.00 759.90
1966-1 Same 1409.62 390.00 1019.62
1966-2 Same 1213.47 390.00 823.47
1966-3 Same 1367.14 390.00 977.14
1966-4 Same 1286 . 11 390.00 896 11
1967-1 Same 1411 .85 390.00 1021.85
1967-2 Same 1072.36 390 00 682.36
1967-3 Same 1333.00 390.00 943 00
1967-4 Same 1881.84 390 .00 1491.84
1968-1 Same 1279.11 390.00 889 11
1968-2 Same (April only) 466.14 130 00 336 14
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1964-4 13 at 86 .51 1124.63 None 1124 63
1965-1 13 at 86 51 1124.63 98.10 1026.53
1965-2 13 at 86.51 1124.63 657 23 467 40
1965-3 13 at 93.86 1220.18 903.47 316.71
1965-4 13 at 93.86 1220.18 759 90 460.28
1966-1 13 at 93.86 1220.18 1019.62 200.56
1966-2 13 at 93.86 1220.18 823 47 396 71
1966-3 13 at 93.86 1220.18 977 14 243.04
1966-4 13 at 93.86 1220.18 896 11 324.07
1967-1 13 at 93.86 1220.18 1021 85 198.33
1967-2 13 at 93 86 1220 18 682.36 537.82
1967-3 13 at 93.86 1220.18 943.00 277.18
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1967-4 13 at 93.86 1220.18 1491.84 None
1968-1 13 at 93.86 1220. 18 889 11 331 07
1968-2 4 1/3 at 93.86 406.41 336.14 70.27
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $5,974.60
APPENDIX E
NAME: GARMON, BERNICE , Social Security No. 351-34-1041
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1964-4 Christian County, 111. 17.00 None 17.00
1965-2 City of 18.00 None 1800
1966-2
Taylorville, Ill.
Green Gables Cafe 515.20 None 515.20
1966-3 Green Gables Cafe 737.10 None 737 10
1966-4 Same 708.75 None 708 75
1967-1 Same 452 25 None 452.25
1967-2 Same 624.84 None 624.84
1967-3 Same 885.60 None 885.60
1967-4 Same 885.25 None 885.25
1968-1 Same 453.75 None 453.75
1968-2 Same 1007.50 None 1007.50
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-3 1 at 54.80 54.80 None 54 80
1964-4 13 at 64.51 838.63 17.00 821.63
1965-1 11 at 64.51 709.61 None 709.61
1965-2
2/6 - ill I wk
3/5 - ill 1 wk
12 at 64.51 774.12 18.00 756 12
1965-3 12 at 69 99 839.88 None 839.88
1965-4
Late Sept.
ill 1 wk
11 at 69 . 99 769 .89 None 769.89
10/25 1 wk ill
1966-1
11/9 1 wk ill
13 at 69.99 909 87 None 909.87
1966-2 12 at 69.99 839.88 515.20 324.68
1966-3
6/ 13 ill 1 wk
13 at 69 .99 909 87 737.10 172.77
MY STORE, INC. 355
1966-4 12 at 69.99 839 88 708.75 131.13
1 wk ill
1967-1 13 at 69.99 909.87 452.25 457.62
1967-2 13 at 69.99 909.87 624.84 285.03
1967-3 13 at 69.99 909 87 885.60 24.27
1967-4 13 at 69.99 909.87 885.25 24.62
1968-1 13 at 69.99 909.87 453 75 456.12
1968-2 13 at 69.99 909.87 1007.50 None
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $6,738.04
C. MEDICAL EXPENSES
Self: St. Vincent's Memorial Hospital 7/22-26 63 163 95
Charles D. Brummitt, M.D. 7/22-8/0/63 33.00
Deductible Amount 100.00
96.95
Coinsurance Factor 75 % 24.24
TOTAL 72.71
Self. St. Vincent 's Memorial Hospital 10/25-29/65 173.50
Charles D. Brummitt, M.D. 10/25-11/2/65 34,0Q
207.50
Deductible Amount 100.00
107.50
Coinsurance Factor 75 % 26.88
TOTAL 80.62
GRAND TOTAL 153.33
Medical Expenses
TOTAL NET BACKPAY 6 , 738.04
TOTAL due from 6,891.37
Respondent through
June 30, 1968,
plus interest
APPENDIX F
NAME: GINGER, WILLIAM, Social Security No 318-38-9059
A EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-1 My Store, Inc. 168.50 None 168.50
Taylorville, Ill.
1963-2 Same 81.00 None 81 00
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 45.60 364.80 168.50 196.30
(2/7-3/28)
1963-2 5 at 45.60 228.00 81.00 14700
(4/4-5/2)
TOTAL NET BACKPAY 343.30
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX G
NAME : KEARNEY, ROBERT , Social Security No. 321-36-1193
A. EARNINGS
CALENDAR INTERIM GROSS
QUARTER EMPLOYER EARNINGS
1964-3 Joe Bodovich 12.00
1967-3 Baughman-Oster, 350.00
Taylorville, Ill.
Firestone 733.66
1967-4
Decatur, Ill.
Firestone 2330.77
1968-1
Decatur, Ill.
Same 2113.36
1968-2 Same (April only) 534.46
B. BACKPAY
CALENDAR WEEKS AND GROSS
QUARTER PAY RATES BACKPAY
1963-3 11 1/2 at 70.44 810.06
1963-4 2 1[3 at 70.44 164 13
10 2/3 at 76 43 815.51
1964-1 13 at 76.43 993.59
1964-2 13 at 76.43 993.59
1964-3 9 1/6 at 76.43 701.63
3 5/6 at 82.93 317.87
1964-4 13 at 82.93 1078.09
1965-1 13 at 82.93 1078.09
1965-2 9 1/3 at 82.93 773.74
1967-2 5 at 89.98 449 90
1967-3 13 at 89.98 1169.74
1967-4 13 at 89.98 1169.74
1968-1 13 at 89.98 1169 .74
1968-2 4 1/3 at 89.98 389.61
TOTAL NET BACKPAY (INTEREST TO BE ADDED )
TRAVEL AND NET INTERIM
EXPENSES EARNINGS
21.00
3 trips -
Taylorville to
Decatur 210 mi
at 10 cents - fob
search)
None
None
210.00 913.66
(300 mi. per wk
at 10 cents)
(300 mi. per wk
390.00 1940.77
at 10 cents)
297.50 1815.86
32.50 501.76
NET INTERIM NET
EARNINGS BACKPAY
None 810.06
None 979.64
None 993.59
None 993.59
None 1019.50
None
None 1078.09
None 1078.09
None 773.74
None 449.90
913.66 256.08
1940.77 None
1815.86 None
501.96 None
$8,432.48
MY STORE, INC.
APPENDIX H
NAME : MAHAN , RICHARD E., Social Security No. 338 -36-0659
A. EARNINGS
CALENDAR INTERIM GROSS
QUARTER EMPLOYER EARNINGS
1963-I My Store Inc. 188.50
1963-2
Taylorville, Ill.
Same 86.00
1963-3 Peabody Coal 433.27
1963-4
Kincaid, Ill.
Same 2010 86
1964-1 Same 833.37
1964-2 Peabody Coal 251.55
Kincaid, Ill.
E. Kennedy, Inc. 54.40
Taylorville, Ill.
Culberson Constr. 28.00
Pana, Ill.
Caldwell Eng. 640.00
Eng Co.
Jacksonville, Ill.
Sommerville Co. 81.68
Peoria, III.
Quarter Totals 1055 63
1964-3 Sommerville Co. 832.45
Peoria, III.
Vidmar 459.20
1964-4
Taylorville, Ill.
Hammer-Scroggins 465.30
1965-1
Taylorville, Ill.
S. N. Nielson 276 15
Chicago, 111.
Sangamo Co. 134.40
Springfield, Ill.
J. G. Crawford 51.20
Paducah, Ky.
Quarter Totals 461.75
357
TRAVEL AND NET INTERIM
EXPENSES EARNINGS
None 188.50
None 86.00
(28 days X 12 mi. 36.60 399.67
at 10 cents
Taylorville-
Jeiseyville, III.)
(948 mi . est. 4.80 916.06
at 10 cents-
Taylorville-
Jeiseyville, Ill.)
(130 mi . wk est . 43.00 90.37
X 1 l wks at 10 cents --
Taylorville-Pawnee, Ill.)
Q 80 mi. wk
13 at 13 cents
Taylorville-
Pawnee-Kincaid, III.)
234.00 821.63
None 1291.65
None 465.30
110 mi. per wk
13 wks X 10 cents
per mi.
These expenses for
travel to jobsite
where these three
contractors were
working)
143.00 318.75
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1965-2 S. N. Nielson
Chicago, Ill.
182.75
Caterpillar
East Peoria, Ill.
1017.81 351.00
Taylorville-
Peoria, Ill.
13 wks X 270 mi.
at 10 cents)
849.56
1965-3 Same 1256.98 35100 905.98
1965-4 Same 1208.13 351.00 857.13
1966-1 Same 1325.54 351.00 974.54
1966-2 Same 1835.47 351 00 1484.47
1966-3 Same 1664.00 35100 1313.00
1966-4 Same 1703.68 351.00 135.68
1967-1 Same 1556.16 351.00 1205.16
1967-2 Same 1643.83 351.00 1292.83
1967-3 Same 1833 26 351.00 1482.26
1967-4 Same 1386 27 351.00 1035.27
1968-1 Same 1107.15 189.00
(7 wks X 270 mi.
at 10 cents)
Illinois State Police,
Springfield, Ill.
796.20 None 1714.35
1968-2
B. BACKPAY
Illinois State Police,
Springfield, Ill.
1725.00 None 1725 00
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 45.22 361.76 188.50 173.26
(2/7-3/28)
1963-2 5 at 45.22 226.10 86.00 140.10
(4/4-5/2)
1963-3 11 1/2 at 45.22 520.03 399.67 121 36
1963-4 13 at 45.22 587.86 1916.06 None
1964-1 13 at 45 22 587.86 690.37 None
1964-2 13 at 45.22 587.86 821.63 None
1964-3 9 1/6 at 45.22 414.53 1296.15 None
3 5/6 at 52.00 199.32
1964-4 13 at 52.00 676.00 -465.30 210.70
1965-1 13 at 52.00 676 00 318.75 357.25
1965-2 13 at 52.00 676.00 849.56 None
1965-3 13 at 56.52 734.76 905.98 None
1965-4 13 at 56.52 734.76 857.13 None
1966-1 13 at 56.52 734.76 974.54 None
MY STORE , INC. 359
1966-2 13 at 56 . 52 734 . 76 1484 .47 None
1966-3 13 at 56.52 734 .76 1313 .00 None
1966-4 13 at 56.52 734 . 76 1352 . 68 None
1967-1 13 at 56 52 734 . 76 1205.16 None
1967-2 13 at 56 52 734 76 1292.83 None
1967-3 13 at 56.52 734.76 1482 26 None
1967-4 13 at 56 . 52 734 . 76 1035.27 None
1968-1 13 at 56.52 734 . 76 1714 35 None
1968-2 13 at 56 . 52 734 . 76 1725.00 None
TOTAL NET BACKPAY (INTEREST TO BE ADDED ) $ 1,002.67
APPENDIX I
NAME . NIEWINSKI , JOSEPH , Social Security No. 341 - 14-8220
A. EARNINGS
CALENDAR INTERIM GROSS RAVEL AND ET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1964-4 Hedlund Mfg. 264 . 00 None 264.00
Nokomis, Ill.
1965-3 Circle Steel 655.78 None 655.78
Taylorville, Ill.
1965-4 Same 459.58 None 459.58
1966-1 Same 293 38 None 293.38
1966-2 Same 1086.80 None 1086.80
1966-3 Same 1130.69 None 1130.69
1966-4 Same 1003.20 None 1003.20
1967-1 Same 1003.20 None 1003.20
1967-2 Same 1123.20 None 1123 20
1967-3 Same 1123.20 None 1123.20
1967-4 Same 1321.70 None 1321.70
1968-1 Same 1387.20 None 1387.20
1968-2 Same 1205.60 None 1205.60
B BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES - BACKPAY EARNINGS BACKPAY
1964-4 13 at 92.91 1207.83 264.00 943.83
1965-1 13 at 92 .91 1207 83 None 1207.83
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1965-2 13 at 92.91 1207.83 None 1207.83
1965-3 13 at 100.81 1310.53 655.78 654.75
1965-4 13 at 100 .81 1310.53 459.58 850.95
1966-1 13 at 100.81 1310.53 293.38 1017.15
1966-2 13 at 100.81 1310.53 1086.80 223.73
1966-3 13 at 100.81 1310.53 1130.69 179.84
1966-4 13 at 100.81 1310.53 1003.20 307 33
1967-1 13 at 100.81 1310.53 1003.20 307.33
1967-2 13 at 100.81 1310.53 1123.20 187.33
1967-3 13 at 100.81 1310.53 1123.20 187 33
1967-4 13 at 100.81 1310.53 1321.70 None
1968-1 13 at 100.81 1310 53 1387.20 None
1968-2 13 at 100.81 1310.53 1205.60 104.93
TOTAL NET BACKPAY TO JUNE 30, 1968 (INTEREST TO BE ADDED) $7,380 16
APPENDIX J
NAME: REED , DELORES M., Social Security No. 350-26-7712
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1965-1 P. R. Mallory 119.20 40.00 79.20
Pana, Ill.
1965-2 Same 359.18
00 mi . at 10 cents -
I4aylorville-Pana, Ill.)
78.50 280.68
965-3 Same 243.05
($17 LAM fee
1 50 dues
200 mi. per wk
at 10 cents X 3 wks)
20.00 23 05
Q wk at 10 cents
200 mi.)
1965-4 Same 134.12 20.00 114.12
(1 wk at 10 cents
X 200 mi.)
1966-2 I.G.A. 252.45 123.20
Springfield, III.
G.E. 119.49
(1232 mi. X 10 cents
Taylorville-
Springfield, Ill.)
38.00 10.74
Decatur, III.
966-3 A & P 417.06
(5 days X 76 mi.
at 10 cents -
Taylorville-
Decatur, III.)
Taylorville, III.
MY STORE, INC. 361
G E 548 28 00152 813 34. .
Decatur, III.
. .
(20 days X 76 mi.
.
at 10 cents -
Taylorville to
Decatur, Ill.)
1966-4 A&P 1139.48 None 1139.48
Taylorville, Ill.
1967-1 Same 936.00 None 936 00
1967-2 Same 1120.52 None 1120.52
1967-3 Same 243.60 None 243.60
1967-4 New Products, Inc. 268.80 None
Taylorville, 111.
Mallory 486.40 164.00 591 20
Pana,III.
1968-1 Same 38 80
(8 wks and 1 day
at 200 mi . per wk -
Taylorville-Pana )
260.00 78.80
1968-2 Same 296.38 86 67 209.71
(April only)
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1964-4 13 at 64.62 840.06 None 840.06
1965-1 12 at 64.62 775.44 79.20 696.24
(2/8 ill 1 wk)
'1965-2 11 1/2 at 64.62 743.13 280.68 462.45
(6/21 ill 1 1/2 wks)
1965-3 9 1/3 at 70.11 654.13 223.05 431.08
(7/1 ill 3 2/3 wks)
1965-4 13 at 70.11 911.43 114.12 797.31
1966-1 13 at 70.11 911.43 None 911.43
1966-2 13 at 70.11 911.43 210 74 700.69
1966-3 13 at 70.11 911 43 813 34 98.09
1966-4 13 at 70.11 911.43 1139.48 None
1967-1 13 at 70.11 911.43 936.00 None
1967-2 13 at 70.11 911.43 1120.52 None
1967-3 13 at 70.11 911.43 243.60 667.83
1967-4 13 at 70.11 911.43 591.20 320.23
1968-1 13 at 70.11 911 43 578.80 332.63
1968-2 4 1/3 at 70.11 303.58 209.71 93.87
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $6,351.91
C. MEDICAL EXPENSES
Self. St. Vincent' s Memorial Hospital 10/21-24/63 147.80
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Del Valle, M.D 10/21-24/63
(maximum allowable) 40.00
Deductible Amount 1f-8l0
Coinsurance Factor 75% 21.9-5
TOTAL $65
Self- St Vincent' s Memorial Hospital 6/21-7/7/65 622 85
Paul K . Hagen, M.D. 6/21-7/7/65 45.00
Del Valle, M.D. 6/30/65 75 00
742.85
Deductible Amount 100.go
2 5
Coinsurance Factor 75% 160.71
TOTAL
GRAND TOTAL
Medical Expenses
547.99
TOTAL NET BACKPAY $6,351.91
TOTAL AMOUNT DUE
(EXCLUSIVE OF INTEREST)
$6,899 90
APPENDIX K
NAME: REED , KENNETH W ., Social Security No. 318-38-7757
A EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-1 My Store, Inc. 169.50 None 169.50
1963-2 Same 80.00 None 80.00
1967-3 Circle Steel 178.00 None
Hopper Paper 100.00 None 278.00
1968-1 Same 1300.00 None 1300,00
1968-2 Same (April only) 433.33 None 433.33
B BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 41.41 331.28 169.50 161.78
1963-2 5 at 41.41 207.05 80.00 127 05
1963-3 2 1/3 at 41 41 96.49 None 96.49
1967-3 9 at 51 76 569.36 278.00 187.84
1968-1 13 at 51.76 672.88 1300.00 None
1968-2 4 1/3 at 51.76 224.12 433.33 None
TOTAL NET BACKPAY ( INTEREST TO BE ADDED) $573.16
MY STORE, INC
APPENDIX L
363
NAME. RHYMES, WILLIAM, Social Security No.
A EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-4 Leroy Smith 1012.50 None 1012.50
1964-1
Taylorville, Ill
Leroy Smith 312.00
Taylorville, Ill.
Castor's Inc. 639.12 286.20 664.92
964-2
Springfield, Ill.
Castor' s Inc. 121.30
Taylorville to
Springfield
2862 mi. at 10 cents)
199 80 21 50
Springfield, Ill.
.
(Same - 1998 mi.
.
1964-3 Same 1121.93
at 10 cents)
None 1121.93
1964-4 Same 1247 53 None 1247.53
1965-1 Same 1039.50 None 1039.50
1965-2 Same 1178.10 None 1178.10
1965-3 Same 1350.43 None 1350.43
1965-4 Same 1370 76 None 1370.76
1966-1 Same 1413.00 None 1413.00
1966-2 Same 1521.20 None 1521.20
1966-3 Same 1603.81 None 1603.81
1966-4 Same 1689.59 None 1689.59
1967-1 Same 1820.00 None 1820.00
1967-2 Same 1820.00 None 1820.00
1967-3 Same 2017.69 None 2017.69
1967-4 Same 2070 00 None 2070.00
1968-1 Same 2120.00 None 2120.00
1968-2 Same 2120.00 None 2120.00
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-4 2 1/3 at 71.40 166.36
10 2 /3 at 77.47 826.60 1012.50 None
1964-1 13 at 77.47 1007.11 664.92 342.19
1964-2 13 at 77.47 1007.11 921.50 85.61
1964-3 9 1/6 at 77.47 710.17
3 5/6 at 84 05 322.16 1121.93 None
1964-4 13 at 84.05 1092.65 1247.53 None
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1965-1 13 at 84.05 1092.65 1039.50 53.15
1965-2 13 at 84.05 1092.65 1178.10 None
1965-3 13 at 91.19 1185.47 1350.43 None
1965-4 13 at 91.19 1185 47 1370.76 None
1966-1 13 at 91.19 1185.47 1413.00 None
1966-2 13 at 91.19 1185.47 1521.20 None
1966-3 13 at 91.19 1185.47 1603.81 None
1966-4 13 at 91.19 1185.47 1689.59 None
1967-1 13 at 91.19 1185.47 1820.00 None
1967-2 13 at 91.19 1185.47 1820.00 None
1967-3 13 at 91.19 1185.47 2017.69 None
1967-4 13 at 91.19 1185.47 2070.00 None
1968-1 13 at 91 .19 1185.47 2120.00 None
1968-2 13 at 91.19 1185.47 2120.00 None
TOTAL NET BACKPAY TO 6/30/68 (INTEREST TO BE ADDED)
APPENDIX M
NAME: SARTORE, FRANK, JR., Social Security No. 341-14-9985
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1964-4 A & P
Shelbyville, Ill.
22.96 None 217.96
Union 195 00
1965-1 Eisner Market
Kincaid, Ill.
48.00 None
Union 195.00 243.00
1965-2 Union 195.00 None 195.00
1965-3 Eisner Market
Kincaid, Ill.
31.30 None
Union 195.00 ' 226.30
1965-4 Same 195.00 None 195.00
1966-1 Eisner Market
Kincaid, III.
20.16 None
Union 195.00 215.16
1966-2 A & P
Taylorville, Ill.
703.26 None
Union 105.00 808.26
1966-3 Same 529.84 None 1529.84
MY STORE, INC. 365
1966-4 Same 1974.96 None 1974.96
1967-1 Same 1692.80 None 1692.80
1967-2 Same 1722.95 None 1722.95
1967-3 Same 1724.82 None 1724.82
1967-4 Same 1770.55 None 1770.55
1968-1 Same 1700.32 None 1700.32
1968-2 Same 516.80 None 516.80
(April only)
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1964-4 13 at 125 .90 1636.70 217.96 1418.74
1965-1 13 at 125 . 90 1636.70 243.00 1393.70
1965-2 13 at 125.90 1636.70 195.00 1441.70
1965-3 13 at 136 . 60 1775.80 226.30 1549 50
1965-4 13 at 136 .60 1775.80 195.00 1780.80
1966-1 13 at 136.60 1775.80 215.16 1560.64
1966-2 13 at 136.60 1775.80 808.26 963.54
1966-3 13 at 136.60 1775.80 1529.84 245.96
1966-4 13 at 136 . 60 1775.80 1974.96 None
1967-1 13 at 136.60 1775.80 1692.80 83.00
1967-2 13 at 136 .60 1775.80 1722.95 52.05
1967-3 13 at 136.60 1775.80 1724.82 50.98
1967-4 13 at 136 . 60 1775.80 1770.55 5.25
1968-1 13 at 136.60 1775.80 1700.32 75.48
1968-2 4 1 / 3 at 136.60 591.48 516.80 74.68
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $10,696.02
C. MEDICAL EXPENSES
Self: St. Vincent ' s Memorial Hospital 4/16/68 15.50
William V Torricelli, M.D. 4/16-26/68 29.00
Deductible Amount
13TOTAL .x.
Michael Sartore (Son):
St. vVincent ' s Memorial Hospital 10/13-15/64 78.40
William V . Torricelli, M.D. 10/13-12/31/64 64..2255
Deductible Amount 100.00
42.65
Coinsurance Factor 75% 10.66
TOTAL 31.99
St. Vincent ' s Memorial Hospital 6/18/65 16.55
Howard P. Joslyn, M.D. 6/18/65 56.52
2 3^
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deductible Amount -0-
26.55
Coinsurance Factor 75% 6 54
TOTAL
St. Vincent 's Memorial Hospital 5/30/67 8.45
William V. Torricelli , M.D. 5/30/67 5.00
Deductible Amount
13.U
Danny M. Sartore (Son):
TOTAL 000
St. Vincent 's Memorial Hospital 10/4-9/64 113.10
M.D.Howard P. Joslyn 10/4-9/64 33.00,
Deductible Amount 100 00
TM
Coinsurance Factor 75% 11.52
TOTAL T47$
St. Vincent's Memorial Hospital 4/27-5/5/66 213.65
Torricelli M DWilliam V 4/27-5/5/66 57.00
5
. , . .
20
Deductible Amount 100.00
170.65
Coinsurance Factor 75% 42 66
TOTAL - 127.99
St. Vincent ' s Memorial Hospital 9/7-10/66 139 50
William V . Torricelli , M.D. 8/9 -9/16/66 2.00
92360
Deductible Amount 0.00
23130
Coinsurance Factor 75% 75.88
TOTAL 17372-
St. Vincent ' s Memorial Hospital 12/30/66-1/5/67 208.90
William V . Torricelli , MD. 12/14/66-1/5/67
Deductible Amount
284.90
0
Coinsurance Factor 75%
84.9
4 2TOTAL 1 2 7
St. Vincent ' s Memorial Hospital 1/14-17/68 107.60
William V . Torricelli , M.D. 1/12-17/68 1.00
338601
Deductible Amount 100.00
Coinsurance Factor 75 %
38.60
Betty J . Sartore (Wife)
TOTAL 28.95
St. Vincent ' s Memorial Hospital 3/29-4/6/66 451 15William V . Torricelli, M.D. 3/29-4/6/66
.
200.00
51.1
Deductible Amount 10000
551.15
Coinsurance Factor 75% 3
TOTAL 413.3
MY STORE, INC. 367
Diana Sartore (Daughter):
St. Vincent ' s Memorial Hospital
William V. Torricelli, M.D
3/22-27/66 154.20
56.00
Deductible Amount
21020
100.0
arry D. Sartore (SON):
St. Vincent s Memorial Hospital
Coinsurance Factor 75 %
TOTAL
7/15-23/67
110.20
2.55
82.65
326.10
William V. Torricelli, M.D. 6/28-7/23/67
Deductible Amount
331.1
Coinsurance Factor 75% 82 78
TOTAL
Gross Medical $1,304.04
Dependent premiums, group
policy, 147 weeks from 5/3/63
until 3 / 1/66 at $1.90 per week;
113 weeks from 3/1/66 until
4/30/68 at $2.00 per week 505.30
Medical Expenses Due $798.74
TOTAL NET BACKPAY $10,696.02
TOTAL AMOUNT DUE (EXCLUSIVE OF INTEREST) $11,494.76
APPENDIX N
NAME- SARTORE, LONNIE J ., Social Security No. 345-36-5788
A. EARNINGS
CALENDAR INTERIM GROSS RAVEL AND ET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-1 My Store, Inc. 88.25 None 88.25
Taylorville, Ill.
1963-2 Same 36.00 None 36.00
1963-3 Zenith 302 74 23.00 279.74
Chicago, III. (one-way trip,
Taylorville to
Chicago 230 mi.
at 10 cents)
B. BACKPAY
CALENDAR
QUARTER
WEEKS AND
PAY RATES
GROSS
BACKPAY
NET INTERIM
EARNINGS
NET
BACKPAY
1963-1 8 at 27.55 220.40 88.25 132.15
1963-2 5 at 27.55 137.75 36.00 101 75
1963-3 11 1/2 at 27.55 316.83 279.74 37 02
TOTAL NET BACKPAY (INTEREST TO BE ADDED) 70.99
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX 0
NAME . SEDLACEK , JOSEPH , JR., Social Security No. 327-32-4990
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM'
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1965-1 Firestone 46.65 2400 32.65
965-2
Decatur, III.
Same 28.61
(Taylorville to
Decatur 240 mi.
at 10 cents)
30.00 6.61
965-4 ogge Electric 4.70
Taylorville to
Decatur 300 mi.
at 10 cents)
None
Taylorville, III.
A&P 1024 80 None 1039 50
1966-1
Taylorville, Ill.
Same 1100.00 None 1100.00
1966-2 Same 1239.68 None 1239.68
1966-3 Same 1367.23 None 1367.23,
1966-4 Same 157102 None 1571.02
1967-1 Same 1487.60 None 1487.60
1967-2 Same 1554.44 None 1554.44
1967-3 Same 1578.60 None 1578.60
1967-4 Same 1486.42 None 1486.42
1968-1 Same 1468.49 None 1468.49
1968-2 (April only) Same 456.08 None 456 08
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1964-4 13 at 89.19 1159 47 None 1159.47
1965-1 13 at 89.19 1159.47 32.65 1126 82
1965-2 13 at 89.19 1159.47 86.61 1072.86
1965-3 13 at 96.77 1258.01 None 1258.10
1965-4 13 at 96.77 1258.01 1039.50 218.51
1966-1 13 at 96.77 1258.01 1100.00 158.01
1966-2 13 at 96.77 1258.01 1239.68 18.33
1966-3 13 at 96.77 1258.01 1367.23 None
1966-4 13 at 96 77 1258.01 1571.02 None
1967-1 13 at 96.77 1258.01 1487.60 None
1967-2 13 at 96.77 1258.01 1578.60 None
MY STORE, INC. 369
1967-3 13 at 96.77 1258.01 1578.60 None
1967-4 13 at 96.77 1258.01 1486 42 None
1968-1 13 at 96 .77 1258.01 1468 .49 None
1968-2 , 4 1/3 at 96.77 419.01 456.08 None
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $5,012.01
APPENDIX P
NAME: SHANKS, CHARLES A., Social Security No 343-34-6928
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-1 My Store, Inc. 342.00 None 342.00
1963-2
Taylorville, 111.
Same 92.75 None 92.75
1964-2 Harper Oil Co. 11.00 None 11.00
1964-3
Springfield, Ill.
Clyde Atkinson 10.00 40.00 None
Taylorville, III. (Gasoline job search
Bill Townsley 10.00
I/A Taylorville)
1964-4
Taylorville, Ill.
Southway Builders 147.00 64.00 83.00
Springfield, Ill. (Taylorville to
1965-1 Salary at Welder School 444.00
Springfield, Ill.
640 mi . at 10 cents)
444.00
1965-2
$37 per wk for 12 wks
S. N. Nielson 547.05 None
Chicago, Ill.
obsite at
aylorville)
Baughman-Oster 50.80 one 97.85
1965-3
Taylorville, Ill.
Baughman-Oster 1056.19 None 1056.19
1965-4
Taylorville, Ill.
Baughman-Oster 1040.16 None
A & P 280.50 None 1320.66
1966-1
Taylorville, Ill.
A & P 1204.70 None 1204.70
1966-2
Taylorville, Ill.
Same 1409.20 None 1409.20
1966-3 Same 1592.61 None 1592.61
1966-4 Same 1835.20 None 1835.20
1967-1 Same 1425.60 None 1425 60
1967-2 Same 1598 80 None 1598 80
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1967-3 Same 1601.00 None 1601 00
1967-3 Same 1652.79 None 1652.79
1968-1 Same 1596.40 None 1596 40
1968-2 Same 1742.20 None 1742.20
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 55.75 446.00 342.00 104 00
(2/7-3/28)
1963-2 5 at 55.75 278 75 92 75 186 00
(4/4-5/2)
1963-3 11 1/2 at 55.75 641.13 None 641.13
1963-4 13 at 55.75 724.75 None 724 75
1964-1 13 at 55.75 724 75 None 724.75
1964-2 12 at 55.75 669 00 11.00 658.00
1964-3
(May 1 wk
unable to work)
8 1/6 at 55.75 455 31
3 5/6 at 64.11 245 73 None 701.04
1964-4 13 at 64 11 833.43 83.00 750 43
1965-1 13 at 64.11 833.43 444.00 389.43
1965-2 13 at 64 It 833.43 797 85 35.58
1965-3 13 at 69.68 905 84 1056.19 None
1965-4 13 at 69.68 905 84 1320 66 None
1966-1 13 at 69.68 905.84 1204 70 None
1966-2 13 at 69 68 905 84 1409.20 None
1966-3 13 at 69.68 905.84 1592.61 None
1966-4 13 at 69.68 905 84 1835.20 None
1967-1 13 at 69.68 905.84 1425.60 None
1967-2 13 at 69 68 905.84 1598.80 None
1967-3 13 at 69.68 905.84 1601.00 None
1967-4 13 at 69.68 905 84 1652.79 None
1968-1 13 at 69.68 905.84 1596.40 None
1968-2 4 1/3 at 69.68 301 92 580 71 None
TOTAL NET BACKPAY (INTEREST TO BE ADDED) $4,915.11
MY STORE, INC
APPENDIX Q
NAME: SMITH, LORRAINE, Social Security No. 331-14-9986
371
A EARNINGS
CALENDAR INTERIM G ROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1964-4 County Clerk 5.00 None 5 00
1965-4
Taylorville, 111.
Miller's Cleaners 620.00 None 620 00
1966-1
Taylorville, III.
Same 584.40 None 584.40
1966-2 Same 633.90 None 633 90
1966-3 Same 477.35 None 477 35
1966-4 Same 580.80 None 580.80
1967-1 Same 629.75 None 629.75
1967-2 Same 629.20 None 629.20
1967-3 Same 448.80 None 448.80
1967-4 Same 686.40 None 686.40
1968-1 Same 686.40 None 686.40
1968-2 Same 686.40 None 686.40
B BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1964-4 8 at 52.70 421.60 5.00 416.60
1965-1
(11/26 ill 5 wks)
7 at 52.70 368.90 368.90
1965-2
(1/1 ill 6 wks)
13 at 52.70 685.10 685.10
1965-3 13 at 57 28 744.64 744.64
1965-4 13 at 57 28 74464 620.00 124.64
1966-1 13 at 57.28 744.64 584 40 160.24
1966-2 13 at 57.28 744.64 633.90 110.74
1966-3 13 at 57.28 744.64 477.35 267.29
1966-4 13 at 57.28 744.64 580.80 163 84
1967-I 13 at 57.28 744.64 629.75 114.89
1967-2 13 at 57.28 744.64 629.20 115.44
1967-3 13 at 57.28 744.64 448.80 295.84
1967-4 13 at 57.28 744.64 686.40 58.24
1968-1 13 at 57.28 744.64 686 40 58.24
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968-2 13 at 57.28 744.64 686.40 58 24
TOTAL NET BACKPAY TO JUNE 30, 1968 (INTEREST TO BE ADDED)
.
$3,742:88
C. MEDICAL EXPENSES
Self: St . Vincent ' s Memorial Hospital 11/29-12/8/64 376.40St. Vincent ' s Memorial Hospital 12 /28/64-1/3/65 199.70J. W. Murphy, M.D. 1 1/29//64-1/3/65 216.00
TOTAL
Deductible Amount 100.001
Coinsurance Factor 75% 17 3 02
TOTAL
519
SELF : St. Vincent ' s Memorial Hospital 2/15-24/65 394.50
J W. Murphy, M.D. 2/15-24/65 300 00
Deductible Amount -0-
69450
Coinsurance Factor 75% 173-62
TOTAL
GRAND TOTAL
Medical Expenses
1,039.96
TOTAL NET BACKPAY 3.742.88
APPENDIX R
TOTAL to June 30, 1968,
Less Interest
$4,782.84
NAME. SPINDEL, DONALD, Social Security No. 359-34-5870
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER FARNINGS EXPENSES EARNINGS
1963-I My Store
Taylorville, III.
378.60 None 378.60
1963-2 Same 208.20 None 208.20
1964-4 13.00
(130 mi . at 10 cents
ob search)
Taylorville area
1965-2 Komer
Ohlman, III.
488 57 None 488.57
1965-3 Same 814.62 None 814.62
1965-4 Same 1341 75 None 1341.75
1966-1 Same 1400.29 None 1400.29
1966-2 Same 1192.88 None 1192.88
1966-3 Same 1291.56 None 1291.56
1966-4 Same '1549.62 None 1549.62
1967-1 Same 1469.92 None 1469 92
1967-2 Same 1646 40 None 1646.40
1967-3 Same 1752.67 None 1752.67
MY STORE, INC 373
1967-4 Same 1729.68 None 1729.68
1968-1 Komer 1200 72
Nokomis Street Dept . 344.60 None 1535.32
1968-2 Komer 407.14 None 407.14
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 72 . 36 578.88 378 . 60 200 28
(2/7-3/28)
1963-2 5 at 72 36 361 80 208.20 153.60
(4/4-5/2)
1964-4 13 at 85 . 18 1107 34 None 1107.34
1965-1 13 at 85 . 18 1107.34 None 1107'34
1965-2 13 at 85 . 18 1107 34 488 .57 618 77
1965-3 13 at 92 42 1201.46 814 62 386.84
1965-4 13 at 92 .42 1201.46 1341 . 75 None
1966-1 13 at 92 .42 1201 .46 1400 29 None
1966-2 13 at 92.42 1201.46 1192 88 8.58
1966-3 13 at 92 42 1201 46 1291.56 None
1966-4 13 at 92.42 1201.46 1549 62 None
1967-1 13 at 92.42 1201.46 1469.92 None
1967-2 13 at 92.42 1201 46 1646.40 None
1967-3 13 at 92 42 1201.46 1752.67 None
1967-4 13 at 92.42 1201.46 1729.68 None
1968-1 13 at 92.42 1201.46 1535 32 None
1968-2 4 1/3 at 92 42 400 . 18 407.14 None
TOTAL NET BACKPAY ( INTEREST TO BE ADDED ) $3,582 75
APPENDIX S
NAME: WALKER , FLORENCE, Social Security No. 355-22-5730
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-1 My Store 229 .00 None 229.00
1963-2
Taylorville, III.
Same 156.00 None 156.00
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. BACKPAY
CALENDAR WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-1 8 at 48.15 385 20 229 00 156.20
(2/7-3/28)
1963-2 5at4815 240.75 15600 8475
(4/4-5/2)
1963-3 None None None None
1963-4 None None None None
1964-1 None None None None
1964-2 None None None None
1964-3 None None None None
1964-4 None None None None
1965-1 None None None None
1965-2 None None None None
1965-3 None None None None
1965-4 9 at 1/2 time 60.19 270 90 None 270 90
1966-1
(I I/ 1 able to work
4 hours per day only)
13 at 60.19 782.47 None 782.47
1966-2 13 at 60 19 782.47 None 782 47
1966-3 11 at 60.19 662 09 None 662 09
1966-4
(9/15 ill 2 wks)
None None None None
1967-1 None None None None
1967-2 None None None None
1967-3 None None None None
1967-4 None None None None
1968-1 None None None None
1968-2 None None None None
TOTAL NET BACKPAY TO JUNE 30, 1968 (INTEREST TO BE ADDED) $2,738.88
C. MEDICAL EXPENSES
Self St. Vincent ' s Memorial Hospital 7/ 16-23/63 214.70
Charles D Brummitt, M.D. 7/16-23/63
263.70
Deductible Amount 100.00
163.70
Coinsurance Factor 75% 40-9
TOTAL 122 78
Self St. Vincent ' s Memorial Hospital 3/24-4/10/64 540.40
St. Vincent' s Memorial Hospital 5/7-10/64 107 80
Charles D. Brummitt , M D. 3/24-4/10/64 89 00
5/6-10/64 25.00
762.20
MY STORE, INC 375
Deductible Amount 100.00
662 20
Coinsurance Factor 75 165.55
TOTAL 496.65
GRAND TOTAL
Medical Expenses
619.43
TOTAL NET BACKPAY TO JUNE 30, 1968 2 358_3
TOTAL DUE TO JUNE 30, 1968, LESS INTEREST
5
3,$
1
APPENDIX T
NAME- WIGGS, BILLY L., Social Security No. 344-34-0986
A. EARNINGS
CALENDAR INTERIM GROSS TRAVEL AND NET INTERIM
QUARTER EMPLOYER EARNINGS EXPENSES EARNINGS
1963-3 Bracy Food Store 10.00 None 10 00
1964-1
Marion, III
Same 10.00 None 10.00
1964-3 Smothers 20.00 None 20.00
1964-4
Kincaid, III
None
1965-1 Bracy Food 6.00
S N Nielson 121 60 None 127.60
1965-2
Taylorville, Ill.
S. N. Nielson 1593.92 75.00 1518 92
Taylorville, Ill; Union Dues
1965-3 S. N. Nielson 113 85
A & P 533.35 None 647.20
1965-4
Taylorville, III
A & P 976.86
Taylorville, III
Clark Oil Co. 455 56 54.00 1378.42
966-1
Springfield, Ill.
Same 082 12
Kincaid to Springfield
5 days X 36 mi
at 10 cents)
None 082.12
1966-2 Same 1129.39 None 1129.39
1966-3 Same 1653.13 None 1653.13
1966-4 Same 1524.94 None 1524.94
1967-1 Same 2257 .01 None 2257 01
1967-2 Same 1830.50 None 1830 50
1967-3 Same 1950.00 None 1950 00
1967-4 Same 1950 00 None 1950 00
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968-1 Same 2100.00 None 2100 00
1968-2 Same 700.00 None 700.00
B BACKPAY
CALENDAR
(April
only)
WEEKS AND GROSS NET INTERIM NET
QUARTER PAY RATES BACKPAY EARNINGS BACKPAY
1963-3 1 11/2 at 86.83 998 55 10 00 988.55
1963-4 2 1/3 at 86 83 202.60
10 /3 at 94.21 1004.91 None 1207 51
1964-1 13 at 94.21 1224 73 10 00 1214.73
1964-2 13 at 94 21 1224.73 None 1224 73
1964-3 9 1/6 at 94.21 863 59
3 5/6 at 102.22 391 84 2000 1235 43
1954-4 13 at 102.22 1328.86 None 1328.86
1965-1 13 at 102.22 1328 86 127.60 1201 26
1965-2 13 at 102 22 1328.86 1518 92 None
1965-3 13 at 110.91 1441.83 647 20 794 63
1965-4 13 at 110.91 1441 83 1378.42 63.41
1966-1 13 at 110.91 1441.83 2082.12 None
1966-2 13 at 110.91 1441 83 1129.39 312.44
1966-3 13 at 110.91 1441.83 1653.13 None
1966-4 13 at 110 91 1441.83 1524.94 None
1967-1 13 at 110.91 1441.83 2257 01 None
1967-2 13 at 110.91 1441.83 1830 50 None
1967-3 13 at 110 91 1441 83 1950.00 None
1967-4 13 at 110.91 1441.83 1950 00 None
1968-1 13 at 110.91 1441 83 2100.00 None
1968-2 4 1 /3 at 110 91 480.61 700 00 None
TOTAL NET BACKPAY ( I NTEREST TO BE ADDED) $9,571 55