Nelson Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 12, 1964

148 N.L.R.B. 1632 (N.L.R.B. 1964)

1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 18, shall, after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be maintained by it for a
period of at least 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that such notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 18, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
herewith.19
19 If this Recommended Order is adopted by the Board, this provision shall be modified
to read "Notify-said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT require our employees to remove, or prohibit them from wear-
ing, union insignia in our plant.
WE WILL NOT discipline or discharge, or threaten to discipline or discharge,
any of our employees to compel them to remove or to prevent them from wear-
ing union insignia in our plant.
WE WILL make whole Henry C. Bennett, Ollie May Dewey, Clarence Hea-
cock, James R. Mitchell, Lynn Gale, and Theron Seydel for any loss of wages
they may have suffered by reason of their discriminatory discharge for wearing
or refusing to remove union insignia in our plant
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist International Brotherhood of Electrical Workers, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective-bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by the
provisos in Section 8 (a) (3) of the Act.
FABRI-TEK INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) - (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 316 Fed-
eral Building , 110 South 4th Street, Minneapolis, Minnesota, Telephone No. 339-
0112, Extension 2601, if they have any question concerning this notice or compli-
ance with its provisions.
Nelson Manufacturing Company and International Union , Allied
Industrial Workers of America , AFL-CIO. Case No. 8-CA-
2569. October 12, 1964
SUPPLEMENTAL DECISION AND ORDER
On September 25, 1962, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,' directing, inter alia,
that the Respondent reinstate and make whole 10 employees who the
1138 NLRB 883.
148 NLRB No. 159.
NELSON MANUFACTURING COMPANY 1633
Board found had been discriminatorily laid off or discharged. There-
after, the Board's Order. was enforced in full by the United States
Court of Appeals for the Sixth Circuit on January 29, 1964.2 With
the exception of James W. Gerding, all of the discriminatees were
offered reinstatement on or prior to October 2, 1961. Gerding was
offered reinstatement on May 11, 1962.
On March 31, 1964, the Regional Director for Region 8 issued and
served upon the parties a backpay specification and notice of hearing,
and an amended specification and notice of hearing on April 10,
1964, setting the hearing for May 11, 1964. The Respondent filed an
answer to the backpay specification on April 23, 1964.
Pursuant to notice, a hearing was held before Trial Examiner Leo
F. Lightner for the purpose of determining the amounts of backpay
due the claimants. On July 9, 1964, the Trial Examiner issued the
attached Supplemental Decision, in which, for the reasons set forth
therein, he awarded the claimants the specific amount of backpay as
set forth in the backpay specification, as amended. Thereafter, the
Respondent filed exceptions to the Trial Examiner 's Supplemental
Decision and a supporting brief.3
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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, the excep-
tions, and briefs, and hereby adopts the findings 14 conclusions, and
recommendations of the Trial Examiner.
ORDER
On the basis of the foregoing Supplemental Decision and Order
and the entire record in this case, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Nelson Manu-
2 N.L R.B. v. Nelson Manufacturing Company, 326 • F. 2d 397.
s Respondent 's request for oral argument is denied as the record, including Respondent's
exceptions and brief , adequately present the issues and positions of the parties.
* The Trial Examiner makes an error in the fourth paragraph of his Decision as it re-
lates to Gerald Meyer He finds that "the amount set forth in the amended backpay speci-
fication, $44 40," is the amount due Meyer for his'first backpay period The amount stated
in the amended! specification and throughout the proceeding for the period in question is
$44 03 ; and that is the figure used to arrive at the gross amount ($ 290 51 ) due Meyer for
his two backpay periods. The Trial Examiner correctly states the gross amount in his
Decision . His error is therefore inadvertent , and 'his finding is hereby corrected to
read "$44.03 "
760-577-65-vol . 148-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factuinig Company, its oiliceis, agents, successois, and assigns, shall
pay to the employees im olved in this proceeding as net backpay the
amounts awaidecl to them in the Tiial Examiner's Supplemental
Decision
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This supplemental proceeding to determine backpay, with all parties represented,
was heard before Trial Examiner Leo F Lightner in Ottawa, Ohio on May 11, 1964,
on the specifications of the General Counsel, as amended,1 and the answer of Nelson
Manufacturing Company, herein refeired to as Respondent Generally, the issues
litigated were the amounts of backpay due, if any, from the Respondent to various
discrimmatees All parties were afforded full opportunity to examine and cross-
examine witnesses , to introduce evidence, to piesent argument , and thereafter to file
briefs No briefs were filed
Upon my observation of the witnesses, and upon consideration of the pleadings,
testimony, exhibits, and the entire record 2 in the case, I make the following
FINDINGS AND CONCLUSIONS
Backgiound , pleadings, motions addressed thereto, rulings thereon and the hearing
On September 25, 1962, the Board issued its Decision and Order, reported in 138
NLRB 883, directing, inter alia, that the Respondent make whole 10 employees, 9 of
whom the Board found had been discriminatorily laid off and James Gerding who
had been discriminatorily disch lrged by the Respondent, reinstatement being ordered
Upon petition for enforcement of the Board Orden, on January 6,1964, the United
States Court of Appeals for the Sixth Circuit entered its opinion affirming in full
the Board's finding and enforcing its Order in toto N L R B v Nelson Manufac-
turing Company, 326 F 2d 397 The couit Oider issued January 29, 1964 All of
the discrimmatees were afforded reinstatement on or piior to October 2, 1961, with
the exception of James W Geiding Gerald Meyer was found to have been discrim-
inatorily laid off, a second time, on October 17, 1961 The Board did not order the
Respondent to offer reinstatement to Meyer On May 11, 1962, Gerding was of-
fered reinstatement
It was found that Respondent had violated Section 8(a)(1), (3), and (5) of the
Act It was found, inter alia, that Respondent had threatened to close the plant if
the employees brought in a national union On September 11 1961, the Union
requested recognition and negotiation of a contract On September 13, 1961, Jack
Nelson, president, conducted an election which resulted in a mijority favoring the
Union Nelson forthwith discharged Gerding Later, the same day, Nelson posted
two notices (1) that the plant would be closed until September 18 and (2) that 12
employees below a horizontal line drawn on a senioiity list of employees were there-
upon laid off
On March 31, 1964, the Regional Diiector of the National Labor Relations Board
for Region 8, pursuant to the Board 's Rules and Regulations , Series 8, as amended,
issued a backpay specification and notice of hearing setting forth in detail the
amounts alleged to be due the employees required to be made whole under the terms
of the Board's Order and the court Decree On April 10, 1964 , said Regional Direc-
tor issued an amended backpay specification and notice of hearing , setting the hear-
ing for May 11, 1964 At the outset of the hearing, on May 11, 1964, General
Counsel moved to amend the amended backpay specification relative to Gerald
Meyer to conform the specification to the Board's Order, considered mfia, and con-
taining a minor modification , to correct a typographical error, relating to Gerding
1 l bickpiy specification and notice of he'iring was issued on March 31, 1964 An
emended bickply specification and notice of hearng Rss issued on April 10, 1964 An
amendment to the amended backpnv specification , relatiie to the claims of Gerald Meyer
and James Geiding, nas made at the outset of the hearing
2 Generil Counsel's motion to correct stenographic errors Is gr'inted , except page 120,
line 22, should iead "Exhibit No 17( a) and ( b)," striking "and 18"
NELSON j%IANUFAC'IURING COMPANY 1635
Meanwhile , Respondent filed an answer to the backpay specifications , dated April 23,
1964, which, I find , does not meet the requirements of the Board 's Rules and Regu-
lations mole specifically Section 102 54(b) considered infra
At the outset of the hearing, on May 11, 1964, Viiginra Nelson , vice president of
Respondent , and her son , John Nelson , identified by her as Respondent 's payroll
clerk entered an appearance and requested a continuance The asserted reason for
the request was the absence of Jack Nelson , president , who it was asserted was in
the Dominican Republic Mrs Nelson represented that Jack Nelson had flown from
Ottawa Ohio , to Palm Beach , Florida, on Sunday, May 3, 1964, then to the Domini-
can Republic , on Tuesday , May 5, 1964, in his own airplane , and was unable to
return to his airplane by season of a taxicab strike in the Dominican Republic 3 The
request was denied 4
Mrs Nelson asserted that it would be at least a week before Jack Nelson would
be able to return No reason was advanced why he could not make private ar-
rangements to get to his airplane, or ieturn by commercial plane No request for a
continuance to obtain other counsel was made Respondent 's failure to file a mean-
ingful answer , relative to matters within the knowledge of Respondent , in accord-
ance with the provisions of Section 102 54 ( b) of the Board 's Rules and Regulations,
was among the factors considered in disposing of the request for continuance 5 The
Respondent 's failuie to request a continuance prior to the time set for the hearing,
and the arrival of General Counsel from Cleveland and the Trial Examiner from
Washington, D C, was also considered However, the opening of the hearing was
delayed 40 minutes to permit Respondent 's representatives an opportunity to famil-
iarize themselves with the contents of the pleadings and other formal papers
Next considered are the amended specifications the inadequacies of Respondent's
answer and motions directed thereto It is alleged that the backpay period for all
discriminatees began September 14, 1961 Said period ends September 20, 1961, for
Donaldson , September 21, 1961, for Alt , Buddelmeyer, Heinandez , Morman, Potts,
and Schroeder , and September 29, 1961, for Seyer The alleged backpay period for
Meyer contains two periods , one beginning September 14, 1961 , and ending Sep-
tember 18, 1961, and the second beginning October 18 , 1961, and ending November
18, 1961 The alleged backpay period for Gerding begins September 14, 1961,
and ends May 10, 1962 Respondent 's answer does not specifically admit, deny, or
explain each and every allegation of the specification , or in fact any of them , relative
to the backpay period commencing September 14, 1961, and ending September 21,
1961, which completely encompassed the backpay claim of all except Seyer, Meyer,
and Gerding The last three named are further considered infra In place of re-
sponsive pleading Respondent by its answer sought to relitigate the question of
whether it engaged in discrimination in the period stated These matters are res
judicaui Respondent asserted that its manufacturing operations were discontinued
September 13, 1961, at 4 p m and resumed with a partial crew on September 19,
1961 at 7 30 a m and that all of those named were put back to work in their exact
order of seniority Respondent in its answer makes no reference to the precise alle-
gations of the specifications , although it does contain some generalizations relative
only to Gerding and Meyer
General Counsel moved that Respondent be precluded from introducing evidence
controverting allegations relative to which Respondent had not filed a responsive
pleading in accordance with the provisions of the Board's Rules and Regulations,
3 John \elson , during, the hetung asserted th it the tivi strike was reported in on-
identified newspgipcis on Mondai Mac 4, 1964 This would be the diV before Jack
Nelson flew to the Douumcan Republic How he obtained transportation from the site of
his si-plane if return tr inspoitition was, unit-ill ible , is unevpl tined
4In dining the tequest T called ittcntlon to footnote 4 of the Board's Decision, 138
\LRi 884, in which the hoard noted that Jtclc \elson , the majority stockholder 'ifter
conducting t i ote Ni orable to the Union , on September 13, 1961, resigned is },enei al
in iniger ind was succeeded bi his wife Virginli Nelson Mis Nelson asserted that she
is is only thi,re at th it time because tilt Nelson is is ill with asthma Mrs Nelson
iclinowledged that she had ieturnul from the Bahama Islands, where she hid been on
comp my business on Sunday Miii 10 1964
t Vii inia Nelson ' s question as to whether Jock Nelson had 1nowledge of the provisions
of Section 102 54 ( b) was not pursued when her attention was directed to the reference
nude by Jack N elson to th it section in the last p ungiaph of Respondent ' s answer
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Series 8, as amended , Sec. 102.54(b) and ( c).6 General Counsel 's motion was di-
rected specifically, inter alia, to the allegations of the specification setting forth the
rate of pay which each of the employees, covered by the specification , would have
received during their specified backpay period; the median of hours worked for the
employees employed by Respondent from September 11 through September 13, set
forth in Appendix A; the median of weekly hours worked for all employees em-
ployed by Respondent, except employees that worked less than 24 hours per week,
beginning the payroll period ending September 22, 1961, and ending May 11, 1962,
set forth in Appendix B-i through B-6; the date of recall of each named discrim-
inatee, except Gerding, but limited to the first backpay period relative to Meyer; and
the amount of backpay due to Seyer. This motion was granted . Additional items,
contained in the motion relative to Meyer and Seyer are considered infra. ,
The rate of pay being received by each discriminatee , as set forth in the specifica-
tions, was established by examination of Respondent 's payroll of September 18, for
the week ending Friday, September 15, 1961. The record contains the exact num-
ber of hours worked and the amount of pay received by each discriminatee , at that
time. I find General Counsel's allegations as to the hourly rate of each discrim-
inatee. as contained in said specifications , are true and correct.
No issue has been raised by the Respondent , in its answer , in regard to the accu-
racy of the formula used in the specification to determine the amount of backpay;
due.7
6 Section 102.54 ( b) provides: -
Contents of the answer to specification - The answer to the specification shall be in
writing, the original being signed and sworn to by the respondent or by a duly authorized
agent with appropriate power of attorney affixed , and shall contain the post office address-
of the respondent . The respondent shall specifically admit, deny , or explain each and'
every allegation of the specification , unless-the respondent is without knowledge , in which
case the respondent shall so state , such statement operating as a denial . Denial shall
fairly meet the substance of the allegations of the specification denied. When a respond-
ent intends to deny only a part of an allegation , the respondent shall specify so much of
it as is true and shall deny only the remainder . As to all matters within the knowledge
of the respondent , including but not limited to the various factors entering into computa-
tion of gross backpay, a general denial shall not suffice . As to such matters, if the re-
spondent disputes either the accuracy of the figures in the specification or the premises
on which they are based , he shall specifically state the basis for his disagreement , setting
forth in detail his position as to the applicable premises and furnishing the appropriate.
supporting figures.
Section 102 .54(c) provides:
Effect of failure to answer or to plead specifically and in detail to the specification -If
the respondent fails to file any answer to the specification within the time prescribed-by:
this section , the Board may, either with or without taking evidence in support of the
allegations of the specification and without notice to the respondent , find the specification
to be true and enter such order as may be appropriate. If the respondent files an answer
to the specification but fails to deny any allegation of the specification in the manner re-
quired by paragraph ( b) of this section , and the failure so as to deny is not adequately
explained , such allegation shall be deemed to be admitted to be true , and may be so found
by the Board without the taking of evidence supporting such allegation , and the respond-
ent shall be precluded from introducing any evidence controverting said allegation.
[Emphasis supplied I •
7 In substance the formula provides as follows :
( 1) The hours worked by all employees employed on the 3 days prior to the Employer's.
discriminatory shutdown on September 14, 1961, establishes a median number of hours
worked for each specified day as 8.
(2) An appropriate measure of the hours each of the discriminatees would have worked
on September 14 and 15, 1961 , is the median of hours worked by all employees employed
by the Respondent Employer on September 11 through September 13, 1961.
(3) For all periods of discrimination not specified under ( 2), supra, an appropriate
measure of the hours each of the discriminatees would have worked is the median of the
weekly hours worked by all employees employed by the Respondent Employer during each,
week of :the, backpay period of each discriminates „ excepting employees who worked less.
than 24 hours per week. Seven and eight-tenths - hours 'is the, 5 workday average of the
median hours for the payroll period ending September 22, 1961.
(4) The quarterly gross backpay due each discriminates was determined by multiplying
the median number of hours applicable to the backpay period of each discriminatee by'
the wage rate he would have received during such backpay period.
(Footnote continued on following page.)
NELSON MANUFACTURING COMPANY 1637
Respondent's contention that Hernandez worked at two separate rates, one for
-production work and another for cleaning work, was not set forth as an affirmative
defense, and was not supported by evidence of probative value. I find this claim
without merit.
Respondent asserted, through the testimony of Virginia Nelson, that Potts,
.Schroeder, and Seyer had other employment in the backpay period as employees of
Blanger Land Company. Blanger Land Company was described by Virginia Nelson
as another corporation also owned by the Nelsons. Respondent's request for a con-
tinuance, for the purpose of obtaining these records from its accountant, was denied.
This asserted affirmative defense does not appear in Respondent' s answer. I find
the assertion implausible, to the extent it implies that Respondent, with discrimina-
tory intent would lay off production employees, and at the same time engage them
elsewhere.
Accordingly, I find the amounts of backpay set forth in the amended specifications
as the amount due to Alt, Buddelmeyer, Donaldson, Hernandez, Morman, Potts,
and Schroeder, are true and correct. I further find no evidence of probative value in
this record that any of those named withdrew from the labor market or failed to
-make a good-faith effort to find work.8
The Issue Relative to Glenn Seyer
Virginia Nelson asserted that Seyer "is our truckdriver and he drove and he was
not off the payroll." On the basis of demeanor, and other evidence in the record, I
,do not find Virginia Nelson a credible witness.
General Counsel, in his specifications, asserted that Seyer was employed as a
-truckdriver and on production at the rate of $1.60 per hour. I have found , supra,
that Respondent's records reflect that Seyer was paid $1.60 an hour. The Board
found that Seyer was among the discriminatees. This finding is res judicata.
In support of his contention that Seyer's backpay period began September 14, and
-ended September 29, 1961, General Counsel introduced a portion of the transcript of
the earlier hearing (pages 404 to 415) setting forth a stipulation by the parties of
the names of every employee who worked on September 11, 12, 13, 19, 20, 21, 22,
23, 25, 26, 27, 28, and 29, together with the number of hours worked by each on
each date. In addition, the stipulation contains the statement that one employee on
September 14 worked at Alma, Michigan, that three other employees worked speci-
fied hours on September 14, and that two named employees worked stated hours on
September 15. Purportedly, this stipulation contained an accurate and complete
statement of the hours worked by each of Respondent' s employees in the stated
period. The General Counsel correctly asserts that Seyer's name does not appear
in this listing. However, Respondent's, records in this case reflect that Seyer did
receive $52.74 for 3296,i00 hours in the payroll period ending September 15.
Respondent, in its answer, set forth no affirmative defense relative to the portion
-of the specifications applicable to Seyer. General Counsel asserted that he had re-
quested Seyer to appear for the purpose of testifying and that he had been sent out
of town by the Respondent. John Nelson advised that Seyer was not present because
be had been sent, by Respondent, to Montgomery, Alabama.
Accordingly, I find that Seyer's backpay period, as alleged, began September 14,
and ended September 29, 1961; that,he is entitled to backpay in the amount set forth
in the amended specifications; and that there is no evidence of probative value in this
record that Seyer withdrew from the labor market or failed to make a good-faith
effort to find work.
The Issue Relative to Gerald Meyer
In an amendment to the amended backpay specification, General Counsel set
forth a claim for the second backpay period of Meyer, in accordance with the
Board's findings. Meyer's first backpay period began September 14, and ends
(5) Calendar quarter net interim earnings is the difference betweencalendar quarter
interim earnings and calendar quarter expenses.
(6) Calendar quarter net backpay is the difference between calendar quarter gross back-
pay and calendar quarter net interim earnings
(7) The total net backpay due each discriminatee is the sum of the calendar quarter
amount or amounts of net backpay, due him -
(8) Relative to Meyer and Gerding only, the median number of hours worked by all
employees working more than 24 hours in each pay period is the average of the two mid-
most terms of the series, in the periods ending September 22, 1961, through May 11, 1962.
8 N.L R.B. v. S. G. Boswell Co., 136 F. 2d 585, 587 ; Southern Salk Mills, 116 NLRB 769.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 18, 1961, and, absent discrimination, he would have been employed 23.8
hours in that period and would have earned $44.03. The Board found that Meyer
was discriminatorily suspended on October 17, 1961, and that the suspension was
limited to 30 days. It is undisputed that Meyer's second backpay period began
October 18 and ends November 18, 1961. The evidence establishes that Meyer
would have worked 189 hours and would have received $349 65 in the second back-
pay period. The evidence establishes that Meyer was employed by Fruehauf Cor-
poration, Delphos, Ohio, on November 13, 1961, and earned $144.93 in the period,
ending November 18, 1961. Meyer credibly testified relative to trips he made dur-
ing the backpay period seeking work at stated companies in Lima, Delphos, and
Ottawa, Ohio, and Woodburn, Indiana, involving total expenses of $27 36 (412
miles). The amount claimed represents approximately 6'h cents per mile An
additional item of expense in the amount of $14 40 is the cost of transportation to
and from work at Delphos, Ohio, from November 13, to and including November 17.
The distance is 44 miles per round trip. The distance from Meyer's home to Re-
spondent's plant round trip is 12 miles. Accordingly the difference for five trips is
160 miles. The amount claimed thus represents 9 cents per mile. I find the claims
for expense reasonable and allowable deductions from interim earnings The total
expense is $41.76 Thus the net earnings of Meyer in the second backpay period
were in the amount of $103 17.
Respondent's answer, insofar as it relates to Meyer, is addressed to the portion of
the amended specifications in which an erroneous claim for 30 workdays, as distin-
guished from 30 calendar days, ending November 28, was set forth. This error was
corrected by General Counsel's amendment to the amended specification. Respond-
ent did not challenge the accuracy of the computations, as such, nor did Respondent
set forth any affirmative defense relative to the claim of Meyer.
At the hearing, Respondent acknowledged the accuracy of the period covered in
the second backpay period, i.e., October 18 to November 18, as reflected by the
amendment. Respondent introduced no evidence to contradict Meyer's recitation of
his registration with the State Unemployment Office and his individual efforts to
obtain employment during the backpay period.
Accordingly, I find, the amount due Meyer for the first backpay period is the
amount set forth in Appendix E of the amended backpay specification, $44.40. The
amount due Meyer in the second backpay period, set forth in Appendix E-2A of
the amendment to the amended specifications, is $349.65 gross, less $103.17 interim
earnings, or a net amount of $246.48. I further find that Meyer made a good-faith
effort to find work and should be awarded the full amount of net backpay found.
The Issue Relative to James Gerding
The Board found that James Gerding was discriminatorily discharged on Sep-
tember 13, 1961. The Board ordered his reinstatement, with backpay to the time of
an offer of reinstatement. The court ordered enforcement. It is undisputed that
Gerding was offered, and declined, reinstatement on May 11, 1962.
Gerding credibly testified that his rate of pay, while he was employed by Respond-
ent, was $1.50 an hour. Respondent's payroll records corroborate Gerding's testi-
mony. Gerding credibly testified relative to his registration with the State Un-
employment Office, his numerous efforts to obtain employment, and his interim
earnings . All of this evidence is in conformity with the backpay specification which
lists by date, amount, and source, the interim earnings of Gerding as well as the
gross backpay.
Respondent in its answer asserts that the computations relative to Gerding are in
error "on three counts." These are listed as (1) failure to take layoffs in to account;
(2) Gerding was not actively seeking employment; and (3) the date of recall is in
error.
Respondent 's contentions are considered seriatim.
A subpoena duces tecum, directed to Jack Nelson, president, was served on Re-
spondent on Saturday, May 2, 1964, the day before he left Ottawa. Mrs. Nelson
asserted Mr. Nelson did not "receive" the subpena. She asserted her son, Brice Nel-
son, secretary-treasurer of Respondent, was running the plant during the week pre-
ceding this hearing. It is undisputed that a subpoena duces tecum issued May 7,
1964, _to Virginia Nelson, vice president. Mrs. Nelson acknowledged being so ad-
vised, by her son, upon her arrival on May 10, 1964. Production of personnel and
payroll records of Respondent, during relevant periods of time, was thus sought.
NELSON MANUFACTURING COMPANY 1639'
General Counsel sought to establish the median hours worked by all employees
employed by the Respondent, as set forth in Appendix B-1 through B-6, by exami-
nation of these payroll records Virginia Nelson asserted "it will take me lust about
2 or 3 weeks to give you these records, because they are here, but they are in dis-
order and as I say, it is impossible to give them to you " I have found, supra, that
Respondent, in its answer, did not admit, deny, or explain the allegations contained
in the amended specification, and particularly that portion contained in Appendixes
B-1 through B-6 At the hearing Respondent acknowledged that the contents of
these appendixes "are not inaccurate " Respondent introduced no evidence at vari-
ance with the portion of the specifications relating to Gerding, relative to gross back-
pay Accordingly, based on the entire record in this case, I find said computations to
be accuiate
Gerding credibly testified relative to his efforts to obtain employment, some of
which were successful, in the interim period Respondent requested an adjournment
to permit it to obtain and present evidence that work was available in Ottawa, for
which Gerding had not made application Respondent also sought to show that
Gerding's earnings record, reflected by a social security report supplied by General
Counsel, were inaccurate I granted an indefinite continuance, provided that Re-
spondent, within 1 week, forward an affidavit setting forth the evidence it could
produce, if it were permitted to do so, relative to Gerding and his failure to seek
work Respondent submitted nothing further Thereupon the hearing was closed,
by appropriate order At the hearing it was established that Gerding was offered
reemployment by Respondent on May 11, or the day after he had been hired by his
present employer, and the day after he had received an offer of employment from
F Russell Company, one of the places where he had made application during his
period of unemployment Virginia Nelson acknowledged that she did not know the
date on which Respondent offered Gerding reemployment Accordingly, I find that
Respondent's offer of reemployment to Gerding was made on May 11, 1962
I also find that Gerding made a good-faith effort to find work and should be
awarded the amount of backpay claimed for him as follows
Gross Interim
earnings
Net
3d quarter 1901--------------- ------'------------------------- $100 50 $56 $104 50
4th quarter 1961--- ----------- ------------ ----------------- 871 50 539 332 50
lst quarter 1962 _____ ____________ ____________ ------------ 895 50 0 895 60
2d quarter 1902 (to May 10) ____ ----------------------------- 453 00 0 453 00
Total ------------------- ------------------------------- 2,380 50 595 1,785 50
CONCLUDING FINDINGS
The Board has consistently held, with court approval, that the burden of proof is
on the General Counsel to establish for each discrimmatee the loss of pay which has
resulted from Respondent's established discriminatory conduct, i e , the gross back-
pay over the backpay period However, the burden of proof is on Respondent to
show diminution of that amount, whether such a diminution results from the claim-
ant's willful loss of earnings or from the unavailability of a job at Respondent's
operation for some reason unconnected with discrimination The fact the General
Counsel, in an effort to narrow the issues, has preliminarily examined claimants as
to their attempts to find work and the amounts of their interim earnings, and has
prepared a backpay specification attempting to fix the amounts of net backpay, does
not shift the burden of proof as to diminution of the amount of gross backpay
Much less does it shift Respondent's burden of proving that the net backpay claimed
is erroneous New England Tank Industry, Inc, 147 NLRB 598 9
° See cases cited in footnote 11 See also Phelps Dodge Corp v r L R B , 313 U S_
177, 199-200
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the formula set forth in the amended specifications , as amended, and on
the record as a whole, I find that the discriminatees are entitled to the following
amounts of backpay, less such tax withholding as may be required by Federal or
State law, if any; and, in addition, interest at the rate of 6 percent per annum.
Richard A. Alt--------------------------------------------- $87.32
James Buddelmeyer----------------------------------------- 80.24
Harold Donaldson------------------------------------------ 68.95
James Gerding--------------------------------------------- 1,785.50
Elias Hernandez-------------------------------------------- 67.02
.Joseph W . Morman----------------------------------------- 75.52
Gerald Meyer---------------------------------------------- 290.51
Harold Potts----------------------------------------------- 87.32
Norman E. Schroeder--------------------------------------- 87.32
Glen Sayer------------------------------------------------ 171.20
It is recommended that the Board adopt the foregoing findings and conclusions.
United States Gypsum Company and International Union of
Electrical , Radio & Machine Workers, AFL-CIO, Petitioner.
Case No. 8-RC-5571. October 12, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
Nora Friel. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman McCulloch and Members Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act.
4. The appropriate unit.
The Petitioner seeks a unit of "all production and maintenance
employees at the Employer's Phoenix Road plant in Warren, Ohio,
excluding all office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act."
The employees sought as part of the production and maintenance
unit herein are assigned to the Employer's quality department, engi-
neering department, building steel products division, and industrial
steel products division. The entire operation at the Employer's
Phoenix Road plant is under the overall direction of the works mana-
148 NLRB No. 154.