Pat Izzi Trucking Co.

National Labor Relations Board - Board Decisions

Dec 16, 1966

162 N.L.R.B. 242 (N.L.R.B. 1966)

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patrick F. Izzi, d/b/a Pat Izzi Trucking Company and Local 64,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case 1-CA-41476. Decem-
ber 16, 1966
SUPPLEMENTAL DECISION AND ORDER..
On November 27, 1964, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,' which was enforced
by the United States Court of Appeals for the First Circuit by a
decree entered April 12, 1965.2 In its Decision the Board found,
inter alia, that Respondent had violated Section 8(a) (3) of the
National Labor Relations Act, as amended, by discharging two
employees because of their union activities, and by refusing rein-
statement to an additional 16 employees who had engaged in an
unfair labor practice strike but had thereafter unconditionally
offered to return to work. The Board ordered Respondent to rein-
state the 2 discriminatees and the 16 strikers, and to make whole
the 18 discriminatees in accordance with the Board's usual backpay
formula. Thereafter, the General Counsel prepared a backpay speci-
fication to which Respondent excepted as to the methods employed
by the General Counsel in determining the amount of gross pay and
the identity of the claimants to whom backpay was due.
On May 27, 1966, Trial Examiner Joseph I. Nachman issued his
attached decision in backpay proceedings, and on May 31, 1966, he
issued his errata, in which he recommended that specific amounts
of backpay be awarded to the unfair labor practice strikers. There-
after, Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief. The General Counsel filed a brief in support
of the Trial Examiner's Decision.
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-
member panel [Chairman McCulloch and Members Jenkins and
Zagoria].
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 Trial
Examiner's Decision, the errata, the exceptions, the briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner except to the extent
that they are modified herein.3
1149 NLRB 1097.
2 343 F. 2d 753.
' The Respondent has requested oral argument . This request is hereby denied because
the record, exceptions, and briefs adequately present the issues and positions of the parties.
162 NLRB No. 15.
PAT IZZI TRUCKING CO. 243
1. We find merit in the Respondent's exceptions to the Trial
Examiner's findings with respect to the following employees :
Frank Natale and Silvio Napolitano : Prior to the strike which
began on February 6, 1964, Respondent owned three "straight"
trucks which were used for local pickups and deliveries in the Provi-
dence, Rhode Island, area. The "straight" trucks were used primarily
in making deliveries for the Almac chain of supermarkets. Before
January 24, 1964, one of the trucks was operated by Earl James, a
second by Frank Natale, and a third by one of the over-the-road
drivers selected to do so on the particular day. In addition to driving
a truck engaged in making the Almac deliveries, Natale performed a
number of other miscellaneous duties. On January 24, 1964, Respond-
ent discharged Natale for a nondiscriminatory reason and replaced
him with Silvio Napolitano who had been working as a part-time
mechanic-helper. When the strike began on February 6, Napolitano
joined the strike. Respondent thereupon rehired Natale to take the
place of Napolitano. However, after 1 day of employment, Natale
too joined the strike. On learning of the strike, Almac discontinued
the trucking services which Respondent had been performing for it.
These were not resumed. With the loss of the Almac job, Respondent
had need for only one "straight" truck on a part-time basis. It there-
after sold two of the trucks, and used James, a nonstriker who also
had more seniority than either Natale or Napolitano, to drive this
truck and to perform miscellaneous duties around the terminal yard.
Although, as the Respondent correctly points out, there was only
one job involved filled successively by Napolitano and Natale, the
Trial Examiner directed the payment of backpay to both of these
claimants. We find that neither is entitled to backpay because the
job which each had successively held before joining the strike had
been abolished before the application for reinstatement, as the result
of the loss of the Almac contract. Whatever "straight" truckdriving
remains is being performed by James who, in addition, performs
such miscellaneous duties as cleaning the terminal and tractors, and
fueling the trucks, work formerly clone by Natale and/or Napolitano
in addition to their driving duties.4 There is no evidence that other
equivalent work for which Natale or Napolitano was qualified was
available for these two individuals.5
4Atlas Storage Division, P & V Atlas Industrial Center, Inc ., 112 NLRB 1175 , enfd. 233
F.2d 233 (C.A. 7).
s Although Natale and Napolitano, as part of their miscellaneous duties , had served as
driver-helpers , James performed these duties after the strike began until Olechna was hired
as a full-time driver -helper in August 1964. However, as we have found , the work for which
Olechna was hired was work formerly done on a full-time basis by striker Edward Herman,
to whom we have awarded backpay from this date . There is no evidence that any employee
other than James has also done work as a driver -helper in replacement for Natale and
Napolitano since the applications for reinstatement.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward Her?) ?,an: Before the strike, Respondent employed one
,driver-helper , Edward Herman. After the strike began and for some
time thereafter , Respondent had no need for a full -time driver-
helper . James, in addition to his other duties , performed the driver-
helper duties when these became necessary . On August 8, 1964, for
the first time since the start of the strike, Respondent hired a driver-
helper, Theodore Oleclla,e to perform the work formerly done by
Herman and continued to employ Olechna until May 1, 1965, when
Herman was reinstated . The Trial Examiner directed reimbursement
to Herman as of the date of his application for reinstatement in
March 1964. Respondent contends that there was no job available for
Herman until August 8, 1964, when Olechna was hired, and that;
backpay should therefore run from this date. We find merit in this
contention . Accordingly, we shall recompute the backpay due to Her-
man from August 1964 to be paid in escrow to the Regional Director
as directed by the Trial Examiner. The amount clue is as follows:
Calendar quarter Weeks and pay rate Gross backpay Interim
earnings
Not backpay
1964(3) -------- 8 X $9.5---- --------------- - $760.00 $362.92 $397.08
19Cr1(4 ) 13 X $95 1,235.00 143. 10 1,091.90
1965(1)------------------- 13 X $95---_. 1,235.00 ---------------- 1,235.00
1965(2)---. --- 4 X $95------------------ 380.60 ---------------- 380.00
Total backpay due Edward Herman to be paid into escrow ------------------------------ 3,103.98
2. We adopt the Trial Examiner's findings with respect to the
following employees :
Pasquale Falco and Joseph J. Mazzatto. Jr. : After the strike began
and for a period of 4 months, Falco operated a. gasoline filling sta-
tion. During part of this period, Mazzatto worked for Falco at the
station. The Trial Examiner found that Falco operated the filling
station at a loss, but that Mazzatto received $100 a week for 9 weeks
as an employee of Falco. Respondent contends that Falco and
Mazzatto should be disqualified from receiving all or part of backpay
because of the alleged unreliability of their testimony and the
attempt to conceal their interim earnings, citing the M. J. McCarthy
decision.7 In McCarthy, the Trial Examiner recommended denying
backpay to a discriminatee, and the Board adopted his recommenda-
tion, because the discriminatee willfully attempted to deceive both
the General Counsel and the Trial Examiner as to his purchase and
sale of automobiles under fictitious names during the backpay period,
In Section B, 1, (d), first paragraph, seventh sentence, of the Trial Examiner's
Decision, the Trial Examiner misspelled the name Olechna as Alechna. We hereby correct
this error. In footnote 22, we hereby correct the word Alma to read Almac.
7 M. J. McCarthy Motor Sales Co., 147 NLRB 605, 615-618.
PAT IZZI TRUCKING CO. 245
making impossible the ascertainment of his interim earnings. There
is no comparable situation here. At most , the evidence as to Falco's
operation of the filling station , and Mazzatto 's earnings as an
employee of Falco, shows poor record keeping , uncertainty as to
memory, and perhaps exaggeration . But the Trial Examiner found
no difficulty in ascertaining the interim earnings of both Falco and
Mazzatto within a reasonable approximation . Nor do we. Accord-
ingly, we adopt the Trial Examiner 's determination of the backpay
due these two discriminatees.8
Patrick Macri
3. The Trial Examiner's Decision contains an arithmetical error
in computing the backpay due Patrick Macri. The total deduction
frond earnings during the backpay period should be $580 rather than
$480, as found by the Trial Examiner. The total due Macri is there-
fore $3,833.20 rather than $3,933.20.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
.upended, the National Labor Relations Board hereby orders that
Respondent, Patrick F. Izzi, d/b/a Pat Izzi Trucking Company,
Providence, I:.I., its officers, agents, successors, and assigns, shall
pay to the employees involved in this proceeding as net backpay the
amounts set forth opposite their names in the Supplemental Order
in t:he Trial Examiner's Decision and errata thereto, except for the
individuals named below who shall be paid the following amounts
set forth opposite their names.
Edward lIermaii ----------------------------- 98
20Patrick Macr'1-------------------------------- 3" 8^>•,.
Silvio Napolitano----------------------------- None
Frank Natale-------------------------------- None
Each of the foregoing sums shall accrue interest at the rate of 6
Percent per annum, computed in the manner set forth in Isis Plumb-
ing ct fleativtg Co., 138 NLRB 716. There shall. be deducted from
each of the foregoing amounts, social security, income tax withhold-
ing, and such other deductions as may be required by the laws of
the t'nited States or the State of Rhode Island.
9 Respondent contends that the Trial Examiner unreasonably limited Respondent's cross-
examination of Falco and improperly refused to direct the production of his business records.
Falco responded to a subpoena duces tecunt requiring the production of his original busi-
ness records relating to the operation of the filling station by bringing in profit and loss
statements prepared by a public accountant, but not the underlying records. however, dur-
ing the course of his examination and cross-examination, it appears that Falco did produce
all the underlying records lie possessed, although in piecemeal fashion. Accordingly, we find
no abuse of discretion or prejudicial error in the rulings of the Trial Examiner to which
Respondent objects.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FURTHER ORDERED that the amounts herein directed to be paid
to Edward G. Herman and Wesley G. Phipps, shall be paid to the
Regional Director for Region 1 of the Board, to be held in escrow
by said Director for a period not exceeding 1 year, and during such
period he shall afford Respondent an opportunity to examine them
as to their interim earnings in excess of those credited in the backpay
specifications, if any, or other reasons justifying a reduction in the
amount of backpay due them, in accordance with existing Board
precedents, and determine the amount thereof, if any. Should any
proper basis for reduction be established, the amount thereof shall
be returned to Respondent, and the remainder paid to said discrimi-
natees. The Regional Director shall, when he has resolved said mat-
ters, promptly, and no later than 1' year from the date of this Deci-
sion, report to the Board the status of these matters at that time.
TRIAL EXAMINER 'S DECISION IN BACKPAY PROCEEDINGS
This supplemental proceeding to determine backpay was heard by Trial Exam-
iner Joseph I. Nachman at Providence , Rhode Island , beginning February 2 , 1966,"
on the backpay specifications of the General Counsel , dated October 27, 1965,
and the answer thereto by Patrick F . Izzi , d/b/a Pat Izzi Trucking Company
(herein called Respondent or Company ). At the hearing , the parties were repre-
sented by counsel , and were afforded full opportunity to adduce relevant testi-
mony, to examine and cross -examine witnesses , to argue orally on the record,
and to submit briefs . Briefs submitted by the General Counsel and Respondent,
respectively, have been duly considered.
Upon the entire record in the case ,2 including my observation of the demeanor
of the witnesses while testifying , I make the following:
FINDINGS OF FACT
A. Background and setting of the issues
On November 27, 1964 , the National Labor Relations Board (herein called the
Board ), adopting the findings and conclusions of Trial Examiner Whittemore,
directed Respondent to take the action set forth in said Trial Examiner 's Recom-
mended Order , 149 NLRB 1097.3 On April 12 , 1965, the United States Court of
Appeals for the First Circuit granted summary enforcement of the Board 's Order.
N.L.R.B . v. Pat Izzi Trucking Company, 343 F.2d 753.
Trial Examiner Whittemore had found , inter alia, that Respondent violated
Section 8 (a)(5), (3), and ( 1) of the Act by refusing to recognize and bargain
with the Charging Union as the representative of his employees in an appropriate
'Hearings were held February 2 through 4 and 9 through 11 On the last mentioned date
the hearing was adjourned indefinitely to permit the parties to confer with a witness and
prepare a stipulation regarding his testimony on one aspect of his interim earnings On
March 7, 1966, having received such a stipulation , I entered an order closing the record
and fixing the time for briefs
2 Respondent by motion filed with me, asks for the correction of the transcript of evidence
in two particulars • ( a) at page 169 , line 18, change the word "for " to "from " ; and (b) at
page 197, line 1, change the figures "$25 . 00" to "$125 00 ." The General Counsel has filed
objections to the second portion of the motion as being an attempt by Respondent "to amend
the transcript in order to serve its own interests ." I grant the motion in full because I re-
gard the corrections necessary to correctly reflect the testimony of the witness
3 The Board ' s action was predicated on the provisions of Section 10(c) of the National
Labor Relations Act (herein called the Act), and Section 102 48 ( a) of its Rules and Regula-
tions dealing with the failure to file exceptions to a, Trial Examiner ' s Decision
PAT IZZI TRUCKING CO. 247
unit,4 by discharging two employees because of their union activities, and by
refusing reinstatement to an additional 16 employees who engaged in a strike
found to have been caused by Respondent's unfair labor practices, after uncon-
ditionally abandoning their strike and offering to return to work. The Trial Exam-
iner's Decision, adopted by the Board and enforced by the court, directed Respond-
ent (1) upon request, to bargain with the Union as the representative of the
employees in the unit found appropriate; (2) to reinstate the 2 employees dis-
charged for union activity (Couitt and Dessler), and the 16 strikers who were
denied reinstatement (a list of these appears on Appendix A to the Decision);
and (3) to make whole the 18 discriminatees in accordance with the Board's usual
backpay formula. Unable to reach agreement with Respondent administratively
as to the proper computation of the backpay due the discriminatees, the General
Counsel issued the backpay specifications referred to.5 The answer to the backpay
specifications raises the following major issues which were litigated at the
hearing:
1. Although the parties are in accord that the backpay period began on Feb-
ruary 5, 1964, with respect to Couitt and Dessler, and on March 20, 1964, with
respect to the remaining discriminatees , they are in disagreement, except in three
instances hereafter mentioned, with respect to the date on which the backpay
period ends; the General Counsel contending that except for DiMillio, Napolitano,
and Frank Natale, the employees were reinstated on May 1, 1965, while Respond-
ent contends that he offered reinstatement on April 15, 1965, but at the request
of the Union, the time for the employees to report for duty was extended to
May 1, 1965.
2. While the parties are agreed that Rocco DiMillio was reinstated on March 8,
1965, the General Counsel contends Silvio Napolitano and Frank Natale have
not as yet been reinstated, and that as to them the backpay continues to accrue.
Respondent, on the other hand, contends that the job held by Napolitano and
Frank Natale at the time of the strike, were abolished, that as they are not quali-
fied for other jobs, there is and has not been since the strike began, a job to
which they can be reinstated.
3. Most important issue litigated was the prestrike earnings of the discrimina-
tees, which constitutes the basis on which the gross backpay is computed. A few
examples will focus the problem and the credibility issue involved. Frank Couitt,
an over-the-road driver, had worked for Respondent for several years prior to
the strike. From time to time he received pay increases and testified that immedi-
ately prior to the strike he was being paid a flat salary without regard to the
hours worked or trips made (both of which did in fact vary), of $130 a week
net take-home pay, Respondent paying all deductions for social security and tax
withholding. On the basis of this testimony, the General Counsel contends that
Couitt's gross backpay, for his entire backpay period, should be computed on
the basis of $130 weekly.6 Respondent, on the other hand, denies that Couitt was
paid $130 weekly net take-home pay, contending that his weekly pay was $100
gross, from which the usual deductions were made. Another example is the case
of Patrick Macri. The latter testified that just prior to the strike, he was paid
$110 net each week with Respondent paying all proper deductions. Respondent
contends that Macri was paid $110 per week gross, and that his net pay was the
amount that remained after proper withholdings. In other instances, such as
Edward Mitchell, the employee's testimony and Respondent's records are in
accord that a gross weekly wage was paid from which the deductions authorized
by law were made.
* The unit found appropriate was :
All truck drivers and helpers employed at its Providence, Rhode Island, terminal,
exclusive of all other employees, office clerical employees, dispatchers, guards, and all
supervisors as defined by the Act.
5 Although the Board's Order directed reinstatement and backpay to 18 employees, the
General Counsel's specifications refer to only 17; the omitted one being Robert Natale.
The reason for this omission does not appear.
The General Counsel does not overlook the fact that if Couitt's testimony is credited,
his weekly wage was, in fact, $130 plus the amount withheld. Because of the alleged difficulty
in computing what the correct figure would be, the General Counsel waived this excess and
computed the gross backpay on the basis of a $130 weekly salary.
248 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
4. Another issue relating to the computation of gross backpay , raised by
Respondent , arises from what I regard as an unnecessary and inapplicable allega-
tion in the backpay specifications , which is as follows:
1. An appropriate measure of the earnings the discriminatees would have
received during the backpay period is the average weekly earnings received
by them during the period of their employment prior to February 6, 1964.
2. The quarterly gross backpay for the discriminatees was determined by
multiplying the number of weeks in each quarter of the backpay period by
the average weekly earning measure described in paragraph 1 above. [Empha-
sis supplied.] 7
The evidence shows that all the discriminatees were paid a weekly wage which
did not vary with the quantum of work, and that from time to time their weekly
wage was increased , with the highest wage being paid just prior to the strike.
However, in making his backpay computations the General Counsel did not use
"the average weekly earnings . during the period of . . . employment prior
to February 6, 1964 ," but used the employee's wage rate in effect at the time of
the strike . Respondent 's answer admitted that paragraphs I and 2 of the back-
pay specifications state the proper method for computing the backpay due the
several discriminatees , but avers that the General Counsel did not use that method,
as I have pointed out . With respect to each discrimirl'atee , Respondent avers that
a specific sum, substantially less than used by the General Counsel , is the average
of his prestrike earnings.8
5. A further issue relating to computation of gross backpay arises from Respond-
ent's contention that during the backpay period there was insufficient work for the
13 drivers entitled to reinstatement.
B. Disposition of the issues
1. The backpay period
The parties are in accord that the backpay period begins on February 5, 1964,
with respect to Couitt and Dessler,9 and on March 20, 1964, as to the remaining
discriminatees.10 The parties are also in agreement that Rocco DiMillio was rein-
stated on March 8, 1965. With respect to 13 of the remaining 16 discriminatees,
Respondent contends that it made a valid offer of reinstatement on April 15, 1965,
which terminated his backpay obligation to them, but that at the request of the
Union, he deferred the time for the employees to report for duty until May 1.
With respect to Couitt, Respondent contends that a valid offer of reinstatement
was made on April 6, 1964, and that his right to backpay terminated on that day.ll
As to Napolitano and Frank Natale, Respondent admits that he has not offered
either of them reinstatement, contending that since February 7, 1964, when they
went on strike, there has been no available job for which either could qualify.
These contentions will now be disposed of.
Averaging past earnings may well be an appropriate method for determining future
earnings, if the employee's prestrike earnings fluctuate. Averaging, however, would seem
to be wholly unnecessary, in fact inappropriate, where the employees work regularly, and
are paid it fixed weekly salary irrespective of the hours worked.
b For example, in the case of Edward Herman, the General Counsel computes backpay
on the basis of $95 it week, which admittedly was his rate of pay at the time of the strike.
Ilerman was first employed by Respondent during the week ending October 5, 1!16:i. lie was
initially paid $45 it week. For the next 3 weeks his pay was $75. For the remaining 3 weeks
of 1963, he was paid $90 a week. For each of the five pay periods in 1964, prior to the strike,
he was paid $95 a week. Respondent totaling Herman's earnings from the day lie began
work through February 8, 1964. and dividing by the 19 weeks in that period, reaches an
average figure of $81.05, w'Iiich lie contends is the proper figure on which backpay must
be computed in this case. Similar computations and averments were made by Respondent
'vitli respect to each discriminates.
D That being the date said employees were discriminatorily discharged.
lu The date they abandoned their strike and asked for reinstatement, which Respondent
declined.
"As this iss,ie affects only Couitt, it will be dealt with in connection with the coutperta-
tion of the backpay due him.
O
PAT IZZI TRUCKING CO. 249
(a) The alleged offer of, reinstatement on April 15, 1965
On April 15, 1965,12 Respondent sent a letter to 17 of the 18 employees held
by the Board to be entitled to reinstatement. 13 This letter read as follows:
You are hereby offered immediate and unconditional reinstatement to your
former position in accordance with the order of the National Labor Relations
Board. Please let the know within one week from the date of receipt of
this letter whether you, intend to accept this offer of reinstatement and when
you will be available to return to work. If I do not hear from you by that
time, I shall assume you do not wish to accept reinstatement.
On April 21, 1965, the Union, as the collective-bargaining representative of the
employees, on behalf of said discriminatees, sent a telegram to Respondent. The
telegram stated that Respondent's offer of reinstatement was accepted, and that
"each employee will be available for work within one week from the date of
an individual directive to him to return to work." By letter dated April 27, which
apparently followed some discussions between the parties, Respondent advised the
Union, that nine named discriminatees, all drivers, should report to Respondent's
terminal at 11 a m., May 1, at which time they would be given specific driving
assignments .14 Based on this exchange of correspondence, and the oral discus-
sions between the parties in the interim , the details of which were not too clearly
developed in the record, Respondent contends that his backpay obligation to the
employees involved ( excluding Couitt, Dessler, DiMillio, and Frank Natale),
terminated on April 15, 1965, while the General Counsel contends that the
termination date is May 1, 1965.
(b) Conclusions as to termination of backpay period date
Although Respondent's letter of April 15, quoted above, is couched in terms of
and called an offer of " immediate and unconditional reinstatement ," his letter of
April 27 demonstrates that it was not such in fact, and was only intended by
Respondent as an inquiry whether the discriminatees would accept reinstatement.
Thus, the so-called offer of reinstatement fixes no time for the discriminatee to
return to work, and was sent to all discriminatees named in the Board's Order,
although Respondent well knew, as he told the Union on April 27, that he had
jobs for only 10 drivers, the helper, and the mechanic' s helper.
Respondent's obligation under the Board's Order, enforced by the court, was to
reinstate and to make whole each discriminatee until reinstated. This obligation
is not satisfied until the employer notifies the discriminatee of a time and place to
report for duty. Admittedly, Respondent gave no such notice until April 27, at
which time he fixed May 1 as the date for the employees to report for work.15
On the foregoing facts, I find and conclude that Respondent's letter of April 15,
1965, was not an unconditional offer of reinstatement , and that as to the dis-
criminatees in this category, Respondent 's backpay obligation did not terminate
until May 1, 1965.
19 This was 3 days after the court of appeals' decree enforcing the Board's Order
"The one omitted was Rocco DiMillio, s horn Respondent had reinstated on March 8,
1965
i+ The letter also stated that as Respondent had only 10 drivers at the time, the 9 offered
reinstatement (Patrick Macri, Frank Coultt, Wesley Phipps, Robert Natale, Pasquale Falco,
Murray Dessler. Edward Mitchell, Joseph Ferle, and Samuel Weiner), and D1Millio who
had previously been reinstated, would fill all available driver jobs, that 3 drivers (Anthony
Scarainuzzi, Walter Phillips, and James Diaz), had waived reinstatement; that 1 other
(Wilfred Pierce), would be placed on a preferential hiring list; that 2 other employees
would report for work, Joseph Mazzatto as a mechanic's helper, and Edward Herman as
a helper
Respondent's aforesaid letter of April 27, 1965, also stated that Frank Natale and Silvio
Napolitano were not being offered reinstatement, but would be placed on a preferential
hiring list, because the jobs they held prior to the strike no longer existed, and no other
work NA a,, available for which they qualified
151f Respondent is correct in his contention that the letter of April 15 was an uncon-
ditional offer of reinstatement, then he offered reinstatement to Frank Natale and Napo-
litano, as the letter was admittedly sent to then Even Respondent concedes that he had
no intention of offering reinstatement to those employees, because, as lie contends, their
prestrike jobs had been abolished and there was no work for which they could qualify
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) The issue of reinstatement as it relates to Frank Natale and Napolitano
(i) Frank Natale
Frank Natale , a young man of about 23 or 24,16 began working for Respondent
in 1962 . As found in the prior case, Natale was discharged on January 14, 1964,
but recalled to work on February 7 , and at the end of that day joined his fellow
employees in the strike which began on February 6. Testifying in the instant pro-
ceedings , Natale stated his duties to be that of a "Driver-Helper." Describing a
typical day 's work, Natale testified that he would report to Respondent 's terminal
at times as early as 2 a .m., and would first assist unloading trailers brought in by
over-the-road drivers. By 6 a.m., Natale was required to report to the Almac ware-
house where he would load up merchandise and deliver it to the Almac retail
stores.17 Finishing the Almac work normally between 10 and 11 a.m ., Natale
returned to Respondent's terminal, and would then make local deliveries of freight,
or go to Boston or some other nearby point, on a tractor -trailer to help the over-
the-road driver load or unload . His workday ended anywhere from 3 to 10 p.m.
According to Natale, his workweek was about 70 hours, for which he was paid a
fixed weekly salary.
(ii) Silvio Napolitano
Napolitano began working for Respondent in September or October 1963, as a
part-time mechanic 's helper, at an hourly rate, assigned to fueling the trucks, check-
ing lights and brakes , and otherwise making certain that the vehicle was ready for
the road . 18 During this period he did no driving for Respondent other than moving
the trucks about the terminal yard . With the discharge of Frank Natale on Janu-
ary 24 , 1964 , Napolitano was given a full -time job and assigned to perform the
duties theretofore performed by Natale . At this point Napolitano was placed on a
weekly salary without regard to the hours worked . 19 Napolitano described the duties
of his full-time job as requiring him to report to Respondent 's terminal as early as
2 a.m., to accompany an over -the-road driver of a tractor -trailer to some ware-
house or plant in the area, and there assist with the unloading of the trailer. This
completed , he returned to the terminal and time permitting started the tractors
scheduled to depart that morning , so that they would be "warmed-up" and ready
for the road . Between 5 : 30 and 6 a.m., he would drive a straight truck to the
Almac warehouse and load up goods for delivery to the Almac stores, leaving the
warehouse about 8 a.m. After delivering to the retail stores, he returned to the
terminal between 10 and 11 a.m., at which time he would , if needed , be assigned
as a helper on an over-the-road tractor-trailer going to Boston or some other
nearby point . If he was not needed as a helper, he would work at fueling the trucks,
washing them , sweeping out trailers, etc., finishing out the day and returning home
about 5 p .m. Napolitano estimated that during this period he worked from 60 to
70 hours a week . 20 For this work he was paid a fixed weekly salary.
Respondent admits that neither Natale nor Napolitano has been reinstated, as
directed by the Board's order . In justification of its failure to reinstate said employ-
ees, Respondent contends that there is no available job for which either can qualify.
In this connection , it is uncontradicted that because of the strike against Respondent
which began February 6 , 1964 , he was unable to perform the work required by
19 Exhibit 20q in the initial proceeding lists Natale 's year of birth as 1942.
17 Almac's is a chain of retail food stores operating in the Providence area The stock of
the retail stores is replenished daily, except Sundays and Wednesdays, from a central ware-
house in or near Providence . Prior to the strike, Respondent was under contract with
Almac to deliver from the warehouse to the retail stores
18 During this period Napolitano also worked part time as a schoolbus driver.
19 With this change Napolitano quit his part -time job as a busdriver.
21 Both Patrick and Donald Izzi testified that neither Natale nor Napolitano had any
duties to perform until he picked up the straight trucks about 5: 30 a . m., to be at the
Almac warehouse by 6 a.m. They also testified that neither Natale nor Napolitano was ever
assigned to make local deliveries from the terminal , or as a helper on an over -the-road run ;
that except for occasionally washing the trucks or sweeping out trailers when they were
not otherwise busy, their only duty during the period involved , was In connection with the
deliveries from the Almac warehouse to the latter 's retail food stores I do not credit their
testimony in this regard . Rather , I credit the testimony of Natale and Napolitano that
they frequently and with substantial regularity worked as helpers on of er-the -road runs
to Boston and other nearby points.
PAT IZZI TRUCKING CO. 251
Almac, and that the latter thereupon canceled Respondent' s contract , and that he
has not since performed such work. According to Patrick Izzi, the three straight
trucks used in performing the Almac contract 21 were, after February 7, 1964,
parked at Respondent's terminal , where they remained unused until June 1964,
when they were traded in for other equipment. However, Patrick Izzi admitted that
in July 1964, he transferred another straight truck from his New York operation
to Providence, which Earl James drives for such local pickups and deliveries as
may be required. What equipment, if any, was used for local pickups and deliv-
eries from the inception of the strike until the aforesaid transfer, is not explained
on the record. It would seem highly improbable that an over-the-road tractor and
trailer would be used for that purpose.
(d) Conclusions regarding work availability for Natale and Napolitano
The burden is on Respondent to establish the unavailability of work for which
Natale and/or Napolitano is qualified. On the entire record, I find and conclude
that Respondent has not borne that burden. I have found, contrary to Respondent's
contention, that the work of these two employees was not confined to the servicing
of the Almac contract, but that they assisted in unloading trucks before starting on
the Almac work, and after completing the Almac work, worked at the terminal in
sweeping up, greasing and washing the trucks, and as helpers on the runs to Boston,
or other nearby points. Natale and Napolitano estimated that they worked from a
minimum of 50 to a maximum of 70 hours a week, and for the purposes of decision
I have struck an average of 60 hours a week. Donald Izzi, the dispatcher at
Respondent's terminal, who assigned these employees to the work they were
required to perform, testified that Natale and Napolitano worked about 5 hours a
day, 5 days a week in the performance of the Almac contract 22 Thus, they devoted
about 35 hours a week (60-25=35), or virtually a full week of 5 days of 8 hours
each, to non-Almac work. Moreover, the 'record shows that during the backpay
period, namely during the week ending August 8, 1964, Respondent hired
T. Alechna as a driver's helper. The record does not show whether Alechna is still
so employed. If he is, and as he was hired as a replacement for unfair labor prac-
tice strikers, he must be dismissed to provide work for Natale and Napolitano,
because as I find, this is substantially equivalent work which Natale and Napolitano
are qualified to perform. In addition, assuming that there was no work for Napoli-
tano and Natale at any time prior to May 1, 1965, it was Respondent's duty to
place them on a preferential hiring list. The record shows that on May 1, 1965,
Respondent reinstated Edward Herman as a helper. Herman is no longer employed
by Respondent . When his employment terminated does not , appear, but when it did
Napolitano or Natale was. entitled to that work.
On these facts, I.find and conclude, that notwithstanding the loss of the Almac
contract on or about February 7, 1964, there remained sufficient work unconnected
with that contract, to which one, if not both of these employees could be assigned,
and to whom Respondent must offer reinstatement as provided by the Board's
order. This conclusion is fortified, I believe, by the additional fact that on April 15,
1965, Respondent offered reinstatement, albeit incomplete, to both Natale and
Napolitano, notwithstanding that he well knew at the time that Almac work had
not existed for more than a year. In view of the offer on April 15, the contention
less than 2 weeks later that there was no work for Natale and Napolitano , has all
the earmarks of an afterthought designed to avoid full compliance with the Board's
order. I so find.
Backpay will continue to accrue to Natale and Napolitano until Respondent offers
them reinstatement . Of course , if after reinstating Natale and Napolitano , it should
then appear that there is sufficient work for either or both of them , Respondent
may reduce force as his business judgment dictates, provided such reduction is on
a nondiscriminatory basis.
The fact that Natale may have been recalled as a replacement for Napolitano
when the latter went on strike, has no bearing on the right of either to backpay
21 Patrick Izzi testified that these three trucks were used only to perform the Almac
contract ; that one of these trucks was driven by Earl Tames, an employee who did not
go on strike in February 1964, another by Natale until the time of his discharge, and
thereafter, until the strike, by Napolitano, and the third by someone of the over-the-road
drivers selected to do so on the particular day.
ra If, as Respondent contends, they worked, only on the Alma contract, no showing has
been made what they did with the remainder of their time.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until they are reinstated . The discrimination against these employees occurred at
the same time-when Respondent refused to reinstate them upon the abandonment
of the strike and the request that they be restored to their jobs. It was so adjudi-
cated in the unfair labor practice proceeding , and to remedy that discrimination,
Respondent was directed to reinstate both Natale and Napolitano , with backpay as
therein provided.
(e) Contentions as to work availability for tractor-trailer drivers,
as it relates to backpay computations
Although no issue has been raised as to reinstatement of the 13 discriminatees
who are tractor -trailer drivers ,23 Respondent contends that full employment would
not have been available for them during the entire backpay period . This contention
is predicated on the assertion that prior to the strike Respondent had a pool of
"spare " drivers who were as much entitled to the available work as the discrim-
inatees, and that for this reason the available work should be divided among all
the drivers , with the amount available to the discriminatees ( and hence their back-
pay) reduced pro tanto . I find this contention without merit.
The pool of "spare" drivers referred to by Respondent, was simply a list of
drivers upon whom he would call when he needed a driver because of an extra
trip, or the unavailability of a regular driver. The spare driver so called was free
to accept or reject the proffered work for any reason, or for no reason . There is
no showing that the "spare" drivers were called upon with any degree of regularity;
a man might be called for a particular trip and not be called again for several
years. Under these facts , the "spare" drivers were not permanent or regular employ-
ees, and to the extent that they drove during the backpay period were in no differ-
ent position than any other replacement for an unfair labor practice striker.24
2. The issue of earnings prior to the strike
(a) Discrepancy between employer 's records and employees ' testimony
Respondent began his trucking business in the early 1940's, with one truck, which
he drove himself . The business prospered , and today , Patrick Izzi, as the owner,
devotes his full time to overall management . Donald Izzi, Patrick's brother, is the
person generally present at the terminal to supervise day-to-day operations and
assigns employees to their duties . Mrs. Delfino , Respondent's sister , a part-time
bookkeeper, keeps the payroll records.25 In addition , an auditor or accountant is
employed, but he apparently has no personal knowledge of the facts . At least he
did not testify in this proceeding.
The undisputed testimony is that it has always been Respondent 's practice to
pay the employees their wages in cash each week. Payday is on Tuesday for the
workweek ending the preceding Saturday . Normally, Donald Izzi pays the employ-
ees, giving the money to each employee in hand. The employees sign no receipt
2 The discriminatees in this category are Conitt . Dossier . parer, Phipps, Falco, Mitchell,
Ferle, Weiner , DiMillio, Searaan ( zzi, 1hillips , Diaz, and Pierce. The first nine of these
were reinstated on May 1, 19(iii. Scaranuizzi , Phillips, and Diaz , declined reinstatement.
Pierce was placed on it preferential hiring list as of May 1 , 19(15. The General Counsel
makes no claim that such actions were not proper , or that their hackpay should be com-
puted beyond May 1, 19(15.
z'Even if it be assumed that the "spare " drivers were equally entitled to the av a ilable
driving work as the discrimiuatee drivers. Respondent has the burden of showing, the
proper apportionment of the available work between the "spare" drivers and those that
were hired specifically as replacements for the striking drivers. This tie has wholly failed
to do. The only evidence which bears on this subject is the chart prepared by Compliance
Oflicer McDonald showing the drivers employed by Respondent during the backpay period,
which , with minor exceptions not here material , Respondent admits is correct . Respondent
concedes that some of the drivers shown on that ch a rt were simply replacements for the
driver discriminatees . Which ones fall into that category , an d what volume of the work
they performed , is not shown . Accordingly , the burden which rests on Respondent . of show-
ing that something less than the full volume of work would uortiuilly have heel availab le
to the discriminatees during the backpay period, has not been met.
12 It is admitted that Delfinu has no knowledge of the anion its paid the several em1.1oyvi,s.
She simply enters in the payroll records the inforanttiou supplied her by her brother. Itor
testimony- therefore , is of little assistance in resolving this issue.
PAT IZZI TRUCKING CO. 253
or other document which might he evidence of payment. The only exception to
this was in case an employee did not reach Respondent's terminal before it closed
for the day on Tuesday, but was due in that night, the money was left for him in a
pay envelope, at an all-night diner located near Respondent's terminal.
Patrick Izzi testified that when the payroll was prepared, he cashed checks which
had been given him by his customers, to obtain sufficient cash to pay the employ-
ees. Thus, no payroll check is issued, and the only record to show wages paid to
employees are the payroll records kept by Delfino. Patrick Izzi denied that he had
any agreement or understanding with any employee to pay the latter's social
security or withholding taxes, and further denied that he paid any employee any
amount other than as reflected in his payroll records.
Although the General Counsel claims that the payroll records produced by
Respondent, excerpts of which are in evidence, are "false," or "are not the only
records," there is, except for one factor to be hereafter discussed, not one piece of
corroborative evidence to establish his allegation, and the General Counsel, as to
that issue, must stand or fall on the resolution of credibility of the Izzi Brothers
on the one hand, and the several employees on the other. The one piece of evidence
above referred to, on which the General Counsel relies heavily, are General Coun-
sel's Exhibits 4(a) and 4(b), as explained by discriminatee'Frank Couitt. The two
exhibits are pay envelopes which show the following:
Exhibit G.C. 4(a) Exhibit G.C. 4(b)
Name ------------- Frank Couitt Name ----------------- Frank Couitt
Week Ending ----------- 5-15-65 Week Ending --------------- 8-3-63
Earnings -------------- 100 00 Earnings
Deductions Deductions
Fed. O.A.B._-__________ 1 00 Fed O A B
Withholding Tax -------- 3 63 Withholdrg Tax
.50
Net Amount Due________ $94. 87 Net Amount Due__________ $125.0026
The name and all figures appearing on the envelopes are handwritten; the remain-
der of the material is printed. Couitt testified that these two envelopes contained
his wages for the pay periods ending on the dates indicated, left for him at the
diner on occasions that he was not at the terminal before it closed on the particu-
lar payday, and that the written material on the envelopes is in each case the
handwriting of Donald Izzi, who normally paid the employees. General Counsel's
Exhibit 4(b) indicates that for the week ending August 3, 1963, Couitt was paid
$125, without deductions of any kind, thus tending to corroborate Couitt and sup-
porting the General Counsel's contention that the employees were, in fact, paid a
greater amount than is reflected by Respondent's books. Under, cross-examination,
Couitt admitted that from time to time he borrowed money from the Company
which he repaid in weekly installments, and that on occasion he had borrowed as
much as $125, but he denied that any money he thus borrowed was ever left for
him at the diner, claiming that when he borrowed from Respondent, the money
was always given to him in hand.
Patrick Izzi's explanation of General Counsel's Exhibit 4(b) is that the $125
given Couitt on August 3, 1963, was a loan. He testified that on that date, which
was a Saturday, Couitt called him at home early in the morning, and asked if he
could borrow $125 which he was in urgent need of that day; that he (Izzi) agreed
and told Couitt that as he would not be at the office that morning, he would leave
the money for Couitt at the diner; that he went to the terminal, got the money
from the petty cashbox, put it in the envelope which is General Counsel's Exhibit
4(b), and left it at the diner for Couitt. According to Patrick Izzi, the written
material on General Counsel's Exhibit 4(b) is all in his handwriting, but that the
written material on General Counsel's Exhibit 4( a) is in the handwriting of Donald
Izzi. An I 0 U evidencing the loan was subsequently obtained from Couitt and
placed in the petty cashbox where it was kept until the loan was repaid, at which
time it was destroyed or returned to Couitt. Donald Izzi also testified that the
written material on General Counsel's Exhibit 4(a) is in his handwriting, while
that on General Counsel's Exhibit 4(b) in the handwriting of Patrick Izzi.
a' Couitt testified that in August 1963, his weekly wage was $125 net, and that effective
January 1, 1964, he was raised to a net of $130 Because of this increase the General
Counsel computes his gross backpay earnings on the basis of $130 net each week
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel also relies, in part, on the fact that some of the discrim-
inatees testified in the initial unfair labor practice hearing with respect to their pre-
strike earnings , giving a figure which is at variance with Respondent 's records, and
this testimony was not denied or in any way controverted at that time 27
(b) Conclusions with respect to prestrike earnings
Upon consideration of the entire record, I must and do find and conclude that the
General Counsel has failed to establish by evidence satisfying the proper standard
of proof, that Respondent's records are inaccurate, or that the discriminatees involved
were paid on any basis other than as reflected by said records. I am led to this con-
clusion by the following considerations:
1. Although exempt from the overtime requirement of the Fair Labor Standards
Act, the minimum wage provisions of said act, are applicable to the discriminatees
involved, all of whom worked as drivers and helpers.28 With respect to such employ-
ees, Respondent is required by law to make, preserve, and upon request make
available to United States Department of Labor, records showing the wages paid
and the basis for such payments.29 The valid purpose of the record keeping regula-
tions is to require the employer to make and keep a record showing whether he has
complied with the law. United States v. Darby, 312 U.S. 100, 124-125. The making
or keeping of any record required by the aforesaid regulations, knowing such to be
false in a material respect, is unlawful, for which criminal penalties may be
imposed.30 Moreover, Respondent's representations to the Regional Office in his
negotiations with them prior to the hearing, and probably his testimony at the hear-
ing, that his records correctly reflect the wages paid the employees immediately
prior to the strike, would, if they are in fact inaccurate, appear to be a plain viola-
tion of 18 U.S.C. 1001 .31 In substance and effect the General Counsel's theory of
the case is that Respondent has and is perpetrating a fraud against the United
States. However, "Fraud is never presumed, but must be established by clear and
convincing evidence" (Albert A. Shahadi v. Commissioner of Internal Revenue, 266
F.2d 495, 501 (C.A. 3), or as is sometime stated, "fraud can be proven only by evi-
2' See prior transcript pp. 306-307 where Couitt testified that at the time of his dis-
charge lie had worked half of a 6-day week, for which he was paid $66; pp 410-411, where
Falco testified that as an inducement to his abandoning the Union, Patrick Izzi offered him
an increase in pay which at the time was $125 a week , pp 377-378, where DiMillio testified
that at the time of the strike he was getting $130 a week, and that Patrick Izzi offered him
$140 a week to stick by him and not join the strike. In the hearing before me, DiMillio, who
had been reinstated on March 8, 1965, about 2 months before the remaining strikers were
reinstated, was called as witness by the General Counsel. Without examining the witness
on the issues in the case, the General Counsel sought the admission into evidence of an
affidavit which DiMillio had given the Board on February 13, 1964, in which he stated
that his net take-home weekly pay at the time of the strike was $130. After objection to
the receipt of said affidavit was sustained, and both sides apparently being reluctant to
examine the witness, I did so DiMillio then testified that when he went on strike, his
pay was $100 gross, each week, and had been such for 4 or 5 years preceding the strike,
that when he was reinstated he told Respondent that lie wanted as much as the strike-
breakers were getting, and that his pay was then fixed at $130 per week gross DiMillio
admitted that he told the Board's field examiner what was in the affidavit above referred
to, and that he testified before Trial Examiner Whittemore as above indicated, but that
both statements, insofar as they related to his earnings, were untrue. When asked to ex-
plain why he had made said statements if, as he now claimed, they were untrue, DiMillio
replied, "At that time we were out to get the Union in there and the story we made up
but I never got the $130 " DiMillio's testimony is, of course, suspect because he was rein-
stated by Respondent about 2 months before the other discriminatees, and was so employed
at the time he testified.
28 See 29 U.S C. 206, 207, and 213 (b)(1).
2829 U.S C. section 211 (c) and the regulations promulgated pursuant thereto, which
appear in Code of Federal Regulations, title 29, chapter V, subpart A, sections 516.2 and
516.7, and subpart B, section 516 14
80 U.S.C. sections 215(a) (5) and 216(a).
31 That section of the Criminal Code provides :
Whoever, in any matter within the jurisdiction of any agency of the United States . . .
makes or uses any false writing or document knowing the same to contain any false,
fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or
imprisoned not more than five years , or both.
PAT IZZI TRUCKING CO. 255
deuce which is clear, explicit and unequivocal." (Thomas E. Proctor v. Sagamore
Big Game Club, 265 F.2d 196, 202 (C.A. 3).) See also, Pacific Royalty Company
v. Williams, 227 F.2d 49, 55 (C.A. 10). Except for the envelope given Couitt on
August 3, 1963, as above related, and which I shall hereafter refer to, the only evi-
dence which the General Counsel offered to establish that Respondent's records
were not accurate and reliable, was the testimony given by some of the discrimina-
tees at the hearing before me, and by Couitt, Falco, DiMillio, at the hearing before
Trial Examiner Whittemore.32 For the reasons set forth in footnote 32, supra, I do
not regard the testimony in the prior proceeding, of particular significance . Indeed,
if DiMillio's testimony before me is credited, the employees got together and agreed
to give inflated statements of their earnings , because they felt this would assist them
in getting the Union in.33
The envelope produced by Couitt (General Counsel's Exhibit 4(b)), I likewise
find unreliable. Couitt admitted that from time to time he borrowed money from
Respondent, and that some loans were for as much as $125. While he testified that
such loans were always given to him in hand, and never put into an envelope, I am
not convinced on this record that the $125 placed into the envelope in question rep-
resented wages rather than a loan. Patrick Izzi's testimony that this was a loan is
corroborated not only by the testimony of Donald Izzi, but by the circumstances
that the payday for the week ending Saturday, August 3, was Tuesday, August 6,
and Couitt's log for the last mentioned day (Respondent's Exhibit 21) shows that
Couitt was driving in the city that day from 7 a.m. to 4 p.m., and he thereafter
returned to the terminal, before it closed for the day, and would have been given his
pay in normal course by Donald Izzi. Also, Couitt's log for August 3 (Respondent's
Exhibit 20), shows that Couitt was not on duty at all that day, and tends to cor-
roborate Patrick Izzi, that Couitt' s call came to his home.
2. The discriminatees who testified that they received more money than is reflected
by Respondent's payroll records, not only admit that they have violated the law,34
but establish a clear motive for their testimony, namely the backpay they stand to
receive which, according to the specification, ranges from approximately $3,000 to
in excess of $5,000. Moreover, assuming, as these discriminatees in effect contend,
they had an agreement with Patrick Izzi that they were to receive a greater wage
than Respondent reported to Internal Revenue, in order to reduce their own tax lia-
bility, the agreement was to perpetrate a fraud on the United States. To permit them
to reap the benefits of such an agreement would be unconscionable. Just as courts
do not sit to do honor among thieves, neither should the Board permit its processes
to be used to enable these employees to reap the benefits of their unlawful scheme.35
3. It is significant, I believe, that the record reflects no reason for Respondent to
have engaged in the course of conduct which the discriminatees attribute to him.
The only possible benefit that could accrue to him from such an agreement is the
relatively small payroll tax levied on the employer, which would be applicable on
the difference between the amount his payroll records reflect, and the amount these
employees contend they received. On the other hand the financial detriment accru-
ing to Respondent from such an arrangement would be much more substantial. To
the extent that Respondent understated his payroll, all of which is deductible as a
business expense for income tax purposes, he thereby increased the net profits of
his business on which he would have to pay income taxes.-As the minimum tax rate
in 1963 was 20 percent, the cost to Respondent would have been far greater than
the relatively small payroll tax which he allegedly saved. A sufficient answer to the
32 Although the testimony of Couitt, Falco, and DiMillio before Trial Examiner Whitte-
more with respect to their prestrike earnings, is a factor to be considered along with the
other circumstances in the case, the fact that there was no denial of their testimony at
that time does not seem to me to be of any great significance, because the amount of pre-
strike earnings by those employees was not then an issue in that case, nor did Trial
Examiner Whittemore make any finding in that regard. The only thing he found with
respect to wages was that DiMillio's pay was raised $10 a week to induce him to abandon
the Union.
33 However, I find it unnecessary to make any finding with respect to DiMillio's
credibility
31 They admit that their own tax returns filed with the Internal Revenue Service did
not correctly reflect the wages they received from Respondent, and that they knew such
to be a fact when they filed their return
35 Nothing herein should be construed as a finding that such an agreement in fact
existed.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel 's argument that Respondent 's records are "false," or that they "are
not the only records ," is that if such is the fact , the burden was upon him to estab-
lish it, and the evidence fails to do so.
For the foregoing reasons, I find and conclude that the General Counsel has
failed to establish that Respondent's records do not correctly reflect the wages paid
to the several discriminatees during the prestrike period. Accordingly, I shall in all
cases necessary recompute the gross backpay to accord with Respondent's payroll
records.
3. The contention that average rather than the actual prestrike weekly earnings
are the proper basis for computing gross backpay
Respondent's contention that the General Counsel, having pleaded that the aver-
age earnings of the discriminatees during the period of their employment prior to
the strike was the appropriate basis on which the gross backpay should be com-
puted, is estopped from computing the gross backpay on the actual wage being paid
them at the time of strike, I find to be without merit. Although the General Coun-
sel did plead generally as Respondent contends (see supra, section I, A), the com-
putations that he made with respect to each employee leave no room for doubt that
in the General Counsel's view the proper basis for computing the gross backpay was
the employee's actual weekly wage at the time of the strike This was plainly suffi-
cient to put Respondent on notice that this was a contention he would have to
defend against , if he wished to litigate that point . No element of surprise is or can
be involved. At worst, it is simply a case of inconsistent allegations; but it is a set-
tled law, even where the strict rule of common law pleadings are applicable, that
specific allegations in a pleading override and will prevail over general allegations
See Corpus Juris Secundum, Pleadings, Section 56.
However, strict rules of pleading are not applicable to an administrative proceed-
ing, and particularly not to a proceeding designed to facilitate the computation of
backpay theretofore ordered by the Board. As Professor Davis has so aptly put it,
"the most important characteristic of pleadings in the administrative process is their
unimportance. And experience shows that unimportance of pleadings is a virtue " 36
All that is required is notice of the issues to be tried and an opportunity to defend
with respect to such issues . In the instant case the Board's Order, enforced by the
court, directed Respondent to make whole to the employees the wages they would
have earned but for the discrimination against them , less their earnings from other
sources during the period involved. To me it is too plain to admit of argument,
using the case of Joseph A . Ferle as an example, who was admittedly earning $105
a week at the time of the strike , and who so far as the evidence shows would have
continued to earn that amount but for Respondent 's unfair labor practices, could
not be made whole by computing his backpay on the basis of $66.92 a week, simply
because earlier in his employment his wage rate was lower, and that figure repre-
sented his average wage over the period of his employment . It would be an anomaly
indeed, if Respondent could avoid the obligation placed upon him by the Board's
Order, by the mere happenstance of a superfluous or inaccurate allegation in a back-
pay specification . True the allegations of the backpay specifications must give notice
of the General Counsel 's contentions , so that a respondent may prepare his defense.
That was done here; Respondent was under no elusions regarding the General Coun-
sel's contentions.
Accordingly , I find and conclude that the gross backpay due each discriminatee
should , and will herein be computed on the basis of the actual weekly wage he was
receiving at the time of the strike.
C. Computation of specific amounts due the respective discriminatees
Having dealt with all issues of general applicability, I shall , in accordance with
such determinations , now compute the amount due each of the discriminatees , treat-
ing at this point only with such issues as affect only the particular discriminatees.
1. Frank Couitt
Respondent contends that Couitt's backpay period terminated on April 6, 1964,
rather than May 1 , 1965 , when he was actually reinstated , as heretofore found,
30 Davis, Administrative Law Treatise , Sec 8.04
PAT IZZI TRUCKING CO. 257
because Couitt failed to accept an offer of reinstatement which Respondent made
to him on April 6, 1964.37 The argument is that the Union's offer to return the
unfair labor practice strikers to work, which precipitated Respondent's alleged rein-
statement offer of April 6, 1964, while ineffective, as Trial Examiner Whittemore
held, to unfair labor practice strikers, was nonetheless fully effective as to an
employee discriminatorily discharged. Respondent concedes that "Couitt was not
required to accept [the April 6] offer of reinstatement," but urges that by his deci-
sion not to accept that offer Couitt voluntarily assumed the status of a striker-and
was not entitled to accumulate backpay until he thereafter made a new application
for reinstatement. The short answer to this contention, is that contrary to Respond-
ent's argument, the issue is foreclosed by the Board's prior decision. The remedy
section of Trial Examiner Whittemore' s Decision specifically states that Couitt's
backpay should run from the date of his discharge to "the date of full offer of rein-
statement .. . ." [Emphasis supplied ]38 The fact that Trial Examiner Whittemore
dealt with Respondent's offer of April 6, specifically holding it to be ineffective as
a reinstatement offer, and directed that Couitt's backpay run until he was tendered
a "full" offer of reinstatement, demonstrates quite clearly that the issue Respond-
ent now raises, was adjudicated in that proceeding, and is now the law of the case.
Accordingly, I find and conclude that Couitt's backpay period terminated on May 1,
1965, as heretofore found with respect to the remaining reinstated discriminatees,
other than DiMillio, who was reinstated on March 8, 1965.
In the brief, Respondent does not argue that Couitt willfully incurred any loss of
earnings during his backpay period, or that he had earnings in excess of those
pleaded in the General Counsel's backpay specifications. The evidence, I find and
conclude, does not support Respondent's answer in that regard. Accordingly, I
adopt the General Counsel's computations, except that I compute the gross backpay
on the basis of $100 per week, rather than $130 a week. The recomputation is as
follows:
Net
Calendar quarter weeks and pay rate Gross backpay interim
earnings
Net backpay
1964-1 -------- 8 5 weeks at $100---------- $850 ---------------- $850
1964-2-------------------- 13 weeks at $100--_------ 1,300 $900
400
1964-3-------------------- 13 weeks at $100----------- 1,300 1,300 ----------------
1964-4------------------ 13 weeks at $100---__---- 1,300 1,400 ----------------
1965-1-------------------- 13 weeks at $100----------- 1,300 1, 255 45
1965-2------------------- 4 weeks at $100------------ 400 525 ----------------
Total backpay due------------------------------------------------------------------- 1,295
2. Murray Dessler
With respect to Dessler, Respondent raises no objections to the General Counsel's
backpay computations, other than the general one that his gross backpay should be
computed on the basis of his average prestrike earnings rather than on his earnings
at the time of his discharge. In Dessler's case no question is raised that his prestrike
rate of pay was greater than that reflected in Respondent's records. In his brief,
Respondent does not challenge Dessler's interim earnings nor is it contended that
37 The offer of reinstatement referred to is that discussed by Trial Examiner Whitte-
more in section III, E of his Decision One of the employees who received such offer of
reinstatement was Couitt The offer of reinstatement is General Counsel's Exhibit 13 in
the unfair labor practice proceeding. As set forth in Trial Examiner Whittemore's Decision,
Couitt did not respond to the offer.
33 This contention is not raised with respect to Dessler, who like Couitt NN as discrimina-
torily discharged on February 5, 1964, because no offer of reinstatement was made to him
in April 1964 Before Trial Examiner Whittemore, Respondent contended that Dessler had
disqualified himself for reinstatement by acts of misconduct during the strike The Trial
Examiner rejected this contention
264-047-67-vol 162-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he willfully incurred losses.39 Accordingly, backpay computed for Dessler in accord-
ance with the backpay specifications, as amended 40 at the hearing, and I find his
backpay entitlement to be $2,749.16.
3. James E. Diaz
As to this employee Respondent raises no question as to computations of gross
backpay other than general one, heretofore disposed of, that such computation
should be based on average earnings rather than his weekly salary at the time of the
strike . Nor is there any contention in Respondent's brief that Diaz willfully incurred
a loss in earnings or that he had greater interim earnings than those pleaded in the
backpay specifications. Accordingly, I adopt the General Counsel's backpay compu-
tations with respect to this employee , and find that Diaz' backpay entitlement is
$1,254.92.
4. Rocco DiMillio
DiMillio is one of the employees alleged by the General Counsel to have been
paid a greater weekly wage than is reflected by Respondent 's records . No question
is raised in Respondent 's brief with respect to DiMillio's interim earnings, nor is
there any claim of willfully incurred losses. In accordance with my general findings
herein , I have recomputed DiMillio's backpay on the basis of his prestrike earnings
as reflected by Respondent 's records . The recomputation is as follows:
Calendar quarter Weeks and pay rate Gross backpay Interim
earnings
Net backpay
1964-1--------------------- 2 weeks at $100------------ $200 ---------------- $200
1964-2--------------------- 13 weeks at $100----------- 1,300 $742 00 558
1964-3--------------------- 13 weeks at $100----------- 1,300 2,181 39 ----------------
1964-4-------------------- 13 weeks at $100----------- 1,300 1,993 70 ----------------
1965-1--------------------- 9 weeks at $100---------- -_ 900 ---------------- 900
Total backpay due---------------------------------------------------------------------- 1,658
5. Pasquale Falco
This is one of the employees who testified that his prestrike wages were in excess
of that shown by Respondent's records, and that the amount paid him was a net fig-
ure. In addition, Respondent contends that Falco willfully suffered loss of earnings,
and that he had actual interim earnings in excess of those reported. Indeed , Respond-
ent contends that Falco attempted to conceal earnings accruing to him from the
operation of a filling station during the backpay period , attempted to conceal wages
he paid Joseph Mazzatto , also a discriminatee herein , for the latter's work in the fill-
ing station which Falco operated during the backpay period , that by reason of these
facts, and the alleged general unreliability of his testimony, Falco should be denied
all backpay. No question is raised by Respondent as to Falco's interim earnings
after he ceased operating the filling station , nor is it contended that he willfully
incurred losses during the last-mentioned period.
39 The only point raised by Respondent is an attack on Dessler's credibility relating to the
circumstances under which his employment with Canaan Produce, during the backpay
period, terminated. Dessler testified that he was discharged by Canaan because he stated
his intention to exercise his right to reinstatement at Respondent Canaan, refusing to
deny that he made the statement attributed to him by Dessler, testified that lie could not
recall making such a statement, and that he discharged Dessler, the newest man, for lack
of work I find it unnecessary to resolve the conflict, because whichever statement is
credited, there is no showing, indeed no contention, of lost earnings That Dessler admit-
tedly told Compliance Officer McDonald that he left Canaan to take a better job, is like-
wise immaterial , but if it is , the record shows that Dessler ' s earnings during the first
quarter of 1965, increased substantially over his earnings in the last quarter of 1964, the
period his employment with Canaan terminated
4o At the hearing, the General Counsel amended the backpay specifications to show that
Dessler ' s interim earnings in the final quarter of 1964 , were $1,087 .62, rather than $ 698 87,
as originally pleaded
PAT IZZI TRUCKING CO. 259
The evidence shows that Falco engaged in the unfair labor practice strike
against Respondent , which began February 6, 1964 . On March 20, 1964, the Union
made demand on Respondent for reinstatement of the strikers , including Falco, to
which Respondent failed to respond appropriately . In June 1964, Falco began
operating a filling station on his own account , and continued to do so at least
until sometime in August 1964 . During this period he employed Joseph Mazzatto,
also a discriminatee , to work in the station , and paid him $ 100 a week net take-
home pay. According to Falco, no social security or withholding taxes were
deducted from Mazzatto 's pay, nor did he remit to the Government any sums for
such purposes 41 By agreement dated August 31, 1964, Falco sold the filling station,
including all personal property therein , to Mazzatto for $1 ,400, payable $75 a
week, title to said property being retained to secure payment of the purchase
price . Thereupon , Mazzatto began operating the station on his own account. How
long Mazzatto operated the station does not appear . Falco testified, and his testi-
mony in this regard stands undenied , that Mazzatto soon defaulted in his pay-
ments and incurred other obligations which Falco became liable for, and that he
(Falco) repossessed the station, and closed it down . What disposition Falco made
of the personal property in the station, which he had sold to Mazzatto for $1,400,
does not appear.
There was introduced in evidence an accountant 's statement of profit and loss
from the operations of the station by Falco, for the months of June, July, August,
and September 1964.42 The June statement showed gross sales of $1,980.36 and
itemized expenses of $2,016 . 13, with a loss of $35 .77. The itemized expenses did
not show any item of rent , salary to Mazzatto , or drawings by Falco. The state-
ment also shows an item of "inventory gain " in the amount of $250, and an item
of "equipment payment" in the amount of $140 . 18. These latter two items appar-
ently are contributions to capital . For the month of July , the auditor shows net
sales of $3,949.65, and itemized expenses of $3,417.77, which included $ 150 for a
month's rent, leaving a net operating profit for the month of $531.88. Again there
is nothing to indicate a salary to Mazzatto or drawings by Falco during that
month . For August the statement shows net sales of $2,782.04 and itemized
expenses of $2,570.21, leaving a net operating profit for the month of $211.83;
the itemized expenses for August not showing any item for rent , salary to Maz-
zatto, or drawings to Falco. For September, net sales amounted to $1,140.32.
Itemized expenses totaled $ 1,339 .58, leaving an operating loss for the month in
the amount of $199.26. Again, the itemized expenses carry no item for rent, salary
to Mazzatto , if, in view of the sale, such was due , or drawing by Falco. With
these items to one side, and treating the "inventory gain " and "equipment pay-
ment" as capital contributions , the net profit from operation for the 4 months the
station operated , was $508.68 . (Profit of $531. 88 for July and $211.83 for August
totals $743.71, deducting losses for June and September of $35.77 and $199.26,
respectively , leaves a balance of $508.68.)
Although it is not clear from the evidence what period of time Mazzatto worked
in the station , I find , on the entire record , that he was so employed a total of 9
weeks43 Based on the receipts in evidence , I find Mazzatto 's earnings while
employed at the station , to have been at the rate of $100 a week. As the accountant
did not charge such wages as expenses , it is plain that the wages paid to Mazzatto
more than offset the operating profit of $508.63, shown by the accountant's
report.44 Accordingly, I find and conclude that Falco had no interim earnings
accruing from the operation of the station , and Respondent made no showing of
41 A payroll slip for the week ending July 17, 1964, apparently issued to Mazzatto, does
show a deduction for "old age pension " and "withholding tax " The other payroll slips in
evidence are not identified by weeks, and show no such deductions
As the gross revenue during September was about half of that in prior months, I
assume Falco operated the station for about half of September
48I base this finding on the fact that Mazzatto was employed by Mohawk Auto Service
until the week ending June 26, 1964 . Mazzatto testified that he left Mohawk to go to work
for Falco, and that he was so employed until he purchased the station at the end of August.
44 As heretofore indicated , there is no evidence as to what disposition Falco made of the
station, or what price he got for the assets that remained If any profit accrued there-
from, the burden was on Respondent to establish it. However, Falco was not interrogated
in that area . Falco testified that he lost money in the venture. The chances that he could
have sold at a profit , a business that was losing money, would seem remote.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other interim earnings, except as pleaded in the backpay specifications. His back-
pay entitlement I find to be as follows:
Calendar quarter
1964-1 _
1964-2-----------------
1964-3-------------------
1964-4 -------------------
1965-1---______----------
1965-2 -----------------
weeks and pay rate
2 weeks at $100
13 weeks at $100-----____-_
13 weeks at $100-------____
13 weeks at $100
13 weeks at $100_
4 weeks at $100------_----_
O ross
backpay
$200
1,300
1,300
1,300
1,300
400
Interim
earnings
Total backpay due--------------------------------------------------------------
Net
backpay
$200.00
1,300.00
1,300.00
6'23.37
899.47
4,322.84
6. Joseph Ferle
The only argument advanced by Respondent with respect to this employee is
that he was paid a gross wage of $105 a week at the time of the strike, rather
than $105 a week net, and that his gross backpay should be computed on the
basis of his average earnings during the period of his employment. Both of these
contentions I have heretofore disposed of. No argument is advanced in the brief,
nor would the evidence support any contention that Ferle had interim earnings in
excess of those pleaded in the backpay specifications, or that he willfully incurred
losses. Accordingly, I adopt the General Counsel's backpay computations in their
entirety, and find Ferle's backpay entitlement to be $1,628.22.
7 and 8. Edward Herman and Wesley G. Phipps
Except for the contention that average rather than actual prestrike earnings
should be used in computing gross backpay-a contention heretofore disposed of-
no issue is raised with respect to either of these employees concerning the General
Counsel's computation of their gross backpay. With respect to each employee the
General Counsel gave credit for all interim earnings disclosed by his investiga-
tion. The General Counsel also admits that subpenas issued to these employees,
who live somewhere in Maryland, were duly served, but neither appeared at the
hearing or otherwise communicated with the General Counsel. The reason for
their failure to appear is not shown. Respondent argues that the unexplained
failure of these employees to appear for examination as to their willfully incurred
losses and interim earnings, in excess of those credited by the General Counsel,
indicated a willful failure to cooperate, justifying denial of all backpay to them.
The recent decision of the Court of Appeals for the Second Circuit in N.L.R.B_
v. Mastro Plastics Corp., 354 F.2d 170, appears to support Respondent's position-
However, the Board in its Mastro Plastics decisions,45 following its prior decision
that the burden is on Respondent to establish facts which go in diminution of
gross backpay, that the General Counsel's customary effort to produce all the
discriminatees for Respondent to examine, is not an obligation but simply a public
service in aid of the inquiry then in progress, and that a discriminatee's failure to
appear and testify did not prevent a backpay award to such discriminatee.46 How-
ever, to give an employer the opportunity to investigate, and if need be develop
the facts, the Board has followed the practice of directing that the amounts
awarded to a nonappearing employee be held in escrow for a period of 1 year.
As a Trial Examiner of the Board, it is my duty to follow precedent which the
Board has not overruled, absent a controlling Supreme Court decision to the con-
trary.47 Respondent argues however (1) that the practice of ordering funds held
in escrow, even if legally permissible, should not be followed here, and (2) that
even if the practice is followed, the amount which Respondent should be directed
to so pay, should be the amount arrived at by computing the gross backpay on the
45 186 NLRB 1.842 ; 145 NLRB 1710.
96 See Brown and Root, Inc., 132 NLRB 486, 495, enfd. 311 F.2d 447 (CA. 8), with
the court specifically approving the Board ' s practice in that regard ; Knickerbocker
Plastic Co., Inc., 132 NLRB 1.209, 1219.
4-, See Insurance Agents International Union, 119 NLI:B 768, 773; Iowa Beef Packers,.
Inc., 144 NLRB 615, G1G.
PAT IZZI TRUCKING CO. 261
basis of their average weekly earnings during .the period of their employment,
rather than on the basis of their fixed weekly salary at the time of the strike
I have heretofore rejected the second contention. As to (1) Respondent gives no
reason for departing from the general rule, and I perceive none. In accordance
with the Board's prior practice, I shall recommend that the awards in favor of
Herman and Phipps shall be held by the Regional Director for a period of 1 year
to afford Respondent an opportunity to show that either award should be reduced.
Knickerbocker Plastic Co., Inc., supra at 1219-20 .48 I therefore adopt the General
Counsel's backpay computations for Herman and Phipps set forth at pages 9 and
16, respectively , of the backpay specifications , except that in the case of Phipps,
gross backpay is computed on the basis of $105 per week, instead of.the $115 per
week used by the General Counsel. The effect of this modification is to reduce his
gross and net backpay for the first quarter of 1964, by $20, reduce the gross back-
pay in the second quarter of 1964 by $130, and eliminate all net backpay for that
quarter; and to reduce the gross and net backpay in the third quarter of 1964 by
$130, and find net backpay of $3,912.40 and $1,110 due Herman and Phipps,
respectively , subject to Respondent 's right to show the need for further correction,
as herein provided .
9. Patrick Macri
In accordance with my general findings herein , I shall compute Macri 's gross
backpay on the basis of $100 a week , as reflected by Respondent 's records , rather
than the figure of $110 a week used by the General Counsel. Respondent advances
no argument , and the evidence does not show that Macri suffered willful loss of
earnings , or that he had interim earnings in excess of those shown in the back-
pay specifications . I shall therefore adopt the computations in the backpay speci-
fications , modified as indicated , the effect of which is to reduce the gross and net
backpay by $20 for the first quarter of 1964; by $40 for the second quarter of
1965; and by $ 130 in each of the four remaining quarters , or a total reduction of
$480. Accordingly , I find Macri 's total backpay entitlement to be $3,933.20.
10. Joseph J. Mazzatto, Jr.
In accordance with my general findings herein, I shall compute Mazzatto's
gross backpay on the basis of $105 a week , as reflected by Respondent's records,
rather than the $110 which the General Counsel used. The effect of this modifi-
cation is to reduce the gross and net backpay by $10 for the first quarter of 1964;
by $20 for the second quarter of 1965; and by $65 for each of the remaining four
quarters ; or a total reduction of $290 . In addition having heretofore found that
Mazzatto was paid $900 in wages by Falco , during the third quarter of 1964, only
$253 of this being reflected as interim earnings by the General Counsel, the
interim earnings for that quarter will be increased , and the net backpay reduced
by $647 . In other respects the General Counsel 's computations are adopted.
Accordingly , I find Mazzatto 's backpay entitlement to be $3 ,859.25 ($4,796.25
minus $290 and minus $647 equal $3 ,859.25).49
'8 Respondent advances the further contention that Herman's backpay should he re-
duced for a certain period, and thereafter completely disallowed , because he voluntarily
quit a job paying him from $ 75 to $130 a week, at Foxboro , Massachusetts , to take a job
closer to his home , which paid $ 55 a week, and which job lie subsequently lost because the
plant closed . Whether or not the facts stated are correct, and if so, whether Herman had a
valid reason for quitting one job to take another, can best be determined when the facts are
fully developed . Determination of that issue is, therefore , reserved to enable Respondent,
within the 1-year period , to establish facts which will warrant a reduction in the award
Failing to establish such facts, it may then be assumed that no basis exists for reducing
the award -
'9 With regard to Mazzatto, Respondent contends that during the last 2 weeks in June
1964, he worked for both Mohawk Auto Service, Inc., and Falco, and' sought to conceal
earnings from one of the jobs both from the Board and the Internal Revenue Service, in
order to increase the amount of backpay lie would collect From this , Respondent argues
that Mazzatto should be disqualified for all backpay , or at least for the entire period that
he worked for Falco I reject this contention because I believe and find that Mazzatto was
honestly confused about the exact period of time he worked for Falco Mazzatto was
testifying from memory about events that took place more than a year and a half before,
and, I believe , tried to do so honestly . That he may have made statements that were in-
accurate , is beside the point The important thing is that the amount of interim earnings
for which Respondent is entitled to credit have been established with reasonable clarity,
and this is all Respondent , who created the situation by his own unf'iir labor practices, is
entitled to
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. Edward F. Mitchell
There is no dispute in the evidence as to the wages paid to this employee imme-
diately prior to the strike. The contention that his backpay should be computed on
the basis of his average earnings during the period of his employment, I have here-
tofore disposed of. The only other point raised by Respondent in connection with
this employee is that on April 26, 1964, he quit a job he had with Yankee Clipper
Diner, where he had worked for the 2 preceding weeks, and did not again go to
work until May 16. Mitchell could give no reason for having quit his job at the
Yankee Clipper. The first week Mitchell worked at the Yankee Clipper he earned
$26.88, and the second week $21.88, or an average of $24.38 a week. The wages
which Mitchell would have earned in the 2 5/7 weeks that elapsed between his quit-
ting the Yankee Clipper, and May 16, when he obtained other employment, at the
average rate indicated, or a total of $66.16 (2 5/7 X 24.38), Respondent is entitled
to have credited as interim earnings during the second quarter of 1964. Knicker-
bocker Plastic Co., Inc., 132 NLRB 1209, 1212-15. With that modification the
backpay computations prepared by the General Counsel are hereby adopted, and in
accordance therewith I find and conclude that Mitchell's backpay entitlement is
$3,023.10 ($3,089.26-$66.16).
12 and 13. Walter Phillips and Wilfred Pierce
As to these employees no issue is raised as to their earnings at the time of the
strike. The contention that their gross backpay should be computed on the basis of
their average earnings during the period of their employment, I have heretofore dis-
posed of. Respondent does not argue in his brief, nor does the evidence support any
contention that either of these employees willfully incurred losses, or that they had
interim earnings in excess of those pleaded by the General Counsel Accordingly, I
adopt the General Counsel's computations and find and conclude that backpay is
due Walter Phillips and Wilfred Pierce in the amount of $1,683.62 and $623.45,
respectively.
14 and 15. Silvio Napolitano and Frank A. Natale
I have heretofore found that during the backpay period Respondent had work
which these employees were qualified to perform, and that they are entitled to back-
pay for the period claimed in the backpay specifications. I have also disposed of
the contention that their gross backpay should be computed on the basis of their
average earnings during the period of their employment. Respondent does not argue
in his brief, nor does the evidence support any contention that either of these
employees willfully incurred losses, or that they had interim earnings in excess of
those pleaded by the General Counsel. I therefore adopt the General Counsel's com-
putations, and find and conclude that backpay is due Napolitano and Natale in the
amount of $3,584.25 and $3,396.95, respectively, computed to May 1, 1965. Neither
of these employees having been offered reinstatement, as required by the Board's
Order, backpay continues to accrue and it will be recommended that jurisdiction be
reserved for the purpose of determining the amount thereof accruing after May 1,
1965.
16. Anthony Scaramuzzi
The contentions as to this employee's earnings at the time of the strike and that
his gross backpay should be computed on the basis of his average weekly earnings
during the period of his employment, are disposed of above. Respondent does not
argue , and has apparently abandoned the contention that Scaramuzzi had interim
earnings by reason of operating a truck on his own account. In any event the writ-
ten stipulations of the parties, dated February 21, 1966, clearly establish that Scar-
amuzzi had no interim earnings from that venture, and I so find.
The only other point raised by Respondent with respect to Scaramuzzi's interim
earnings 50 is that while working for an over-the-road carrier, he received an expense
allowance of $2.50 to cover meals on the trip. This was paid in accordance with the
applicable union contract. If the employee's meal expenses were less than $2.50 on
60 Attached to the aforementioned stipulation is a deposition from Scaramuzzi in which
he refers to W-2 forms showing earnings in 1965 However, he was unable to give any
clear information whether such earnings accrued before or after May 1, 1965, the last
day of the backpay period. As the information available to the General Counsel included
reports from Social Security, and the 1965 earnings were broken down by applicable quar-
ters, which breakdown Respondent does not question in its brief, I assume the General
Counsel has made the proper apportionment of 1965 earnings to the applicable backpay
period, and those occurring thereafter
J
PAT IZZI TRUCKING CO. 263
the trip, he kept the difference. The employer regarded this payment as reimburse-
ment for meal expenses, and did not include the amounts so paid as wages when
reporting to Social Security, or in connection with income tax withholding. Respond-
ent contends that these meal expense payments should be credited against gross
backpay, as interim earnings because the employee was permitted to retain, and
was not required to account for these payments, and hence was "additional com-
pensation . . . disguised as expenses." I reject this contention. The amounts paid
bear a reasonable relation to the expense likely to be incurred for meals in the per-
formance of work for employer's benefit, and a rather tenuous relation to wages as
such.
Accordingly, I adopt the General Counsel's backpay computations, as amended
at the hearing,51 and find and conclude that Anthony Scaramuzzi is entitled to back-
pay in the amount of $2,584.88.
17. Samuel Weiner
There is no conflict in the evidence with respect to Weiner's earnings immediately
prior to the strike, and I have heretofore disposed of the contention that his gross
backpay should be computed on the basis of his average weekly earnings during the
period of his employment. The only contention raised by Respondent with respect
to Weiner's interim earnings is that he willfully incurred a loss of earnings from the
time he left Canaan Produce, on December 30, 1964, until he was reemployed by
S. Line Transportation on March 8, 1965. Weiner at first testified that he voluntar-
ily quit his employment with Canaan Produce, to take a job with S. Line Transpor-
tation , and that there was no loss of time between the two jobs. Later he retracted
this and stated he was not sure if there was any loss of time, that there may have
been some. The testimony of Walter Burbank, who was at the time manager of S.
Line Transportation, shows that Weiner was first employed by that company on
March 8, 1965. Canaan testified that Weiner was last employed by his firm on
December 30, 1964.52 What Weiner did in the interim does not appear. As Weiner
admits that he voluntarily left Canaan, and had no interim earnings from that time
until he was employed by S. Line, I shall disallow backpay for the period from
December 30, 1964, to March 8, 1965, a total of 9.5 weeks at $120 per week, which
reduced the gross and net backpay during the first quarter of 1965, by a total of
$1,140. In all other respects, I approve and adopt the General Counsel's backpay
computations, as amended,53 and find Weiner's backpay entitlement to be $2,250 88.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions, and pursuant to Sec-
tion 10(c) of the National Labor Relations Act, as amended, it is recommended
that the National Labor Relations Board issue the following:
SUPPLEMENTAL ORDER
IT IS HEREBY ORDERED that Patrick F. Izzi d/b/a Pat Izzi Trucking Company,
forthwith pay to the following persons backpay in the amount set opposite their
respective name, as required by our Order of November 27, 1964:
Frank Couitt__________ $1,295.00 Edward Mitchell------- $3, 023. 10
Murray Dessler_______ 2,749.16 Silvio Napolitano______ 3,584.25
James E. Diaz________ 1,254.92 Frank Natale_________ 3,396.95
Rocco DiMillio_______ 1,658.00 Walter Phillips-------- 1,683.62
Pasquale Falco________ 4,322.84 Wesley G. Phipps______ 1, 110.00
Joseph Ferle__________ 1,628.22 Wilfred Pierce_________ 623. 45
Edward Herman_______ 3,912.40 Anthony Scaramuzzi ___ 2,584.88
Patrick Macri_________ 3,933.20 Samuel Weiner-------- 2,250.88
Joseph Mazzatto, Jr____ 3,859.25
"These amendments consisted of adding $1 to the wages earned by Scaramuzzi at
Hemingway Transport In the third quarter of 1964, and by adding earnings from Watt
Transport in the amount of $45.32, during the fourth quarter of 1964
62 Also indicative of the fact that Weiner did not go to work for S. Line Transportation
Immediately after leaving Canaan Produce Is the fact that his earnings at S Line during the
first quarter of 1965, totaled $156.62, and Weiner testified that he earned a minimum of
$35, to as much as 8100 a week at S. Line.
63 At the hearing the General Counsel amended his specifications by showing Increased
interim earnings during the first quarter of 1965, in the amount of $16.50, thus decreas-
ing the net backpay by the same amount. This amendment became necessary because S Line
admitted it made an error in advising the Region the amount earned by Weiner In the
period referred to.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each of the foregoing sums shall accrue interest at the rate of 6 percent per
annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. There shall be deducted from each of the foregoing amounts social
security, income tax withholding, and such other deductions as may be required by
the laws of the United States or the State of Rhode Island.
IT IS FURTHER ORDERED , that the amounts herein directed to be paid to Edward
G. Herman and Wesley G. Phipps, shall be paid to the Regional Director for
Region 1 of the National Labor Relations Board, to be held in escrow by said Direc-
tor for a period not exceeding 1 year, and during such period he shall afford
Respondent an opportunity to examine Herman and Phipps as to their interim earn-
ings in excess of those credited in the backpay specifications , if any, or other rea-
sons justifying a reduction in the amount of backpay due them, in accordance with
existing Board precedents , and determine the amount thereof, if any. Should any
proper basis for deduction be established , the amount thereof shall be returned to
Respondent , and the remainder paid to said discriminatees . The Regional Director
shall, when he has resolved said matters , promptly, and no later than 1 year from
the date of this Supplemental Decision , report to the Board, the status of these mat-
ters at that time.
IT IS FURTHER ORDERED that jurisdiction over this proceeding is reserved for the
purpose of determining when Silvio Napolitano and Frank Natale are reinstated as
required by our Order of November 27, 1964, and what backpay , if any, accrued to
them after May 1, 1965, the terminal date of our computations herein.
Salant & Salant, Incorporated and Amalgamated Clothing
Workers of America , AFL-CIO. Case 26-CA-2360. Decem-
ber 19, 1966
DECISION AND ORDER
On September 6, 1966, Trial Examiner A. Bruce Hunt issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, as modified
herein.
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications :
162 NLRB No. 25.