Rice Lake Creamery Co.

National Labor Relations Board - Board Decisions

Mar 24, 1965

151 N.L.R.B. 1113 (N.L.R.B. 1965)

RICE LAKE CREAMERY COMPANY 1113
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 146, shall notify
the Regional Director for Region 27, in writing, whether or not it
will refrain from forcing or requiring the Employer, by means
proscribed by Section 8(b) (4) (D), to assign the work in dispute to
teamsters rather than to laborers.
Rice Lake Creamery Company and General Drivers & Helpers
Union , Local 662, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America.
Case No. 18-CA-978. March /1,, 1965
SUPPLEMENTAL DECISION AND ORDER
On June 23, 1961, the National Labor Relations Board issued a
Decision and Order in the above-entitled case,' directing, inter alia,
that the Respondent make whole certain employees discriminatorily
refused reinstatement by the Respondent. Thereafter, the Board's
Order was enforced in full by the United States Court of Appeals
for the District of Columbia Circuit,2 including its reinstatement
and backpay provisions. Subsequently, the Respondent's petition
to the Supreme Court of the United States for a writ of certiorari
was denied by the Court.3
On March 29, 1963, the Regional Director for Region 18 issued
and served upon the parties a backpay specification and notice of
hearing, and issued amendments to this specification on May 7, 1963.
The Respondent filed an answer to the original specification on
April 29, 1963.
Pursuant to notice, a hearing was held before Trial Examiner
Samuel Ross for the purpose of determining the amounts of back-
pay due the discriminatees. Also, during the hearing, evidence was
adduced concerning the circumstances attending Respondent's offers
of reinstatement which were alleged to be legally insufficient by the
General Counsel. On December 13, 1963, the Trial Examiner issued
his attached Supplemental Decision, in which he awarded specific
amounts of backpay to the 25 discriminatees and also made findings-
and recommendations concerning Respondent's offers of reinstate-
ment. Thereafter, the Respondent filed exceptions to the Trial
1131 NLRB 1270.
2General Drivers and Helpers Union, Local 662 , Inteintional Biothe,liood of Team-
sters, etc. v. N.L R B., 302 F. 2d 905.
3 371 U S. 827.
151 NLRB No. 105.
1114 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
Examiner's Supplemental Decision and a supporting brief. The
General Counsel filed cross-exceptions to parts of the Supplemental
Decision, a supporting brief, and an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Members Fanning, Brown,
and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Supplemental Decision, and
the exceptions and briefs, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner to the extent
consistent herewith.
1. We adopt the Trial Examiner's findings and determinations of
backpay due the following discriminatees except where modified
herein :
Edward Berg------------------------------------ $1, 979.38
Peter Butzler 4----------------------------------- 9 047.98
Basil Colbert------------------------------------ 2,119.66
Harry DeBoer 5--------------------------------- 10, 867. 41
Malcolm Demers-------------------------------- 4, 042.27
Wesley DeRousseau------------------------------ 6,889.90
Benjamin Dudei--------------------------------- 10320. 56
'During his backpay period , this disciiminatee engaged in self -employment as the
operator of several taxicabs , a shoe repair business , and home improvement service The
record shows that at the time of the hearing herein , Butzler had been engaged in the
home improvement service for over 10 years-even while employed by Respondent. The
Trial Examiner adopted the backpay specification which fails to distribute Butzler's
interim earnings or income during the backpay period among these enterprises and ap-
parently includes moneys derived from his home improvement business as interim earn-
ings. We disagree in the light of the Board ' s prior holdings to the effect that earnings
or profits during the period of discrimination from a business or job which a discriminatee
also held during his employment with Respondent are not deductible from gross back-
pay as interim earnings East Texas Steel Castings Company, Inc., 116 NLRB 1336,
1376, 1377, enfd . 255 F. 2d 284 (C.A. 5) ; H. J. and Blanche Daniels , co-partners, d/b/a
H. J. Daniels Poultry Co., 65 NLRB 689 , 692. Accordingly , we instruct the Regional
Director to rectify this matter by eliminating from Butzler ' s interim earnings any nor-
mal income traceable to his home improvement business and to adjust his net backpay.
If, however , Butzler has earned a larger income from his home improvement business
because of his nonemployment by Respondent than he would have received otherwise,
such increase shall be counted as part of his interim earnings . R. Al. Johnson, et al.,
41 NLRB 263, 285.
5 Respondent excepts to the Trial Examiner ' s allowance of 10 cents per mile in comput-
ing the discriminatees ' transportation expenses by private automobile when seeking, or
commuting to, interim employment . We agree with the Trial Examiner ' s disposition
of this issue and find that 10 cents per mile is a reasonable and proper allowance for
defraying these expenses . Accord: Kartartk, Inc, 111 NLRB 630, 635 , enfd . 227 F. 2d 190
(C A. 8) However, in awarding backpay to DeBoer and Roux, the Trial Examiner has
adopted the General Counsel ' s computations which utilize their out -of-pocket costs for
auto travel instead of the 10-cent -per-mile basis . According to the General Counsel,
because these discriminatees shared expenses during their backpay periods while engaged
in interim employment , it is more practical to use their actual expenditures for gas and
oil rather than the mileage allowance . Under these circumstances , we adopt the Trial
Examiner 's disposition thereof.
RICE LAKE CREAMERY COMPANY 1115
Otto Fetkenheurer------------------------------- $13,563.15
Leonard Hanson I-------------------------------- 11,819.45
Loren Hanson----------------------------------- 8,694. 99
Russell Haugen---------------------------------- 8, 567.47
Forest Hineline---------------------------------- 8, 006.40
Delore King ''------------------------------------ 9, 256. 83
Ronald Kopp------------------------------------ 705.25
Clayton Krob tad-------------------------------- 7,952.61
James Lee--------------------------------------- 81215.42
Lloyd Madaus----------------------------------- 7,002.38
Arthur Meyers----------------------------------- 1,259.87
Douglas Pierce ----------------------------------- 2,558.00
Glenn Roux------------------------------------- 5,518. 51
Melvin Shervey 8-------------------------------- 11, 432. 19
Harry Thibedeau9------------------------------- 5,054.84
Ernest Vreeland--------------------------------- 5,969. 41
Howard Waterhouse----------------------------- 6,822.55
Carl Wicken 10----------------------------------- 11, 974.41
In the absence of exceptions , we adopt , pro forma, the Trial Examiner ' s denial of
General Counsel 's posthearing request to the Trial Examiner to strike from his Interim
earnings $855 received by discriminatee Leonard Hanson Hanson sustained an injury
while engaged in Interim employment In 1961 and was paid the above amount as work-
men's compensation . Although we do not permit this amendment of the backpay specifica-
tion under these circumstances , we are not overruling prior Board decisions holding that
workmen 's compensation awards are not ordinarily includable as interim earnings. Moss
Planing Co , 119 NLRB 1733 , 1735, footnote 8.
7 The Trial Examiner awarded King $9,336 47. However , he inadvertently failed to
carry out his disposition of King 's claim for medical expenses, I e.. he reduced the amount
of this claim from $565.85 , as contained in the amended specification, to $486 21, but
did not include the lesser amount in his final computation set foith in the Appendix
to his Decision The award as stated reflects this correction
8 In the absence of exceptions, we adopt, pro forma, the Trial Examiner ' s the Trial
Examiner 's recommendation that upon the payment of Shervey ' s backpay claim he will
be required to turn over to Respondent certain tools purchased by him necessary for the
performance of his interim employment We therefore adopt the Trial Examiner's find-
ing that the cost of these tools is properly allocable as an item of reimbursable expense
9 This discriminatee ' s surname is misspelled in the Trial Examiner ' s Supplemental
Decision
11 Member Jenkins would overrule the Trial Examiner with respect to employee Wicken
and would deny him any backpay and , like his colleagues, also would not grant him
reinstatement . In Member Jenkins' view, the following evidence is sufficient to disentitle
Wicken from any backpay herein: ( 1) The record shows that Wicken made no effort to
secure interim employment prior to the time he moved from Rice Lake, Wisconsin, to
Seattle, Washington , In August 1959 , thereby removing himself from this labor market.
This finding is in accord with the fact that no backpay is awarded herein to Wicken foi
the first two calendar quarters in 1959. As for the third quarter 1959, Wicken spent his
time repairing his home to make it more saleable and , in fact, did sell the property in
July 1959 (2) Wicken admitted that he moved for personal reasons , I e , "to help his
daughter" who was living in Seattle , Washington . See ilastro Plastics Corporation, 145
NLRB 1710, where claimant Fisher's reinstatement and backpay rights were terminated
when she left the respondent ' s vicinity and her reasons were unrelated to her seeking an
interim job . ( 3) There is no evidence that Wicken was interested in being reinstated in his
job at Respondent's plant after he moved to Seattle.
Like the Trial Examiner, Members Fanning and Brown find that Wicken is entitled to
backpay for the period between his moving to Seattle and Respondent's reinstatement
offer . As appears in the Trial Examiner ' s Decision , a reason for Wicken 's going to
Seattle was because he believed that employment opportunities would be better there.
Upon his arrival in Seattle, he promptly undertook a search for work His search is
not shown to have been inadequate , in fact, he found interim employment . Nor is there
any proof that Wicken lost interest in reinstatement with Respondent upon moving to
Seattle . For these reasons , they would adopt the Trial Examiner's recommendation as
to Wicken.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Group reinstatement: General Counsel has excepted to the
failure of the Trial Examiner to provide for reinstatement of certain
discriminatees simultaneously and as a group. We find merit in this
exception. In view of our adoption of the Trial Examiner's findings
that Respondent's offers of reinstatement were not bona fide in that
the method employed in making them was calculated to deter the
discriminatees (who knew of the harassment suffered by DeBoer
and Loren ITanson) from accepting such offers, we shall again
require that Respondent offer to all of those discriminatees entitled
to reinstatement 11 immediate and full reinstatement as a group to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, dismissing, if neces-
sary, any person hired on or after June 22, 1958, the date of the
commencement of the strike herein, to provide employment for the
returning strikers.12
ORDER
On the basis of the foregoing Supplemental Decision and Order
and the entire record in this case, the National Labor Relations
Board hereby orders that the Respondent, Rice Lake Creamery Com-
pany, Rice Lake, Wisconsin, its officers, agents, successors, and
assigns, shall pay to the employees involved in this proceeding as
net backpay the amounts awarded to them in this Supplemental Deci-
sion and Order.13 It is further ordered that the rights to reinstate-
ment and backpay of certain employees as set forth herein be reserved
for periods beyond the scope of this Supplemental Decision and
Order.
ii Those discriminatees entitled to reinstatement whose light to additional backpay
continues to accumulate beyond the backpay periods covered by this proceeding are
Peter Butzler, Harry DeBoer, Wesley DeRousseau, Benjamin Dude!, Otto Fetkenheurer,
Leonard Hanson, Loren Hanson, Russell Haugen, Forest Hincline, Delore King, Clayton
Krogstad. James Lee, Lloyd Madaus, Harry Thibedeau, Ernest Vreeland, and Howard
Waterhouse.
za N L R B. v. Poultrymen's Seraice Coi poration, 138 F 2d 204 (C.A. 3) ; Raped Roller
Co. v. Al L.R B , 126 F. 452 (CA. 7 ) , cert denied 317 U S 650. Further, we halve
recently held invalid an employer's piecemeal offers of reinstatement to selected unfair
labor practice strikers who had previously applied for reinstatement as an entire group
Berger Polishing, Inc., 147 NLRB 21 ; Robei t S Abbott Publishing Company, 139 NLRB
1328, enforcement denied 331 F. 2d 209 (C A. 7). For the purposes of this case, we
respectfully note our disagreement with the court, particularly as its opinion concerns
that portion of our Decision entitled "The Remedy." Member Fanning. who in the
Abbott case would have tolled backpay of those who chose to continue striking, agrees
with his colleagues' disposition of this matter because the strike was completely abandoned
by the Union herein in December 1958, long before the Respondent made any offers to
reinstate these discriminatees
13 The net backpay awards are to be reduced by such tax withholdings as are required
by Federal and State Laws For the reason stated in Local 158, International Union
of Operating Engineers, AFL-CIO, et al (Nassau and Suffolk Contractois' Association.
Inc., et al ), 151 NLRB 972, we direct the addition of interest at the rate of 6 percent
per annum on the respective amounts of backpay, such interest to accrue from the date
of this Order.
RICE LAKE CREAMERY COMPANY 1117
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This proceeding is another step in an already protracted history of litigation
between the parties. The purpose of the present proceeding is to determine: (1) the
amount of backpay due to 25 employees of the Respondent under a decree of the
court of appeals in the prior proceedings in this case; and (2) whether the Respond-
ent has complied with that decree in respect to offering reinstatement to said
employees.
The instant proceeding was instituted by the service by the General Counsel of
the National Labor Relations Board upon the Respondent of a backpay specification
and notice of hearing dated March 29, 1963, and an amendment to the backpay
specification dated May 7, 1963. The Respondent filed a written answer to the
original backpay specification on April 17, 1963. The answer was amended both
orally and in writing during the course of the hearing of this backpay proceeding
which was held before Trial Examiner Samuel Ross in Rice Lake, Wisconsin, on
May 13, 14, 15, 16, and 17, 1963. The General Counsel and the Respondent were
at all times throughout the hearing ably represented by counsel and were afforded
full opportunity to be heard, to present evidence, to examine and cross-examine wit-
nesses. and to present oral argument. Extensive briefs were filed by the General
Counsel and the Respondent which have been carefully considered.
Upon the entire record, and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS AND CONCLUSIONS
A. Background
The Union has been the certified representative of the Respondent's employees
since 1952. On June 22, 1958, following unsuccessful negotiations for a renewal
contract, the Union struck Respondent, and 25 of the 39 employees in the unit joined
in the strike. In the earlier proceeding, the Board found that the strike had been
caused by the Respondent's failure and refusal to bargain in good faith with the
Union in violation of Section 8(a)(5) and (1) of the Act, that the Respondent had
discriminated against Harry DeBoer, the Union's steward, by terminating his employ-
ment because of his union and concerted activities in violation of Section 8(a)(3)
and (1) of the Act, and that Respondent had engaged in further such discrimination
on December 22, 1958, by failing and refusing to reinstate the 25 striking employees
when they made an unconditional offer to return to work. To remedy these latter
unfair labor practices, on June 23, 1961, the Board ordered the Company to offer
to the 25-named employees against whom the Company had discriminated, "imme-
diate and full reinstatement to their former or substantially equivalent positions" and
to "make them whole for any loss of pay they may have suffered as a result of the
discrimination against them." 1 Upon the Union's petition to review part of the
Board's Decision and Order, and the Board's cross-petition for enforcement of its
oider against the Respondent, on May 3, 1962, the Court of Appeals for the District
of Columbia issued its opinion enforcing the Board's Order in full.2 The court's
decree ordered the Respondent to "abide by and perform the directions of the
Board['s] order." The Respondent promptly petitioned the Supreme Court of the
United States for a writ of certiorari. The petition for certiorari was denied on
October 8, 1962.3
The instant backpay specification seeks reimbursement of the discriminatees for
their loss of earnings from December 22, 1958, until the respective dates when
Respondent offered them reinstatement. The specification also alleges that the said
offers of reinstatement were not made in good faith, and did not comply with the
reinstatement provisions of the Board's Order and court decree. The specification
specifically reserves for further proceedings any additional back-pay which may be
due to the dicriminatees for periods following the dates of said "inadequate" offers.
1131 NLRB 1270.
2General Drivers and Helpers Union, Local 662 International Brotherhood of Team-
sters, etc . v. N.L.R.B., 302 F. 2d 908.
8 371 U.S. 827.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The proposed formulas for computing backpay
1. The General Counsel's average hours formula for the
production discriminatees
The General Counsel's specification proposes that the formula for computing the
quantity of work, which would have been available to the production discriminatees 4
during the backpay period, should be based on the average number of straight time
and overtime hours which were worked by all the full-time employees who performed
production work during the backpay period. Under this proposal, the resulting aver-
ages for each quarter, both straight time and overtime, are multiplied by the appro-
priate hourly wage rate of each production discriminatee to arrive at the amount of
gross backpay due to such production discriminatee for each quarter.
Respondent's answer denies that the General Counsel's proposed average hours
formula presents an accurate computation of the amount of work which was available
to the discriminatees, and alleges that the General Counsel improperly included in
his computation of that formula, "time worked" by a number of supervisors, working
foremen, and other employees who held positions "for which none of the claimants
were qualified" or "normally performed." The answer does not deny that such
improperly included employees performed production work, nor does it furnish any
"supporting figures" in respect to the gross backpay to which the claimants would be
entitled with the deletion of the hours allegedly included improperly.
At the commencement of the hearing herein, the General Counsel moved pur-
suant to Section 102.54(c) of the Board Rules and Regulations, Series 8, as amended,
that the specification in respect to the average hours formula be deemed "admitted"
as "true," and that Respondent be precluded from introducing any controverting
testimony. Despite the defects in Respondent's answer noted above, I ruled that
General Counsel would be required to present testimony regarding the reason or
basis for the inclusion in his computation of the employees allegedly improperly
included, and that the Respondent would be permitted to adduce proof that such
persons did not perform "work within the classifications of the discriminatees."
2. The testimony regarding the General Counsel's average hours formula
Hjalmar Storlie is the Board's regional compliance officer who made the investi-
gation and the computations upon which the General Counsel's backpay specification
was based. Storlie testified that his sources of information consisted of an original
submission of information by the Respondent regarding the hours and wages of
employees hired by Respondent after the strike began, his personal examination of
and extracts from Respondent's payroll records, and interviews and conversations
with officials of Respondent, its employees, and some of the discriminatees. Storlie
credibly testified that his investigation, and his examination of Respondent's records,
in respect to the extended backpay period of almost 4 years disclosed that: (1) the
size of Respondent's work force varied frequently during the backpay period, both
upwards and downwards; (2) there were numerous transfers of employees from one
job to another; (3) jobs which had been performed by the discrimmatees before the
strike were performed during the backpay period by "old" and "new" employees of
the Respondent; 5 and (4) the volume of work to be performed, on occasion, required
the hiring of extra, temporary, or part-time employees and sometimes extra over-
time work.
As part of his investigation to determine the amount of work which would have
been available to the discriminatees during the backpay period, absent the discrimi-
nation, Storlie prepared worksheets,° on which he listed the names of all employees,
regardless of their job title or classification, who performed work during the backpay
period of the type normally performed by or available to the employees in the bar-
gaining unit , and the number of hours of straight time and overtime hours which
each such employee worked in each quarter of the backpay period. He eliminated
from consideration the hours of employees who worked less than a full quarter, and
computed the average number of hours which the remaining full-time employees
worked in each quarter of the backpay period, by dividing the total of the hours
worked by full-time employees in each quarter by the number of such employees
who worked in that quarter.
4 This includes all the discriminatees except Harry DeBoer, who was the Company's
only maintenance employee.
5 Storlie used the term "old" to apply to prestrike employees , and the term "new"
to employees hired on and after June 22, 1958, when the strike commenced.
6 General Counsel's Exhibits Nos. 2 (A) and 2(B).
RICE LAKE CREAMERY COMPANY 1119
Storlie further testified that his examination and study of the worksheets disclosed
that the number of "new" employees, whose hours of employment were used in com-
puting the averages for each quarter, were in each case approximately the same as
the number of production discriminatees who were available for employment in that
quarter 7 Storlie testified that in view of the foregoing, and in the light of the addi-
tional production work, not considered in his averages, performed by part-time and
extra help which would have been available to the discriminatees if then employed,
he concluded that at all times during the backpay period there was sufficient work
available for all the "old" employees and all the discriminatees who were available
for employment, and that such discriminatees would have worked on average the
number of straight time and overtime hours computed as described above.
3. The legal principles applicable to the General Counsel's
average hours formula
The basic question to be determined is, which of the proposed backpay formulas,
the General Counsel's average hours formula, or the Respondent's direct replace-
ment formula which will be considered hereinafter, is best designed to effectuate the
terms of the Board's Order and court decree in this case.
The legal principles involved are fairly well established. Generally speaking, "the
Board is vested with a wide discretion in devising procedures and methods" for
determining the appropriate method of computing backpay.8 In the Brown & Root
case, the court of appeals said, at 452:
The purpose of the backpay award is to make whole the employee who has been
discriminated against as the result of an unfair labor practice. The employee
is entitled to receive what he would have earned normally during the period of
the discrimination against him, less what he actually earned in other employ-
ment during that period.
Obviously in many cases it is difficult for the Board to determine precisely the
amount of backpay, which should be awarded to an employee. In such circum-
stances the Board may use as close approximations as possible, and may adopt
formulas reasonably designed to produce such approximations.9
The average hours formula proposed by the General Counsel for the production
employees is similar, if not identical, to that used by the Board and approved by the
courts in many cases.10 More specifically, this formula computes the average num-
ber of hours which were performed on production work by the employees who
worked during the backpay period, and is based on the assumption that the discrimi-
natees, if reinstated by Respondent when they should have been, would have worked
a like number of hours on average. Aside from the question considered, infra, of
whether the General Counsel's averages were improperly computed because they
included hours of persons who did not perform production work, this proposed for-
mula appears to be a fair and reasonable method of resolving the difficult problem
of reconstructing what the production discriminatees would have earned as employ-
ees of Respondent during the backpay period.
4. The Respondent's proposed direct replacement formula
The Respondent proposes that the discriminatees are entitled to backpay only if,
and to the extent that, their specific positions were filled by replacements hired after
the strike began. The alleged factual basis for this proposal, as explicated in
Respondent's brief (pp. 14-15), is that the hours worked by such direct replace-
7 Some of the discriminatees were eliminated by the General Counsel from backpay
consideration for various quarters of the backpay period by reason of physical disability
and other reasons.
8 N.L.R B. v. Brown cE Root, Inc., 311 F. 2d 447 (CA.
8) ; Phelps Dodge Corp. v.
N L.R.B., 313 U S. 177, 197; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc.,
344 U.S. 344 , 346-347; Nathanson, Trustee in Bankruptcy of MacKenzie Coach Lines V.
NL.R.B., 344 U. S. 25, 30.
0 Accord: N.L.R.B. V. East Texas Steel Castings Company, Inc .,
255 F. 2d 284 (C.A. 5) ;
N.L.R.B. v. Kartarik, Inc., 227 F. 2d 190, 192-193 (C.A. 8).
10N.L.R.B. v. East Texas Steel Castings Company, Inc, supra ; N.L.R.B. v Kartarik,
Inc., .supra; N.L.R.B. v. Brown d Root, Inc., supra ; N.L.R B. v. Ozark Hardwood Com-
pany, 282 F. 2d 1 (C.A. 8) ; W. C. Nabors, d/b/a W. C. Nabors Company,
134 NLRB
1078, enfd . 323 F. 2d 686 (C.A. 5).
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments "constituted the only work available to [the] claimants during the backpay
period" because, as a consequence of "mechanical changes, business conditions, and
combining of jobs, the number of jobs in categories, previously held by the strikers
were substantially reduced." The legal premise for Respondent's "direct replace-
ment" formula is explicated in its brief as follows:
The order in this case recognized that Respondent had no obligation to dis-
miss pre-strike employees in order to make room for the strikers on Decem-
ber 22, 1958 [the date when reinstatement was requested by the strikers and
discriminatorily refused by Respondent]. Thus, the hours worked by pre-strike
employees, under the decree itself, were not considered as available following
December 22 to the strikers.
In respect to the alleged factual base for its proposed formula, the Respondent
adduced no testimony regarding any change in "business conditions." It did adduce
some general testimony regarding the installation of new and more efficient equip-
ment, and a resulting decrease in the number of employees necessary to operate such
equipment. However, even in this regard, the Respondent's witness, Donald Gerland,
who testified about these changes, was unable to state when during the backpay
period, such equipment changes occurred. Thus, even assuming that Gerland's testi-
mony regarding resulting job eliminations can be credited, and assuming further
that such job eliminations would have resulted in a termination of the employment
of and backpay liability to some of the discriminatees rather than other employees,
the record furnishes no basis for computing when that liability ceased.
Moreover, the record does not support the conclusion that such job eliminations
would have terminated the backpay liability of any specific discnmmatee. In this
regard, the records show that seniority was practiced by Respondent in effecting
transfers to different departments and layoffs, "unless the man didn't have ability to
fill the position " Such transfers occurred fairly often. Although the Respondent
adduced general conciusionary testimony that as a consequence of the equipment
changes the jobs of certain of the discriminatees had been "eliminated," it adduced
no testimony regarding the relative ability of such dsscrimmatees vis-a-vis Respond-
ent's incumbent employees. Iii addition, Respondent's seniority roster disclosed that,
with minor exceptions, most of the discriminatees had many more years of seniority
than Respondent's incumbent prestrike employees. For example, Carl Wicken, one
of the discriminatees, had worked for Respondent since 1929 and had greater senior-
ity than any of its incumbent employees Nevertheless, although Wicken admittedly
could be trained to work in every department in the plant, he was one of those whose
jobs allegedly was eliminated, and thus, according to Respondent, entitled to no
backpay. Forest Hineline and Ernest Vreeland are dscriminatees whose seniority
dates back to 1945 and 1948, respectively. Their jobs were allegedly eliminated, and
thus, according to Respondent, they are entitled to no backpay. Respondent Presi-
dent Ervin Gerland, who so testified, at first was unable to state why he labeled the
jobs of these two discriminatees as eliminated, rather than those of the others in the
same department whose work was admittedly similar Later he testified that these
two dscrimmatees were so designated because they had the least seniority in the
department. However, there was no testimony that seniority was limited to depart-
ments, and Respondent's seniority roster clearly discloses that it was plantwide.
Moreover, the Respondent offered no testimony that these two claimants with 10 and
13 years' experience in the plant were either incapable or less capable of filling the
many remaining positions in the plant held by employees with substantially lesser
seniority. On the contrary, in the light of the record which shows that the Respond-
ent was able to operate the plant during the backpay period with many untrained
persons hired during the strike, and that the equipment changes resulted in a simpli-
fication of the jobs, the inference is inescapable that these experienced discriminatees
were at least as capable of filling the remaining positions as those with lesser seniority.
In addition, the record clearly discloses that the Respondent's "direct replacement"
formula does not even remotely furnish any basis for computing the amount of work
which would have been available to the discriminatees during the backpay period,
absent the discrimination. The designation on Respondent's Exhibits numbers 20
and 21 as to which replacement replaced which discriminatee, admittedly was arbi-
trary and not derived from any records regularly maintained by Respondent. In
many cases, Respondent filled the jobs of the discriminatees by transferring prestrike
employees to that woik, filled the vacancies created by such transfers with employees
hired after the strike began, and credited neither the hours worked by the prestrike
jobs were taken
available
overr
any
employees
d sc
of the
the l of the discriminatees whose whichcases
RICE LAKE CREAMERY COMPANY 1121
by prestrike employees, the Respondent's theory, quite obviously without merit, is
that no backpay is due them, because the prestrike employees who filled their jobs
were not subject to displacement under the reinstatement provisions of the Board's
Order. Pursuant to that theory, notwithstanding that John Offord's name does not
appear on Respondent's seniority roster as a prestrike employee, no credit was given
by Respondent to any discriminatee for the production hours performed by Offord,
who before the strike had been a student and part-time employee of the Respondent,
but after the strike began, worked as a full-time replacement for one of the discrimi-
natees. Similarly, and for the same reason, no consideration or credit was given by
the Respondent in its proposed backpay formula to any discrimmatee for the hours
of production work, both regular and overtime, which were performed during the
backpay period by supervisors, leadmen, extra and part-time help, as a result of the
emergency created by the strike.
The foregoing examples, although not by any means the only ones disclosed by
the record, suffice to make it quite evident that the "direct replacement formula"
proposed by the Respondent does not furnish any fair or reasonable basis, either for
determining the amount of work which was available to the discriminatees, or for
computing the amount of backpay to which they are entitled under the decree herein.
The Respondent had the burden of establishing "facts which would negative the
existence of liability to a given employee or which would mitigate that liability " 11
On the above record, I regard the proof insufficient to support the Respondent's fac-
tual contention that the only work which was available to the discriminatees during
the backpay period was that which was performed by their "direct" replacements
hired after the strike began. Moreover, that formula of computing backpay was
premised on two erroneous assumptions by Respondent. The first assumption was
that if the discriminatees had been reinstated on December 22, 1958, as they should
have been, the reduced number of available jobs would have resulted in a layoff of
the discriminatees before it affected any of the prestrike employees. The lack of
factual support for this assumption has already been shown above. Moreover, since
Respondent's president admitted that as late as the summer of 1962 the Company
still employed at least 20 persons hired after the strike began, and thus subject to
dismissal to make room for the discriminatees, it is quite obvious that the so-called job
eliminations would not have affected the continued employment of the discriminatees.
The second erroneous assumption, based on a misconception of the terms of the
Board's Order and court decree herein, was that since the order and decree did not
provide for the dismissal of prestrike employees "to make room" for the reinstate-
ment of the discriminatees, the latter's right to whatever work was available during
the backpay period was subordinate to that of the prestrike employees who remained
in Respondent's employment. However, in Brown & Root, Inc., 132 NLRB 486, 514,
which involved an identical proposed direct replacement formula based on a sub-
stantially similar order, the Board, with subsequent approval by the court of appeals,
rejected the notion that discriminatees are to be regarded as "second class employees."
In that case, the Trial Examiner, whose conclusions in this regard were adopted by
the Board and the court of appeals, said as follows.
... the Board does not penalize old employees whose right to jobs is at least
equal to that of the discriminatees, and therefore the Board does not require
their displacement in order to make room for discriminatees. But this does not
mean that, had the Respondent done what it should have done and reinstated
the discriminatees at the time the Board found it should have, the retained old
employees would have had superior employment rights thereafter. Reinstated
discriminatees are not second-class employees who could be expected to be laid
off first in any subsequent layoff. Consequently, from the time they should
have been reinstated they are deemed to have employment rights equal to all
other employees in the same job classification, except insofar as seniority rights
or other lawful bases for discrimination (none of which existed here) may pre-
vail From the time that the discriminatees should and could have been rein-
stated, for purposes of determining backpay, the Boaid proceeds on the equitable
principle that that was done which ought to have been done, i e., it considers
that discriminatees are employees again, albeit unpaid ones Thereafter, the
Board is no longer concerned with the identity of replacements as such. In a
UN.L.R.B. v. Brown & Root, Inc, supra, at 454 See also Phelps Dodge Corp. v.
N.L.R.B , 313 U S. 177, 198-200; N.L R B. V. Cambria Clay Products Company, 215 F
2d 48, 56 (C A. 6) , N L.R B v. J. G. Boswell Co , 136 F 2d 585, 597 (C A 9) ; T. C
Nabors, d/b/a W. C. Nabors Company, Inc v. N.L R B , 323 F. 2d 686 (C.A. 5).
7 8 3-13 3-6 6-v o f 151-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case like the present one, the Board is then concerned with the total number of
employees employed in each classification and with their earnings in order to
utilize actual on-the-job experience in determining the amount of backpay to
which the discriminatees would be entitled. The period of employment of
striker replacements as distinct from that of other employees does not, there-
fore, determine the duration of discrimination nor fix the backpay period.
From the foregoing, it is quite obvious that no legal or factual basis exists for the
Respondent's proposed direct replacement formula.
In its brief, the Respondent proposes an alternative formula, to divide equally
among the discriminatees, the number of hours performed by their replacements.
This formula was not suggested either by the pleadings or at the hearing, and was
not subjected to examination or cross-examination by the parties. According to
Appendix C of the Respondent's brief, the total hours which Respondent proposes
to so divide among the discriminatees are only those "worked by replacements on
jobs held by the claimants prior to the strike." Accordingly, for the same reasons
applicable to Respondent's "direct replacement" formula, its alternative proposal
also does not furnish any fair or reasonable basis for determining or computing the
amount of work which was available to the discriminatees during the backpay period.
For all the foregoing reasons, the Trial Examiner concludes that the basic average
hours formula proposed by the General Counsel provides the only fair and reason-
able method proposed by any of the parties for ascertaining the amount of backpay
to which the discriminatees are entitled, and he rejects the alternative direct replace-
ment formulas proposed by the Respondent.12 In view of this conclusion, I will now
consider the deferred question of the alleged improper inclusion in the General Coun-
sel's computations, of hours worked by certain supervisors, working foremen, and
persons in classifications not within the bargaining unit.
5. The alleged erroneous base for the General Counsel's averages
The Board's compliance officer, Storlie, testified generally and without contradic-
tion that he included the hours of the disputed employees 13 in his computations
because he had been advised by Donald Gerland, an admitted official of Respondent
and the son of its president, that the jobs "formerly done by the disciimmatees were
done by both old and new employees," and "that the work had to be done; that
people pitched in and did work whenever it was necessary in the strike situation."
Storlie further testified that he also based his inclusion of the hours worked by said
employees in his computations on the department designation of these persons on
Respondent's payroll records and on lists of employees prepared by Respondent
which had been received in evidence as exhibits in the earlier unfair labor practice
proceeding.14
Regarding the specific employees in issue whose hours he included in his compu-
tations, Storlie testified as follows: (1) Donald Gerland's hours were included
because his payroll card showed that he worked in Respondent's pan department,
Storlie knew that Gerland did production work in that department, and some of the
discriminatees could have done that production work; in addition, Respondent's
Exhibit No. 20, a list of employees prepared by Respondent as of February 25,
1959, disclosed that Donald Gerland was the replacement for Forrest Hineline, one
of the discriminatees; (2) Richard Heldke's hours were included because the latter's
payroll card showed that he worked in the butter department and Heldke told
Storlie that he was the buttermaker; 15 (3) Paul Heldke's hours were included because
his payroll card shows that he worked in the ice cream department; (4) John Haines'
hours were included because the discriminatees "could have done his maintenance
work"; (5) Otto Starkey's hours were included because his payroll card showed that
he worked in the laboratory (although Storlie made no inquiry regarding the nature
of Starkey's duties in the laboratory, he assumed that some of the discriminatees
12 Brown & Root, Inc., supra.
is According to Respondent ' s answer and amended answer, the employees whose hours
of work were improperly included were : John Haines , Paul Heldke ,
Richard Heldke, Don-
ald Gerland , Otto Starkey , Willard Larson, Florian Saffert
, Geraldine Robarge , Karen
Engesether , Joyce Bothke , Marla Bayer , Rogstad, and Shirley Benson
. At the hearing,
the Respondent orally added John Offord , Lee Thoni, O . B. Ludington
, and Daniel Gerland.
14 General Counsel's Exhibit No . 3; Respondent ' s Exhibit No 20.
19 Respondent 's Exhibit No. 20 lists Richard Heldke as a nonstriking employee in
"butter "
RICE LAKE CREAMERY COMPANY 1123
could have performed Starkey's work because it was "within the scope of the bar-
gaining unit"), (6) Geraldine Robarge's hours were included because her payroll
card showed that she worked as a laboratory employee, which Storlie regarded as
within the scope of the bargaining unit (Storlie admitted that he made no inquiry
regarding what she did, or whether any of the discriminatees could have performed
her work); (7) Joyce Bothke's hours were included because her payroll card showed
that she was a plant employee and, thus, performed work within the bargaining unit,
(8) Shirley Benson's hours were included because Storlie was informed by Loretta
Gerland, Respondent's office manager, that during the first part of her employment,
Benson worked in the plant; 16 and (9) Marla Bayer's hours were included because
her payroll card showed that she worked in receiving , which is part of Respondent's
intake department, and within the bargaining unit. Storhe did not testify regarding
his reasons for including the hours of (10) Williard Larson, (11) Florian Saffert,
or (12) John Offord in his computations . However, Respondent's Exhibit No. 20
lists Larson as a nonstriking employee in the pan department, Saffert as a nonstriker
in the warehouse, and Offord as the replacement in the butter dpeartment for Basil
Colbert, one of the backpay claimants . Moreover, according to Respondent's presi-
dent, Ervin Gerland, both Larson and Saffert worked in- the pan department after
the strike started, and it is not disputed that the pan, butter, and warehouse depart-
ments are within the scope of the bargaining unit. In respect to the remaining
employees whose hours of work were allegedly improperly included, since the Gen-
eral Counsel's worksheets clearly disclose that although listed, their hours were not
used in the computation of any of the averages, no useful purpose would be served
by setting forth Storlie' s reasons for listing them on the exhibit.17
Other than Donald Gerland, none of the employees whose hours were allegedly
improperly included in the General Counsel's computations were called by the
Respondent to deny that he or she had performed work during the backpay period
of the type normally done by or available to the discriminatees. Donald Gerland
testified, but he did not deny, that he had performed such work. In respect to the
alleged improper inclusion of other employees in the General Counsel's computa-
tions, Donald Gerland testified only that Otto Starkey, a bacteriologist employed in
Respondent's laboratory, and Geraldine Robarge, who tests butter in the lab, did no
work in the plant during the backpay period of the type performed by the discrimi-
natees. As to the remaining employees at issue, Gerland generally described the
nature of their jobs with Respondent, but significantly failed to deny that they had
performed production work during the backpay period.18 Moreover Gerland
admitted that Marla Bayer, Shirley Benson, and Joyce Bothke performed the work
of taking weights in the intake department, lining butter boxes, and making ice cream
cartons, which was work either previously performed by the discriminatees, or which
they could have performed.
On the foregoing record in respect to this issue, I conclude as follows.
1. The only reason offered by the General Counsel for including John Haines'
hours in his computations of average hours for the production discriminatees, was
that some of them could have performed his maintenance work. However, since
discriminatee DeBoer was the only maintenance employee, and the General Counsel
has proposed a separate formula for computing DeBoer's backpay, not based on the
average hours of work available to the production discriminatees, no reasonable
basis exists for including Haines' hours in the computation of the amount of work
which would have been available to the production discriminatees during the back-
pay period.
2. The only reason offered by the General Counsel for including the hours worked
by Otto Starkey and Geraldine Robarge in his average hours computations was that
they had worked in the laboratory, which was assumed to be within the scope of the
bargaining unit represented by the Union. The record does not so disclose. Accord-
ingly, in the light of the uncontroverted testimony of Donald Gerland that these two
employees performed no production work during the backpay period which could
have been performed by any of the discriminatees , I conclude that their hours of
work cannot properly be considered in computing the average hours of work which
were available to the discriminatees.
16 Storlie included Benson in his computations only for her period of employment in
the plant.
17 The foregoing applies to Daniel Gerland , Rogstad, Karen Engesether , 0. B. Ludington,
and Lee Thoni.
1B As noted above, Respondent 's answer did not deny that the persons allegedly im-
properly included in the General Counsel ' s averages , did plant work of the type normally
performed by or available to the discriminatees.
11 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. In respect to all the remaining employees whose production hours were dis-
puted by the Respondent, the Respondent has adduced no testimony, although such
testimony and information were particularly within its knowledge and control, to
show either that these persons performed no production work, or that such hours of
work as were performed by them were fewer than that considered by the General
Counsel in his worksheets 19 Accordingly, the record stands uncontroverted that
these employees performed the number of hours of production work which were
considered by the General Counsel. Moreover, as noted above, the hours of work
of five of these remaining disputed employees were not used by the General Counsel
in computing his averages because they worked no full quarters. In view of the
foregoing, I conclude that to the extent utilized, the hours of work of such remaining
employees were properly considered in computing the average hours of work which
would have been available to the discriminatees, absent the discrimination.
In accordance with the findings above, the average hours of work which were
available to the production discriminatees were recomputed by me with the hours
worked by Haines, Starkey, and Geraldine Robarge eliminated. The averages which
resulted from such recomputation were as follows:
Straight time
hours
Overtime
hours
1959-1st quarter---------------------------------- 514 36
2d quarter----------------------------------- 514 56
3d quarter----------------------------------- 508 44
4th quarter ---------------------------------- 510 33
1960-1st quarter --------------- ------------------- 513 33
2d quarter----------------------------------- 508 49
3d quarter----------------------------------- 508 45
4th quarter ---------------------------------- 550 41
1961- 1st quarter---------------------------------- 476 32
2d quarter----------------------------------- 515 45
3d quarter----------------------------------- 549 40
4th quarter ----------------------------------- 513 47
1962-1st quarter----------------------------------- 516 54
2d quarter----------------------------------- 514 77
3d quarter----------------------------------- 506 44
Although these averages are not substantially different from those arrived at by the
General Counsel, they will be utilized by me to recompute the gross backpay of the
discriminatees for the periods during which they are entitled to backpay.
6. The backpay formula for Harry DeBoer
As noted above, discriminatee Harry DeBoer was the Union's steward in Respond-
ent's plant before the strike. In the earlier unfair labor practice proceeding, the
Board found that DeBoer had been discriminatorily discharged by the Respondent
because of his union and concerted activities, and rejected "as palpably false" and
"a pretext," the contention of Respondent that DeBoer's job had been eliminated
and that his work had been parceled out to company officials and outside contractors.
The General Counsel's specification proposes a separate formula for DeBoer
because he was the only maintenance employee in the plant, and thus, the amount
of work available for him during the backpay period cannot reasonably be based
on the work that was available to the production employees. Accordingly, he pro-
poses that DeBoer's gross backpay during the period of discrimination should be
based on the average number of hours that he worked during the six calendar quar-
ters preceding the strike.
In its answer to this specification, the Respondent proposes the same "direct
replacement" formula for DeBoer which it proposed for the production employees,
and repeats its contention, rejected in the unfair labor practice proceeding, that
DeBoer's lob had been eliminated during the strike. In this regard, the Respondent's
answer states:
DeBoer was employed as a maintenance man at the time of the commence-
ment of the strike on June 22, 1958. By December 22, 1958, when DeBoer
allegedly offered to return to work, the maintenance job had been eliminated.
Since such date, and prior thereto, said maintenance work has been performed
by an officer of Respondent, and on occasions by an outside contractor, which
contractor rendered services which DeBoer was not equipped to perform.
192 Wigmore, Evidence § 285 (3 ed ).
RICE LAKE CREAMERY COMPANY 1125
Accordingly, since DeBoer had not been replaced by an employee hired after the
strike's commencement, the Respondent's answer contends that DeBoer is entitled
to no backpay.
At the opening of the instant hearing, the General Counsel moved that his speci-
fication in respect to DeBoer be deemed admitted as true, on the ground that the
Respondent's answer in this respect, a general denial, lacked the specificity required
by the Board Rules, and on the further ground that the issue of the alleged elimina-
tion of DeBoer's lob prior to December 22, 1958, had already been litigated and
adjudicated adversely to the Respondent. On this motion, I ruled that he would not
permit relitigation of the issue of the alleged elimination of DeBoer's job prior to
the above date, but would permit proof by Respondent to support its contention that
certain equipment changes, made after December 22, 1958, had reduced the amount
of work available to DeBoer. I further ruled that since Respondent did not dispute
either the mathematics of the General Counsel's formula for DeBoer, or the rate
of pay which DeBoer would have received if employed during the backpay period,
those figures would be deemed proved.
As previously found, the Respondent had the burden of establishing facts which
would support the conclusion that DeBoer's job had been eliminated after Decem-
ber 22, 1958. In this regard, Respondent witness Donald Gerland testified that prior
to the strike, DeBoer's work consisted of performing "minor maintenance" jobs, such
as "greasing and oiling of pumps and motors, making small parts that did not require
close tolerances, building up and turning down separator weaving sleeves, minor
plumbing jobs, small things." 20 Gerland testified that since the strike the Company
has installed a new dryer, new separators, changed the pump setup to eliminate main-
tenance of the pumps, and made other substantial changes in plant equipment.
Gerland was unable to state, however, when these equipment improvements occurred.
He testified further that the lathe on which DeBoer had previously made small parts
was "practically out of working order," and since it was "too expensive to buy a new
one," the Respondent now purchases the parts previously made by DeBoer at less
cost to it. Neither Gerland, nor any other witness, furnished any figures regarding
either cost of a new lathe, or to substantiate that the cost of new parts was cheaper
than making new ones. Moreover, in the light of the substantial cost to the Company
of its new equipment (the dryer alone cost $125,000), I am not persuaded that
Respondent was deterred from purchasing a lathe by the fact that it was allegedly
"too expensive." Gerland also testified that since July 1962, "each department does
their [sic] own minor maintenance." He gave no reason for the change.
On cross-examination, Gerland admitted that the Company still has some pumps
and motors that require maintenance and lubrication, that plumbing work, to the
extent required, is done by an outside plumber, and that some of DeBoer's work
which had been subcontracted during the strike, had not been taken back for per-
formance by plant employees. In this regard, Gerland testified that it was cheaper
to have the work "done elsewhere" but neither he nor any other witness furnished
any figures to substantiate that conclusion. The only other testimony adduced in
regard to available maintenance work was that of Respondent's president, Ervin
Gerland, who testified that during the period when the Company was remodeling its
plant, "there was a lot of moving of machinery and extra work then."
On the foregoing record, including: (1) the admission that some maintenance
of equipment is still required; (2) the testimony that each department now performs
its own maintenance; (3) the absence of any testimony regarding the reason for the
transfer of the work to the various departments; (4) the failure of Respondent to
furnish any factual basis for its conclusionary testimony that it was cheaper to buy
new parts and to subcontract maintenance work than to perform such work with
plant employees; and (5) the absence of any testimony regarding when the equip-
ment changes occurred, and in the light of the previous rejection "as palpably false"
and "a pretext" of Respondent's contention that DeBoer's job had been eliminated,
and the Respondent's offer of reemployment to DeBoer in June 1962,21 I conclude
that the Respondent has failed to establish that DeBoer's job was eliminated during
the backpay period. In view of the foregoing, and since the General Counsel's pro-
20 In the unfair labor practice proceeding, DeBoer's prestrike duties were found to
consist of "the lubrication and repair of all types of plant machinery and equipment, main-
tenance and repair of plumbing, electrical wiring, and other plant fixtures, and perform-
ance of all other odd jobs required in maintenance of the plant . . . . He also acted
as fireman in the boilerroom on alternate Sundays."
21 Cf. Federal Dairy Company, Inc., 142 NLRB 133.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed formula appears to be a fair and reasonable method for computing what
DeBoer's earnings would have been during the backpay period about the discrimi-
nation, it will be accepted as the basis for determining his gross backpay.
C. Pension insurance premiums
Since 1946, the Respondent has been a party to a pension trust agreement, the
purpose of which is to provide eligible employees with annuity retirement income
at age 65, payable to the beneficiaries of said employees in the event of their death.22
Eligibility to participate in these benefits is limited by the trust agreement to employ-
ees who have worked for Respondent for 5 years and who make application to par-
ticipate. Under the agreement, the trustees are required, upon application by an
eligible employee, to secure for him an annuity insurance policy which will provide
for him the benefits detailed in the trust agreement. Since these benefits are based
on a percentage of base earnings up to a certain maximum, the agreement provides
that additional policies will be secured for participants by trustees when the base
earnings increase to certain levels.23 The premiums for such annuity insurance are
paid annually on November 1 of each year by the Respondent to the trustees, who
in turn pay the premiums to the insurance carrier. The participating employees
reimburse Respondent for a designated portion of the premiums thus advanced, by
deduction from their paychecks. According to the uncontroverted record, all employ-
ees of Respondent who were eligible were participants in this pension and life insur-
ance program.
On October 9, 1958, while the discriminatees were on strike against Respondent,
its counsel, William A. Cameron, sent identical letters to each of the strikers who
were participants in the Respondent's pension and life insurance program.24 The
letter stated, inter alia , that the pension trust agreement provided "that in the event
of termination of employment," the trustees were required to "effectuate the transfer
of the policies to the participants"; that the recipient of the letter had "left the employ
of the Creamery on June 22, 1958," and therefore was "entitled to receive [his] insur-
ance policies"; that the premium was due on November 1; that "the trustees are not
authorized to make any additional payment of premium on your policies"; that an
enclosed receipt was provided "which you are required to sign"; and that upon the
transfer of the policies, "the participant may, if he so desire, keep the contract
[insurance] in force or may surrender it." Although described in Cameron's letter
as a "receipt," the form which he enclosed contained a release which provided, inter
alia:
IN CONSIDERATION of the receipt of said policies the undersigned hereby
releases the trustees and the Rice Lake Creamery Company from any obliga-
tion under the Pension Trust Agreement ....
In the early part of November 1958, five of the strikers, in response to Cameron's
letter, signed the "receipt" including the above form of release and received their
policies. Later that month, after consultation between Cameron and the Union's
lawyer, a caveat was added to the release to the effect that it "does not waive . .
rights accruing under the National Labor Relations Act .. . " The remaining 16
striking participants then signed the "receipt" as amended and received their policies.
More than half of the discriminatee participants then "cashed in" their policy or
policies and received the cash surrender value from the insurance carrier.25 Others
cashed in some of their policies and continued their remaining policy or policies in
force. A few converted their policies to paid up insurance. One maintained his
single policy in force and effect.
In his backpay specification, the General Counsel alleges that the portion of the
premiums which Respondent would have paid to maintain these pension policies in
effect during the backpay period, is an "additional appropriate measure of loss" suf-
fered by the participating discriminatees for which they should be reimbursed. The
General Counsel also urges like relief for two additional discriminatees who, absent
the discrimination, would have become eligible to participate in the plan for the first
22 The trustees who administer this plan are Ervin Gerland, Respondent's president,
William A. Cameron, the Company's attorney, and Orrin Waldorf, an ice cream maker
employed by Respondent.
2s Most of the discriminatees had more than one policy, and a number of them had as
many as three.
24 Twenty-one of the twenty-five strikers-all who were then eligible-were participants
and received these letters.
25 The amounts received varied from a few hundred dollars to over six thousand dollars.
/ RICE LAKE CREAMERY COMPANY 1127
time on November 1, 1958, while they were on strike. The Respondent contends
that the discriminatees are not entitled to be compensated for the pension insurance
premiums. At the hearing the Respondent also contended that the sums received
by the discriminatees as the cash surrender value of their pension policies should be
offset as interim earnings against the gross backpay claims or the discriminatees.
The latter contention has apparently been withdrawn by the Respondent since, in
its brief, it now contends that such sums should be offset against the pension premium
contributions "which the General Counsel claims Respondent would have paid" on
behalf of the discriminatees.
As noted above, the purpose of "a backpay award is to make whole the employee"
for his loss of earnings resulting from the discrimination.26 It is well settled that
pension payments made by an employer are a form of wages.27 In its brief (p. 18),
the Respondent concedes that if the "claimants [had] accepted Respondent's offer of
employment [made at the end of the backpay period here involved], they would have
been entitled to resume participation in the pension program . . . by reapplying and
by making the necessary contributions." In the light of that concession, it is obvious
that the discriminatees, if reinstated on December 22, 1958, when they should have
been, likewise were entitled to resume participation in the pension program. That
they would have so elected is quite evident, since the record shows that all who were
eligible, participated therein. Thus, it is clear, and I find, that absent the discrimi-
nation, the discrimmatees would have received during the backpay period, not only
their base wages, but also the benefits which flowed from the Respondent's contribu-
tions to the cost of the pension insurance.
The amounts which Respondent would have so contributed during the backpay
period are not disputed and are quite substantial.28 However, these contributions,
although "wages," ordinarily were not paid to the discriminatees, but went to the
insurance carrier as premiums for the pension insurance. This presents the question
of whether it is more appropriate, in this backpay proceeding, to require the Respond-
ent to pay the contributions omitted during the backpay period, to the discriminatees,
as proposed by the General Counsel, than to require the Respondent to restore the
pension insurance for the discriminatees in the status it would have been absent
the discrimination . 29 On the facts in this case , the payment of the Respondent's
omitted premium contributions to the discriminatees appear to be the most appro-
priate and reasonable method of effectuating compliance with the Board's Order and
court decree that the discriminatees be "made whole." My reasons for this conclu-
sion are as follows:
Unlike the Cottrell case, where the Board's remedy was restoration of insurance
rights, the discriminatees in this case are still not employed by Respondent, notwith-
standing the passage of 5 years since the discrimination occurred, and an offer of
reinstatement, made by the Respondent in the summer of 1962.30 In the light of
the past history of this lengthy litigation, and the record of hostility to the reemploy-
ment of the discriminatees, even assuming another offer of reinstatement is required
of Respondent, it would be difficult to prophesy, or even to speculate, either when
compliance therewith would occur, or that any substantial number of the discrimina-
tees would accept further employment by Respondent.31 Thus, since reemployment
by Respondent is a condition precedent to restoration of the pension policies of the
discriminatees, such restoration is unlikely to ever be available for many of them,
20 N.L R B. v. Brown & Root, Inc, supra
27 Inland Steel Company v. N.L R.B., 170 F. 2d 247, 250-251 (CA. 7), cert. denied 336
U.S. 960.
28 As disclosed by the General Counsel ' s backpay specification , the Respondents share
of the cost of the pension insurance for each discriminatee varied from a minimum of
$117 per annum for discriminatee Russell Haugen, to a maximum of $729.55 per annum
for discriminatee Melvin Shervey.
29 See , for example , Continental Oil Company v. N L.R B., 113 F. 2d 473, 485 (CA.
10), where the Board ordered restoration of a discriminatee ' s insurance rights; Illinois
Bell Telephone Company, 88 NLRB 1171, 1179, where the Board, in a like case, ordered
that the discriminatees be made whole for their "pension rights" ; and C. B. Cottrell &
Sons Company, 34 NLRB 357, 472, where the Board ordered the employer to restore the
insurance rights of unfair labor practice strikers who had been reinstated, "as they
existed immediately prior to the strike," or to procure substantially equivalent insurance
rights if exact restoration is impossible.
30 The issue of whether these offers were bona fide will be separately considered , infra.
ai At least two discriminatees will never return because of physical disability. In
addition , others have indicated an intention not to return because of satisfaction with
their present employment.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and will be long deferred for those to whom it may eventually be available. More-over , even for the latter employees , restoration of their pension rights to the status
quo that existed at the time of the discrimination would undoubtedly require of such
employees the payment of their shares of the premium for the intervening years, 32
and, since a majority of the discriminatees cashed in their pension policies , it would
also undoubtedly require of such persons the repayment of the substantial sums
received by them as the cash surrender value of such policies. The practical effect
of these requirements would be to deter such reemployed discriminatees from accept-
ing a return to the status quo ante in respect to their pension rights.
On the other hand , the General Counsel's proposal for requiring the Respondent
to now pay the discriminatees for the pension premium payments which it did not
make for them during the backpay period , appears reasonable and appropriate. It
is not punitive since it does not require the Respondent to pay any more than what
it would have paid as its share of pension premiums absent the discrimination. It
does not unjustly enrich the discriminatees for the amount thus paid to them, since
in respect to those who cashed in one or more of their policies , they have suffered
at least an equal loss of the difference between the lesser surrender value which the
policies had when cashed , and the higher such value they presently would have had
if they had been maintained in force In respect to those who kept their only or less
than all of their policies in effect, and thus necessarily must have paid all the pre-
miums , including the Respondent 's share, to maintain them, reimbursement of the
share of such premiums which the Respondent would have paid during the backpay
period absent the discrimination , merely reimburses them and makes them whole.
Moreover , the General Counsel 's proposal will not preclude the reinstatement of the
pension policies , if and when any of the discriminatees are ever reemployed by
Respondent . In such event , the reinstated discriminatee would have an election,
either of having his pension policy restored to the status quo at the time of the dis-
crimination by repayment of the surrender value received by him and the premiums
for the intervening years, or of participating without such payment as an employee
first achieving eligibility in the Respondent 's pension program. For all of the fore-
going reasons , I conclude that the General Counsel's proposal to require the Respond-
ent to pay the discriminatees for its share of the pension insurance premiums is a
fair and appropriate method of effectuating compliance with the Board 's Order and
the court 's decree in this case.
In reaching this conclusion , I have considered , but rejected as without merit, the
various contentions and arguments of Respondent to the contrary . In this regard,
the Respondent contended that since the discriminatees were still on strike on Novem-
ber 1 , 1958, when the pension premium became due, it was not obligated to make
"any contribution on [that date ] or thereafter ." The short answer to this contention
is that whatever the Respondent 's obligation may have been in respect to the contri-
bution which became due on November 1, 1958, the Respondent was obligated on
December 22, 1958 , under the terms of the order and decree herein , to restore the
discriminatees to the former or substantially equivalent positions , "without preju-
dice to their seniority or other rights and privileges ," which included restoration of
their pension insurance rights , at least from on and after December 22, 1958. The
monetary value of the latter relief is all that the General Counsel requests in this
proceeding.
The Respondent further contends that, in any event, it should not be required to
make such premium contributions for discriminatees Malcolm Demers and Leonard
Hanson, who, as noted above , had not been participants in the pension program
because they first became eligible to participate on November 1, 1958. In view of
the record that all eligible employees of Respondent participated in the plan, the
inference is inescapable that absent the discrimination , they would have so partici-
pated , and that the restoration of "their rights and privileges ," as required by the
Board 's Order , includes reimbursement of Respondent 's share of the pension pay-
ments which would have been made on their behalf during the backpay period.
The Respondent also contends that "the Board is without authority to vitiate the
releases executed by the strikers ." As found above, the great majority of such
releases contained a caveat expressly reserving the rights of the discriminatee accru-
ing under the National Labor Relations Act. In respect to the six others whose
releases contained no such caveat , the law is well settled that such private settle-
ments to which the Board is not a party , are not binding on the Board in the exercise
of its exclusive authority of enforcing the public policy of the Act.33
32 In most cases, this would amount to $ 120 per year.
33 W. C. Nabors, d/b/a W. C Nabors Company v. N L.R B., 323 F. 2d 686 (C A. 5) ;
N L.R.B. v. E.A Laboratories , Inc., 188 F 2d 885 , 887 (C.A. 2).
RICE LAKE CREAMERY COMPANY 1129
The Respondent proposes that if it is required to pay the discriminatees for the
pension contribution which it did not make during the backpay period, then the sum
of $120 per year, the discriminatees' share of the annual premium for the pension
insurance "should be deducted from the gross backpay of each participating striker."
Quite obviously, the portion of the premiums which the discriminatees paid toward
their pension insurance was intended to inure to their own benefit, not that of the
Respondent. Accordingly, a reduction of Respondent's backpay liability as sug-
gested by it would result in a "windfall" for Respondent, the tort feasor, "at the
unconscionable expense" of the persons against whom it discriminated. The same
reasoning requires rejection of the further suggestion of the Respondent, that the
moneys received by the discriminatees as the cash surrender value of their pension
policies "be offset against the total of the contribution . which the Respondent
would have paid" during the backpay period, absent the discrimination.
For all the reasons above stated, I conclude that the discriminatees are entitled
to be made whole for the contributions which the Respondent would have made to
their pension insurance absent the discrimination, and since the amounts of such
contributions are not disputed, the claims therefor as set forth in the General Coun-
sel's amended specification are allowed.
D. Medical expenses
Before the strike and while employed at the plant, the discriminatees were covered
by group medical and hospital insurance, the premiums for which were paid in part
by the Respondent and in part by the discriminatees. After the strike commenced,
the Respondent discontinued paying premiums for the strikers, and their medical
and hospital insurance coverage was terminated. During the backpay period, three
of the discriminatees 34 incurred hospital and medical expenses which would have
been covered by the insurance if still in force. The General Counsel's backpay speci-
fication claims the amount of these medical and hospital expenses for the three dis-
criminatees to the extent that such expenses would have been covered by the gioup
insurance policy if in force. The amounts involved have been stipulated and thus
are not disputed. The parties also stipulated that: (1) In order to participate in the
insurance policy, employees were required to contribute portions of the premium,
and that no such contributions were made during the period when the losses in ques-
tion occurred; (2) the 1959 policy provided:
The insurance of the insured shall terminate automatically in the event his
employment with the member [Respondent] becomes part time or is terminated.
Cessation of active work on full time by the insured shall be deemed to consti-
tute termination of employment;
and (3) the 1962 policy provided,
Persons who are eligible by reason of employment but who are not actively at
work when they otherwise would be eligible shall become eligible on the date
of their return to active woik.
The Respondent contends that since under terms of the policy, the discriminatees
were required to be "actively at work" and to contribute a part of the premiums in
order to be covered, none of them "qualified for benefits under the terms of the
existing group insurance program." The Respondent further contends that "the
Board has no authority to create a new contract between the Respondent and its
insurance carrier ... for the special benefit of the striking employees." These con-
tentions miss the point of the Board's Order and court decree which directed the
Respondent to "make whole" the discriminatees for losses they suffered as a result
of the Respondent's discrimination against them. The issue involved is not whether
the discriminatees "qualified for benefits under the terms of the existing . . . insur-
ance," or even whether the "Board has authority to create a new contract " It is
simply and solely whether the medical and hospital incurred by the three discrimi-
natees are losses suffered by them as a result of the discrimination In respect to
a like contention, the Board said in Deena Artware, Inc.,35 as follows:
We do not determine here the insurer's liability under the policy We seek
only to make whole the employees for the losses suffered by reason of the dis-
crimination. We find that these claimants suffered the loss of their insurance
benefits. '
34 Delore King, Lloyd Madaus, and Melvin Shervey.
36112 NLRB 371, 375, enfd. 228 F. 2d 871 (C.A. 6).
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no question raised here that, if reinstated when they should have been, the
three discriminatees would have been covered by the group medical and hospital
insurance at the time they incurred their hospital and medical expenses, nor is it
disputed that, absent the discrimination, the three discriminatees would have been
reimbursed for such hospital and medical expenses to the extent of the amounts
stipulated. Accordingly, it is quite clear that such amounts represent the gross
losses suffered by these claimants are a result of the discrimination against them.
However, the record also discloses that: (1) Absent the discrimination, these
three discriminatees would have been required, if married, to pay $7.24 per month
to qualify for the medical and hospital benefits; 36 (2) they did not pay their portion
of such monthly premiums; (3) Melvin Shervey's hospital and medical expense claim
of $29.05 was incurred in the third quarter of 1962; and (4) the claim of Lloyd
Madaus for such expense in the sum of $122.25 was incurred in the second quarter
of 1962 Thus, the amounts of the hospital and medical claims of these two dis-
criminatees are less than what they would have paid to maintain the insurance cov-
erage absent the discrimination. Accordingly, it is quite obvious that in respect to
their medical and hospital expense, neither Shervey nor Madaus has suffered any net
loss as a result of the discrimination against them. Their claims in this regard will
therefore be disallowed.
Delore King's claim for hospital and medical expenses in the sum of $565 85 was
incurred in October and November 1959. Absent the discrimination, in order to
qualify for such insurance benefits, King would have paid monthly premiums of
$7 24 for a period of 11 months before his claim for such expenses accrued. Thus,
the net loss suffered by King for hospital and medical expenses as a result of the
discrimination against him, was the sum of $565.85 less $79.64 (11 X $7.24) or
$486 21.37 Accordingly, his medical and hospital expense claim in that amount will
be allowed 3s
In its brief, the Respondent contends for the first time that if these claims for
medical and hospital expenses are allowed on the theory that the discriminatees
"were covered by insurance protection" during the backpay period, the "Respondent
is entitled to be reimbursed for the insurance risk to which it was exposed, and a
fair value of such risk is the employee contribution that would have been made had
the employees been actually covered." Accordingly, contends the Respondent, "the
amount of $7.24 per month should be deducted from the gross backpay computation
of all the strikers, including those not making any claim for medical expense reim-
bursement." In respect to this contention, the Respondent again misses the point of
the Board's Order. Respondent is required to reimburse Delore King for his medi-
cal and hospital expenses, not because the Respondent furnished him with "insurance
protection," but because that was a loss which he suffered as a result of the Respond-
ent's discrimination for which he must be made whole. The claims of Madaus and
Shervey were disallowed, and that of King was reduced, not because Respondent was
exposed to an "insurance risk" and was therefore entitled to premiums for furnish-
ing insurance coverage, but because to the extent that these discriminatees would
have paid such premiums if reinstated when they should have been, they had not
suffered the amount of losses claimed by them The same rationale applies to the
Respondent's contention in respect to the remaining discriminatees. The Respondent
has not maintained their insurance, had incurred no expense for insurance coverage,
and has been subjected to no claim on their behalf for hospital or medical expense.
Under these circumstances, to permit the Respondent to benefit, although not an
insurance carrier, by a setoff of premiums for insurance which was not provided,
would produce the obviously absurd and unequitable result of allowing the tort
feasor to benefit from his tort Accordingly, the Respondent's contention, that back-
pay for the discriminatees should be reduced by the amount of the premiums which
they would have paid for hospital and medical insurance if employed, is rejected.
Moreover, even assuming arguendo, that contrary to the above, the Respondent's
contention had some merit, the same conclusion would still be required for failure
of proof As already noted, the Respondent had the burden of proof in respect to
36 Respondent President Ervin Gerland testified that the employee's share of the
piemium for medical and hospital insurance was $7 24 per month which included his
wife and family
"The record is silent as to whether King was married at the times in question If
he was not, and the monthly cost to single employees for such insurance was less than
$7 24 per month, the parties will either stipulate the correct amount or may move to
have it corrected.
se Deena Artware, Inc, supra; Glen Raven Silk Mills, Inc., 101 NLRB 239, 250.
RICE LAKE CREAMERY COMPANY 1131
the existence of facts mitigating its backpay liability.39 In addition, the Board has
held that benefits received by discriminatees through substitute insurance is a proper
offset against claims on an employer for the same losses.40 Accordingly, to prove
that it was entitled to the requested offset, the Respondent was required to establish
that no other like or substitute insurance was obtained and/or paid for during the
backpay period by the discriminatees, and that it alone was responsible for the
alleged "insurance risk" to which it was subject because of its act of discrimination.
The record is barren of any such proof. There is no evidence that the discrimina-
tees did not procure substitute hospital and medical insurance through other sources
during the backpay period. To the contrary, the record shows at least two discrimi-
natees, Roux and DeBoer, did obtain such insurance through the Union. In view
of the foregoing, this contention of Respondent must be rejected for the additional
reason of insufficiency of proof.
E. The strike benefits received by the discriminatees during
the backpay period
As noted above, the strike against Respondent began on June 22, 1958. In con-
nection with the strike, many of the discriminatees participated in picketing the
Respondent's plant. After the Respondent refused the unconditional request of the
strikers on December 22, 1958, for reinstatement, the strike and picketing continued
until September 1959 when the pickets were withdrawn. Commencing with the
second week of the strike, "strike benefits" were paid by the Union and the Interna-
tional to the discriminatees. To qualify for these benefits, the discriminatees were
required to do some picketing. Generally, each of the discriminatees picketed from
4 to 6 hours per day, and 4 to 5 days per week. However, the picketing requirement
was not absolute. The discrimmatees were permitted to exchange their hours of
picketing. Russell Haugan was paid strike benefits while he was in the hospital and
did no picketing. Carl Wicken was active on the picket line until August 1959 when
he moved to Seattle, Washington, but received no strike benefits after June 13, 1959.
The last group of pickets continued to receive the benefits for a month after picket-
ing terminated. And, as far as the record shows, the amount of the benefits which
were paid to the pickets was unrelated to the number of hours which were devoted
by the discrimmatees to picketing.
Respondent contends that the amounts of the strike benefits received by the
discriminatees during the backpay period "constitute interim earnings" which should
be deducted from their gross backpay. The legal principles involved are well estab-
lished. If the strike benefits received by the discrimmatees constitute wages or
earnings resulting from interim employment, they are proper deductions from gross
pay. If these sums represent collateral benefits flowing from the association of the
discriminatees with their union, then these sums are not deductible 41 The burden
of proving that the strike benefits constituted wages for picketing and thus were in
the nature of interim earnings, was on Respondent. In the light of the above record,
which shows that the payment of the strike benefits was not keyed to picketing alone,
the Respondent has not sustained its burden of proving that the benefits paid by the
Union constituted interim earnings 42
F. Disqualification for backpay because of picketing
The Respondent also contends that because the discriminatees were engaged in
picketing for the first three quarters of 1959, an inference is required "that during
these periods claimants wele not interested in securing interim employment, and are
disqualified from receiving backpay during such period."
The burden of proving that the discriminatees failed to make a reasonable search
for employment was on Respondent.43 The record does not disclose that the picket-
ing prevented any of the discriminatees from searching for or obtaining other employ-
ment. On the contrary, Union Representative Veleke testified that the Union not
only had no objection to the pickets obtaining other employment, but urged them
31 N L R B v Brown R Root , Inc , supra.
40 Glen Raven Silk Mills , Inc , supra.
41 Gullett Gan Company, Inc. v N L.R B , 340 U S 361 ; N L R B. v. B) ashear Freight
Lines, Inc., 127 F 2d 198, 199 (C A. 8).
"-' N L R B v Biashear Freight Lines, Inc., sepia See also Paragon Oil Company, 17
LRRM 2012 (decision of N.Y State Labor Relations Board)
43N.L.R.B. v. J. B Boswell Co, 136 F 2d 585 (CA. 9) ; T. C. Nabors, d/b/a TV. C.
Nabors Company v. N.L R B., supra
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do so. In view of the foregoing, I reject, as without support in the record, the
contention that by their picketing the discriminatees disclosed a lack of interest in
interim employment. Whether or not the discriminatees made an adequate search
for other employment will therefore depend in each case on the record of the efforts
made by the discriminatees to find other work
In respect to the picketing, the Respondent finally contends that since, as union
members, the discriminatees would not have returned to work at its plant while the
picketing was in progress, they are not entitled to backpay for that period. A like
contention has been raised in a number of cases and rejected by the Board. k4 It is
well settled that employees who voluntarily withhold their services to strike and
picket are not entitled to be compensated while so engaged. However, here the
picketing was in progress because the Respondent refused the request of the dis-
criminatees to return to work on December 22, 1958, and the Respondent did not
thereafter offer reinstatement to any of them until ordered to do so by the court's
decree. Thus, by its own action the Respondent foreclosed any definitive answer
as to whether the discriminatees would have abandoned the picket lines if reinstate-
ment was offered.45 Accordingly, I reject the Respondent's contention that the dis-
criminatees are not entitled to backpay during the period of the picketing because
they would not have gone through the picket line.
G. The offers of reinstatement
One of the issues in this proceeding is whether the Respondent has complied with
the reinstatement provisions of the decree of the court of appeals enfoicing the
Board's Order. As noted above , following the issuance of that decree on June 11,
1962, the Respondent petitioned the Supreme Court for a writ of certiorari, and also
promptly moved in the court of appeals for successive stays of execution which were
granted Notwithstanding the stays , commencing with June 29, 1962, and in the
course of the next 2 months, the Respondent sent letters in groups of three and four
at approximately weekly intervals to all but one of the discriminatees purporting to
offer them reinstatement to their former or substantially equivalent positions 46 Only
two of the discriminatees actually returned to work in response to the Respondent's
letters, and they promptly quit under circumstances described hereinafter.47 The
General Counsel asserts in his backpay specification that the "piecemeal " offers of
reinstatement were not made in good faith, but were intended by the Respondent
"to cause the discriminatees to refuse [them] or to . . . compel them to quit should
they accept the offer as a result of pressure and harassment ...."
The first of the Respondent 's letters purporting to offer reinstatement to the dis-
criminatees was sent by certified mail on June 29 , 1962, to Harry DeBoer, the Union's
steward and a maintenance department employee, Basil Colbert, who had worked in
the butter department , and Edward Berg, who had worked in the powder department.
At the time these offers were mailed , the Respondent already knew that Colbert and
Berg would not return to its employ , and, as expected , they did not.48 Thus , in effect
the Respondent 's reinstatement offer was, to all intents and purposes , limited to
Union Steward DeBoer who accepted and arranged to return to work on July 9, 1962.
When DeBoer reported he was assigned by Raymond Gerland , an official of
Respondent , to work under the supervision of Francis King, an outside contractor,
who was repairing the coal silo or elevator , located just outside the north side of the
plant. Although DeBoer advised King that he had not done any welding work for
over 4 years , King nevertheless told him , "You will have to weld [metal ] plates on
the coal elevator up above the top of the silo." The silo was about 100 feet high.
DeBoer's job was to weld metal plates together on the ground , hoist them by rope
to the place on the silo where they were to be installed, and then weld them to the
existing sides of the silo which needed patching . The welding to the silo was to be
44 Ozark Hardwood Company, 119 NLRB 1130, 1133, 1156; Merchandiser Press, Inc,
115 NLRB 1441; East Texas Steel Castings Company, Inc., 116 NLRB 1336.
45 Respondent's counsel asked DeBoer, the union steward, whether he "would have gone
to work through a picket line" at the plant, but I sustained the objection of the General
Counsel that the question called for speculation on the part of the witness.
48 No issue is raised by the lack of an offer of reinstatement to Malcolm Demers since
he had removed himself from the labor market.
47A third discriminatee arranged with Respondent to return but changed his mind
The "hot" reception planned for him by Respondent will be described, infra.
S8 Respondent's official, Daniel Gerland, admitted he had been so advised by both Col-
bert and Berg. After receiving the offer Berg also notified Raymond Gerland that he
would not accept.
RICE LAKE CREAMERY COMPANY 1133
performed partly from a platform around the silo part of the way up and above that
height, by using "a sling and scaffold." At first, when DeBoer started to work, every-
thing was quiet. Then he heard voices talking in the background, and somebody
tnrew rocks at a railroad coal car near which DeBoer was working. Then from the
plant doorway, DeBoer heard "hollering," hooting, and the word "scab." DeBoer
recognized the voice of Florian Saffert, a group leader, as one of those who partici-
pated in this conduct. Then two men wearing white clothes, the costume regularly
worn by the creamery employees, stood nght by DeBoer as he worked and watched
him, and two other persons, one of whom DeBoer identified as John Offord, a plant
employee, deliberately walked over the metal plates which DeBoer was welding, and,
as they walked by, called out, "Scab, scab." While all this was going on, Contractor
Francis King was only 15 feet away. About 11 a.m. on that day, DeBoer hoisted
the plates he had prepared and tools and equipment for their installation to the "top
of the silo." That afternoon as he worked on the platform around the silo, DeBoer
again heard "hollering" from the vicinity of the powder bagging room, which he
"knew" was for his "benefit." DeBoer disregarded all the heckling and harassment
and finished out the working day. That afternoon, as DeBoer was leaving the plant
after punching out, there were two or three men on the roof of the creamery, and
one of them looked down at DeBoer and said, "I wish I had a gun."
The next day, DeBoer returned to the plant and continued to weld metal plates to
the side of the silo. His work required him to lie in the coal soot on the platform
which had seeped from holes in the silo. While he was thus engaged, he heard voices
from the bottom of the silo yelling "nigger boy, nigger boy." He also heard the voice
of employee Warren Forehand, which he knew and recognized, yelling to Contractor
Francis King, "Are you getting any work out of that guy? Can he weld?" In addi-
tion, either Don or Marvin Arneson, an ice cream truckdriver employed by Respond-
ent, called out to DeBoer, "Why don't you chase a few trucks?" All of these remarks
"stirred up" DeBoer and made him "nervous." He was then trying to weld under
an angle iron "by feel" because he could not see the spot at which he was welding.
Contractor King then told DeBoer that his work "was pretty rough" and would not
"hold." DeBoer told King he was too nervous to do a good job. Then King told
his assistant, Milton DeRousseau, that if DeBoer "didn't hurry up, we would be there
until the snow flies." Thereupon DeBoer stood up, removed his welding helmet,
told King he would have to get someone else to do his welding, and left the silo.
DeBoer then went to the Respondent's office, where he told Raymond Gerland, "I
guess I couldn't weld good enough to do the job." Gerland replied, "O.K., punch
out." DeBoer did so. Gerland then went to get DeBoer's paycheck , and as he walked
through the door into the butter room, he waved DeBoer's timecard in the air and let
out a "loud," "happy yell." 40
Immediately after leaving the plant , DeBoer went over to the taxi stand operated
by Peter Butzler , another of the discriminatees, and told him about the harassment
he had experienced while working for Respondent, and that he had quit. The news
spread quickly to other discriminatees in this small town.50 An item regarding it
49 The foregoing findings in respect to DeBoer ' s experiences during his short-lived period
of reemployment are based on the credited testimony of DeBoer , who impressed me as a
truthful and reliable witness . Much of DeBoer ' s testimony regarding these events was
not controverted Although still employed by Respondent and thus available to testify,
the Respondent did not call either Saffert , Forehand , Offord, or Arneson to deny that
they had participated in the heckling and harassment of DeBoer . Donald Gerland testi-
fied that Offord's time record showed that he did not work on the day when , according
to DeBoer , Offord worked over the plates which DeBoer was welding However, that
testimony does not disprove that Offord was at the plant that day and walked over
DeBoer ' s work , and Offord was not called to deny his participation in the harassment of
DeBoer. Moreover , Raymond Gerland was also not called as a witness , either to deny
that he emitted a "happy yell " when DeBoer punched out , or to explain why he did so.
Under the circumstances , I draw the inference , that these witnesses , if called , would not
have controverted DeBoer's testimony regarding what they said and did (2 Wigmore
Evidence § 285 (3 ed ).) The Respondent adduced testimony from its witness , Contrac-
tor Francis King, that he saw and observed nothing unusual during DeBoer ' s brief em-
ployment , but such testimony does not disprove that these events occurred Moreover,
I do not regard King as a credible witness , and, since , according to DeBoer 's credited
testimony , these events occurred in the proximity of King, I do not believe King ' s testi-
mony that he observed nothing unusual during DeBoer ' s employment under his
supervision.
eo The population of Rice Lake , Wisconsin, was approximately 7,300.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the headline "DeBoer's Return To Plant Is Brief" appeared on the front page
of the town's weekly newspaper, The Rice Lake Chronotype, on the following day,
July 11, 1962.
The Respondent did not offer reinstatement to any more of the discriminatees un-
til after DeBoer quit and his termination was publicized. Thereafter, when the Re-
spondent sent out letters purporting to offer reinstatement to discriminatees in groups
of three and four, in each instance it limited the offer to only one discrminatee in any
one of its departments. None returned to work until Loren Hanson accepted the
Respondent's offer dated August 3, 1962.
Loren Hanson arranged with Ervin Gerland to return on August 14. Gerland
told one or two of his employees that Hanson was returning, and word of it spread
around the plant.5' When Hanson reported, he was told by Respondent's office man-
ager, Loretta Gerland, to go with Willard Larson, described by Hanson as a plant
supervisor, and by Donald Gerland, as a group leader. Larson preceded Hanson by
3 or 4 feet as they walked into the plant. As they walked in this fashion through the
butter room, Hanson was doused by two water hoses directed at him by unidentified
persons, and his body and clothes (shirt, pants, shoes, and socks) became "wringing
wet." Nevertheless, Hanson continued to follow Larson into the evaporator room,
where he saw a stuffed dummy, "a make believe person" about 3 or 4 feet high, in a
rocking chair, and on it was a sign with the word "Scab" in large letters. Donald
Gerland was in the evaporator room and said to Hanson, "Start scrubbing the floors.
There's the broom and there's the powder." Hanson replied that he was "wringing
wet," and Gerland said, "I don't know nothing [sic] about it." Hanson then said that
he was going home to change his clothes, and Gerland told him to punch out and to
speak to Raymond Gerland. Hanson refused, and as he was walking down the stairs
preparatory to leaving the plant someone threw a broom at him from above, but it
missed its target and hit by the side of Hanson.52
After leaving the plant, Hanson walked over to the taxi stand of Peter Butzler, a
discriminatee. Russell Haugen and Benjamin Dudei, two other discriminatees, were
also there. Hanson told them what had transpired during his brief stay in the plant.
He then went home, changed his clothes, but decided not to return to the plant be-
cause "it was no use," "they didn't want [him] to work anyway." About a week or
two later, the Union's representative, Malcolm J. Veleke, visited Respondent's plant
and asked its president, Ervin Gerland, to take Hanson back. Gerland replied that
he had given Hanson one chance, and that he would not give him another. When
cross-examined in respect to this decision, Gerland, after some evasions, finally con-
ceded that he had an obligation to provide Hanson with a job "where he could work
without being hosed down." He also admitted that he had never advised Hanson
"that he could come back without fear of further repetition of what [had] occurred "
Nevertheless, Gerland maintained that he had fulfilled his legal obligation by making
his initial job offer to Hanson, and was not required "to do it again, and again, and
again " He also testified that he refused Veleke's request because "I don't think
Veleke was in a position to tell me what to do." This response obviously evaded the
fact that Veleke "asked" for Hanson's reinstatement, and did not "tell" Gerland what
to do. Moreover, under the court's decree, then no longer stayed, Respondent was
required to bargain with the Union as the collective-bargaining representative of its
employees, and, thus, Veleke was "in a position" to make this request. Notwithstand-
ing the foregoing, Hanson was never thereafter recalled by Respondent.
Following Hanson's brief stay at Respondent's plant described above, none of the
discriminatees returned to work for Respondent, although it continued, as previously,
to send letters to the remainder of them in groups of three and four and one to a
department,53 purporting to offer them reinstatement.
81 Gerland admitted that matters of this type spread rapidly around the plant and
became matters of "common knowledge" to all employees
i2 The foregoing findings are based on the credited testimony of Hanson. Regarding
these events, Respondent's only witness was Donald Gerland. He minimized the degree
of Hanson's wetness, testified that he saw no "scab" sign although he admitted seeing
a dummy,.and further testified that such devices were not unusual in the plant, and that
he saw no broom thrown at Hanson although he followed him out of the plant. Insofar
as his testimony varies from Hanson's, I do not credit Gerland's because I regard him
as not worthy of much credence. Examples of Gerland's lack of reliability, if not of
the falsity of his testimony, will be set forth hereinafter.
63 On one occasion the offer included two discriminatees who had worked in the same
department, but even in this case, the Respondent knew that one of the two had been
totally disabled by a heart attack and would not return.
RICE LAKE CREAMERY COMPANY 1135
The last such offer, mailed by Respondent on August 17, 1962, included Russell
Haugen. Upon receipt of the letter, Haugen, who had previously worked in Respond-
ent's powder department, went down to the plant and advised Raymond Gerland that
he was ready to return to work. Gerland told Haugen that "things were different,"
and asked him whether he wanted "to go back to work." Haugen said, "Yes," and
asked whether he should wear all white clothes, the apparel usually worn by the
creamery employees, or "a raincoat and hat and boots." The latter was a reference
to "the Hanson incident." Gerland told him to wear his "regular whites" and to
return to work the following Monday at 8 a.m. After his conference with Gerland,
Haugen changed his mind and decided not to return to the plant because "he knew
what was in store for him," he knew he "wouldn't last anyhow," and "would probably
get the same sort of treatment" as Hanson, "or something different." However,
Haugen did not notify Respondent regarding his change of heart.
On the morning that Haugen was expected to report, Donald Gerland notified
Maurice Gonyer, a "new" employee who worked in the powder department, that
Haugen was returning to work, and instructed him to "watch and see that everything
goes good and help him [Haugen] out in case he got in trouble" with his work.
Haugen did not show up. However, when Gonyer walked into the department that
morning, he found the two "outside doors" and all the "inside doors" shut, unusual
for August, and the room was "warmer than usual." When asked how warm the
room was, Gonyer testified, "It was enough that you would sweat good." Gonyer
opened the doors. A little while later, Donald Gerland came into the room and asked
Gonyer "if it was kind of warm in there." Gonyer replied ". . . it was kind of hot."
Then Gerland said, "You had better turn the heater off," and walked over to the
"thermostat control" and turned it off. Then Gerland said "that they were going to
give him [Haugen] a sweat." 54
Donald Gerland, although not denying that the incident occurred, testified that it
was not unusual for that department to be warm in the morning. He explained that
because the sacking of powder is a dusty operation, at the end of each day's run they
wash the room and all the equipment, and then turn the heater on to dry out the
room because "you can't sack powder with wet equipment." Regarding the closed
doors, Gerland testified that each night after dinner, either he or his father always
"locks the plant up," including the outside doors to the powder department. Not-
withstanding the surface plausibility of his explanation, Gerland significantly failed
to deny Gonyer's testimony that Respondent intended to make Haugen "sweat."
Moreover, the record discloses that the plant operates on a multishift basis, thus con-
firming Gonyer's testimony that closed doors were unusual for August, and discredit-
ing Gerland's that he or his father "locks up" the plant at night. In view of the above,
and since I regard Gerland's testimony as generally unreliable, the conclusion is
inescapable that Respondent deliberately intended to make working conditions for
Haugen at its plant, difficult, if not unbearable.
A substantial number of the discriminatees testified that they did not accept the
offer to return to work for Respondent because of their belief, engendered by the
"piecemeal" fashion in which reinstatement was being offered to them, that they would
be the targets of harassment and abuse similar to that which had been meted out to
DeBoer and/or Loren Hanson, which they would not be able "to take." However,
they did not advise Respondent that this was the reason for their nonacceptance of
its offer. Instead, they wrote to Respondent, either that they could not accept "at
this time," or requested more time to give notice to their current employers, or to
wind up their current businesses. The Respondent did not reply to any of these
requests. Many of the discriminatees were then earning substantially less than what
they would receive as employees of Respondent.55 They testified that in view of
what happened to DeBoer and/or Hanson, they did not accept the Respondent's offer
because they could not risk the loss of their current jobs for the uncertain duration
of employment with Respondent. In this fashion, although going through the motions
of offering reinstatement to the discriminatees, the Respondent succeeded in avoiding
the necessity of having any of them return or remain in its employ.
The Board's Order and court decree required, inter alia, that the Respondent offer
the discriminatees "immediate and full reinstatement to their former or substantially
equivalent positions ... dismissing if necessary, any persons hired on or after June 22,
1958, the date of the strike, who were not in Respondent's employ on that date."
54 The above findings regarding the incident in the powder department on the morning
when Haugen was expected to return to work are based on the credited testimony of Gonyer.
ss At least one, Haugen, was wholly unemployed at the time.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time that the decree of the court of appeals issued, the Respondent admittedly
had in its employ "at least" 20 employees hired after the strike began, who thus, were
subject to dismissal "if necessary" to make room for the "immediate" reinstatement
of discriminatees. At that time, the Respondent knew that no more than 20 of the
24 production discriminatees would be interested in reinstatement.56 Thus, under
the court's decree, the Respondent knew that it had positions available for all of the
discrimmatees who still might desire reinstatement. The Respondent did not dis-
charge any of its employees hired after the strike began who were subject to dismissal
to make room for returning discriminatees. Instead of offering "immediate" rein-
statement to all the discriminatees for whom positions were admittedly available, the
Respondent moved in the court of appeals for successive stays of execution of the
court's decree pending disposition by the Supreme Court of its petition for a writ of
certiorari. Significantly one of the grounds asserted by the Respondent for its
requested stay of execution was, "that complying with the Court's decree pending
disposition of [its] petition [for a writ of certiorari] would substantially disrupt
Respondent 's business and it relations with its present employees , and that mainte-
nance of the present status pending disposition by the Supreme Court of the petition
[for certiorari] is in the best interest of all." The requested stays of execution were
granted by the court of appeals until August 15, 1962. The Respondent then utilized
the time thus salvaged before it would be under legal compulsion to offer "immedi-
ate" reinstatement to the discriminatees , to make the "piecemeal " and "isolated"
offers of reinstatement described above. Since the Respondent cannot seriously dis-
pute that it was at all times opposed to reemploying any of the discriminatees,57 its
contradictory action of offering staggered and isolated reinstatement to the discrimi-
natees during the stay period when it was under no legal compulsion to reinstate any
of them, and when it desired "the maintenance of the present status," strongly sug-
gests that this procedure was adopted with a view to achieving rejection of its offers
by most of the discriminatees.
This conclusion is also supported by the quite apparently pretextual explanation
of the Respondent for this method of offering reinstatement to the discriminatees.
Respondent's explanation for these "piecemeal" offers of reinstatement was adduced
through the testimony of its president, Ervin Gerland, and his son, Donald. Donald
Gerland testified that when the court of appeals issued its decree enforcing the Board's
Order, Respondent decided, at a meeting of its top management personnel, "to hire
these guys back to stop the accumulation of backpay and to do it as quickly as one
could [to] stop this money from building up. And since this was a busy season, we
decided we just couldn't handle 25 men at one time, and that we should take 3 or 4
men, 1 from each department, and if they showed up and we got them retrained, we
would send some more letters out as quickly as we could." The testimony regarding
the necessity for "retraining" the discriminatees was conclusionary and vague. Prin-
cipally it consisted of a general description of the new equipment which had been
installed since the strike began, a like description of the changes in operations which
resulted therefrom, and conclusions regarding the length of time which was required
to "retrain" employees to efficiently operate the new equipment and perform the
changed operations. The nature of the specific training which was required was
never disclosed although frequently asked. Not one plant employee was called by
Respondent to testfy regarding either the type of training he received or its duration.
Concededly, the new equipment simplified the operations and made the work more
automatic. The new dryer "required less labor and it operate[d] by itself more." In
great part , the "retraining" was simply a matter of becoming acquainted with the new
switches and controls. Respondent's current production employees, the majority of
whom had been hired after the strike, had been trained "simultaneously" to perform
the changed operations when the new equipment was installed. According to his
credited testimony, Maurice Gonyer, an employee hired after the strike began,
learned how to operate the new dryer in 2 or 3 days 58 The installation of new and
55 DeBoer , the 25th discriminatee , was a maintenance employee and had never been
replaced by Respondent. Thus, his reinstatement would not require the dismissal of
any "new" employee. In addition, the Respondent had been informed by discriminatees
Colbert, Berg, and Meyers, that they would not return to its employ, and it knew that
discriminatee Shervey had suffered a heart attack and could not return because of his
total disability. Moreover, the Respondent had also "heard" that several more would
not likely return
57 The Respondent 's counsel offered to so stipulate.
is Although Gonyer had been discharged by Respondent, he exhibited no signs of animus
or vindictiveness against it. His testimony appeared to be truthful both on direct and
cross-examination , and is therefore credited.
RICE LAKE CREAMERY COMPANY 1137
more modern equipment was not novel, but was a continuous process with Respond-
ent which admittedly had been taking place "ever since the beginning of the cream-
ery." The discriminatees, with but two exceptions, had from 5 to 29 years' of
experience in Respondent's plant. All of the foregoing, and especially Respondent's
ability to "retrain" its "new" employees "simultaneously" without adverse effect, per-
suasively suggests that the alleged necessity for retraining was not the real reason for
its failure to offer "immediate" reinstatement to the experienced discriminatees.
Additional support for the conclusion that the method employed by the Respond-
ent in offering reinstatement to the discriminatees was designed to achieve their rejec-
tion of the offers, is disclosed by the record. Donald Gerland testified that the reason
for offering jobs to only one discriminatee in a department at one time, was that only
one at a time could be trained in each department. I regard the testimony as implaus-
ible and do not credit it, especially since Gerland's father admitted that the jobs in
each department were substantially similar. Donald Gerland also testified that the
maximum number of discriminatees who could be offered reinstatement at one time
was three 'or four because he personally could not retrain more than that number
and it was preferable that he do so. However, on cross-examination, Gerland admit-
ted that his supervisors and leadmen were also capable of conducting the retraining.
Moreover, when discriminatee Russell Haugen indicated to Respondent his accept-
ance of its offer of reinstatement, Maurice Gonyer, a "new" employee, was assigned
to train him on the operation of the bagger and sifter. Thus, even assuming the
veracity of Respondent's testimony regarding the need for retraining the experienced
discriminatees, and its further testimony that only one employee could be trained in
each department at one time, it is quite obvious that since the Respondent had seven
departments in its plant,59 at least seven discriminatees could have been "retrained"
at one time by Gerland, his supervisors, and trained leadmen. Moreover, the alleged
need for retraining the discriminatees obviously does not explain the failure of
Respondent to immediately recall all discriminatees who required no "retraining," or
those who needed the least retraining. Yet, notwithstanding the absence of any testi-
mony regarding changes of equipment in the power plant department and the ware-
house, or regarding the need for retraining employees in those departments, none of
the four discriminatees who had worked there was offered "immediate" reinstatement
with the first group. Concededly, "the least" retraining was required in the intake
department, yet none of the four discriminatees who had worked in that department
was offered reemployment with the first group. Indeed, four of these eight discrimi-
natees were in the last two groups offered reinstatement. No explanation was offered
by Respondent for its failure to offer "immediate" reinstatement to these eight dis-
criminatees 60 who required none or the least amount of retraining. Significant in this
regard is the incredible testimony of Respondent's president, Ervin Gerland, who par-
ticipated in the management decision to offer reinstatement to the discriminatees in
the manner in which it was done. Gerland was asked why the initial offer did not
also include at least one employee in each of the other departments where no offer of
reinstatement was made. He answered, "I don't know." He was then asked why he
decided "to bring back only three [discriminatees] at a time?" Gerland replied, "The
Court decree didn't say that we should bring them all back at once." 61 Then Ger-
land was asked, "Why didn't you bring back five at a time?" Gerland's reply was
again, "I don't know." Based on all of the foregoing, I conclude that the Respond-
ent's explanation for its staggered and isolated method of offering reinstatement is
unworthy of credence and quite obviously inconsistent with its alleged objective of
terminating further backpay liability as quickly as possible. Thus, the pretextual
nature of the explanation lends further support to the conclusion that the staggered
offers were deliberately designed to achieve rejection by the discriminatees.
Still further support for this conclusion is disclosed by the identity of those whom
the Respondent selected for the first offers of reinstatement. As noted above, the first
reinstatement offers were made to Harry DeBoer, the Union's steward, and thus the
natural leader of the discriminatees, and to two discriminatees, Berg and Colbert,
whom Respondent already knew would not accept. Respondent's official, Donald
Gerland, testified that although he had been told by Colbert and Berg that they would
not return, he wanted to see if they would. Even assuming that was Gerland's pur-
0 The seven departments were butter, ice cream, powder, intake, cleanup, power plant,
pan, and warehouse.
w Kopp, Lee, Shervey, Krogstad, Waterhouse, Leonard Hanson, Glenn Roux, and Harry
Thibedeau.
m As noted above the court decree ordered "immediate" reinstatement of all the dis-
criminatees, but execution thereof had been stayed until August 15, 1962.
783-133-66-vol. 151-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pose, which I do not believe, Gerland definitely knew by July 5, 1962, that they
would not return since the time limit on their acceptance had expired.62 Neverthe-
less, contrary to its avowed purpose of terminating backpay liability "as quickly as
possible," the Respondent made no further reinstatement offers to any of the remain-
ing discriminatees despite its knowledge that only DeBoer, who admittedly needed
no "retraining," was returning. In view of the foregoing, the conclusion is quite
obvious that Respondent selected the persons to whom the initial reinstatement offers
were sent to achieve the intended result that if DeBoer accepted, he would be the
only striker in the plant.63
Under the court's decision Respondent was required to reinstate DeBoer to his
former or substantially equivalent position. Before the strike, DeBoer's job had
consisted of performing minor maintenance, oiling pumps and motors, making small
parts that did not require close tolerances, building up and turning down separator
wearing sleeves, minor plumbing jobs, and similar minor repairs. Instead of assign-
ing such minor maintenance work to DeBoer, he was given the job of workng with
Francis King, an outside contractor, on the major repair project of welding metal
plates to the sides of the coal elevator. Prior to the strike, DeBoer, admittedly had
done "some welding" in connection with his maintenance work. He had also worked
with Walter Coleman, a carpenter employed by Contractor King, in repairing the
coal elevator. However, he had never before done any welding work on the elevator,
and clearly his job had never been that of a full-time welder. When the welding
job was assigned to DeBoer, he advised King that he had not done any for 4 years.
Nevertheless, he was instructed to do the welding. Although his welding was admit-
tedly poor, and notwithstanding the harassment to which he was subjected as described
above, DeBoer continued to do that work and did not quit until King expressed dis-
satisfaction with his work and said to his assistant that unless DeBoer hurried, they
would be there "until the snow flies." When DeBoer then told Raymond Gerland
that he could not weld well enough to do the job that had been assigned to him,
Gerland did not reassign him to his regular maintenance work, which as found above,
was still required by Respondent, but instead told him to punch out, and then exhib-
ited his satisfaction with this turn of events by waving DeBoer's timecard in the air
and emitting a "happy yell." Thus, regardless of whether Respondent had any direct
connection with the abuse to which DeBoer had been subjected, by not reinstating
him to his former or substantially equivalent position, Respondent also made sure
that he would not long remain in its employ, a result it quite obviously desired. Since,
in addition, the Respondent made no further reinstatement offers to any of the dis-
criminatees until after DeBoer quit and his termination was publicized, it becomes
quite apparent that the Respondent was following a course of action designed to deter
acceptance of reinstatement by the remaining discriminatees.
This design of Respondent, to deter acceptance of its offers, is further persuasively
suggested by the Respondent's course of action thereafter. A number of the dis-
criminatees who were engaged in interim employment at the time they received
Respondent's offer of reinstatement, and several who were engaged in their own
businesses, replied to the Respondent that they required more than the 5 days allotted
by its letter, either to give reasonable notice to their employer or to arrange their
affairs. In no instance did the Respondent reply to these letters or otherwise indicate
that the 5-day period would be extended.
The Respondent's plan to deter acceptance of its offers is also supported by the
nature of the work to which Hanson was assigned when he returned to Respondent's
plant. As noted above, when Hanson reported for work he was given a pail, brush,
and soap powder and told to scrub up. Before the strike, Hanson had worked in
the pan department as an operator of the evaporator equipment in Respondent's
plant. He was not generally required to scrub or clean up unless he had nothing
else to do, and this, as a rule, did not occur when his work shift commenced. Hanson
testified that when he came into the pan department on August 14, 1962, the evapo-
rator was being operated by Richard Frasier.64 Respondent's official, Donald Gerland,
admitted that evaporator operators did not do "too much" cleanup work before the
strike. He testified, however, that after the strike, "each operator did his own cleanup."
6- The letters advised the discriminatees to "report . . . within 5 days," and further
stated, "If you do not report within that period, we will assume that you are not interested
in reinstatement."
e3 This also discloses the pretextual nature of the Respondent's explanation for the
staggered reinstatement offers.
"Frasier was hired by Respondent after the commencement of the Union's strike, and
thus was subject to dismissal, if necessary, to make room for the reinstatement of the
discriminatees.
RICE LAKE CREAMERY COMPANY 1139
No reason was offered by Gerland for his change, and no employees were called to
corroborate Gerland's testimony in this respect. Since, as noted above, I regard Ger-
land's testimony as generally unreliable, his uncorroborated testimony regarding the
change of system in respect to cleanup is not credited.65 Gerland testified that his rea-
son for assigning Hanson to the cleanup job was, "we had a temporary shutdown of a
couple of hours waiting for some raw materials, and that all there was to was to clean
up at that particular time." When Gerland was asked why the period of shutdown
was not utilized to "retrain" Hanson, or to "familiarize him with the [new] equip-
ment," Gerland replied, "It's pretty hard to show somebody how to run something
when it's not running." Then Gerland explained, "We were working with a new
product that day that we have not made before or since, and I was pretty well taken
up with it." This explanation suggests that, contrary to Gerland's testimony, the
evaporator was operating. However, it is not necessary to rely on inference alone
to discredit Gerland's testimony that the evaporator was not running , since in his
earlier direct testimony about Hanson's departure from the plant, Gerland testified,
"I turned to either Willard [Larson] or Dick [Frazier] whoever was running the evap-
orator and said, `You'll have to take over for a few minutes,' and I went after Shorty-
Mr. Hanson, and I followed him outside." [Emphasis supplied.] The foregoing
clearly discloses not only that Gerland's testimony that the evaporator was "not run-
ning" was false, but also that his explanation for not "retraining" Hanson to operate
the new evaporator, and for assigning to Hanson the menial janitorial task of scrub-
bing up, was equally untrue. Finally, in the light of Hanson's uncontroverted testi-
mony that cleaning up was a chore performed only when there was no other work to
do, the conclusion is quite apparent that Respondent did not reinstate Hanson, as
required by the court's decree, to his former or substantially equivalent position, and
that it was motivated, in so doing, by a desire to deter Hanson, as well as the other
discriminatees who learned thereof, from returning to or remaining in its employ.
Moreover, this conclusion is further supported by Respondent's refusal to thereafter
reinstate Hanson, when requested to do so by Union Representative Veleke.
Finally, the Respondent's motive, to deter discriminatees from remaining in its
employ, is clearly disclosed by the "hot" reception described above, which it planned
for Russell Haugen. For all of the foregoing reasons, I conclude that the Respond-
ent's offers of reinstatement were not made in good faith, but for the purpose of
deterring acceptance of the offers by the discriminatees or continuation in Respond-
ent's employ if accepted.
In respect to the harassment to which DeBoer and Hanson were subjected during
their brief employment, the Respondent disclaims responsibility because of the
absence of evidence of its knowledge of, participation in, or condonation of, these
occurrences. In respect to the Respondent's knowledge of the harassment of DeBoer,
Respondent's president, Ervin Gerland, testified that he first learned about it when
DeBoer so testified at the hearing in this backpay proceeding. In the light of Ger-
land's admission that matters became common knowledge in the plant, if one or two
employees knew about it,66 I regard his testimony of lack of knowledge of the harass-
ment as incredible . In addition , since the abuse directed against DeBoer occurred
in the presence of Francis King, who was the Respondent 's agent assigned to super-
vise DeBoer, and such abuse continued for an entire day and part of the following
day, the Respondent quite obviously knew what was going on.67 Nevertheless, as far
as the record shows, the Respondent did not investigate to determine which employees
were responsible for the harassment of DeBoer , posted no notices warning against
its repetition, indeed, did nothing to indicate its disapproval of such conduct by its
employees.68 On the contrary, in the light of the Respondent's failure to take any
such action , and its evident pleasure at DeBoer's quitting , I conclude that Respondent
at least condoned, if it did not ratify , the conduct of its employees toward DeBoer.
65 In this regard , the Supreme Court has said (N.L.R B. v . Walton Manufacturing Com-
pany & Loganville Pants Co., 369 U.S. 404 ) : " the demeanor of a witness . . . may satisfy
the tribunal , not only that the witness ' testimony is not true , but that the truth is the
opposite of his story."
10 Gerland was testifying in respect to the common knowledge of Respondent 's employees
regarding the impending return of Loren Hanson , but it is equally applicable to the
harassment of DeBoer
e7 An additional reason for this conclusion is the fact that in this small plant, there
were employed at that time five members of the Gerland family and two Heldkes, who
were nephews of Ervin Gerland.
681n these respects , and in the obvious hostility of the Respondent to the reemploy-
ment of the discriminatees , the Trial Examiner regards this case distinguishable from
the Board ' s decision in The Cross Company, 143 NLRB 1005.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARiI
In respect to Hanson , Donald Gerland knew of the presence of the "scab" dummy
before Hanson arrived at the plant but did nothing about it. Gerland also knew
about the dousing of Hanson immediately after it occurred , but Respondent did noth-
ing about that,°a and it posted no notices to warn against repetition of these occur-
rences or to protect any other discriminatee who might return. Moreover, the
Respondent also did not notify DeBoer or Hanson , after they quit, that they would
be protected against such abuse if they returned to work. Indeed , as noted above,
a second "chance" for Hanson was refused by Respondent . Finally, the record
shows that Respondent's official, Donald Gerland, was directly responsible for the
"hot" reception which was readied for Haugen on his expected return . Under all
these circumstances , and in the light of the Respondent 's isolation and fragmentation
of the discriminatees by its "piecemeal" reinstatement offers ( for which it furnished
no believable explanation ), I conclude that the Respondent at least condoned and
ratified, if it did not actually desire and/or instigate , the abuse to which DeBoer and
Hanson were subjected.7°
In view of the conclusion above that the Respondent 's reinstatement offers were
not made in good faith , but to deter the discrimmatees from accepting such offers,
it follows that those who rejected the offers because of fear of like abuse , suspicions
of the Respondent 's good faith , or for insufficient time in which to make arrange-
ments to return , were justified in so doing. In respect to such discriminatees, I con-
clude that no adequate offer of reinstatement , as required by the court 's decree, has
been made , that " immediate" reinstatement to their former or substantially equiva-
lent positions must be offered to all such, and that backpay for them will continue
to run beyond the periods involved in the instant backpay proceeding . 71 However,
a number of the discriminatees had no such just or reasonable basis for rejecting
what on the surface appeared to be a good -faith offer or reinstatement . As to them
I conclude that no further reinstatement offer need be made and that backpay termi-
nated with the Respondent 's letter purporting to offer them reinstatement . In this
category , I include the following discriminatees for the reasons indicated:
1. Basil Colbert was included in the first group of discriminatees who were pur-
portedly offered reinstatement . Before the offer, he had advised the Respondent
that he would not return. He made no response to the Respondent 's letter. Quite
obviously , he was not deterred from accepting reinstatement by what happened to
DeBoer later.
2 Berg was also in the first group who received the Respondent 's letters. Like
Colbert, Berg had also advised the Respondent before the offer that he did not intend
to return . At the hearing, Berg testified that the reason for his rejection of the offer
was that he regarded it as "fishy " because only three of the discriminatees had
received such offers , and that he so advised Respondent orally. On cross -examina-
tion, he admitted that he only told Respondent that he would not return At the
time of the Respondent 's offer Berg was earning substantially more than what he
would have received if reinstated . I do not credit Berg 's reasons for rejecting the
offer, and conclude that he did not return because he had a better job, and not
because of the bad faith of the Respondent 's offer.
3. Arthur Meyers was in the second group of discriminatees to whom Respondent
sent letters on July 13, 1962. Before the letter was sent to him , he had advised
Respondent that he would not return to its plant . At this hearing he testified that
he did not respond to the Respondent 's letter because he was satisfied with his cur-
rent job. Thus , his nonacceptance of reinstatement was unrelated to the Respond-
ent's bad-faith offer.
69 Both Gerlands testified that they investigated to determine who was responsible for
hosing Hanson , but I do not credit their testimony . Contrary to this testimony, Ervin
Gerland told an agent of the Board that he did not know who had hosed Hanson and
"did not intend to try and find out. " As already noted , Donald Gerland ' s testimony
Is unworthy of reliance . Both of the Gerlands suggested that dousing Hanson was mere
"horseplay," but in view of Respondent ' s hostility to Hanson ' s reemployment ,
I do not
regard it as a joke, especially since it caused Hanson to quit
40 Cf. N.L.R.B . v. Fred P. Weissman Co., 170 F. 2d 952, 954, (C.A. 6) ; Clover Fork
Coal Co v. N .L.R.B., 97 F. 2d 331, 335 ( C.A. 6).
71 The foregoing applies to the following discriminatees : Peter Butzler, Wesley De-
Rousseau , James Lee , Benjamin Dudei , Otto Fetkenheurer , Forest
Hineline , Leonard
Hanson, Russell Haugen, Delore King, Clayton KrQgstad , Harry Thibedeau , Lloyd Madaus,
Howard Waterhouse , and Ernest Vreeland It obviously also applies to the two dis-
criminatees Harry DeBoer and Loren Hansen, who accepted Respondent ' s offer but were
not reinstated to their former or substantially equivalent positions , and were subjected to
the abuse described above.
RICE LAKE CREAMERY COMPANY 1141
4. Carl Wicken was among those to whom Respondent sent letters purporting to
offer reinstatement on August 10, 1962. He did not respond and, although he testi-
fied, he failed to state why he did not accept. Wickert moved from Rice Lake, Wis-
consin , to Seattle , Washington , in August 1959. Since the record does not disclose
that Wicken was aware , either of the staggered offers of reinstatement , or of the
abuse which Hansen and DeBoer had been subjected , it is quite apparent that his
decision not to respond to Respondent 's apparent offer was not based on its lack of
bona fides.
5. Melvin Shervey also received his offer of reinstatement on August 10, 1962.
He had suffered a heart attack on July 6, 1962 , and has since been totally disabled.
His doctor so informed Respondent . Quite obviously , his nonacceptance of Respond-
ent's offer was unrelated to its lack of good faith
6. Glenn Roux received a letter from the Respondent dated August 3, 1962. He
did not reply . Roux testified that his reason for not accepting the Respondent's offer
was that he "had a better future" at his current employment.
7. Douglas Pierce received a letter from Respondent on August 3, 1962. He did
not respond . Pierce testified that his reason for not accepting Respondent's offer
was his knowledge "about the other guys " which led to his conclusion that there was
"no use" for him to try . However, on cross -examination Pierce also testified that at
the time he received the offer, he was suffering from emphysema of the lungs, that
his doctor had advised him that he would never be able to work again, and that he
is receiving social security disability compensation . In view of this testimony, I do
not credit Pierce 's earlier testimony that his nonacceptance of Respondent's offer was
motivated by concern over the good faith of the offer, and conclude that the rejec-
tion was motivated by his disability.
8. Ronald Kopp was offered reinstatement on July 19, 1962. According to
Respondent's brief, he did not accept its offer. The General Counsel did not call
Kopp to testify , and therefore , the record is silent regarding his reasons for not
returning to Respondent 's employ. Accordingly , I find no basis for concluding that
his nonacceptance of the Respondent 's purported offer of reinstatement was based
on the lack of bona fides thereof.
H. Concluding findings in respect to the backpay due to the discriniinatees
Consideration will now be directed to the record and to the additional con-
tentions not previously considered regarding the backpay claims of the individual
discriminatees.
1. Edward Berg
Berg was hired by Respondent in October 1945, and had 13 years of seniority when
he went on strike. Respondent contends first that Berg is entitled to no backpay
because his position was filled by Bradley Robarge , a prestrike employee, and that
the job was eliminated when the latter was transferred to another job. The conten-
tion, that the discriminatees are entitled to backpay only for periods when their jobs
were filled by employees hired after the strike began , was considered by me in con-
nection with the section of this Decision relating to the Respondent 's direct replace-
ment formula and was rejected for the reasons there stated . As found above, there
were jobs available for all the disciiminatees not otherwise disqualified during the
entire backpay period.
Respondent also contends that Berg is entitled to no backpay because, prior to the
commencement of the backpay period, he became committed to another job, with-
drew from the labor market , "and thereby severed [sic ] his employment relationship
with Respondent." As evidentiary support for this contention , Respondent points
to the fact that Berg rejected its reinstatement offer because he had a better job.
However, the contention that acceptance of other employment after discrimination,
even a "so-called permanent job," terminates backpay liability has been rejected by
the Supreme Court and the Board . 72 In the Phelps Dodge case , supra, the Supreme
Court said at p. 193:
The mere fact that the victim of discrimination has obtained equivalent employ-
ment does not itself preclude the Board from undoing the discrimination and
requiring employment.
72 Phelps Dodge Corp . v. N L.R B , 313 U.S. 177, 189-197; Mastro Plastics Corporation
and French-American Reeds Manufacturing Co., Inc, 136 NLRB 1342, 1349-1350.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At p. 194, the Court said:
. the effectuation of this important policy [the promotion and maintenance of
industrial peace] generally requires not only compensation for the loss of wages
but also offers of employment to the victims of discrimination.
The Board , citing Phelps Dodge , said in Mastro Plastics Corporation , et al., supra
(footnote 20):
Respondent 's argument would put the claimants on the horns of a dilemma;
on one hand the claimant would be deprived of his claim because he did not
make reasonable efforts to find interim employment ( and, in fact , claimants
who made reasonable efforts but could not find employment over a protracted
period of time should also be deprived of their claims according to Respondent)
and on the other hand the claimant would be deprived of his total claim by
obtaining the interim employment . Moreover , this treatment would reduce the
Board's remedy to one merely of correcting private injuries rather than primarily
vindicating public rights.
Accordingly , the Board concluded at p. 1349:
Even if a claimant obtains a so called permanent job he is still entitled to the
different between 'what he earned at the new job and what he would have
earned at Respondent 's plant.
In view of the foregoing , the Respondent 's contention that Berg is entitled to no
backpay because of his permanent commitment to another job is rejected.
Berg 's claim has been recomputed in accordance with the new average hours of
available work listed above , and he is entitled to the sum of $1,979.38 for his loss
of earnings during the backpay period involved herein.
2. Peter Butzler
While Butzler worked for Respondent , he had an outside business doing home
repair work and other odd jobs for homeowners . After he went on strike , Butzler
devoted his time exclusively to efforts to increase the volume of work done by that
business . In addition , Butzler acquired a taxicab business in 1960, and a shoe repair
business in the spring of 1962. He made no effort to secure employment with
another employer , other than registering with the Wisconsin Employment Service
for a period of 12 weeks commencing with December 1958. Admittedly he did that
for the purpose of establishing eligibility for unemployment compensation. He
received no job offers from the employment service.
The Respondent contends that Butzler is not entitled to any backpay because he
"became permanently committed " to his business ventures , as evidenced by his rejec-
tion of the Respondent's offer of reinstatement made on July 27, 1962 . Respondent
also contends that because Butzler did not seek employment with other employers,
he has not complied with the requirement to use reasonable diligence to keep himself
in gainful employment. Both of these contentions are quite clearly without merit.
A claimant who goes into business of his own , is treated similarly to one who
obtains interim employment ; in his case his net profits are treated as interim
earnings.73
In the light of the uncontroverted and credited testimony of Butzler regarding his
efforts to increase his business , and his expansion into other businesses, the Respond-
ent has not shown any inadequacy in Butzler's efforts to "keep himself in gainful
employment ." 74 Nor does Butzler 's rejection of Respondent 's reinstatement offer
establish that he had removed himself from the labor market . On the contrary, as
noted above , Butzler wrote to Respondent asking that the offer be kept open because
he needed more time to put "his affairs in shape," but the Respondent never replied.
Under the circumstances , Butzler had a right to assume that Respondent had rejected
his request for more time . In addition , as found above , the offer of reinstatement
was not made by Respondent in good faith and was rejected for that reason . Accord-
ingly, the Respondent 's contention that Butzler is not entitled to backpay is rejected.
73 Mastro Plastic Corporation , et al, supra, at 1350; accord • Brown 4 Root, Inc., 132
NLRB 486 ; N L.R B. v. Armstrong Tire and Rubber Company, Test Fleet Branch, 263
F. 2d 680 ( C.A. 5) ; TV. C. Nabors, d/b/a W. C. Nabors Co v. N.L R.B , 323 F. 2d 686
(C.A 5).
71 N.L.R.B. v. Armstrong Tire and Rubber Company, etc ., supra.
RICE LAKE CREAMERY COMPANY 1143
Butzler's claim has been recomputed by me in accordance with the new averages
listed above,75 and he is entitled to backpay in the sum of $9,047.98 for his loss of
earnings during the period here involved.
3. Basil Colbert
Colbert was employed throughout the backpay period by the Farm and Fleet
Store, and his claim is based on the difference between his interim earnings at such
employment and what he would have earned at Respondent's plant absent the dis-
crimination.76 The Respondent served a subpoena duces tecum by mail upon Col-
bert,77 but it did not tender the attendance and mileage fees required by law.78
Colbert did not respond to the subpena. At the hearing, the Respondent was offered
an opportunity by me to serve another subpena on Colbert together with a proper
tender of the required fees. It declined the offer. Moreover, it did not request
enforcement of the subpena already issued.
The Respondent now contends that backpay should be denied Colbert on the
ground, inter alia, that "employees who failed to appear at the hearing are not
entitled to backpay." In support of this contention, the Respondent cites the Board's
decision in Deena Artware, Inc.,79 in which the claims of six discriminatees who did
not appear to testify were dismissed. However, the Deena decision does not dis-
close that the dismissal of these claims was bottomed on the nonappearance of the
claimants to testify. On the contrary, the decision indicates that the dismissal was
prompted by an express disclaimer by the General Counsel. Contrary to the con-
tention of the Respondent, nonappearance to testify does not disqualify a claimant
from entitlement to backpay.80 The claim for backpay on behalf of Colbert was
not "made to vindicate the private rights of [Colbert], but the policies of the National
Labor Relations Act...." 81 For all the foregoing reasons, I reject the Respondent's
contention that backpay for Colbert should be disallowed because of his failure to
appear in response to an improperly served subpena.
The Respondent concedes that it has the burden of proving deductions from Col-
bert's gross backpay, such as interim earnings, but it has evinced no real interest in
sustaining that burden, as evidenced by its rejection of the opportunity to make proper
service of a subpena upon him, and its failure to ask for enforcement of the one
already served. The General Counsel's specification has conceded substantial interim
earnings by Colbert during the long backpay period here involved. If the Respondent
had been genuinely interested in checking the veracity of Colbert's interim earnings
as set forth in the backpay specification, it could also have asked the permission of
the General Counsel to examine Colbert's social security report. During the hearing,
Respondent was afforded that privilege in respect to other discriminatees.82 No such
request was made by Respondent in respect to Colbert. This litigation had already
had a protracted history and should come to an eventual termination. For all the
foregoing reasons, I do not believe that Respondent is entitled to another hearing in
order to cross-examine Colbert regarding his interim earnings. Accordingly, I will
not recommend that Colbert's backpay be deposited in escrow pending his appear-
ance to testify.83
75 At the hearing , Butzler admitted that his interim earnings for 1960 as set forth in
the General Counsel 's specification , were less by $108. 77 than he reported on his income
tax return for that year A corresponding deduction has accordingly been made in
Butzler's backpay claim for that year.
7e In addition , there is for Colbert, as for most of the discriminatees , a claim for the
contribution which Respondent would have made during the backpay period towards
Colbert's pension insurance absent the discrimination . The propriety of such claim has
already been considered and determined above.
17 Respondent ' s Exhibit No. 3.
78 28 U.S.C A. § 1821 ; ef. Soper v . Hague, 186 F. 2d 592 (C.A. 2).
70 112 NLRB 371.
80 Brown & Root , Inc., 132 NLRB 486, 495-497, enfd 311 F 2d 447 (C A. 8).
81 Waterman Steamship Corporation v. N L R B., 119 F. 2d 760, 762 (C.A. 5) ; accord:
N.LR.B. V Deena Artware, Inc , 361 U.S. 398 , 411-412 ( concurring opinion) ; W. C.
Nabors, d/b/a W. C Nabors Co. v. N.L.R B., supra.
82 See Vol . III of the transcript , p. 167 ; and General Counsel's Exhibit No. S.
88 Cf. Brown & Root, Inc, supra . The court of appeals , in enforcing the Brown &
Root case, stated: "The Board was not required to adopt such a procedure [ escrow] with
respect to the nontestifying claimants."
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent also contends that Colbert is not entitled to backpay because he
was "permanently committed to his job at the Farm and Fleet Store." This conten-
tion is rejected for the reasons previously stated in connection with the backpay
claim of Edward Berg, above.
Colbert's claim has therefore been recomputed by me in accordance with the new
averages listed above, and he is entitled to the sum of $2,119.66 for loss of earnings
during the backpay period here involved.
4. Harry DeBoer
As noted above, DeBoer was a maintenance employee of Respondent before the
strike. In November 1958 he registered for work with the Wisconsin Employment
Service, and continued to do so thereafter, but never received a job referral. During
this period, he also picketed the Respondent's plant and received strike benefits from
the Union. During the first quarter of 1959, DeBoer made two trips in search of
work, one to Cumberland and Grantsville, Wisconsin, and the other to Barron, Wis-
consin. On these trips, DeBoer applied for work at the Stella Cheese Company,
Barron Co-op Creamery, McNally Brothers Machine Shop, and Minnesota Mining,
but did not succeed in obtaining employment. On April 1, 1959, DeBoer, accom-
panied by Glenn Roux, another discriminatee, made a second unsuccessful trip in
search of work to Cumberland and Grantsville during which he again applied to
some of the same employers. During this same quarter, DeBoer succeeded in obtain-
ing temporary employment with Olson Posting Service erecting signs on the high-
way. During the second quarter of 1959, DeBoer made a 2-day trip in search of
employment to Appleton, Wisconsin Rapids, and Eau Claire, Wisconsin. As a result
of this trip DeBoer succeeded in obtaining employment with L. G. Arnold, a con-
tractor, doing labor work on a highway construction job. DeBoer worked for Arnold
from June 11 to November 13, 1959, when the job was completed. In connection
with that job, he was required to live away from home, and had expenses for lodging
and meals, traveling to and from the jobsite, and to his home in Rice Lake on week-
ends. He also was required to join the Laborers Union and to pay an initiation fee
of $50. Following the termination of his job with Arnold, DeBoer again registered
with the Wisconsin Employment Service but received no referrals. He also inquired
regarding work of the manager of Mastercraft,84 but was advised no help was needed.
On April 28, 1960, DeBoer commenced working for Peter Butzler, a discriminatee,
as a cabdriver, and doing odd jobs such as shingling, roofing of homes, and pouring
concrete basements. DeBoer quit Butzler's employ on June 30, 1961.85
The Respondent contends that DeBoer is entitled to no backpay because his job
was eliminated and he was never replaced. That contention has already been rejected
for the reasons stated in connection with the section of this Decision dealing with
the backpay formula for DeBoer.
The Respondent further contends that in view of the fact that DeBoer's employ-
ment with Olson Posting Service did not begin until May 1959, and since before that
employment DeBoer had been picketing Respondent's plant and receiving strike
benefits from the Union, an inference is required that his search for employment
prior to that date was inadequate. As noted above in connection with the section
of this Decision dealing with picketing and strike benefits, this activity did not prevent
search for employment by the discriminatees, and they were encouraged by the Union
to seek jobs. Moreover, since the Union continued picketing and paying strike bene-
fits for several months after DeBoer obtained employment, I reject the requested
inference that DeBoer was deterred from seeking employment by his receipt of such
benefits. In addition, the record of DeBoer's efforts to find employment recounted
above, the lack of jobs in the area (not one of the discriminatees received a job
referral from the Wisconsin Employment Service), and the type of jobs which
DeBoer accepted, persuades me that the Respondent has failed to sustain its burden
of proving inadequate search for employment by DeBoer during the quarters for
which backpay is claimed.
In respect to the interim expenses claimed for DeBoer in connection with his
search for work and employment by other employers, the Respondent objects to the
allowance of the union initiation fee which DeBoer was required to pay, and it also
objects to all claims for gas and oil because the amounts include what was used in
14 The date of this application is not disclosed by the record.
65 No backpay is requested for him by the General Counsel after that date because of
insufficient search for full-time employment According to the backpay specification,
DeBoer was thereafter limited in his search for work because his aged mother (87 years
old), with whom he lived alone, was an invalid.
RICE LAKE CREAMERY COMPANY 1145
going home to Rice Lake from the jobsite on weekends. I regard these objections
to be without merit. Unlike the union dues and hospital insurance premiums which
DeBoer also paid but which the General Counsel concedes are not allowable expenses,
the initiation fee is an expenditure which DeBoer would not have had absent the
discrimination. Similarly the weekend trips to home was an expense made necessary
by DeBoer's employment away from Rice Lake. All the expenses claimed for
DeBoer appear to have been reasonably incurred in his required search for and work
at interim employment and will therefore be allowed.
During the hearing, the parties stipulated that DeBoer's interim earnings for the
year 1960 should be increased by the sum of $85, divided among the three-quarters
in which DeBoer worked. The General Counsel's computation of DeBoer's backpay
claim (Appendix IV attached to his brief) fails to carry out the stipulation. I have
made the required correction and, for the reasons above stated, conclude that DeBoer
is entitled to the sum of $10,867.41 for his loss of earnings during the backpay period
involved herein.
5. Malcolm Demers
The General Counsel's specification claims backpay for Demers from the date of
the discrimination until April 9, 1960, when Demers, because of imprisonment for
the commission of a crime, was no longer available for employment. The Respond-
ent contends that Demers did not make a diligent search for employment before he
was hired by Red Cedar Cheese Co. on August 21, 1959, and that therefore its back-
pay liability should be limited to the period between that date and the date of Demers'
"incarceration." The parties stipulated that Demers registered for employment and
for unemployment compensation from November 25, 1958, through May 26, 1959.
As previously noted, the Respondent had the burden of showing that Demers did
not diligently seek employment during the backpay period. It made no attempt to
subpena him, and claims in its brief "that it would have been futile ... to attempt"
to do so. However, no testimony was adduced by Respondent that a subpena, if
served on Demers, would not or could not have been honored. The futility of such
a service has therefore not been shown. Moreover, the Respondent made no request
at the hearing for a continuance for the purpose of taking Demers' testimony in
person or by deposition at the prison. Respondent urges that its answer "demanded
that the General Counsel produce each of the claimants at the hearing for interroga-
tion," but it makes no claim that the General Counsel promised to comply with said
demand, and there was no obligation for the latter to do so 86 Therefore, the demand
does not excuse the failure of the Respondent to take the steps necessary to secure
Demers' testimony if it regarded it important. From all the foregoing, it appears to
me that the Respondent has evinced no real interest in securing Demers' testimony.
As in the case of other discriminatees, Respondent suggests that since Demers
received strike benefits until August 1959 for picketing Respondent's plant, an infer-
ence should be drawn that he therefore did not diligently search for employment
before that date. In this regard, the backpay specification discloses that Demers
obtained and worked at two temporary jobs before he obtained regular employment
with Red Cedar Cheese Co. on August 21, 1959.87 In addition, the record discloses
that notwithstanding such employment and his subsequent employment by Red Cedar
Cheese Co., Demers continued to receive strike benefits until and including Septem-
ber 5, 19598 In view of the foregoing, it is quite obvious that the receipt of strike
benefits did not deter Demers from securing and working at the jobs listed in the
specification and, therefore, I cannot in good conscience infer that he did not look
for employment prior thereto because he was receiving such strike benefits. For all
the foregoing reasons, and in the light of the record which shows that Demers regis-
tered for employment with the Wisconsin Employment Service, obtained two tem-
porary jobs and a permanent one, I conclude that the Respondent has failed to sus-
tain the burden of showing that Demers did not diligently search for employment
prior to August 21, 1959.
As noted above, Demers was concededly not available for work after April 9, 1960.
In his backpay specification, the General Counsel computed Demers' gross backpay
for the second quarter of 1960 by multiplying the numbers of hours of work which
were available to the production discriminatees for that quarter by the fraction 8/13.
se Cf. Brown & Root, Inc, supra, at 495.
87 Demers worked for John Hafele between April 1 and 20, 1959, and for Rice Lake
Amusement Co. between April 26 and June 20, 1959.
Is Respondent's Exhibits Nos. 19-n through 19-11.
1146 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
He obviously erred in so doing since Demers only worked for the first 9 days of that
quarter. Accordingly, Demers' gross backpay for the second quarter of 1960 will
be computed on the basis of 9/90 or 1/10 of the hours of work which were available.
I have recomputed Demers' backpay claim in accordance with the new averages
of hours of work available and the above findings, and conclude that Demers is
entitled to backpay in the sum of $4,042.27 for his loss of earnings during the period
covered by the specification.
6. Wesley DeRousseau
Respondent contends that DeRousseau is entitled to no backpay, first, because he
made no reasonable effort to find employment, and second, because he secured
employment on May 1, 1959, became permanently committed to his job, and with-
drew from the labor market.
In respect to DeRousseau's efforts to secure other employment, the record shows
that he registered for employment with the Wisconsin Employment Service from
November 26, 1958, through April 28, 1959; he made a trip to Cumberland, Wis-
consin, where he applied for work at the Stella Cheese Co.; that he also applied for
work at "quite a few places" in Rice Lake, Wisconsin, including the Rice Lake Brew-
ery, the city of Rice Lake for a "janitor job at the high school" and on the street
department; and that he repeated these efforts on a number of occasions, even after
he secured employment on May 1, 1959, at Mastercraft and Holiday, where he has
been employed ever since. In the light of this record, it is quite clear that the
Respondent has not sustained its burden of proving lack of adequate search for
interim employment by DeRousseau.
The Respondent's further contention, that DeRousseau is not entitled to backpay
after he secured employment with Mastercraft and Holiday because he became per-
manently committed to his new job, is both factually and legally without merit.
Respondent suggests that DeRousseau's removal from the labor market is established
by: (1) not registering with the employment service after he obtained employment;
(2) abandoning "his membership in the Teamsters Union"; and (3) refusing Respond-
ent's offer of reinstatement because "he just could not leave his new job." 89 In my
opinion, none of these factors prove that DeRousseau was disinterested in further
employment by Respondent. As to (1), above, since DeRousseau obtained no
employment after months of registration, the fact that he did not register after secur-
ing employment on his own initiative quite obviously does not imply that he was
permanently committed to his new job. As to (2), the record contradicts the impli-
cation that DeRousseau "abandoned" the Union since he secured a "withdrawal
card." As to (3), DeRousseau did not testify that "he just could not leave his new
job," but that he could not leave without giving his employer notice, and his reason
for not giving notice was his knowledge of the short duration of DeBoer's remstate-
ment. It is fairly obvious that but for his lack of faith in the bona fides of Respond-
ent's reinstatement offer, DeRousseau, who was then earning $1.30 at his "new job,"
would gladly have returned to work for the Respondent where he had worked for
10 years, and where his rate of pay would be $1.90 per hour, exclusive of pension
and other fringe benefits. In view of the foregoing, the Respondent has not shown
that DeRousseau was or is "permanently committed" to his employment at Master-
craft and Holiday.
Accordingly, the Respondent's contention that DeRousseau is not entitled to back-
pay is rejected. His claim has been recomputed in accordance with the new averages
listed above, and I find that he is entitled to $6,889.90 for his loss of earnings during
the backpay period here involved.
7. Benjamin Dudei
In respect to Dudei, the Respondent's brief contends as follows- (1) "It is con-
ceded that he made no attempt to find other employment during the first quarter of
1959"; (2) "There is no evidence of any attempt on Dudei's part to secure employ-
ment in the Rice Lake area during the second and third quarters of 1959 until ... he
secured employment at Holiday Kitchens"; and (3) "until Dudei secured full-time
employment at Holiday Kitchens, a short time after the strike was terminated, he
made no reasonable and diligent effort to secure interim employment." The Respond-
ent cites no reference to the page in the transcript where the "concession" was
allegedly made that Dudei made no effort to look for work in the first quarter of 1959,
and I can find no such concession in the record. The "absence of evidence" that
Dudei searched for employment "in the Rice Lake area" during the second and third
rD The quotes are from Respondent's brief, not DeRousseau's testimony.
RICE LAKE CREAMERY COMPANY 1147
quarters of 1959, results from Respondent 's failure to ask Dudei whether or what
search he made in such area . Respondent produced no proof that Dudei made no
such search . Since the Respondent had the burden of proving lack of search, the
absence of such evidence constitutes a failure of the Respondent to establish its
defense in this respect. Moreover , the specification and the record show that in the
second quarter of 1959 Dudei made two trips to nearby towns in search of employ-
ment; that in the third quarter of 1959 he worked at a temporary job for 21 days in
Cumberland, Wisconsin, that in the fourth quarter of 1959, Dudei drove to Chippewa
Falls, Wisconsin , in search of employment ; and finally that he obtained a job with
Holiday Kitchens on October 19, 1959, where he worked for over a year until laid
off for lack of work on February 1, 1961. The Respondent also claims that Dudei,
like the other claimants, did not adequately seek employment until after the Union's
strike and picketing against Respondent terminated , but in the light of the record
which shows that Dudei sought and obtained some employment during the period of
picketing , this contention is also rejected . Accordingly , I conclude that the proof
is insufficient to support the conclusion that Dudei did not make diligent search for
employment before he secured his job at Holiday Kitchens.
Following his layoff at Holiday Kitchens, Dudei sought other employment and
finally got a job as a cabdriver for Peter Butzler He quit that job on November 25,
1962, because it was causing him "a sore back from driving." He did not thereafter
seek regular , full-time employment because he became eligible and applied for social
security retirement benefits, and did not want to earn more than $1,200 per annum
which would disqualify him from receiving such benefits. In the light of the fore-
going, the General Counsel conceded at the hearing that Dudei was not entitled to
any backpay for the period following November 25, 1961, when Dudei quit working
for Butzler
The specification claims automobile expense at the rate of 10 cents per mile for
Dudei in connection with the use of his car in search of work and during temporary
employment away from Rice Lake, Wisconsin . The Respondent concedes the mile-
age but contends that since there is no evidence regarding Dudei 's actual "out of
pocket" expense for gas and oil , the claim should be disallowed . The Board, with
court approval , has allowed automobile expense on a mileage basis 90 The rate of
10 cents per mile appears reasonable , and accords with the amount which the Gov-
ernment allows to its travelers . The claimed expenses will therefore be allowed.
In conformance with the findings and conclusions above, I have recomputed
Dudei's backpay claim according to the new averages listed above , and conclude that
he is entitled to $10,320.56 for his loss of earnings during the backpay period involved
herein.
8. Otto Fetkenheurer
Respondent contends that Fetkenheurer is entitled to no backpay before he secured
a job on November 12, 1959, because he made "no reasonable search for employ-
ment." Respondent further contends that Fetkenheurer is entitled to no backpay
after January 30 , 1960, when his employment terminated , because he made no ade-
quate search for work and because he "terminated his employment relationship" with
Respondent when he obtained so-called permanent employment on September 15,
1961. Thus, the Respondent would allow backpay for Fetkenheurer for 3 months
out of the backpay period of over 31/a years.
The Respondent bases its contention regarding lack of adequate search of employ-
ment until November 12, 1959, solely on the fact that the period during which Fetken-
heurer picketed Respondent 's plant and received strike benefits from the Union
roughly coincides with the period during which he obtained no other employment.
As already noted in connection with Respondent 's like contention regarding other
discriminatees , the picketing and the receipt of strike benefits did not prevent search
for employment . Significantly , the Respondent failed to ask Fetkenheurer what
efforts he made to secure employment during this period. Since the Respondent had
to prove Fetkenheurer did not look for work, the absence of evidence regarding his
search for employment constitutes a failure of proof on the part of Respondent, and
calls for no inference that Fetkenheurer did not seek employment before Novem-
ber 12, 1959. In addition, the record shows that Fetkenheurer registered weekly for
employment with the Wisconsin Employment Service from November 1958 to June
1959, but was not refereed to a single job. Accordingly, I conclude that the Respond-
ent has failed to establish that Fetkenheurer did not make an adequate search for
employment before November 12, 1959.
90 Deena Ariware, Inc., supra, at 382 ; Kartarik, Inc., 111 NLRB 630.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the termination of his first job, the record shows that Fetkenheurer
worked at a number of other jobs before he finally secured a so-called permanent
position with Vey West on September 15, 1961. These jobs included acting as a
ballot clerk for the city of Rice Lake, cutting and hauling cord wood, temporarily
working for Vey West for 22 days, and working for Stokeley-Van Camp for 2 months.
In addition the record shows that Fetkenheurer made a number of trips by automobile
to neighboring places in search of work. On this record, I conclude that there is
insufficient proof that Fetkenheurer did not adequately look for employment between
the termination of his first job and his obtaining so-called permanent employment.
The Respondent's final contention is that Fetkenheurer's rejection of Respondent's
reinstatement offer requires the conclusion that he terminated his employment relation
with Respondent when he accepted employment by Vey West. As already found in
connection with Respondent's like contention in respect to other claimants, this con-
tention is legally unsupportable. Factually, it is absurd to believe that Fetkenheurer
was permanently committed to his job at Vey West where his rate of pay was $1.10
per hour, when he could have earned $1.97 per hour by accepting reinstatement with
Respondent. Obviously Fetkenheurer's rejection of Respondent's reinstatement offer
proves only that he was justifiedly skeptical of the Company's good faith; and not
that he "was committed to his new job." The contention is therefore rejected.
At the hearing, it was disclosed by Fetkenheurer's income tax return for 1959, that
he had earned $102.80 which was not reflected in the backpay specification. The
parties agree that this sum should be applied as interim earnings in the third quarter
of 1959.
The Respondent objects to the automobile expense items claimed for Fetkenheurer
in his search for and during employment at interim jobs, on the ground that it is
based on mileage, and there is no evidence as to Fetkenheurer's "actual" costs. Since
Fetkenheurer testified without contradiction regarding the trips for which these
expenses are claimed, the items are allowed for the reasons stated in respect to
Dudei 's like claim.
Accordingly, I have recomputed Fetkenheurer's backpay claim according to the
findings above and the new averages of work, and conclude that he is entitled to
$13,563.15 for his loss of earnings during the backpay period involved herein.
9. Leonard Hanson
The Respondent contends that Leonard Hanson is entitled to no backpay because
"he made no effort to secure employment until he accepted a job . . . on May 21,
1960," and because he thereafter "became permanently committed to said employ-
ment and to his larger farm operations." The basis for this contention is that because
he was picketing and receiving strike benefits, Hanson did not adequate search for
work. This contention has already been discussed in connection with the claims of
a number of discriminatees, and no useful purpose would be served by repetition of
the reasons why I regard it to be without merit. The record discloses that notwith-
standing the picketing, in 1959, Hanson registered regularly with the Wisconsin
Employment Service, devoted 200 hours to the repair of a farm building,91 and
applied for employment at the Stella Cheese Co., Rice Lake Roller Mills, Company
Store, Standard Station, and Mastercraft. Thus, there is no basis for a conclusion
that picketing and the receipt of benefits deterred Hanson from seeking work and,
on the contrary, the record shows that he did, but was not successful.
In Hanson's case, the Respondent suggests that an inference that he did not ade-
quately look for work should also be drawn from the record of his increased earnings
from his milk farm. The record of milk receipts by Hanson's farm were $4,274 70
in 1958, $3,967.35 in 1959, $4,876.93 in 1960, $5,529.95 in 1961, and $6,253.84 for
1962 These figures in Respondent's view suggest that the increased sales were the
result of additional time and work devoted to the farm by Hanson, and thus, that he
did not adequately look for other employment. The farm's milk sales do not support
any such inference. In 1959, while Hanson was on strike and thus assertedly devoting
more time to the farm, the milk sales were less than in 1958 when Hanson, for at
least half of the year, was working full time for Respondent. Moreover, in 1962,
when Hanson was working full time for Farm and Fleet Store, the milk sales were
higher than in any other year. Thus, Respondent has not shown that the increased
milk sales were in any way related to additional work or time put in on the farm
by Hanson. Hanson and his wife owned and operated the farm while he was
"The value of these services at the rate of pay which Hanson received while employed
by Respondent has been deducted on the specification as interim earnings from Hanson's
gross backpay.
RICE LAKE CREAMERY COMPANY 1149
employed by Respondent. Hanson testified that he added only three or four cows
to his herd after the strike began and no additional help, and there is no evidence to
the contrary. In addition, as noted above, Hanson credited his admittedly extra
work on the farm as interim savings. On the record above, the Respondent has not
shown that Hanson did not make an adequate or reasonable search for employment.
The Respondent's other contention for denying backpay to Hanson is that after
May 21, 1960, he became permanently committed to his job at the Farm and Fleet
Store and withdrew from the labor market. As in the case of the other claimants
whose backpay claims have been considered above, Respondent relies on the rejec-
tion of its reinstatement offer as the only support for this contention. Hanson was
earning $1.35 per hour at Farm and Fleet, but could have received $1.97 per hour
in Respondent's employ. Obviously, his rejection of reinstatement was not based on
any commitment to his job at Farm and Fleet, but in his lack of belief in the validity
or good faith of the Respondent's offer. For these and other reasons already stated
in respect to Respondent's like contention in respect to other claimants, I reject this
contention as to Hanson.
In his brief, the General Counsel seeks for the first time to strike two items of
Hanson's interim earnings listed in the backpay specification, and to thereby increase
Hanson's backpay claim by $855. These were sums received by Hanson as work-
man's compensation in the fourth quarter of 1961 and the first quarter of 1962 as
a result of an injury sustained by Hanson while employed by Farm and Fleet. In
support of this contention the General Counsel relies on the Board's decision in
Moes Planing Mill Co., which was reversed by the court of appeals 02 Whatever
merit the General Counsel's claim might otherwise have, it was not presented by the
specification, no opportunity was presented to the Respondent to meet this issue,
and it was not litigated. Accordingly, I deny as untimely this attempt to change
the specification.
The Respondent objects to the expense claimed by Hanson for transportation to
his job on Saturdays on the ground that Hanson always owned a car, and no records
were kept by him of the extra costs involved. The contention of Respondent is
rejected for the reasons already stated in connection with the mileage claims already
considered. The Respondent also objects to this claim on the additional ground that
absent the discrimination, Hanson would have been required to commute a like
distance to the plant. This contention is also rejected since the mileage claim is
limited to Hanson's travel to work on his sixth day of work per week, and he only
worked 5 days per week at Respondent's plant.
The General Counsel conceded at the hearing that Hanson's interim earnings for
the fourth quarter of 1961 should be increased to $458.35. Hanson's backpay claim
has been recomputed according to the findings above and the new averages, and I
find that he is entitled to $11,819.45 for his loss of earnings during the backpay
period here involved.
10. Loren Hanson
The Respondent contends that Hanson is not entitled to backpay before he obtained
a job because, as a consequence of his picketing Respondent and collecting strike
benefits from the Union, he did not make adequate search for work, and it further
contends that he is not entitled to backpay after he found a job because he removed
himself from the labor market. Hanson registered weekly for work with the Wiscon-
sin Employment Service from November 1958 through May 1959 without referral
to any jobs. Before obtaining interim employment, Hanson sought work at Cumber-
land, Wisconsin, and applied for jobs at several plants in Rice Lake. On this record,
I conclude that the Respondent has failed to establish that Hanson's unemployment
before the third quarter of 1959 was due to lack of diligent search for work. In the
light of Hanson's acceptance of Respondent's reinstatement offer, and for the reasons
stated in connection with Respondent's like contention regarding other claimants,
I also reject the contention that Hanson removed himself from the labor market by
accepting so-called permanent employment.
On August 10, 1959, Hanson secured employment at Kohler's Bar as a part-time
janitor. On September 1, 1959, he obtained a full-time job as a bartender at Fritz'
bar, and thereafter he worked concurrently at both jobs until he quit the job at
Kohler's in the second quarter of 1960. The specification does not credit Respond-
ent with Hanson's interim earnings at Kohler's after he obtained his other job at
Fritz', on the ground that his concurrent employment at Kohler's was a "second job."
The Respondent contends that it should be credited with Hanson's earnings at both
jobs as deductions from the gross pay he would have earned at Respondent plant.
92 110 NLRB 933, reversed 224 F. 2d 702 (C.A. 4).
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record in respect to this issue discloses that Hanson worked for Kohler for
2 hours between 5:30 to 7.30 a.m., and that his hours at the Fritz Bar were from
7 30 a.m. to noon, and from 6 p.m. until 9, 9.30, or 10 p.m. Thus, it does not
appear that Hanson put in more hours at these jobs than he did at Respondent's
plant, including overtime. Moreover, there is no testimony that Hanson had a sec-
ond job when he worked for Respondent.93 Accordingly, I can perceive no reason
why the Respondent should not be credited with Hanson's earnings at both jobs, and
that credit will be given.
No testimony was adduced by the General Counsel to support Hanson's expense
claim of $19.60 in search of work during the third quarter of 1962, and it will there-
fore be disallowed.
Hanson's backpay claim has been recomputed in accordance with the above find-
ings and the new averages, and I conclude that he is entitled to $8,694.99 for his loss
of earnings during the backpay period here involved.
11. Russell Haugen
Haugen registered for employment with the Wisconsin Employment Service from
December 2, 1958, through April 28, 1959. On the latter date, he. was hospitalized
until June 16, 1959, for a condition which he describes as "nerves." He had a recur-
rence of this condition which caused him to be again hospitalized between Septem-
ber 9 and October 30, 1959.94 During 1959, in addition to registering with the
employment service, Haugen also applied for work at Minnesota Mining Co. in
Cumberland, attempted to get construction work at the Air Force base in Osceola,
and also went to Colfax in search of work. In addition, he asked several "people"
in Rice Lake for jobs. He received no referrals from the employment service and
his other efforts proved unsuccessful.
On February 7, 1960, Haugen obtained employment with American Excelsior, but
he was laid off on March 6, 1960, because he was unfit for heavy work. No claim
is made for backpay on behalf of Haugen after the termination of his job with
American Excelsior until he obtained employment at Aman's Furniture Store during
the first quarter of 1961.95 Haugen was laid off from this job during the fourth
quarter of 1961 for "fault" and again the General Counsel "tolled" backpay for "lack
of search" until April 3, 1962, when he obtained employment with Peter Butzler.
Haugen was discharged by Butzler on July 2, 1962, and no backpay is claimed after
that date for the same reason.
The Respondent contends that the only period for which Haugen should be con-
sidered for backpay is that during 1961 when he worked for Aman's. During all the
other periods, the Respondent urges that Haugen made an inadequate search for
employment. In respect to the first period of unemployment the lack of search was,
according to Respondent, the result of Haugen's picketing and receipt of strike bene-
fits. There is no testimony to support such inference. The record shows substantial
search for work by Haugen throughout 1959, except when hospitalized. The record
also shows that during and after 1960, the General Counsel makes no claim for
backpay for Haugen, except during his periods of employment. Accordingly, the
Respondent has failed to sustain the burden of proving lack of adequate search for
employment, except as already conceded by the General Counsel.
In the light of the foregoing, I have recomputed Haugen's backpay claim, and
conclude he is entitled to $8,567.47 for his loss of earnings during the backpay period
involved herein.
12. Forest Hineline
Respondent contends that Hineline is entitled no backpay because his job was
eliminated before the backpay period commenced, and no replacement for him was
hired. This contention has already been considered and rejected by me in the sec-
tion of this Decision devoted to the Respondent's proposed direct replacement
formula.
The Respondent further contends that Hineline is not entitled to backpay after
March 1, 1959, when he went into business as a bulk station operator for Sinclair
Refining Company, for the reason that he "removed himself from the labor market."
ea Cf. Anwelt Shoe Manufacturing Company, 1 NLRB 939, 949
a* No backpay is claimed for Haugen during the periods of hospitalization.
es According to the specification the reason for "tolling Haugen's backpay claim during
this period is lack of search."
RICE LAKE CREAMERY COMPANY 1151
In support of this contention Respondent relies on: (1) Hineline's substantial invest-
ment of $8,000 in his business venture; (2) his cessation of dues payments to the
Union; and (3) his alleged rejection of Respondent's reinstatement offer. The con-
tention that Hineline is not entitled to backpay because he went into business has
already been considered in connection with Butzler's backpay claim and rejected.
A discriminatee who goes into business for himself is treated as one who has found
interim employment. Hineline did not resign from the Union but accepted a with-
drawal card, a status which does not suggest lack of interest in further employment
by Respondent. As to Hinelme's rejection of Respondent's reinstatement offer, the
fact is that he asked for more time to find a replacement, but received no response
from Respondent. Under the circumstances, it was quite reasonable for him to
assume that his request for more time had been rejected, and in any event his failure
to accept Respondent's bad-faith offer does not create an inference that if a proper
offer was made, he would not accept. For the foregoing reasons, the contention that
he is entitled to no backpay because he removed himself from the labor market is
rejected.
Hinehne claims expense for two meals and mileage at 10 cents per mile in connec-
tion with the use of his automobile during his search for employment. The number
of miles and the cost of the two meals were stipulated. Respondent contends that
because Hinehne's only extra expense was for gas and oil, and there is no testimony
regarding the amount of such expense, the claim should be disallowed. The same
contention has already been considered and rejected and the expenses claimed will
be allowed.
Accordingly, Hineline's backpay claim has been recomputed on the basis of the
new averages, and I conclude that he is entitled to $8,006.40 for his loss of earnings
during the backpay period involved herein.
13. Delore King
The Respondent contends that King is not entitled to backpay before April 1, 1959.
According to Respondent's answer the ground for this contention is that King "was
active on the picket line during the first three quarters of 1959, . . . [and] made no
effort to secure other employment." The record does not support this contention.
It shows that during 1959, King not only registered for employment with the Wiscon-
sin Employment Service, but also looked for work in Rice Lake and in other towns,
and obtained a number of temporary jobs. On this record, the contention that his
search for employment during 1959 was inadequate, is rejected.
In 1960, King obtained employment with Holiday Kitchens, a position he still held
when Respondent purportedly offered him reinstatement. Respondent contends that
King's rejection of its offer, his failure to seek other employment while working for
Holiday Kitchens, and his withdrawal from the Union, establish that he had with-
drawn from the labor market, and that he therefore is entitled to no backpay after
he started to work for Holiday Kitchens. For the same reasons stated in connection
with the like contention made by Respondent regarding the backpay claims of the
discriminatees already considered, this contention is regarded as without merit and
rejected.
King's claim for hospital and medical expenses has already been considered in the
section of this Decision entitled "Medical Expenses," and in the light of the stipula-
tion of the parties that absent the discrimination, his medical expenses would have
been covered by the Respondent's group insurance policy to the extent of $565.85,
that amount is allowed.
King testified that he drove his automobile to look for employment and in com-
muting to work. The mileage thus driven, for which reimbursement is sought at 10
cents per mile, was stipulated. The Respondent objects to this claim for the same
reasons asserted in respect to like claims already considered. The objection is
regarded as without merit, and the transportation expense claimed by the specification
is allowed.
In accordance with the findings above, King's backpay claim has been recom-
puted on the basis of the new averages, and I conclude that he is entitled to $9,336.47
for his loss of earnings during the backpay period involved herein.
14. Ronald Kopp
This discriminatee was employed throughout the backpay period, and his interim
earnings in each quarter of the backpay period were concededly greater than his
gross backpay would have been absent the discrimination. The only claim made in
behalf of Kopp is for the amount which the Respondent would have contributed dur-
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the backpay period toward his pension insurance. That issue has already been
considered in the section of this Decision entitled "Pension Insurance Premiums,"
and for the reasons stated therein, the claim of Kopp is allowed in the sum of
$705.25.96
15. Clayton Krogstad
The Respondent first contends that Krogstad is entitled to no backpay after Sep-
tember 1, 1959, because his job was eliminated on that date. That contention has
previously been considered and rejected in the section of this Decision dealing with
Respondent's proposed direct replacement formula. Respondent next contends that
Krogstad did not make a diligent search for work from March 28 until September 1,
1959, because he did not register for employment with the Wisconsin Employment
Service. In the light of the record which shows that during that period, Krogstad
applied for a job at Menomonie, Wisconsin, 60 miles from his home at Rice Lake,
worked part time for Skelly Oil, at Cameron, Wisconsin, performed another tempo-
rary job doing painting work, then worked for L. G Arnold at Woodville, Wisconsin,
on road construction, and for I month (until laid off) for Northern Supply Company
at Cameron, I decline to infer that Krogstad did not adequately search for work.
Indeed, the record of Krogstad's numerous jobs during the entire backpay period, for
which Respondent has been credited with his interim earnings, and his uncontradicted
testimony regarding search for employment conclusively discloses that his efforts to
seek and obtain employment were considerable.
On November 12, 1961, Krogstad quit a seasonal job with Smith Brothers at
Barron, Wisconsin, to go into the grocery business. When Respondent offered him
reinstatement, he requested time to find someone to take his place, but the Respond-
ent did not respond to this request. Respondent now contends that in the light of
his nonacceptance of the reinstatement offer, Krogstad is entitled to no further back-
pay because he withdrew from the labor market when he went into business for
himself. As found above in the case of Butzler who went into business for himself,
that fact does not terminate the backpay liability of the Respondent. In the light of
the manner in which reinstatement was offered, and the failure of the Respondent
to respond to his letter, Krogstad was entitled to assume that his request for more
time had been denied, and, since the offer was not made in good faith, he was not
required to jeopardize his business by accepting it. Quite obviously therefore, his
rejection of Respondent's bad-faith offer does not imply that Krogstad would not have
accepted a proper offer of reinstatement. Accordingly, this contention of Respondent
is also denied.
Respondent objects to various expenses claimed by Krogstad in connection with
his search for, and in working at, interim employment. These expense claims
included noontime meals which the General Counsel now concedes were expenses
which Krogstad would have had absent the discrimination. In connection with a
claim for transportation expense by automobile at 10 cents per mile, the General
Counsel failed to credit the Respondent with the mileage which Krogstad would
have driven if working for Respondent. This also has been conceded and corrected
in the appendix to the General Counsel's brief. The Respondent objects to the claim
for 10 cents per mile for the same reasons as his like objection to other such claims.
These objections have already been considered and for the reasons previously stated,
they are rejected.
In accordance with the above findings and on the basis of the new averages, Krog-
stad's backpay claim has been recomputed, and he is entitled to the sum of $7,952.61
for his loss of earnings during the backpay period involved herein.
16. James E. Lee
On the basis of Lee's admission that he picketed Respondent when he was not
working, and the record which shows that Lee was not employed during the first
quarter of 1959, the Respondent contends that he did not adequately search for work
during that portion of the backpay period. The record shows that during this period,
Lee registered for employment with the Wisconsin Employment Service, that he made
trips to Chippewa Falls and Eau Claire, Wisconsin, in search of work, another to
Cumberland, Wisconsin, and two trips to Barron, Wisconsin, for the same purpose.
The record also shows that the picketing of the discriminatees was not a full-time
pursuit, but was limited to 4 to 6 hours per day. In the light of the above record,
ee The parties stipulated that the amount of the Respondent's contribution toward Kopp's
pension insurance was $183.98 per annum.
RICE LAKE CREAMERY COMPANY 1153
and since the Respondent did not even ask Lee what other efforts he made to seek
employment during this quarter, and produced no evidence that he did not, I con-
clude that Respondent has not sustained its burden in this respect. '
Respondent further claims that Lee is not entitled to backpay for any period fol-
lowing December 14, 1959, because: (1) he then "left the Rice Lake labor market
to move his family to Rochester, Wisconsin," and later moved his household furnish-
ings to Burlington, Wisconsin; and (2) he responded to Respondent's reinstatement
offer by asking for more time to report for work, but then "made no arrangements
to quit his lob." In respect to the first ground asserted by Respondent for this con-
tention, the Board has held that moving to another geographic area does not toll
backpay; 97 and since the Respondent did not respond to Lee's letter asking for more
time, he had a right to assume that his request had been denied and that it would
be foolhardy for him to quit his present job and be without any. Thus, Lee's failure
to accept Respondent's bad-faith offer of reinstatement cannot be equated to with
an unwillingness ever to return to Respondent's employ, especially since he indicated
otherwise in his letter to Respondent. For all the above reasons, I reject the contention
that Lee is not entitled to backpay for the period following his move from Rice Lake.
Lee's backpay claim contains many items of expenses in connection with his search
for work and interim employment. They are all contested by the Respondent as "not
adequately proved." Lee's testimony in respect to the number of days that he trav-
eled to and from his home to his jobs at American Motors, located at Kenosha, Wis-
consin, Melges Boat Works, Zenda, Wisconsin, and Glen Tool Co., Milwaukee,
Wisconsin, was far from reliable. The General Counsel conceded that these figures
were arrived at by dividing the total number of miles of travel claimed in the speci-
fication, by the round trip mileage to each of said places of employment. This, of
course, is a far from satisfactory method of proving such expense. However, the
record shows that Lee received $1 85 per hour or $14.80 per day while working at
Glen Tool during the third and fourth quarters of 1960 and the first quarter of 1961,
and a division of his interim earnings for these quarters by his daily rate of pay
shows that he worked as many or more days than the number for which he claims
such mileage.98 There is and can be no dispute that Lee was required to travel to
and from the jobs for which he claims mileage expense. Moreover, since it is well
settled that precision, although desirable, is not required in the proof of such
expenses,99 and since the spot check of such expenses during Lee's employment at
Glen Tool shows that the claim is a reasonable one, the mileage expenses claimed in
the corrected amended specification 100 will be allowed. For the reasons already
stated, the Respondent's objection to the rate of 10 cents per mile is rejected.
Although the General Counsel conceded at the hearing that Lee's moving expense
from Rice Lake ($87) was not a proper claim, he has nevertheless included the claim
in his corrected amended specification. It will be deducted.
In accordance with the above findings, and on the basis of the new averages, Lee's
backpay claim has been recomputed, and I find that he is entitled to $8,215.42 for his
loss of earnings during the backpay period involved herein.
17. Lloyd Madaus
The Respondent contends that this claimant is not entitled to backpay, at first
because he did not adequately search for employment, and later because he removed
himself from the labor market when he obtained a regular job. Neither of these
contentions is supported by the record.
Madaus regularly registered for work with the Wisconsin Employment Service
between November 1958 and May 1959, without success. In addition, during the
first quarter of 1959, he applied for work at Link Brothers, and also sought work from
the city of Rice Lake. In the second quarter of 1959, he asked Peter Butzler for a
job, and worked for him during the latter part of May until he obtained a regular
job with the Rice Lake Amusement Corp. Madaus picketed Respondent both before
17 Ozark Hardwood Company, 119 NLRB 1130, 1169-1170; Southern Silk Mills, Inc.,
116 NLRB 769, 771.
118 The difference probably can be accounted for by the fact that he occasionally worked
overtime.
11 West Texas Utilities Company, Inc, 109 NLRB 936; Deena Artwere, Incorporated,
112 NLRB 371, 375, enfd 228 F 2d 871 (C A 6).
100 The original amended specification failed to deduct, from the mileage claimed, the
number of miles which Lee traveled to and from work at Respondent's plant This has
been corrected in an appendix to the General Counsel's brief.
783-133-66-vol. 151-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and after he obtained the latter employment, and it is because of such picketing and
his receipt of strike benefits from the Union, that Respondent urges he did not dili-
gently seek employment. On the record above, and for the reasons stated in respect
to the same argument presented in connection with other claimants, I conclude that
the Respondent has not established that Madaus' search for work was inadequate.
The argument that Madaus withdrew from the labor market is bottomed on his
testimony that he secured a withdrawal card from the Union and did not accept
Respondent's reinstatement offer. However, the record shows that despite his so-
called permanent employment, Madaus took a Civil Service examination for employ-
ment at the post office as a fireman laborer in April 1960. This strongly suggests
that Madaus is not irrevocably committed to his job with the Rice Lake Amusement
Corp., and has not removed himself from the labor market. For the foregoing
reasons, and for the additional reasons and authorities cited in connection with
Respondent's like defense to the claims of other discriminatees, this contention of
Respondent is rejected.
Accordingly, the claim of Madaus has been recomputed and I find that he is enti-
tled to be made whole in the sum of $7,002.38 for his loss of earnings during the
backpay period involved herein.101
18. Arthur Meyers
This claimant obtained other employment with Sykes Products Farm, Canton,
Wisconsin, on November 22, 1958, where he worked until July 1960. On July 17,
1960, he started to work for Ripon Foods where he is still employed. On July 17,
1962, he received a letter from the Company offering him reinstatement but did
not answer. Meyers testified that he did not look for other employment or respond
to Respondent's letter offering reinstatement because he was satisfied with his job at
Ripon Foods.
Respondent contends that in the light of this testimony Meyers is not entitled to
any backpay for the portion of the backpay period following his acceptance of
employment with Ripon Foods, because "he voluntarily withdrew from the labor
market, thereby severing his employment relationship with Respondent. For the
reasons stated and the authorities cited in connection with the same contention made
by Respondent in opposing backpay for Edward Berg, I reject the argument that
Meyers is not entitled to backpay after he started to work for Ripon Foods.
In connection with his employment at Sykes, Meyers had travel expense by auto-
mobile in commuting to and from work. The Respondent objects to the claim of
10 cents per mile for such travel because Meyers already owned an automobile, his
only additional expense was for gas and oil, and the amount of his extra cost therefor
was not proved. For the reasons previously stated in respect to the same issue, the
objection is rejected and the claim is allowed as corrected.102
Accordingly, I find that Meyers is entitled to be made whole for his loss of earn-
ings in the sum of $1,259.87 for the backpay period involved here.
19. Douglas Pierce
The backpay claim on behalf of Pierce is limited to the first two quarters of 1959
because he thereafter was physically unable to work and later received social security
disability compensation. The Respondent contends that because of his picketing and
receipt of strike benefits, Pierce did not adequately search for employment during
the period for which backpay is claimed.
As found above, the picketing by the discriminatees did not prevent their search for
work, and the Union encouraged the claimants to seek interim employment. The
record in respect to Pierce's search discloses that he regularly registered with the
Wisconsin Employment Service between November 1958 and May or June 1959, but
received no referrals to any job; that during the period in question, Pierce made a
trip to Cumberland, Wisconsin, to apply for work at Stella Cheese Co., another to
101 Tbis sum excludes the stipulated bill of $122 25 for hospital and medical expense
for the reasons stated in the section of this decision entitled "Medical Expenses."
102 The travel expense has been recomputed by the General Counsel in accordance with
Meyers' testimony regarding the distance each way to his job at Sykes, the number of days
per week and the number of weeks that he worked, and to credit Respondent with the
deduction of the miles which Meyers would have driven his car to work at Respondent's
plant. These corrections are set forth in the appendix to the General Counsel's brief, and
appear to be accurate The Respondent concedes the expense item of Meyers for uni-
forms in the sum of $17.85 "to be a legitimate expense."
RICE LAKE CREAMERY COMPANY 1155
Colfax, Wisconsin, to seek employment on a road construction job, and still another
to Chippewa, Wisconsin, to apply at Bowman's Dairy. In addition, Pierce obtained
a temporary painting job of 5 days' duration during this period from Albert Nichols.
In the light of the limited job opportunities available in the Rice Lake area as evi-
denced by the failure of the Wisconsin Employment Service to refer any of the
discriminatees to a job, and the small size of the city of Rice Lake, I am unable to
conclude that Pierce's search for employment described above was inadequate.103
Respondent objects to an item of $10 for automobile expense incurred by Pierce
on a trip to Colfax in search of work. The expense item is based on the round trip
mileage to Colfax at 10 cents per mile, and will be allowed for the reasons stated
above in respect to like contention.
Accordingly, I find that Pierce is entitled to be made whole for his loss of earnings
in the sum of $2,558 during the backpay period involved herein.
20. Glenn Roux
The Respondent contends that Roux is not entitled to backpay for the first quarter
of 1959, because the only "effort he made to secure employment during this quarter
was to apply in a city some 70 miles from Rice Lake." As already noted the Respond-
ent has the burden of showing lack of search for work. Other than asking Roux
about his registration with the Wisconsin Employment Service,104 the Respondent
did not ask Roux to specify what efforts he made during this quarter to obtain work.
Thus, to the extent that the record does not show what else Roux did in the first
quarter of 1959 to find work, it is due to the failure of Respondent to inquire. No
other evidence was adduced by Respondent that Roux did not make a diligent search
for work. In view of the foregoing, I conclude that the Respondent has not sustained
its burden of showing that Roux's attempts to secure employment in the first quarter
of 1959 were inadequate.
The Respondent concedes that Roux is entitled to backpay for the period com-
mencing with the second quarter of 1959 through the first quarter of 1960. It con-
tends however, that Roux is not entitled to backpay thereafter because "upon his
employment at Aman's," he became "permanently committed to another job and
withdrew from the labor market, thereby severing his employment relation with
Respondent." This contention has already been considered in connection with other
claimants, and for the reasons previously stated and authorities cited, it is similarly
rejected in Roux's case.
In respect to expenses claimed in connection with Roux's search for and engage-
ment in interim employment, the parties stipulated that General Counsel's Exhibit
No. 5, a memorandum of Roux's out-of-pocket expenses, be substituted for the
amounts claimed in the backpay specification relating to Roux, and that the exhibit
be received instead of testimony by Roux concerning the amounts that he spent.
Roux testified regarding the necessity for such expenes. On the basis of his testimony,
I conclude that such out-of-pocket expenses resulted from Roux' search for work
and employment away from Rice Lake, made necessary by the discrimination against
him.105 They will therefore be allowed.
Roux's backpay claim was computed in the General Counsel's specification at the
rate of $1.90 per hour for straight-time work in 1959, $1.95 per hour in 1960 and
1961, and $2 per hour in 1962. The Respondent's answer alleged that Roux's rate
of pay was $1.83 per hour when he went on strike, but as previously noted, it fur-
nished no supporting figures regarding the resulting backpay. At the hearing, on the
General Counsel's motion that the specification be deemed admitted as true and the
Respondent precluded from offering controverting testimony, I ruled that the speci-
fication would be accepted in this regard as prima facie evidence without testimony,
but that the Respondent would be permitted to adduce testimony to controvert it.
The Respondent offered no proof to support its answer in his respect. Accordingly,
the rates of pay set forth in the specification will be appled to compute Roux's gross
backpay.lo0
103 Cf. Southern Silk Mills, Inc., 116 NLRB 769.
103 Roux regularly registered fromDecember 1958 until May 12, 1959
106 The General Counsel conceded that an item in the exhibit of $9.75 for hospitaliza-
tion should be eliminated, and this has been done.
100 The General Counsel's brief requests for the first time that different hourly rates
be used to compute Roux's gross backpay, but since the Respondent has had no notice
of this proposal, or opportunity to meet it, the request is denied as untimely
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I have recomputed Roux's backpay claim in accordance with the
above findings and the new averages, and conclude that Roux is entitled to be made
whole for his loss of earnings in the sum of $5,518.51 during the backpay period
involved herein.
21. Melvin Shervey
The Respondent disputes the backpay claim of Shervey for the first quarter of
1959, apparently on the ground that his search for employment was inadequate. The
Respondent did not ask Shervey what efforts he made to secure employment in that
quarter. Accordingly, in the light of the record which shows that Shervey regularly
registered for employment with the Wisconsin Employment Service, and in the
absence of any testimony that his search for employment was less than diligent, I
conclude that the Respondent has failed to sustain its burden in this respect.
The Respondent concedes that Shervey is entitled to backpay from the second
quarter of 1959 through October 1, 1959, when he obtained employment with the
Rice Lake Hotel. It contends that he is entitled to no backpay after that date because
he "became permanently committed to that position." The record does not support
this contention. Shervey's interim earnings from the Rice Lake Hotel were substan-
tially less than what he would have earned at Respondent's plant. His rejection of
Respondent's reinstatement offer was the result of a heart attack suffered on July 6,
1962, which permanently incapacitated him from further employment.107 More-
over, for the reasons and authorities cited in respect to the same contention regarding
discriminatees whose claims have already been considered, I reject the contention
that acceptance by Shervey of so-called permanent employment before reinstatement
was offered him terminated the Respondent's backpay liability.
The Respondent objects to the claim of Shervey for his automobile expenses in
search for and commuting to interim employment at 10 cents per mile. The parties
stipulated that the mileage shown on the specification were traveled by Shervey for
the purposes above stated. The specification failed to deduct the mileage Shervey
would have driven to and from work at Respondent's plant absent the discrimination.
This has now been corrected in Appendix XXI to the General Counsel's brief. For
the reasons previously stated in respect to the issue , the claim for the remaining mile-
age at 10 cents per mile is allowed.
The parties stipulated that $29.05 is the amount of Shervey's bill for hospital and
medical care which would have been covered by Respondent's group insurance insur-
ance policy if Shervey had not been discriminated against by Respondent. For the
reasons previously stated in the section of this decision entitled "Medical expenses",
this claim is disallowed.
In connection with his interim employment with the Rice Lake Hotel, Shervey
was required to purchase tools which cost him $69.80, for which he was not reim-
bursed and has no further use.108 The Respondent objects to Shervey's claim for
this item of expense because he "still owns" the tools and they "have at least some
value." Since this was a necessary expense incurred by Shervey in connection with
his interim employment, the claim will be allowed, but upon payment of Shervey's
backpay claim, he will be required to turn over the tools to Respondent.
Accordingly, I conclude that Shervey is entitled to be made whole by Respondent
by the payment of $11,432.19, for his loss of earnings during the backpay period
involved herein.
22. Harry S. Thibedeau
The Respondent contends that Thibedeau is entitled to no backpay before July 1,
1959, because his search for employment was inadequate, and he is entitled to no
backpay thereafter because he became committed to a "permanent" position at Holi-
day Kitchens which he secured on that date.
In respect to the period during which Thibedeau was unemployed, the record shows
that he regularly registered for employment with the Wisconsin Employment Service
between November 1958 and March 24, 1959; that during'that period he also sought
work in town with Holiday Kitchens, and out of town with the Birchwood Lumber
and Veneer Company, the Stella Cheese Co., and Stokeley-Van Camp Co. The rec-
ord also shows that he worked for 1 day for Rice Lake Dray and earned $9. During
this period Thibedeau also picketed Respondent's plant and secured strike benefits
from the Union. Respondent urges that "under these circumstances, it is apparent
that Thibedeau was only concerned with the maintenance of the strike and was not
seriously interested in securing interim employment until July 1, 1959." The obvious
107 No backpay is sought for Shervey after that date.
101 The tools consisting of a soldering iron, an electric drill, and some box wrenches.
RICE LAKE CREAMERY COMPANY 1157
fallacy with this argument is that the strike and picketing of Respondent continued
for several months after July 1, 1959, and if the strike was Thibedeau's "only con-
cern ," he would not have accepted a job with Holiday Kitchens before the strike
ended. For that reason, and for the others already stated in respect to the same con-
tention regarding other discriminatees, I am unable to conclude that the Respondent
has established that the strike and picketing either prevented his employment, or was
the cause of Thibedeau's unemployment during the first two quarters of 1959. More-
over, on the record of his search for employment, I am not persuaded that Thibe-
deau's effort to find work was not diligent.
The further contention that Thibedeau's acceptance of employment with Holiday
Kitchens terminated Respondent's backpay liability to him is also rejected for the
reasons and authorities previously stated and cited in respect to the same contention
regarding other discriminatees.
In respect to expenses claimed for Thibedeau in the specification for the first quar-
ter of 1959, the General Counsel has adduced no proof, and it will be disallowed.
Accordingly, I find that Thibedeau is entitled to be reimbursed by Respondent in
the sum of $5,054.84 for his loss of earnings during the backpay period involved
herein.
23. Ernest Vreeland
The Respondent contends that Vreeland is not entitled to backpay because he did
not make a reasonable search for work until he obtained employment in March 1959
with Butzler. Respondent further contends that Vreeland is not entitled to backpay
after he secured employment with American Excelsior in February 1960, because he
became permanently committed to that job and thereby "removed himself from the
labor market."
In respect to the contention that Vreeland's search for work in the first quarter of
1959 was insufficient, the record shows that Vreeland regularly registered with the
Wisconsin Employment Service from November 1958 through March 1959. Other
than asking Vreeland about such registration, the Respondent did not ask him what
other efforts he made to secure employment before he went to work for Butzler.
Moreover, the Respondent did adduce from Vreeland that he picketed its plant until
he started to work for Butzler but, as previously found, that fact does mean that he
did not also look for work. Thus, the Respondent has failed to sustain its burden of
showing a lack of diligent effort by Vreeland to find work prior to his employment by
Butzler.
The Respondent's further contention, that Vreeland's acceptance of employment
by American Excelsior terminated Respondent's backpay liability before it offered
him reinstatement, is also rejected for the reasons hereinabove stated and the authori-
ties cited in respect to the same contention regarding the backpay claim of discrimina-
tee Edward Berg.
During the first and third quarters of 1960, and the first and second quarters of
1961, while Vreeland was employed by American Excelsior, he also did odd jobs for
Butzler, for which he received interim earnings of $21.25, $30, $73.50, and $25,
respectively. These earnings have not been deducted in the specification from Vree-
land's gross backpay because of the General Counsel's contention that "second job"
or "after hours" earnings are not proper offsets. The record does not show that these
earnings represent hours of work by Vreeland beyond the hours that he would have
worked in Respondent's plant. Moreover, the record does not show that Vreeland
had a second or after hours' job while employed by Respondent. Accordingly for
the reasons stated above in connection with the same contention as to Loren Hanson,
I conclude that these earnings should be added to Vreeland's interim earnings during
the applicable quarters and deducted from the net backpay due him for those quarters.
Accordingly, I conclude that Vreeland is entitled to be reimbursed by Respondent
in the sum of $5,969.41 for his loss of earnings during the backpay period involved
herein.
24. Howard Waterhouse
Waterhouse was employed throughout the backpay period, first by the Farmers
Store, in Barron, Wisconsin, and thereafter, since September 1960, by the Rod and
Gun Shop in Chetek, Wisconsin. The Respondent contends that Waterhouse is not
entitled to any backpay after he secured the latter job because he "became committed
to the new position" and "removed himself from the labor market." This is the
same contention that Respondent has urged in opposition to the backpay claims of
most of the discriminatees. It is rejected for the reasons stated and the authorities
cited in connection with the backpay claim of Edward Berg.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Waterhouse was employed at Barron and Chetek, Wisconsin, he was required
to commute daily from Rice Lake to his automobile. The specification asks for com-
pensation for this expense at the rate of 10 cents per mile, to which the Respondent
objects on the same grounds previously urged and considered in connection with like
expense claims. For the reasons already stated in respect to this issue, the objection
of the Respondent is regarded as without merit and the expense claim will be allowed.
However, the hearing disclosed that the specification failed to credit against the
mileage claimed, the number of miles Waterhouse would have been required to drive
to the Respondent's plant absent the discrimination . In addition the specification also
requested reimbursement of Waterhouse for noonday meals, an expense which he
would have had if working for Respondent, and thus, not properly chargeable to the
Respondent. The General Counsel has conceded that its claim on behalf of Water-
house is excessive in these respects , and he has made the proper deductions in Appen-
dix XXIV attached to his brief.
For all the reasons stated, I find that Waterhouse is entitled to be reimbursed by
Respondent in the sum of $6,822.55 for his loss of earnings during the backpay period
involved herein.
25. Carl Wicken
Wicken registered regularly for work with the Wisconsin Employment Service
from November 1958 through May 1959.109 During this period Wicken also pick-
eted Respondent's plant. In March 1959, Wicken decided to move to Seattle, Wash-
ington, because he wanted to be near his daughter who lived there, and because he
thought that employment opportunities would be better. In furtherance of that deci-
sion, Wicken started to repair his house in preparation for its sale. Wicken moved
to Seattle in August 1959. Other than registering with the State employment service,
Wicken admittedly made no effort to secure employment before he moved. After
arrival at Seattle, Wicken looked for work, obtained some interim employment, was
self-employed for about a year, and then secured a job as a janitor, a position he still
held when the Respondent wrote its letter offering him reinstatement . The Respond-
ent contends that Wicken is not entitled to any backpay before he moved to Seattle,
because he failed to make a reasonable or diligent search for work, and that he is
entitled to no backpay thereafter, because he voluntarily removed himself from the
labor market without intending to return.
In respect to whether Wicken is entitled to backpay for the period before he moved
to Seattle, the record shows that he did nothing to obtain employment other than to
register with the State employment service.110 In Southern Silk Mills, supra, the
Board held that it would no longer regard registration with State employment agen-
cies as conclusive evidence of a search for work, but would "treat such registration
as a factor to be given greater or less weight depending upon all the circumstances in
each case ." Here, the circumstances disclose only the registration and nothing more.
In the light of the record , I believe that Wicken did not make much , if any, effort to
secure employment before he moved to Seattle, and thus did not fulfill his obligation
to make a reasonable search for work. I therefore conclude that Wicken is not
entitled to backpay during that period.
The Respondent's other contention, that Wicken is not entitled to backpay after
he moved to Seattle because he voluntarily removed himself from the labor market
area, has already been considered and rejected in connection with the backpay claim
of James Lee. In this regard , the record shows that upon arrival at Seattle during
the third quarter of 1959, Wicken promptly undertook a search for employment, and
thus reentered the employment market . There is no connection that his search for
work thereafter was inadequate. Nor is there any proof that prior to the Respond-
ent's letter offering Wicken reinstatement , he had evinced any intention of not return-
ing to work for Respondent.111 Accordingly, the Respondent has failed to sustain
the burden of showing its backpay liability to Wicken terminated at any specific time
prior to the reinstatement offer. For the foregoing reasons, as well as those stated in
connection with the same issue in respect to Lee's backpay claim , I reject the conten-
tion that Wicken is not entitled to any backpay for the period following his move to
Seattle.
109 According to Wicken ' s uncontroverted testimony, he received no unemployment com-
pensation as a result of such registration.
11 0 Wicken testified that he did not regard such registration "as an effort to obtain
employment," but in the light of his testimony that be received no unemployment coin-
pensation , it is difficult to understand what else it could have been.
in Cf. Tea-as Natural Gasoline Corporation, 116 NLRB 405, 417.
RICE LAKE CREAMERY COMPANY 1159
At the hearing of this backpay proceeding, the General Counsel eliminated the
claim for Wicken's moving expense to Seattle, and proposed, without objection, a
number of other changes in the expenses claimed by Wicken in connection with his
search for work and his employment in the Seattle area. These changes have been
incorporated in Appendix XXV attached to the General Counsel's brief which
appears to be correct.
In accordance with the findings above, I conclude that Wicken is entitled to be
reimbursed by Respondent in the sum of $11,974.41 for his loss of earnings during
the backpay period involved here.
CONCLUSIONS AND RECOMMENDED ORDER
Upon the entire record, and in accordance with the foregoing findings, I conclude
that:
(1) The discriminatees listed hereinafter are entitled to payment by the Respond-
ent of the sums listed opposite their names. 112
Edward Berg---------------------------------------------
Peter Butzler---------------------------------------------
Basil Colbert---------------------------------------------
Harry DeBoer--------------------------------------------
Malcolm Demers------------------------------------------
Wesley DeRousseau---------------------------------------
Benjamin Dudei-------------------------------------------
Otto Fetkenheurer----------------------------------------
Leonard Hanson------------------------------------------
Loren Hanson--------------------------------------------
Russell Haugen-------------------------------------------
Forest Hineline----------- --------------------------------
Delore King---------------------------------------------
Ronald Kopp--------------------------------------------
Clayton Krogstad-----------------------------------------
James Lee-----------------------------------------------
Lloyd Madaus--------------------------------------------
Arthur Meyers-------------------------------------------
Douglas Pierce-------------------------------------------
Glenn Roux---------------------------------------------
Melvin Shervey-------------------------------------------
Harry Thibedeau-----------------------------------------
Ernest Vreeland------------------------------------------
Howard Waterhouse---------------------------------------
Carl Wicken---------------------------------------------
$1,979.38
9,047.98
2,119.66
10, 867. 41
4,042.27
6,889.90
10, 320. 56
13, 563. 15
11, 819.45
8,694.99
8,567.47
8,006.40
9, 336.47
705.25
7,952.61
8,215.42
7,002.38
1,259.87
2,558.00
5,518.51
11,432. 19
5,054.84
5,969.41
6,822.55
11, 974.41
(2) The Respondent has not complied with the terms of the Board's Order and
court decree in respect to offering immediate reinstatement to the discriminatees to
their former or substantially equivalent positions, and the discriminatees listed here-
inafter are entitled to such immediate reinstatement.
Peter Butzler
Harry DeBoer
Wesley DeRousseau
Benjamin Dudei
Otto Fetkenheurer
Leonard Hanson
Loren Hanson
Russell Haugen
Forest Hineline
Delore King
Clayton Krogstad
James Lee
Lloyd Madaus
Harry Thibedeau
Ernest Vreeland
Howard Waterhouse
It is further recommended that the Board adopt the foregoing finds and conclusions
and issue an appropriate order, including a reservation of the further backpay rights
of the discriminatees to whom reinstatement is still required.
112 An appendix showing the manner in which these sums were computed is attached
hereto.
The General Counsel requests interest on the backpay awards at the rate of 6 percent
per annum commencing with the date of this decision. Since the original order enforced
by the court of appeals does not provide for the payment of interest, the request is
rejected. Ellis and Watts Products, Inc., 143 NLRB 1269
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quarter
1959-1--------------------------
1959-2-------------------------
1959-3-- - - - --------------------
1959-4-------------------------
1960-1--------------------------
1960-'_--------------------------
APPENDIX
EDWARD BERG
Gross
backpay
$1,118 78
1,177 78
1,130 56
1,102 05
1,121 01
1, 174 63
Total Net Quarterly Backpay------------------------------------------------------
Pension Insurance--------------------------------------------------------------------
Total Backpay as of 7/1/62----------------------------------------------------------
PETER BUTZLER
1959-1--------------------------
1959-2--------------------------
1959-3---- ----------------------
1959-4-------------------------
1960-1 --------------------------
1960-2----------- -----
1960-3--------- -----------------
1960-4 --------------------------
1961-1- -------------------------
1961-2--------------------------
1961-3------ -----------
1961-4--------------------------
1962-1--- -----------------------
1962-2--------- ----------------
1962-3--------- -----------------
$1,090 56
1,148 16
1,102 08
1,074 24
1,092 90
1,145 31
1,133 51
1,204 45
1,032 12
1,147 30
1,199 53
1,149 26
1,175 82
1, 239 73
348 62
Total Net Quarterly Backpay--------------------------------------------------------
*Less Additional Interim Earnings 1960----------------------------------------------
Net Quarterly Backpay---------- ----------------------------------------------------
Pension Insurance------------------------------------ --------------------
Total Backpay as of 7/27/62----------------------------------------------------------
BASIL COLBERT
1959-1-------------------------
1959-2--- ----------------------
1959-3--------------------------
1959-4-------------------------
1960-1--------------------------
1960-2--------------------------
1960-3-------------------------
1960-4--------------------------
1961-1--------------------------
1961-2-------------------------
1961-3--------------------------
1961-4--------------------------
1962-1--------------------------
1962-2--------------------------
$1, 090 56
1,148 16
1,102 08
1,074 24
1,092 90
1,14531
1,133 51
1,204 45
1,032 12
1,147 30
1,199 53
1,149 26
1, 175 82
1,239 73
Interim
earnings
$690 00
750 00
855 00
goo 00
1,020 00
1,090 77
$185 00
805 92
878 02
795 41
*120 00
534 67
486 51
601 72
489 83
570 12
734 27
659 74
550 00
550 00
125 00
$889 20
951 00
958 10
999 70
1,001 36
1,048 91
1,018 29
1,161 82
1,100 93
1,166 94
1, 172 97
1, 028 45
1, 194 25
1, 189 64
Expenses
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
-------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
Net interim
earnings
$690 00
750 00
855 00
900 00
1,020 00
1,090 77
$185 00
805 92
878 02
795 41
120 00
534 67
486 51
601 72
489 83
570 12
734 27
659 74
550 00
550 00
125 00
$889 20
951 00
958 10
999 70
1,001 36
1,048 91
1,018 29
1,161 82
1,100 93
1,166 94
1, 172 97
1,028 45
1,194 25
1, 189 64
Net
backpay
$428 78
427 78
275 56
202 05
101 01
83 86
1, 519 04
460 34
1,979 38
$905 56
342 24
224 06
278 83
972 90
610 64
647 00
602 73
542 29
577 18
465 26
489 52
625 82
689 73
223 62
8, 197 38
-108 77
8,088 61
959 37
9,047 98
$201 36
197 16
143 98
74 54
91 54
96 40
115 22
42 63
--------------
--------------
26 56
120 81
--------------
50 09
Total Net Quarterly Back-pay------------------------------------------------------
Pension Insurance--------------------------------------------------------------------
1, 160 29
959 37
Total Backpay as of 7/1/62-----------------------------------------------------------1 2,119 66
RICE LAKE CREAMERY COMPANY 1161
Quarter
1959-1---- ----------------------
1959-2-------------------------
1959-3--------------------------
1959-4-------------------------
1960-1 --------------------------
1960-2-------------------------
1960-3--------------------------
1960-4--------------------------
1961-1-----------------------
1961-2-- ------------------------
APPENDIX-Continued
HARRY DEBOER
Gross
backpay
$1, 253 07
1, 253 07
1,253 07
1,253 07
1.266 92
1,283 04
1,283 04
1,283 04
1,283 04
1, 283 04
Total Net Quarterly Backpay --------------------------------------------------------
Pension Insurance ------------------------------------------------------------------
Total Backpay as of 7 /1/62-----------------------------------------------------------
MALCOLM DEMERS
1959-1-------------------------
1959-2--------------------------
1959-3----- ---------------------
1959-4--------------------------
1960-1 -------------------------
1960-2--------------------------
$1, 050 62
1, 106 02
1,061 68
1,034 91
1,053 51
111.15
Total Net Quarterly Backpay --------------------------------------------------------
Pension Insurance --------------------------------------------------------------------
Total Backpay--------------------------------------------------------------------
WESLEY DEROUSSEAU
1959-1--------------------------
1959-2--------------------------
1959-3--------------------------
1959-4--------------------------
1960-1--------------------------
1960-2-----------------------
1960-3-------------------------
1960-4--------------------------
1961-1 --------------------------
1961-2--------------------------
1961-3-------------------------
1961-4--------------------------
1962-1 --------------------------
1962-2-------------------------
1962-3--------------------------
$1, 050 62
1,106 02
1,061 68
1,034 91
1,053 51
1, 104 85
1,093 45
1,161 85
995 60
1,106 75
1,157 10
1,108 65
1,134 30
1,196 05
250 80
Interim
earnings
--------------
$402 45
1,114 11
475 46
--------------
339 58
643 33
663 34
589 00
685 65
--------------
$218 95
322 50
686 50
683 50
44 25
--------------
$376 61
849 73
774 86
663 20
743 86
868 84
875 83
590 61
655 97
841 61
1,050 06
882 32
907 47
203 83
Expenses
--------------
--------------
--------------
--------------
--------------
--------------
-------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
Net interim
earnings
--------------
$323 89
875 46
435.95
--------------
339 58
643 33
668 34
589 00
685 65
--------------
$218 95
322 50
686 50
683 50
44 25
--------------
$376 61
849 73
774 86
663 20
743 86
868 84
875 83
590 61
655 97
841 61
1,050 06
882 32
907 47
203 83
Net
backpay
$1, 253 07
929 18
377 61
817 12
1,266 92
943 46
639 71
614 70
694 04
597 39
8,133 20
2, 734 21
10,867 41
$1,050 62
887 07
739 18
348 41
370 01
66 90
3,462 19
580 08
4,042 27
$1, 050 62
729 41
211 95
260 05
390 31
360 99
224 61
286 02
404 99
450 78
315 49
58 59
251 98
288 58
46 97
Total Net Quarterly Backpay ------------------------------------------------------
Pension Insurance------------------------------------------------------
5, 331 34
1, 558 56
Total Backpay as of 7/19/62---------------------------------------------------------- 1 6,889 90
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
BENJAMIN DUDEI
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1959-1------------------------ $1, 050.62 --------------
$1, 050.62
1959-2- ------------------------- 1,106.02 -------------- -------------- --------------
1,106.02
1959-3------------------------- 1,061 68 $241.58 $65.80 $175 78 885 90
1959-4 -------------------------- 1,034 91 498 12 10.00 488 12 546.79
1960-1 -------------------------- 1,053 51 601 65 -------------- 601.65
451 86
1960-2- ------------------------ 1,104 85 680 41 --------------
680 41 424.44
1960-3 -------------------------- 1,093 45 959 93 -------------- 959 93
133.52
1960-4 ------------------------- 1,161 85 955 54 -------------- 955 54
206.31
1961-1 -------------------------- 995 60 354 98 -------------- 354.98
640 62
1961-2-------------------------- 1,106 75 -------------- -------------- --------------
1,106.75
1961-3 -------------------------- 1,157.10 780 00 --------------
780 00 377 10
1961-4 -------------------------- 768 55 530 00 1 --------------
530 00 238 55
Total Net Quarterly Backpay-- ------------------------------------------------------ 7,168 48
Pension Insurance ------------------------------------------------------------------- 3,152.08
Total Backpay as of 8/3/62------------------------------------------------------------ 10,320 56
OTTO FETKENHEURER
1959-1 ------------------------ $1,090 56 -------------- -------------- --------------
$1,090 56
1959-2--------- ----------------- 1,148 16 $22 95 --------------
$22 95 1,125 21
1959-3 ------------------------- 1,102 08 102 80 $2 60 100 20
1, 001.88
1959-4 ------------------------ 1,074 24 385 00 2 60
382 40 691.84
1960-1 ------------------------- 1 092 90 330 00 --------------
330 00 762 00
1960-2 - ----------------------- 1,145 31 125 00 3 60 121 40 1,023 91
1960-3-------------------------- 1,133 51 140 00
5 60 134.40 999.11
1960--4-------------------------- 1,204 45 258 00 35 20
222 80 981 65
1961-1 -------------------------- 1,032 12 10 00 4 60
5 40 1, 026.72
1961-2-------------------------- 1,147 30 -------------- -------------- --------------
1,147 30
1961-3 ------------------------- 1,199 53 517 94
80 80 437.14 762.39
1961-4-------------------------- 1,149.26
505 10 88 00 417 10 732 16
1962-1-------------------------- 1,175 82 700 00
92 80 607.20 568 62
1962-2-------------------------- 1,239 73 885 50
128 00 757 50 482 23
1962-3-------------------------- 350 18
283.00 35 20 247 80 102 38
Total Net Quarterly Backpay---- ---------------------------------------------------- 12,498 86
Pension Insurance ------------------------------------------------------------------- 1,064.29
Total Backpay as of 7 /27/62----------------------------------------------------------- 1 13,563.15
RICE LAKE CREAMERY COMPANY 1163
APPENDIX-Continued
LEONARD HANSON
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1959-1 -------------------------- $1,090 56 -------------- -------------- -------------- $1,090 56
1959-2-------------------------- 1,148 16 $192.00 -------------- $192 00
956 16
1959-3----------------- 1, 102 08 192.00 --------------
192 00 910 03
1959-4-------------------------- 1,074 24 -------------- -------------- -------------- 1,074 24
1960-1-------------------------- 1,092 90 -------------- -------------- --------------
1,092 90
1960-2--------------- 1,145 31 186 88 --------------
186 88 958.43
1960-3-------------------------- 1,133 51 341 26 --------------
341 26 M 25
1960-4 ------------------------- 1,204.45 335.56 -------------- 335.56
868.89
1961-1------------------------ 1,032 12 142 51 -------------- 142 51
889 61
1961-2-------------------------- 1,147 30 536.87 --------------
536 87 610 43
1961-3-------------------------- 1,199 53 638 44 -------------- 638.44
561.09
1961-4------------------------- 1.149 26 728 35 -------------- 728 35
420 91
1962-1 ------------------------- 1,175 82 585.00 -------------- 585 00
590 82
1962-2-------------------------- 1,239 73 982 09 $26. 00 956. 09
238 64
1962-3-------------------------- 259 99 199 30 4 00 195 30
64 69
Total Net Quarterly Backpay-------------------------------------------------------- 11,164 70
Penslon Insurance------------------------------------------------------------------- 654 75
Total Backpay as of 7/19/62----------------------------------------------------------- 11,819.45
LOREN HANSON
1959-1 -------------------------- $1090 56 -------------- -------------- $1,090 56
1959-2-------------------------- 1,148 16 -------------- -------------- --------------
1,148 16
1959-3------------------------- 1,102 08 $370 00 -------------- $370 00 732 08
1959-4- ------------------------- 1, 074 24 857 00 -------------- 857 00 217 24
1960-1- ------------------------- 1,092 90 845 00 -------------- 845 00 247 90
1960-2-------------------------- 1,145 31 770 00 -------------- 770 00 375 31
1960-3-------------------------- 1,133 51 700 00 -------------- 700 00 433 51
1960-4------------------------- 1,204 45 650 00 -------------- 650 00 554 45
1961-1 -------------------------- 1,032 12 650 00 -------------- 650 00 382 12
1961-2- ----------------------- 1,147 30 650 00 -------------- 650 00 497 30
1961-3-------------------------- 1,199 53 650 00 -------------- 650 00 549 53
1961-4-------------------------- 1,149 26 650 00 -------------- 650 00 499 26
1962-1 -------------------------- 1, 175 82 650 00 -------------- 650 00 525 82
1062-2-------------------------- 1,239 73 650 00 -------------- 650 00 589 73
1962-3------------------------- 434 30 231 08 -------------- 231 08 203 22
Total Net Quarterly Backpay---------------------------------------- ---------------- 8,046 19
Pension Insurance -------------------------------------------------------------------- 648 80
Total Backpay as of8 /3/62------------------------------------------------------------ 1 8,694 96
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
RUSSELL HAUGEN
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1959-1-------------------------- $1,107 42 -------------- -------------- -------°------ $1,107 42
1959-2------------------------- 538 07 -------------- -------------- ------------- 538 07
1959-3-------------------------- 861 73 -------------- -------------- -------------- 861 73
1959-4-------------------------- 755 51 -------------- -------------- -------------- 755 51
1960-1-------------------------- 1,109 76 $342 73 -------------- $342 73 767 03
1961-1-------------------------- 1. 048 00 216 00 ------------- 216 00 832 00
1961-2- ----------------------- 1,165 00 288 00 -------------- 288 00 877 00
1961-3 ------------------------- 1,218 00 336 00 -------------- 336 00 882 00
1961-4-------------------------- 1,167 00 312 00 -------------- 312 00 855 00
1962-2- ------------------------- 1,259 00 615 75 1 _ _____________ 615 75 643 25
Total Net Quarterly Backpay_ _______________________________________________________ 8,119 01
Pension Insurance -------------------------------------------------------------------- 448 46
Total Backpay as of8/17/62-- --------------------------------------------------------- 8,567 47
FOREST HINELINE
1959-1-------------------------- $1,090 56 $600 79 $79 80 $520 99 $569 57
1959-2- - ---------------------- 1,148 16 328 02 -------------- 328 02 820 14
1959-3--- --------------------- 1,102 08 632 09 -------------- 632 09 469 99
1959-4-------------------------- 1,074 24 1,044 13 -------------- 1,044 13 30 11
1960-1-------------------------- 1,092 90 1, 527 00 -------------- 1,527 00 --------------
1960-2- - --------------------- 1,145 31 431 89 -------------- 431 89 713 42
1960-3-------------------------- 1,13351 768 96 ---- --------- 768 96 364 55
1960-4 ----------------------- 1,204 45 746 84 -------------- 746 84 457 61
1961-1------------------------- 1,032 12 747 67 -------------- 747 67 284 45
1961-2-------------------------- 1, 147 30 486 70 -------------- 486 70 660 60
1961-3- -- ---------- ----•------ 1.199 53 481 54 -------------- 481 54 717 99
1961-4-------------------------- 1 149 26 1,049 73 -------------- 1,049 73 99 53
1962-1------------------------- 1,175 82 505 09 ------ ------- 505 09 670 73
1962-2-------- ------------------ 1,239 73 299 35 -------------- 299 35
940 38
1962-3--------- ----------------- 606 64 207 00 -------------- 207 00
399 64
Total Net Quarterly Backpay -------------------------------------------------------- 7,198 71
Pension Insurance------------ --------------- --------------------------------------- 807 69
Total Backpay as of 8/17/62----------------------------------------------------------- 1 8,006 40
RICE LAKE CREAMERY COMPANY
APPENDIX-Continued
DELORE KING
1165
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1959-1-------------------------- $1,067 84 -------------- -------------- --------------
$1,067 84
1959-2-------------------------- 1,124 24 $207 00 $75 20 $131 80
992 44
1959-3-------------------------- 997 34 440 99 46 20 394 79
602 55
1959-4-------------------------- 891 12 -------------- -------------- --------------
891 12
1960-1-------------------------- 1,073 07 643 62 -------------- 643 62
429 45
1960-2-------------------------- 1,163 00 702 88 -------------- 702 88
460 12
1960-3-------------------------- 1,151 00 871 72 -------------- 871 72
279 28
1960-4-------------------------- 1,223 00 878 70 -------------- 878 70
344 30
1961-1-------------------------- 1,048 00 650 30 -------------- 650 30
397 70
1961-2-------------------------- 1,165 00 667 13 -------------- 667 13
497 87
1961-3-------------------------- 1,218 00 811 79 -------------- 811 79 406 21
1961-4-------------------------- 1,167 00 976 57 -------------- 976 57
190 43
1962-1-------------------------- 1,194 00 873 82 ------------- 873 82
320 18
1962-2-------------------------- 1,259 00 936 40 -------------- 936 40 322 60
1962-3-------------------------- 177 00 147 71 --------------
147 71 29 29
Total Net Quarterly Backpay-------------------------------------------------------- 7,231 38
Pension Insurance-------------------------------------------------------------------- 1,539 24
Medical Expenses-------------------------------------------------------------------- 565 85
Total Backpay as of 7/13/62----------------------------------------------------------- 9,336 47
RONALD KOPP
This discriminatee earned more in each quarter of the backpay period than he
would have earned at Respondent's plant, absent the discrimination. Accordingly
his claim is limited to the amount which the Respondent would have contributed
to his pension insurance, as follows:
1959-5/6x$183.98 ----------------------------------------------- $153.31
1960------------------------------------------------------------ 183.98
1961------------------------------------------------------------ 183.98
1962------------------------------------------------------------ 183.98
Total Backpay as of 7/ 19/62-------------------------------- 705.25
CLAYTON KROGSTAD
1959-1-------------------------- $1, 084 70 $523 75 $18 80 $504 95 $579 75
1959-2-------------------------- 1,141 90 168 00 1920 148 80 993 10
1959-3-------------------------- 1, 096 12 1,029 99 302 60 727 39 368 73
1959-4-------------------------- 1,068 48 818 75 -------------- 818 75 249 73
1960-1-------------------------- 1, 087 26 833 75 -------------- 833 75 253 51
1960-2-------------------------- 1,139 74 888 82 -------------- 888 82 250 92
1960-3-------------------------- 1,127 98 945 25 -------------- 945 25 182 73
1960-4-------------------------- 1,198 54 912 10 -------------- 912 10 286 44
1961-1-------------------------- 1, 027 04 316 17 --- --------- 316 17 710 87
1961-2-------------------------- 1,141 70 580 49 110 40 470 09 671 61
1961-3-------------------------- 1,193 64 1,114 19 156 00 958 19 235 45
1961-4-------------------------- 1,143 66 628 49 105 60 522 89 620 77
1962-1-------------------------- 1,170 12 548 80 -------------- 548 80 621 32
1962-2-------------------------- 1,233 82 736 56 -------------- 736 56 497 26
1962-3-------------------------- 603 68 461 00 -------------- 461 00 142 68
Total Net Quarterly Backpay-------------------------------------------------------- 6, 664 87
Pension Insurance-------------------------------------------------------------------- 1,287 74
Total Backpay as of 8/17/62-----------------------------------------------------------1 7,952 61
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
JAMES LEE
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1959-1-------------------------- $1, 107 42 -------------- -------------- -------------- $1,107 42
1959-2------------------------- 1, 165 82 $543 60 -------------- $543 60 622 22
1959-3-------------------------- 1,11908 1,066 44 $116 60 949 84 169 24
1959--4-------------------------- 1,090 86 579 68 20 00 559 68 531 18
1960-1-------------------------- 1, 109 76 510 54 81 00 429 54 6x0 22
1960-2-------------------------- 537 00 545 44 100 80 444 64 92 36
1960-3-------------------------- 1,064 00 1,219 94 238 00 931 94 132 06
1960-4-------------------------- 1,223 00 1,028 37 340 20 688 17 534 83
1961-1-------------------------- 1,048 00 911 63 318 60 593 03
454 97
1961-2------------------------- 1,165 00 283 22 33 00 250 22 914 78
1961-I-------------------------- 1, 218 00 1,110 57 -------------- 1, 110 57 107 43
1961-4-------------------------- 1,167 00 957 60 ------------- 957 60 209 40
1962-1-------------------------- 1,194 00 618 45 -------------- 618 45 575 55
1962-2------------------------- 1,259 00 778 84 --------------
778 84 480 16
1962-3-------------------------- 526 00 239 46 --------------
239 46 286 54
Total Net Quarterly Backpay-------------------------------------------------------- 6, 898 36
Pension Inset ance------------------------------------------------------------------- 1,317 06
Total Backpay as of 8/10/62---------------------------------------------------------- 8,215 42
LLOYD MADAUS
1959-1------------------------- $1,118 78 -------------- -------------- --------------
$1,118 78
1959-2-------------------------- 1,177 78 $200 00 -------------- $200 00
977 78
1959-3-------------------------- 1,130 56 667 57 -------------- 667 57
462 99
1959-4-------------------------- 1, 102 05 522 50 -------------- 522 50
579 55
1960-1-------------------------- 1,121 01 753 77 --------------
753 77 367 24
1960-2-- - --------------------- 1, 174 63 980 93 -------------- 980 93
193 70
1960-3-------------------------- 1,162 51 1, 061 95
1,061 95 100 56
1960-4-------------------------- 1,235 23 892 51 --------------
892 51 342 72
1961-1-------------------------- 1,058 48 730 93 --------------
730 03 327 55
1961-2-------------------------- 1,176 65 994 19 --------------
994 19 182 46
1961-3-------------------------- 1,230 18 1,137 73 --------------
1,137 73 92 45
1961-4-------;------------------ 1,178 67 850 67 -------------- 850 67 328 00
1962-1-------------------------- 1,217 88 773 47 --------------
773 47 444 41
1962-2-------------------------- 1,284 18
937 94 -------------- 937 94 346 24
1962-3-------------------------- 361 08
333 00 1-------------- 333 00 28 08
Total Net Quarterly Backpay-------------------------------------------------------- $5, 892 51
Pension Insurance--------------------------------------------------------------------
1,109 87
Total Backpay as of 7/27/63--------------------------------------------------------- 1 $7,002 38
RICE LAKE CREAMERY COMPANY
Quarter
1959-1 --------------------------
1959-2--------------------------
1953-3 --------------------------
1959-4-------------------------
196)-1---- ----------------------
196)-2------ -------------------
196)-3 -------------------------
1963-4--------------------------
1961-1 -------------------------
1961-2----- ---------------------
1961-3--------------------------
1961-4--------------------------
1962-1 --------------------------
1962-2---- ---------------------
1962-3---- ---------------------
APPENDIX-Continued
ARTHUR MEYERS
Gross
backpay
$1,050 62
1,106 02
1,061 68
1,034 91
971 81
1,104 85
1,093 45
1, 161 85
995 60
1,106 75
1, 157 10
1,108 65
1, 134 30
1,196 05
168 15
Total Net Quarterly Backpay as of 7/13/62--------------------------------------------
DOUGLAS PIERCE
1959-1--------------------------
5959-2------------------- -------
$1, 090 56
1, 148 16
Total Net Quarterly Backpay--------------------------------------------------------
Pension Insurance --------------------------------------------------------------------
Total Backpay as of 8 /3/62------------------------------------------------------------
GLENN ROUX
--------------------------
--------------------------
19,',9-3 --------------------------
1959-4- - ----------------------
1960-1 -------------------------
1960-2----------------- ---------
1960-3--------------------------
1960-4-------------------------
1901-1--------------------------
1961-2--------------------------
1961-3--------------------------
1961-4--------------------------
1902-1--------------------------
1962-2-------------------------
1962-3 --------------------------
i
$1,079 20
1,136 20
1,090 60
1,063 05
1,081 65
1,133 68
1, 122 00
1,192 22
1,021 64
1,135 65
1,187 35
1,137 59
1,194 00
1, 259 00
439 00
Interim
earnings
$710 45
1,250 77
1, 395 72
1,11936
1,082 42
1,233 58
1,136 02
1,274 00
900.00
1,067 81
1, 595 81
1,416 08
901 70
1,100 00
181 55
$45 00
--------------
$448 10
1,331 14
572 14
116 00
675 00
875 00
812 50
945 00
877 50
1, 051 50
1, 066 00
975 00
975 00
375 00
Expenses
$182 40
184 80
182 40
300 25
172 80
184 80
19 20
-------------
-------------
-------------
$10 00
--------------
$60 51
188 15
39 51
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
Net interim
earnings
$528 05
1,065 97
1,213 32
919 11
909 62
1,048 78
1,116 82
1,274 00
900 00
1,067 81
1,595 81
1,416 08
901 70
1,100 00
181 55
$35 00
--------------
$387 59
1,142 99
532 63
116 00
675 00
875 00
812 50
945 00
877 50
1, 051 50
1, 066 00
975 00
975 00
375 00
1167
Net
backpay
$522 57
40 05
--------------
115 80
62 19
56 07
--------------
--------------
95 60
38 94
--------------
--------------
232 69
96 05
--------------
1,259 87
$1,090 56
1,113 16
2,203 72
354 28
2,558 00
$1,079 20
748 61
--------------
530 42
965 65
458 68
247 00
379 72
76 64
258 15
135 85
71 59
219 00
284 00
64 00
Total Net Quarterly Backpay as of 8/3 /62---------------------------------------------I 5,518 51
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quarter
1959-1---- -------------------
1959-2------- -------- --------
1959-3- -----------------------
1959-4---- --------------------
1960-1--------------------------
1960-2------------------------
1960-3--------------------------
1960-4-------------------------
1961-1 ------------------------
1961-2----------- ------------
1961-3--------------------------
1961-4--------------------------
1962-1--------------------------
1962-2-------------------------
1962-3--------------------------
APPENDIX-Continued
MELVIN E. SHERVEY
Gross
backpay
$1,107 42
1,165 82
1,119 08
1,090 86
1,109 76
1,163 00
1,151 00
1,223 00
1, 048 00
1,165 00
1,218 00
1,167 00
1,194 00
1,259 00
177 00
Total Net Quarterly Backpay----------------------------------------------------
Pension Insurance-- ---------- --------------------- ---------------- -----------
Total Backpav as of 8/10/62------------------- - ----------------------------
HARRY S THIBEDEAU
1959-1 --------------------------
1959-2- -------------------------
1959-3-- -- --------------------
1959-4-------------------------
1960-1--------------------------
1960-2----------- ---------------
1960-3-------------------------
1960-4-------------------------
1961-1--------------------------
1961-2--------------------------
1961-3------- --------- --------
1961-4-------------------------
1962-1 -------------------------
1962-2--- ---------------------
1962-3 --------------------------
$1,090 56
1,148 16
1,102 08
1,074 24
1,092 90
1,14531
1,133 51
1,204 45
1,032 12
1,147 30
1,199 53
1,149 26
1,175 82
1,239 73
518 01
Interim
earnings
$392 55
458 71
568 20
615 00
615 00
627 50
630 00
630 00
632 50
645 00
645 00
645 00
669 00
113 50
$9 00
--------------
1, 030 96
1,311 39
1, 013 69
1,046 01
1,228 90
1,257 21
854 70
725 79
907 02
1,169 23
1,069 17
1,184 79
438 11
Expenses
---- ---------
$16 80
78 00
69 80
--------------
----- --------
--------------
------- -- ---
--------------
--------------
--------- ----
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
Net interim
earnings
--------------
$375 75
380 71
498 40
615 00
615 00
627 50
630 00
630 00
632 50
645 00
645 00
645 00
669 00
113 50
$9 00
----- --------
1, 030 96
1,311 39
1,013 69
1,046 01
1,228 90
1,257 21
854 70
725 79
907 02
1,169 23
1, 059 17
1,184 79-
438 11
Net
backpay
$1,107 42
790 07
738 37
592 46
494 76
518 00
523 50
593 00
418 00
532 50
573 00
522 00
549 00
590 00
63 50
8, 635.58
2,796 61
11,432 19
$1, 081 56
1,148 16
71 12
---------79 21
99 30
------- ------
--------------
177 42
421 51
292 51
--------------
106 65
54 94
79.90
Total Net Quarterly Backpay------_------------------------------------------------
Pension Insurance -------------------------------------------------------------------
3,612 28
1,442 56
Total Backpay as of 8/10/62-----------------------------------------------------------I 5,054 84
RICE LAKE CREAMERY COMPANY
Quarter
1959-1--------------------------
1959-2--------------------------
1959-3--------------------------
1959-4--------------------------
1960-1--------------------------
1960-2--------------------------
1960-3--------------------------
1960-4--------------------------
1961-1------------- --
1961-2-------------------------
1961-3--------------------------
1961-4--------------------------
1962-1--------------------------
1962-2--------------------------
1962-3--------------------------
APPENDIX-Continued
ERNEST VREELAND
Gross
backpay
$1,090 56
1,148 16
1,102 08
1,074 24
1, 092 90
1,145 31
1,133 51
1,204 45
1,032 12
1.147.30
1,199 53
1,149 26
1,175 82
1,239 73
259 99
Interim
earnings
$152 50
550 55
596 85
763 80
628 50
1,045 12
1,013 78
1, 027 66
641 86
964 09
1,194 04
901 78
825 04
1,079 43
162 00
Expenses
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
--------------
Net interim
earnings
$152 50
550 55
596 85
763 80
628 50
1,045 12
1,043 78
1, 027 60
641 86
964 09
1,194 04
901 78
825 04
1,079 43
162 00
Total Net Quarterly Backpay--------------------------------------------------------
Pension Insurance
Total Backpay as of 7/19/62----------------------------------------------------------
HOWARD WATERHOUSE
1959-1-------------------------
1959-2------------------------
1959-3--------------------------
1959-4--------------------------
1960-1--------------------------
1960-2--------------------------
1960-3--------------------------
1960-4--------------------------
1961-1-------------------------
1961-2-------------------------
1961-3--------------------------
1961-4--------------------------
1962-1-------------------------
1962-2--------------------------
1962-3--------------------------
$1,090 56
1,148 16
1,102.08
1,074 24
1,092 90
1,145 31
1,133 51
1,204 45
1,032 12
1,147 30
1,202 48
1,149 26
1,175 82
1,239 73
174 31
$758.50
832 00
920 70
900 00
975 00
975 00
975 00
1,050 00
900 00
975 00
1,050 00
1,060 00
975 00
900 00
150 00
$200 20
200 20
214 60
201 60
218.40
218 40
221 40
200 40
215 40
215 40
221 40
200 40
218 40
215 40
33 60
$558 30
631 80
706 10
698 40
756 60
756 60
753 60
849 60
684 60
759 60
828 60
849 60
756.60
684.60
116 40
Total Net Quarterly Backpay-------------------------------------------------------
Pension Insurance
Total Backpay as of 7/13/62----------------------------------------------------------
1169
Net
backpay
$938 06
597 61
505 23
310 44
464 40
100 19
89 73
176 79
390 26
183 21
5 49
247 48
350 78
160 30
97 99
4,617 96
1,351 45
5 969 41
$532 26
516 36
395 98
375 84
336 30
388 71
379 91
354 85
347.52
387.70
373 88
299 66
419 22
555 13
57.91
5, 721 23
1,101.32
6,822.55
783-13 3-66-vol 151-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
CARL WICKEN
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1059-3-------------------------- $508.80 -------------- -------------- $508.80
1959-4-------------------------- 1,074.24 $590.00 $41.30 $548.70 525.54
1960-1-------------------------- 1,092.90 662.00 55.90 606.10 486.80
1960-2-------------------------- 1,145.31 704.00 50.00 654.00 491.31
1960-3-------------------------- 1,133.51 120.57 1.70 118.87 1,014.64
1960-4-------------------------- 1,204.45 70.77 -------------- 70.77 1,133.68
1961-1-------------------------- 1,032.12 -------------- -------------- -------------- 1,032.12
1961-2-------------------------- 1,147.30 -------------- -------------- -------------- 1,147.30
1961-3-------------------------- 1,199.53 38.17 .60 37.57 1,161.96
1961-4-------------------------- 1,149.26 8.70 .60 8.10 1,141.16
1962-1-------------------------- 1,175.82 659.25 27.50 631.75 544.07
1962-2-------------------------- 1,239.73 783.00 32.50 750.50 489.23
1962-3-------------------------- 518.01 360.00 16.50 343.50 174.51
Total Net Quarterly Backpay------------------------------------------------------- 9,851.12
Pension Insurance------------------------------------------------------------------- 2,123.29
Total Backpay as of8/10/62---------------------------------------------------------- 11,974.41
Grand Foundries , Inc. and Sheet Metal Workers International
Association , Local Union No. 146, AFL-CIO. Case No. 17-CA-
2447. March 25, 1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner Thomas F. Maher issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in his attached
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 Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Fanning and Jenkins].
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 exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the modifications
indicated herein.'
1 We also find that Works Manager Furlani's promise of a wage increase to employee
Braden constitutes a violation of Section 8(a) (1) of the Act.
151 NLRB No. 118.