92 N.L.R.B. 1220 (N.L.R.B. 1951)

Sifers Candy Co.

National Labor Relations Board - Board DecisionsJan 10, 1951

92 N.L.R.B. 1220 (N.L.R.B. 1951)

In the Matter of EARL I. SIFERS, AN INDIVIDUAL DOING BUSINESS AS SIFERS CANDY COMPANY and TRI-STATE BAKERS, LOCAL UNION 363 AFFILIATED WITH BAKERY AND CONFECTIONERY WORKERS INTER- NATIONAL UNION OF AMERICA, A. F. L. Case No. 17-C-1387 SUPPLEMENTAL DECISION AND RECOMMENDATIONS January 10,1951 On November 26, 1947, the National Labor Relations Board, herein. called the Board, issued a Decision and Order in the above-entitled proceeding.' On November 29, 1948, the United States Circuit Court of Appeals for the Tenth Circuit, upon the Board's petition for en- forcement of its order, issued its decision enforcing the Board's order; and a decree to that. effect was entered on January 5, 1949. On October 24, 1949, on motion of the Board, the court entered its order authorizing the Board to hold a hearing, to make supplemental find- ings, and to render a supplemental decision and order, subject to the approval of the court, with respect to the reinstatement and back-pay provisions of the Board's order as enforced by the court. On Novem- ber 4, 1949, the Board directed that the record in this case be opened, and remanded the case to the Regional Director for the Seventeenth Region for the purpose of conducting a further hearing to determine the specific amounts of back pay due to the employees referred to in paragraphs 2 (c) and (d) of the court's decree, and to determine the specific action to be taken by the Respondent with respect to the reinstatement of those employees in the light of changes in circum- stances which have taken place at the Respondent's plant since the original hearing before the Board in this case. Pursuant to said remand, a hearing was duly held before Trial Examiner Reeves R. Hilton. On August 28, 1950, the Trial Examiner issued a Supplemental Intermediate Report finding inter alia, that the Respondent had not made valid offers of reinstatement to the employees who were locked ' 75 NLRB 296. 2 171 F. 2d 63. 92 NLRB No. 181 1220 SIFERS CANDY COMPANY 1221 out by the Respondent on April 23, 1946, and recommending that the Respondent make these employees whole by payment to them of sums of money computed according to a formula- set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ent filed exceptions to the Supplemental Intermediate Report. The Respondent's request for oral argument is hereby denied, as the record and exceptions, in our opinion, adequately present the issues and positions of the parties., 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 Sup- plemental Intermediate Report, the exceptions filed by the Respondent, and the entire record in the. case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications.. 1. We do not adopt the Trial Examiner's preliminary comments as to the appropriateness of the present remand. 2. The Trial Examiner found that the Respondent has not offered reinstatement to the employees listed in Appendix B, attached to the Intermediate Report, as required by the Board's order.3 Without passing on the Trial Examiner's credibility findings on that issue, we find that the letters offering reinstatement even if sent to all these employees, were not sent in good faith. Although Sifers testified that early in 1949 he directed that letters be written to the employees listed in Appendix B in accordance with the court decree, he further testified that he then refused to reinstate a number of employees who had requested reinstateme t, on the alleged ground that they were not qualified for the available positions. However, in view of the fact that no special qualifications were necessary for these positions,4 it is clear that the Respondent, even if he offered reinstatement to any of the discriminatees, had no bona fide intention of rehiring them, re- gardless of their qualifications. We find, therefore, in agreement with the Trial Examiner, that any offers of reinstatement to these employees were not made in good faith. Consequently, such offers of reinstatement, even if made, cannot toll the running of back pay.' IIn this connection ,, the Respondent requests that the Board consider certain exhibits attached to its exceptions as proof of the fact that it sent letters offering reinstatement to all the employees listed on Appendix B. Inasmuch as the Respondent did not offer these letters in evidence at the hearing , and there is no showing that such evidence was not available at that time , we cannot consider them. as part of the record . Moreover, in view of our disposition of the matter herein, the letters, even if considered , would not alter the result reached. 4 As found by the Examiner , the Respondent hired new, inexperienced employees to fill a number of the jobs in its candy factory. 5Cf. Litchfield Manufacturing Company, 63 NLRB 545, 547; The Red Rock Company, 84 NLRB 521 , '4,29. 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Without passing upon the Trial Examiner's observations as to the "contemptious" conduct of the Respondent, we do not find it appropriate in the circumstances of this case to adopt the Trial Ex= aminer's recommendations (1) that the Respondent pay interest to the employees listed in Appendix A, attached to the Intermediate Report, or (2) that the Respondent pay interest on any net back pay due to the employees listed in Appendix B, attached to his report. 4. We do not adopt the Trial Examiner's recommendation that the Woolworth 6 formula for computing back pay on a quarterly basis be used in computing back pay in this case, as application of that formula at this time would retroactively change the terms of our original order in this case, as enforced by the court. However, in all other respects, we adopt the Trial Examiner's recommended formula for the com- putation of gross back pay, and his specific findings as to the gross back pay, expenses, and interim earnings of the individuals listed in Appendix B of the Intermediate Report. RECOMMENDATIONS Upon the basis of this Supplemental Decision and the entire record in the case, the National Labor Relations Board hereby respectfully recommends to the United States Court of Appeals for the Tenth Circuit: (a) That gross back pay be awarded to the employees referred to in paragraph 2 (c) of the court's decree from April 23, 1946, to the date the Respondent places these employees upon the preferential hir- ing list attached to the Trial Examiner's Supplemental Intermediate Report as Exhibit C ; and that such gross back pay be computed in ac- cordance with the formula set forth in the Supplemental Intermediate Report, except that the method for computing back pay on a quarterly basis enunciated by the Board in F. W. Woolworth Company, 90, NLRB 289, shall not be used; (b) That the interim earnings of each claimant as found by the Trial Examiner, less any expenses found by the Trial Examiner, shall constitute their interim earnings up to February 1949; (c) That the net back pay awarded each claimant shall be computed by deducting the interim earnings from the gross back pay.7 (IF. W. Woolworth Company, 90 NLRB 289.' 4 Attached hereto as Appendix I are the amounts found to be due these employees until February 1949. The Board is unable to make exact back-pay computations beyond that period on the present record. The court ordered that the Board fix, insofar as practicable,. the amounts of back pay to be paid these employees. We do not believe , however, that a remand to reopen the record for the purpose of obtaining more specific data to enable the Board to make such additional computations is advisable , because, until compliance is achieved, there will always be a subsequent back -pay period to be computed . Accordingly, we have made only such computations as are possible on the evidence that we have in the SIFERS CANDY COMPANY 1223= Chairman Herzog and Member Murdock took no part in the con- sideration of the above Supplemental Decision and Recommendations- APPENDIX I The back pay of the discriminatees listed in Appendix B of the In- termediate Report has been recomputed on the basis of obtaining net back pay by subtracting total adjusted interim earnings from total gross-back-pay. Final figures could be computed only for those dis- criminatees who had a cutoff date, either because they left the labor market or refused reinstatement. The net for these discriminatees is as follows : Gross Adj. interim Net Daisy F . Frazier: 1946------------------------------------------=------ - $428.91 None ----------------1947------------------------------------------------- ---------------- ----------------1948------------------------------------------------- if) ---------------- ----------------1949------------------------------------------------- ^2) ---------------- ----------------1950------------------------------------------------- ---------------- ---------------- ---------------- 428.91 None $428.91 Gladys Gilbert: 1946------------------------------------------------- 746.59 $384.42 ----------------1947------------------------------------------------- 371.08 366.33 ---------------- 1948------------------------------------------------- (1) ---------------- ----------------1949------------------------------------------------ 90.99 53.85 ----------------1950-- ---------------------------------- ------------- (3) ---------------- ---------------- 1, 208.66 804.60 404.06 Arminita Hodges: 1946------------------------------------------------- 861.03 795.50 ----------------1947- ------------------------------------------------ 643.72 403.34 ----------------1948------------------------------------------------- 85.22 88.88 ----------------1949------------------------------------------------- (1) ---------------- ----------------1950------------------------------------------------ ^3) ---------------- ---------------- 1,589.97 1,287.72 302.25 Nellie McKamin: 1946------------------------------------------------- 746.59 27.00 ----------------1947------------------------------------------------- 371.08 48.00 ----------------1948--------------------------------------------- (f) ---------- ------ ----------------1949------------------------------------------------ ^1 3) ---------------- ----------------1950------------------------------------------------- ---------------- ---------------- ---------------- 1,117.67 75.00 1,042.67 Jerry McKarnin: 1946-=---------------------------------------------- 1,081.25 None ----------------1947--------------- 155.57 67. 31 ----------------1948----------------------------------------------- (4) --------------- - ---------------- 1949------------------------------------------------ ---------------- ----------------1950----- ------------------------------------------- --------------- 1,236.82 67.31 1,169.51 1 No gross. 2 Reinstated March 1949. 3 Refused reinstatement March 1949. 4 Left labor market March 1947. present record. In the determination of net back pay subsequent to February 1949, it is recommended that the Respondent and the Regional Director follow the formula set forth in the Trial Examiner's Supplemental Intermediate Report, which, with the exception of .the application of the Woolworth formula, we have adopted herein. 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the other discriminatees listed in Appendix B for whom. back pay is due, the net back pay computed -through the last date for which data is provided by the record, is' as follows Gross Adjustedfactor Adjusted I interim Net through date indicated Merdick J . Carter: 1946---------------------------------------- $555.46 ------------ $591.42 None (1948) 1947---------------------------------------- (2) ------------ ------------ -------------------- 1948------------- --------------------------- (2) ------------ ------------ -------------------- 1949---------------------------------------- 23.61 1/13 ------------ -------------------- 1950---------------------------------------- ------------ ------------ -------------------- Russell R. Castell: 1946--- ------------------------------------- 555.46 ------------ 375.00 $180.46 (1949) 1947---- ------------------------------------ (2) ------------ -------------------- 1948- --------------------------------------- (2) ------------ ------------ -------------------- 1949---------------------------------------- (2) ------------ ------------ -------------------- 1950---------------------------------------- ------------ ------------ ------------ -------------------- Earl C . Connor: 1946- -------------------------------------- 417.88 ------------ 548.81. None (1949) 1947-- -------------------------------------- (2) ------------ ------------ -------------------- 1948--------------------------------------- (2) ------------ -------------------- 1949------------------------------------- (2) ------------ ------------ -------------------- 1950---------------------------------------- ------------ -------------------- Mildred Cranor: 1946--------------------------------------- 428.91 ------------ 86.15 342.76 (1948) 1947--------- ------------------------------- (2) ------------ ------------ -------------------- 1948 ----------------------- (2) ----- ------------ -------------------- - -------------- -- 1949---- ------------------------------------ 369.65 19/39 ------------ -------------------- 1950---------------------------------------- ------------ ------------ ------------ -------------------- James Ulery Gilbert: 1946- --------------------------------------- 555.46 ------------ 479.41 -------------------- 1947---------------------------------------- 442.51 ------------ 224.05 294.51 (1948) 1948---------------------------------------- (2) ------- ---- - ------------ -------------------- 1949-- -------------------------------------- 139.62 5/26 ------------ 1950--------------------------------------- ------------ ------- ------------ Louis Hodges: 1946---------------------------------------- 1,195.14 ------------ 305.86 -------------------- 1947- --------------------------------------- 901.88 ------------ 239.37 -------------------- 1948-- -------------------------------------- 1,287..68 ------- - 339.12 2, 500 . 35 (1948) 1949---------------------------------------- 797.02 7/13 ------------ -------------------- 1950- --------------------------------------- ------------ ------------ ------------ -------------------- Charles T. Hopper: 1946---------------------------------------- 1, 129.81 ------------ 822.21 -------------------- 1947---------------------------------------- 1948------------------------------------- 895.84 616. 25 ------------ ------------ 629.73 589.51 ------- 600.45 (1948) 1949---------------------------------------- 723.95 24/39 ------------ -------------------- 1950---------------------------------------- ------------ ------------ ------------ -------------------- R. E. Keele: 1946-------------------------------------- 815.31 ------------ None -------------------- 1947-------------------------------------- 582.27 ------------ 72.83 -------------------- 1948--------------------------------------- (2) ------- - ------------ 1, 324. 75 (1948) 1949---------------------------------------- 234.52 8/2s ------------ -------------------- 1950---- ------------------------------------ ------------ ------------ -------------------- Lloyd T. Lanferman: 1946------------------------------ ---------- 1,218.14 ------------ None -------------------- 1947---------------------------------------- 1,951.11 ------------ 1,030.34 -------------------- 1948 -------------------------- 874.271 ----- 378.281 2, 634. 90 (1948)---- -------- -- 1949---------------------------------------- , 960.09 27/52 , ------------ -------------------- 1950---------------------------------------- ------------ ------------ ------------ -------------------- McFarland:W 0. . 1946---------------------------------------- l-,081.25 ------------ 324. 75 -------------------- 1947---------------------------------------- 881.44 ------------ 368.52 1948---------------------------------------- 1949--------------------------------------- 145.43 598. 61 -------7/13- 127.88 1,286 . 97 (1948) -------------------- 1950---------------------------------------- ------------ ------------ ------------ -------------------- Sylvester McKamin:. 1946---------------------------------------- 1947---------------------------------------- 960.07 741.90 ------------ ------------ 308.14 223.04. ---------------------------------------- 1948 -------------------------- (2) -------- ------------ 1,170 . 79 (1948)------------- 1949---------------------------------------- 422.00 1/2 -------------------- 1950-------- -------------------------------- ------------ ------------ ------------ Footnotes at end of table. I Interim earnings for these employees for the years 1949 and 1950, should be adjusted by the number of weeks for which gross is computed , the same as has been done for previous years. The adjustment factor for the year 1949 has been indicated in the incom- plete computations listed above. SIFERS CANDY COMPANY 1225 Gross • Adjustedfactor Adjusted I interim Net through date indicated Loren A. Mathis: 1946---------------------------------------- 519.73 ------------ 367.53 -------------------- 1947--------------------------------------- (a) ------------ ------------ -------------------- 1948---------------------------------------- (2) ------------ ------------ -------------------- 1949---------------------------------------- (s) ------------ ------------ 152.20 (1949) 1950-------------------------------------- ------------ ------------ ------------ -------------------- Mesche:Nellie D. 1946---------------------------------------- 492.27 ------------ None - 1947---------------------------------------- 34.71 ------------ None - 1948---------------------------------------- (1) - 98 (1948) 1949---------------------------------------- 411.80 7/13 ------------ ------------ 1950---------------------------------------- ------------ ------------ ------------ -------------------- Ruth E. Moore: 1946---------------------------------------- 861.03 ------------ None - 1947---------------------------------------- 649.04 ------------ 44.23 -------------------- 1948 ---------------------------------------- 252.52 ------------ 33.23 1,685.13 (1948) 1949---------------------------------------- 592.87 33/52 ------------ ------------------- 1950---------------------------------------- ------------ ------------ ------------ -------------------- Johnny L. Ray: 1946---------------------------------------- 746.59 ------------ 175.51 ------------------- 1947 371.08 ------------ 388.37 -------------------- 1948------------------------------------- (1) ------------ ------------ -------------------- 1949---------------------------------------- 484.57 25/52 ------------ 553.79 (1948) .1950---------------------------------------- ------------ ------------ ------------ -------------------- Cecil St. Clair: 1946---------------------------------------- 555.46 ------------ 15 -------------------- 1947---------------------------------------- 67.80 - 1948---------------------------------------- (z) - 11 (1948) 1949---------------------------------------- 12.00 1/13 ------------ ------------ 1950--------------------------------------- ------------ ------------ ------------ --------------------- I "adj. interim" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the Respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 2 No gross. SUPPLEMENTAL INTERMEDIATE. REPORT AND RECOMMENDATIONS Mr. Martin Sacks, for the General Counsel. Messrs. Frederick G. Apt, and Howard M. Immel, of Iola, Kans., attorneys for the Respondent. . Mr. Boyd Prince, president Tri-State Bakers Local Union 363, of Joplin, Mo., for the Union. On November 26, 1947, the National Labor Relations Board, herein called the Board, entered its Decision and Order 1 in this matter wherein the Board found that Earl Sifers, an individual doing business as Sifers Candy Company, at Iola, Kansas, herein called the Respondent or Sifers, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The Board order directed the Respondent to cease and desist from engaging in such unfair practices and affirmatively required the Respondent to reinstate and make whole certain named employees, to post appropriate notices and to notify in writing, within 10 *days, the Regional Director for the Seventeenth Region (Kansas City, Missouri), what steps it has taken to comply with the terms of the order. On November 29, 1948, the United States Circuit Court of Appeals for the Tenth Circuit, upon the Board's petition for enforcement of its order, issued its decision a enforcing the Board's Order. and thereafter on January 5, 1949, entered its decree enforcing in full the order of the Board. 1 75 NLRB 296. 2 171 F. 2d 63. 929973-51--vol. 92=79 1226 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD .About October 21, 1949, the General Counsel of the Board filed a motion with the court requesting the issuance of an order authorizing the Board to hold a further hearing and to issue supplemental findings and orders on reinstatement and back-pay issues because of changed conditions at the Respondent 's plant and the inability of representatives of the Board and the Respondent to resolve compliance through informal negotiations. The court granted the above motion and on October 24, 1949 , entered its order authorizing the Board to hold a hearing , to make supplemental findings and to render a supplemental decision and order , subject to the approval of the court, with respect to the reinstatement and back-pay provisions of the Board's order as enforced by the Court. On November 4, 1949, the Board issued an order directing that the record in this proceeding be reopened and remanding the case to the Regional Director for the Seventeenth Region for the purpose of conducting a further hearing to determine the specific amounts of back pay due to the employees referred to in paragraphs 2 (c) and ( d) of the decree. and also the specific action to be taken by the Respondent with respect to the reinstatement of said employees in the light of the changes in circumstances which have occurred at the plant since the original hearing. On March 30, 1950, the Regional Director issued a notice of hearing in accordance with the terms of the Board's order . Copies of the Board's order and the notice of hearing were duly served upon the parties. Pursuant to the above notice, a hearing was held at Iola, Kansas, on April 25 and 26 , 1950, before the undersigned Trial Examiner , duly designated by the Chief Trial Examiner . The General Counsel for the Board and the Respondent were represented by counsel and the local union by its president . Full oppor- tunity to be heard, to examine and cross-examine witnesses , and to introduce evidence was afforded all parties . The parties , at the conclusion of the testi- mony, were given an opportunity to argue orally before the undersigned but declined to present any argument . Although advised of their right to file briefs with the undersigned , the parties have not done so. It is noted that the only formal pleading introduced by the General Counsel was a copy of the notice of hearing which simply recites ' the substance of the Board's order of remand . Copies of the decisions of the Board and the Court were not available to the Trial Examiner at the hearing , although counsel for the Respondent did produce a copy of the decree. These decisions, under orderly procedure, should have been produced so that the Trial Examiner would have had an opportunity to examine the same and thereby have a better under- standing of the issues to be litigated , as well as the background and basis for the remand. Of course, the Trial Examiner may take judicial notice of these deci- sions but where, as here , that privilege must be exercised after the hearing, it obviously becomes meaningless and of little value. The Proceeding on Remand At the outset of this hearing, counsel for the General Counsel, herein called the General Counsel, in outlining this position in this proceeding stated that he would offer "no specific formula for determining back pay ,". nor would he take any stand in respect to the "correct measuring period" for computing the same but would simply present relevant evidence to support whatever "formula or measuring period or time period is selected " • by the Board. Counsel for the Respondent proposed , in substance , that the employees refused. reinstatement be made whole for losses by payment to them of a sum of money . equal to that each of them would normally have earned from the date of the Respondent's acts SIFERS CANDY COMPANY 1227 of discrimination, April 23, 1946, to February 14, 1947, when it allegedly changed its operations, exclusive of periods when the Respondent's plant was on a single-shift operation, less the net earnings of each employee, as well as amounts received as unemployment compensation during the above period, and less pay- ments for 3 days already made to the employees. Whether the foregoing formula was submitted by the Respondent to the Regional Director or Regional Office prior to being stated at the hearing cannot be ascertained from the record. Neither does the record reveal just what steps were taken by the Respondent to comply with the decree nor what efforts were made by the Regional Director to secure compliance therewith on the part of the Respondent. In this respect, counsel for the Respondent declared that a meeting was held between repre- sentatives of the Respondent and the Regional Office 2 or 3 weeks after the entry of the decree for the purpose of discussing the Respondent's compliance .with the terms thereof. Whether at this meeting or a subsequent meeting it is not clear, but seemingly about that time the Regional Office suggested to the Respondent that it adopt the so-called "Ford Formula"' as a basis for its determination of back pay due to the employees. The Respondent rejected this formula because it believed that back pay was "computable on a mathematical certainty," provided the Respondent was furnished with a sworn statement from each employee showing his earnings from other employment during the period he was unlawfully unemployed by it, which statements, with 1 or 2 exceptions, were never submitted to the Respondent. The General Counsel did not question the foregoing assertion except to the extent that 23 of the 24 affidavits executed by the discriminatees showing their respective interim earnings (which were received in evidence) had been in the possession of the Respondent for more than a year preceding the date of this hearing. This statement in turn was not challenged by the Respondent. Presumably the Respondent and the Regional Office engaged in some negotiations with the object of securing compliance with the decree between January 5, 1949, the date of entry and April 25, 1950, the date of the hearing on remand, but the record fails to disclose the nature and extent of such negotiations, the proposals or counterproposals made by the parties, or the issues upon which they were in disagreement. It is true that the Respondent submitted a so-called formula at the hearing but whether it was offered to the. Regional Director prior thereto and what, if any, stand he took in regard to this formula is not stated in the record. Again, while the Respond- ent offered a formula it has failed and neglected to introduce a proposed back- pay computation showing the amounts due to the employees despite the fact that, according to the General Counsel, it has had in its possession for more than a year affidavits indicating the interim earnings of its employees and could therefore have readily prepared a mathematical computation based upon its own formula, regardless of whether or not the formula was a proper one. Similarly, the General Counsel has not only failed to submit a proposed back- pay computation but admittedly entered into this proceeding without position, formula, or issues. As a consequence of the above positions adopted by the Respondent and the General Counsel, respectively, the parties at this hearing 3 This formula was used by the Board in the Ford Motor Company case, 29 NLRB 873, 912. There it could not be determined which employees would have been reinstated after a layoff absent discrimination . The Board awarded to employees denied reinstatement a lump sum bearing the relation to the total wages paid to persons hired or reinstated from the reopening of the plant to the date of compliance that the number of discrimina- tees have to the total number of employees . at the time of the layoff , the lump sum to be divided among the discriminatees in proportion to their respective wage rates prior to the layoff , less the net earnings of each discriminatee in like proportion. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD simply introduced in evidence the payroll records of the Respondent, maintained on a weekly basis extending over a period of 4 years, affidavits setting forth the interim earnings of 24 discriminatees covering a period of approximately 3 years and other data showing dates of initial employment and purported offers of reinstatement made by the Respondent to the employees. From this mass of records the Board, must enter supplemental findings, which are subject to the approval of the court, setting forth an appropriate formula for determination of back pay and the specific amounts due to each discriminatee, and finally to determine what action should be taken by the Respondent in respect to the reinstatement provisions because of changed operating conditions at the plant. It is the opinion of the undersigned that the facts and circumstances of this case do not warrant a remand and thereby place upon the Board and the court the task of computing back pay, a duty which rests upon the Respondent. The motion for remand is bottomed essentially upon allegations that the Respondent reduced and later changed its plant operations and that "informal negotiations" between the Respondent and the General Counsel failed to resolve these problems. The motion further states that the request for remand "is in accordance with the procedure laid down in N. L. R. B. v. New York Merchandise Co., 134 F. 2d 949 (C. A. 2), and Wallace Corporation v. N. L. R. B., 159 F. 2d 952 (C. A. 4)-." While the New York Merchandise case supports the principle that the Circuit Court may properly remand to the Board, for further proceedings, questions concerning compliance with both the back- pay and reinstatement provisions of its decree, and the Wallace case adopts this principle insofar as back-pay provisions are concerned, yet it is doubtful if these cases constitute precedents for the instant proceedings since the facts upon which those remands were authorized by the courts are readily distinguishable from the facts herein. Thus, in the New York Merchandise case, the Respondent and the Board were unable to reach agreement in respect to compliance with the Board's order as to the amount due to one discharges as well as his reinstatement where the Respondent had no position available of the same grade and seniority as that held by the dischargee at the time of his discharge for which alone he was fitted. The Respondent in its motion for remand 4 denied any liability under the above provisions "except from the date of discharge, July 11, 1949, to the day when in any event its business necessities would have required it to dis- charge him, November 21, 1941; and it alleges that it has already tendered to him the money for which it owes him back pay during that period." In dis- cussing the scope and effect of the back-pay provisions of an order of enforce- ment the court stated that such a provision "cannot-be interpreted as preem- tory in the sense that it will support a proceeding to punish in contempt" but that it is "interlocutory" and that the Board must fix the amount due there- under as an "original tribunal and not as a surrogate of the court." The Court further held that the issues of "reinstatement-like back pay"-should also be left to the Board for determination. The Court, therefore, referred- these issues to the Board to enter supplemental findings. In the Wallace case, the Board, after entry of the Court's decree of enforce- ment, applied to the Court for an order authorizing it to hold a hearing and make findings "as to whether and to what extent ten of the employees wilfully in- The motion was filed during the pendency of proceedings to enforce the Board 's order. In its opinion the court stated that decision thereon would not be made until after entry of an enforcement order and then the issues of reinstatement and back pay would be referred to the Board. SIFERS CANDY COMPANY 1229 curred losses in their earnings , as to the amounts of back pay due to them, and as to whether the company's offer of reinstatement made to five of them- was in compliance with our decree." The court remanded the issue of wilfull losses as requested but clearly stated : "We are not referring to the determination of the Board the question as to whether or not the action of the company with respect to the reinstatement of the five employees has been in with our decree," and reserved to the court the exclusive right to determine this question in appro- priate contempt proceedings. The court further held, after discussing the rein- statement phase of the New York Merchandise case, that irrespective of whether the reinstatement provisions of an order are "final rather than interlocutory" the question concerning changed employment conditions at the plant should be referred to the Board for further findings. - The foregoing discussion plainly shows that the remand in each of the above cases was ordered only after the parties were unable to reach agreement upon the terms of compliance with the order of enforcement, and that clear, pointed issues had been framed ; therefore the only means of obtaining compliance with either by way of remand or 'contempt proceedings. These controlling factors do not appear in the present case. Further, there is little if any, evidence in- dicating the efforts made by the Respondent and the Regional Office toward working out the details of back pay and reinstatement under the order, the accomplishment of which, the court said in the Wallace case, "can ordinarily be done by negotiation" between the parties. Finally, the court in the New York Merchandise case, speaking upon the subject of remand, declared that: "Such a motion [for remand] should not be granted as of course -. The em- ployer has of course the right to be heard upon that question [reinstatement], and if the facts warrant it, the proceeding should be sent to the Board under Sec. 10 (e); but the•application should be scrutinized with jealousy lest it open the door to abuse_. _._." [Emphasis supplied.] . When it is considered that the proceeding fails to disclose any real negotiations between the Respondent and the Regional Director toward effectuating compliance with the decree, and where there is an absence of issues, formulas, proposed back-pay computations, or even a tender by the Respondent of back pay admittedly due in some amount to the .discriminatees, it seems reasonable to conclude that the application for remand in this case was improvidently made. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : SUPPLEMENTAL FINDINGS OF FACT A. The Board's order as enforced by the Court On November 26, 1947, the Board, upon appropriate proceedings, found that the Respondent discriminatorily locked out its employees from April 23 to April 26, 1946. For sometime prior to the lockout the Respondent had been operating on a two-shift basis but when it resumed operations on April 26, it was on a one-shift basis. On that date, the Respondent reinstated 23 employees 5 The application for remand alleged that the company offered reinstatement as required by the terms of the decree but that five of the employees upon reporting for work pur- suant to the offer , were not in fact reinstated because one department had been eliminated, and accordingly a serious question arose as to whether the company's offer of reinstatement conformed to the decree and whether back pay did not continue until they were effectively offered reinstatement. 1230 DECISIONS OF* NATIONAL LABOR RELATIONS BOARD on the single shift but' refused to reinstate the remaining 26 employees a The Board thereupon entered its order which directs, inter-alia, that the Respondent reinstate 23 employees named in Appendix B to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and discharging, if necessary, any new employees hired since April 23, 1946 (par. 2 (b) ) ; make whole each of the said 23 employees for any loss of pay he may have suffered because of the Respondent's discrimination, by payment to them of a sum of money equal to that which he would have earned during the period from April 23, 1946, to the date of his reinstatement, less his net earnings (par. 2 (c) ), and make whole 24 additional employees named in Appendix A who were locked out by the Respondent on April 23, 1946, and reinstated on April 26, 1946, (except.1 employee who was reinstated on August 12, 1946), for any loss of pay he may have suffered because of the Respondent's discrimination, by payment to him of a sum of money equal to that which he would have normally earned during the above-stated period, less his net earnings (par. 2 (d) ). B. The Respondents' contentions 1. The employees locked out on April 23, 1946, and reinstated on April 26, 1946, whose names appear in Appendix A of the order The Board, having found that the Respondent unlawfully locked out 24 of its employees for 3 days, directed the Respondent to make whole these employees, named in Appendix A (in this section referred to as the employees), for such period, less the usual deductions. Compliance with this phase of the decree, involving only the computation of 3 days' pay for 24 employees is certainly a simple matter and could easily have been accomplished in the space of a few hours had the Respondent been so disposed, but since the record reveals a contrary attitude it is necessary to set forth briefly the Respondent's actions in this respect. At this hearing the Respondent, Sifers, testified that he believed he had records which would show that the employees had been paid, whereupon his counsel stated that "we did pay all the people in Appendix A, for the period of April 23rd to April 26th; if they [General Counsel] will admit it, we will admit it." The General Counsel made no such admission and a short recess was taken during which time the Respondent Sifers apparently examined certain records at the plant. Upon resumption of the hearing the parties, through Sifers, introduced in evidence a list containing the names of 24 individuals indicating that back pay in specified amounts, covering the period of the lockout, had been made to the individuals on April 19, 1949. An examina- tion of this list plainly shows that only 3 of the 24 individuals are employees designated in Appendix A while the remaining 21 are employees mentioned in Appendix B of the decree. Despite this unmistakable showing, Sifers testified concerning the list and payment as follows : e The Respondent's payroll records for the week ending April 27, 1946, contain the names of 52 employees. Of this number 49 were production employees (as found by the Trial Examiner in his Intermediate Report) ; 1 was a supervisor Guy Ashwell, and 2 were clerical ( apparently Mary Smith and Elaine Miles since both names appear on the payroll of May 4, 1946 , but do not appear on Appendix A). As to the 2 remaining production employees , Charles Deen and Henry Lee Blane , the Board did not request reinstatement so their names are not included in Appendix A or B. Of course , they are not considered to this proceeding. SIFERS CANDY coM•PANY 1231 By Mr. SACKS. Q. Can you tell us, Mr. Sifers , whether this list contains the names of any of the individuals mentioned or named in Appendix A of the Circuit Court's decision? A. I wouldn't know. I don't know what was on the two. Q. Let me put it this way- A. Yes, sir. Q. There are two groups of individuals . One group was called back after three days ; Is that correct? A. Yes. Q. Now, do any of the individuals who were called back after three days appear on that list, if you know? A. I don't know whether they do or not, because I don't call to mind who was called back at that time. Q. Now, will you explain for us, Mr. Sifers, the fact that all but a few of those on Appendix A were not paid? A. Well , I cannot explain that. The girl that pays them was instructed to pay everybody, so why they weren't paid, I don't know. I didn't find it out until this noon that they hadn't been paid, all of them. Q. Did you ask the girl this noon or at any time for an explanation why this one group which substantially appears on Appendix A was not paid? A. No, I just asked her to give me a list of everybody that had been paid. Q. Yes. A. The three days pay, and that is the list that was furnished. Q. And where the list showed that approximately half of those who were entitled to payment did not get paid, did you ask your girl for any explanation of that fact? A. No. She just didn't pay them, that is all.there was to that, and she hasn't got it on the record. Considering the foregoing testimony in the most favorable light to Sifers, it plainly demonstrates that the Respondent made no serious effort to familiarize himself with the terms of the decree and his duty to the Court to honestly and sincerely attempt to carry out its mandate. On the other hand Sifers has attempted to shift his responsibility for compliance with the decree upon 1 of his clerical employees and also, in the opinion of the undersigned, misled or misin- formed his counsel concerning the payment of back wages of these employees, which conduct prompted counsel, in good faith, to make the assertion that these employees had actually been paid. Here the decree was entered on January 5, 1949, and as of April 25, 1950, the Respondent had not complied with the pro- visions thereof directing the payment of. back pay. to these employees. Clearly, this refusal or failure to do so constituted contempt of the court's decree. In the meantime, the Regional Office apparently took no action toward securing -compliance with the decree. Had the Regional Office contacted the employees within a reasonable period after entry of the decree, it would have discovered that they had not been reimbursed and presumably would have taken appropriate steps to effectuate compliance with this portion of the decree through contempt proceedings rather than to await the institution of remand proceedings. In any event the Respondent did not make whole these employees until May 1, 1950. The undersigned was advised of this action by counsel for the Respondent by 1232 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD letter' dated May 2, 1950, wherein it is stated that 19 named employees had been paid specified amounts and the remaining 5, 4 of whom worked as maintenance men during the lockout, had previously been paid. However, compliance with the terms of the decree 16 months after its entry, and then only after formal hearing, warrants the conclusion that the Respondent has not acted in good faith in ful- filling its obligations thereunder, but has exhibited a contemptuous attitude to- ward the Court. It is, of course, recognized that the power to punish for contempt for failure to obey the terms of a decree, is vested exclusively in. the Court in appropriate proceedings instituted by the Board (Amalgamated Utility Workers v. Consolidated Edison Company, 309 U. S. 261, 270), and that only remedial re- lief can be considered in this proceeding. In view of the unjustifiable delay in making whole these employees and in order to effectuate the policies of the Act, the just solution under these circumstances is to require the Respondent to pay interest at the rate of 6 percent per annum, as allowed by the law of the State of 'Kansas; to the employees named in Appendix A hereto, in the amounts stated, for the period February 1, 1949, 26 days after the entry of the decree, to May 1, 1950, the date on which payments were finally made. (N. L. R. B. v. Brashear Freight Lines, on contempt, 127 F. 2d 198, 200 (C. A. 8)) . 2. The employees locked out on April 23, 1946, and not reinstated, whose names appear in Appendix B of the order With respect to these employees, the Respondent concedes it is .liable for back pay for the period April 23, 1946, to February 14, 1947, the date of the lockout to the date it changed its product, less the usual deductions, and exclud- ing from the period the time during which the plant was operating on a single- shift basis.' It is undisputed and the undersigned finds that the Respondent, from some= time in 1943 until February 14, 1947, was continuously engaged in the manu- facture and sale of chocolate syrup. On the latter date the Respondent dis- continued the manufacture of chocolate syrup because of lack of market for its product, and commenced the manufacture of candy products, including at various times, marshmallow bars, chocolate covered bars, and hard candies, and was conducting such operations at the time of this hearing. At the time of the change in product, there was already installed at the Respondent's plant the machinery and equipment necessary in the manufacture of candy which the Respondent, after making repairs, used in its operations. The substance of the Respondent's position is that these employees would normally not have been employed except when the Respondent was operating on a two-shift basis, therefore when the Respondent was on a one-shift operation these employees would not have been employed. In an attempt to justify this formula the Respondent Sifers testified that when the plant was operating on a two-shift basis there was no interchange of employees between shifts, except occasionally, therefore the determination of back pay on a shift basis is appro- priate. In considering this formula it must be remembered that when the Re- spondent resumed operations on April 26, it reinstated 23 employees on the This letter is received in evidence and marked as Trial Examiner's Exhibit No. 1. e Toward the conclusion of the hearing counsel for the Respondent in restating his position in this respect admitted that the Respondent was liable for back pay during the period, it was operating on a two-shift basis and that the Respondent was: so operating, during the back-pay period, on the following dates : August 13 to October 12 ; October. 26 to November 9; November 25 to December 5; December 16 to December 24, all periods in 1946. SIFERS CANDY COMPANY 1233 single-shift and of this number, as the court points out in its decision, "19 had not joined the union, while 24 of the 26 employees not recalled had joined the union." At the previous hearing the Respondent sought to justify its selection of the employees reinstated on the ground that the employees were chosen on the basis of "individual efficiency," which contention was rejected by the Board and the court since the evidence disclosed that union affiliation and not com- petency was the determining factor in selecting the employees to be reinstated. The Board further found that the great majority of the employees not recalled "worked on the first-shift and that the Respondent knew that most of the first- slift employees had joined the Union on April 22 . But in resuming operations on a single-shift basis, the respondent deliberately broke up the first-shift and staffed the day shift with a majority of the second -shift employees ." ° [ Emphasis supplied.] If, as the Respondent Sifers testified, the Respondent had a policy of not transferring employees from one shift to the other, that policy was plainly -disregarded when it reopened its plant on April 26, 1946. Again, it cannot be accurately determined from the evidence the particular employees assigned to the respective shifts after April 26, 1946, or the precise policy the Respondent followed in selecting employees to be retained when it went from a two-shift to a one-shift operation. Further, the Respondent's payrolls do not support its shift theory or its assertion that there was no interchange of employees between !shifts. Thus, the Respondent Sifers, upon examination by the undersigned, testi- fled as follows : Q. Do you remember, would your payrolls reflect by shifts or by employees in alphabetical order? A. Well, I believe that they are separated, that is, probably all on the one sheet, but I believe that they are fairly well separated. I never fixed one in my life. Let me take a look at one of them. Q. All right, may we have general counsel's exhibits 2 through 6. [Pay- rolls from April 6, 1946 through April 29, 1950.] A. Yes, sir. I don't believe they do. This looks like that they are just mixed up. Q. You say this , you are referring to general counsel's exhibit 2-A-32. [Payroll for, week ending November 9, 1946.] A. Yes. Q. And they are mixed up on that ; is that correct? A. Well, I can't answer that. I can't tell whether they are or not. While the payrolls are "mixed up" as to shifts and employees, they do clearly show an interchange of personnel between shifts. Thus, the payroll records for the week ending August 17, 1946, the first time the Respondent went on .a two-shift operation after the lock-out, reveal- that when the second-shift was started, 10 of the 28 employees, or 36 percent of that shift had worked on the It is significant that the Respondent Sifers, in the teeth of the foregoing findings by the Board, and the clear language used by the Court, testified concerning the reinstatement .of the locked-out employees : "I think we called back all of the morning shift and I believe we called back maybe two or three of the afternoon shift to give us, working one shift we wanted a few extra people there ." Again, the Respondent Sifers, testified : "As nearly as I can recollect , we called back practically everybody off of the morning shift." It is -conceivable that Sifers may have been mistaken in his testimony. relating to the employees reinstated .' However, to the undersigned it seems that this is simply another indication that the Respondent has expressed little, if any, real interest to fully acquaint himself with the terms of the Board 's order and the Court's decree and his duty and obligation to carry out the provisions thereof. 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first-shift , the preceding week . Similarly , the payroll records for the week ending January 18, 1947, when the Respondent went from a two-shift to a full one-shift operation , disclose that 11 of the 29 employees on the first-shift, or 38 percent of the employees , had previously worked on the second -shift the week ending December 28, 1946. To adopt the shift theory would mean the complete elimination of the dis- criminatees from all periods of one-shift operations, thereby permitting the Respondent. to take advantage of its unlawful conduct and by allowing the Respondent to discriminatively select the employees for such operations, which selection , as previously made by the Respondent , has been rejected by both the Board and the Court . The Respondent 's argument that the discriminatees would have worked only on stated occasions is purely an argument of convenience, and without merit . In N. L. R. B. v. Reed & Prince Manufacturing Company (on contempt , 130 F. 2d 765 (C. A. 1) ), the company asserted that one dischargee would have been laid off in a normal reduction in force . even though it had not discriminatorily discharged him. In rejecting this defense the Court declared "Because of his labor activities Sullivan was unlawfully deprived of his posi- tion for the full four year period . What respondent . would have actually done as regards Sullivan 's employment [absent discrimination ] is, of course , a matter of hindsight." The evidence , therefore , not only fails to substantiate the appro- priateness or fairness of the proposed formula but plainly demonstrates it is not in compliance with the provisions of the Board 's order. . It is, of course , well established that the requirement of back pay is an appro- priate remedy under the Act ( N. L. R. B . v. Jones-Laughlin Steel Corp., 301 U. S. 1, 49-50 ) and the purpose thereof is twofold ; to discourage the discharge of employees contrary to the Act ( Waterman S. S. Corp. v. N. L. R. B., on. con- tempt, 119 F. 2d 760, 763 (C. A. 5 ) ), and to restore the dischargee to the position, as nearly as possible , to that which would have obtained but for the illegal discrimination (Eagle-Picher Mining & Smelting Co., 16 NLRB 727, 834 , enforced, 119. F. 2d 903 ( C. A. 8) ). In passing upon the power and discretion of the Board to award back pay as part of its remedial action against unfair labor practices , the Supreme Court, in Phelps Dodge Corp . v. N. L. R . B., 313 U. S. 177, stated, at pages 198-199: Making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces . . . The remedy of back pay , it must be remembered, is en- trusted to the Board's discretion ; it is not mechanically compelled by the Act. And in applying its authority over back pay orders , the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations . [cases cited ] The Board has wide discretion to keep the present matter [wilfull losses ] within reasonable bounds through flexible procedural devices... . Having determined that the remedy of back pay, and reinstatement since it is so closely intertwined with back pay (New York Merchandise case, supra, 951- 952), is appropriate and necessary in a given case, the Board is required only to use reasonable methods in selecting the formula to be adopted in effec- tively carrying out the terms of its order. Accordingly , in ordinary cases the amount of gross back pay due to the dischargee may be properly calculated on the basis of the average earnings of employees performing work similar to that previously performed by the dischargee from the date of his discriminatory STEERS CANDY COMPANY 1235 discharge to the date of a valid offer of reinstatement (Friedman-Harry Marks Clothing Company, 1 NLRB 411, 431, enforced 301 U. S. 58; Pacific Greyhound Lines, 2 NLRB 431, 458, enforced 303 U. S. 272; Armour and Company, 54 NLRB 1005, 1008, enforced 154 F. 2d 570, 577 (C. A. 10) ). In those cases involving a great number of dischargees and where it is not practicable or feasible to determine the exact employment conditions which would have prevailed in the absence of discrimination, the Board in the fixing the approximation of back pay has adopted the formula of awarding a lump sum of money to be divided among the dischargees and deducting from the amount each dischargee receives, the net earnings of each, in the same proportion as to his share of the gross award (Eagle-Picher Mining d Smelting Company, 16 NLRB 727, 837-838, 871, enforced 119 F. 2d 903, 915 (C. A. 8) ; F. W. Woolworth Company, 25 NLRB 1263, 1380- 1384, enforced 121 F. 2d 658, 663 (C. A. 2) ; Ford Motor Company, supra). The formula used in the ordinary back-pay case is inappropriate here for the reason that the Respondent's payroll records do not permit an accurate estimate of the gross back pay due to the discriminatees based on the earnings of the persons, both old and new, who worked during the back-pay period, since these records do not reflect which of such persons replaced a particular discriminatee, nor can it be ascertained precisely which of the discriminatees would have worked during the single-shift operation in view of the interchange of personnel between. shifts. In other words, a comparison on the basis of the earnings of a particular replacement for a particular discriminatee is not feasible becaused of the ""mixed up" records, and further, because there were no job classifications at the plant, except the general classification of men and women employees, whereby the dis- criminatees might be compared to replacements in specified job groups since all employees were considered simply as production employees of substantially the same skill and received the same rate of pay. Nor can gross back pay be com- puted on the theory that a discriminatee would have worked each and every time the Respondent had a position available for this would result in the complete elimination of the employees named in Appendix A from all employment, except when the respondent was operating on a two-shift basis. To assume that the Respondent would have allotted positions during the unemployment period exclu- sively to the employees named in Appendix B is wholly unsupported by. any evi- dence and, in fact, is contrary to the payroll records. Moreover, the Board's order of reinstatement does not require the Respondent to discharge, if necessary, the employees mentioned in Appendix A in order to provide positions for the discriminatees. The question to be determined therefore is, at what periods would the discriminatees have normally been employed, absent discrimination, consistent with the practices of the Respondent and the normal employment expectancy of the employees named in Appendix A. Of course, the lump sum award method could be applied in the present case, or theoretically in any case. However, to the undersigned it appears that this formula has been properly limited by the Board only to very complicated situations, involving large numbers of employees, and where it is not possible to determine the amount of back pay by any other means. While this case, as presented , certainly raises serious problems in computing back pay, it cannot be said that the facts compare to those which faced the Board in the Eagle-Picher, Woolworth, and Ford cases, supra, and which necessitated the adoption of the lump sum formula. Moreover, this formula was rejected by the Respondent on the grounds that it was inappropriate. While the acceptance or rejection of a particular method for computing back pay bears upon the question of the Respondent's good faith in complying with the terms of the Board order such action is not determinative as to whether the 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD method is correct and appropriate ( Waterman S. S. Corp., supra , p. 762). For these reasons the lump sum formula is believed to be inappropriate in this case. Obviously , the foregoing methods are not the only means by which back pay may be computed . On the contrary , the Board has not restricted itself to the use of "stereotyped formulas ." Thus, in Empire Worsted Mills, Inc., 51 NLRB 683, the Board on remand from the circuit court,10 entered supplemental findings of fact determining back pay upon the following theory : The Board rejected the company's contention that the discriminatees had been laid off because of lack of work and found that the company had a policy of spreading work among its employees . Since the discriminatees would have shared available work with the employees who did work , the Board determined back pay on the basis : ( 1) Where no new employee was hired to replace the discriminatees and no employee was transferred for such purpose, gross back pay was computed on the basis of the average earnings ,of the employees , including the discriminatees , in the discrim- inatee's occupation , during the back-pay period, the average being determined by dividing the total earnings of the employees working in a particular occupa- tion , plus the number of discriminatees in such occupation ; ( 2) where the dis- criminatee was replaced either by a new or a transferred employee , gross back pay was computed on the basis of crediting to each discriminatee a weekly aver- age determined by dividing the total earnings of the employees working in a particular occupation , plus the number of discriminatees in such occupation ; and (3 ) where the discriminatee was replaced either by a new or a transferred employee , gross back pay was computed on the basis of crediting to each discrim- inatee a weekly average determined by dividing -the total earnings of the em- ployee who worked in the discriminatee 's occupation by the number of such employees . Again , this formula is inapplicable to the facts in this case as the payroll records plainly show that there was no policy of spreading work among the employees during slack periods. The Formula Recommended for the Determination of Back Pay Consistent with the principles discussed above and in accordance with the court 's order of remand directing that the amounts of back pay be determined "insofar-as practicable ," upon the evidence adduced, it is the opinion of the undersigned that back pay for the period April 23, 1946, to February 14, 1947, shall be computed in the manner set forth below. The payroll records disclose that at various times the number of individuals who continued to work at the plant was less than the number of discriminatees. Since many of these individuals were old employees in point of service with the Respondent and a few were members of the Union , it cannot be said which of these individuals and which of the discriminatees would have been employed, absent discrimination , during such periods. Under the circumstances the only fair and equitable method of making such a determination is on the . basis that the available jobs would have been given to the employees , in separate classifica- tions of men and women, with the greatest length of service with the Respondent. At the hearing the General Counsel introduced in evidence a list showing the names and dates of employment of all persons named in Appendices A and B of the Board's order, who were employed by the Respondent on and prior to April f23, 1946, which list the undersigned finds is a proper basis for establishing 10 Order enforced , 129 F. 2d 668 ( C. A. 2). The decree was amended February 14, 1944, to incorporate back pay as computed in the supplemental findings of fact. SIFERS CANDY COMPANY 1237 the employees length of service with the Respondent n Therefore, the employees on this list would have normally worked during the back-pay period on such jobs as were available in the respective classifications in the order of their length of service or standing on the list. Gross back pay shall be determined on the basis of separate calendar quarters and shall be computed by dividing the total weekly earnings of all employees 12 in each classification by the number of such employees working. The weekly earnings thus averaged 's shall be the average weekly earn- ings each of the discriminatees would have earned, had each been employed in accordance with his or her standing on the length of service list. The amount of gross back pay, for these periods, due to each of the discriminatees is set forth in Appendix B attached hereto. The foregoing formula based upon length of service or seniority is fully justified by the evidence. It is true that the Respondent Sifers stated that the Company does "not necessarily" have a seniority policy, but it must be remem- bered that Sifers also testified that there was no interchange of personnel between shifts and the payroll records show otherwise. Although the Respond- ent may not have operated under a strict seniority system the payroll records disclose that the Respondent did recognize and follow an employment policy based, at least, in part upon seniority." Thus among the women, Ethel Frazell, who is first on the seniority list, worked steadily and consistently at all times even when the work was greatly reduced and was still working in 1950. Mabel 11 The list is attached hereto and marked Appendix D. 12 The jobs and earnings of Guy Ashwell and Mary Smith, plant superintendent and clerical, respectively, are excluded from the computation. The job and earnings of Elaine Miles, clerical, are also excluded up to the time she left the Respondent's employ- ment, June 8, 1946. The Respondent offered no evidence to show that she was replaced, so it is assumed that no replacement was hired. The job and earnings of Robert Lane are excluded as the payroll records show that from January 1.947 until April 1950, except for short periods of unemployment, he regularly earned but $5 per week. In the absence of any evidence to the contrary, it Is assumed he was a part-time employee. 13 In arriving at the average weekly earnings it is not assumed that the individuals who continued in the Respondent's employment worked every day during the gross back- pay period. This average was determined by computing the average weekly earnings of the employees actually employed, except those working less than 16 hours in a normal 40-hour work week. (Sec Harvest Queen Mill & Elevator Company, 90 NLRB 320; where the earnings were averaged on basis of employees working 24 or more hours per week.) It therefore reflects absences of various types including slack periods when less than normal hours per week were worked. 11 "The seniority principle is as old as the employer-employee relationship itself. It runs through many time-honored company policies such as pension plans and sick benefits and is often a controlling influence in the every day relationship of employer and employee. . . . However. the most frequent application of the seniority principle today has to do with a preferential treatment of employees in connection with lay-off, rehire and promotion based on their relative length of service. . . R. Douglas Dauterich, "Seniority Plans,". Personnel Journal, September 1939, Vol. 18, No. 3, page 114. "Seniority is applied to several aspects of employment and may readily be extended to other aspects. It is used In lay-offs, rehiring, promotions within a classification, pro- motions to supervisory positions, vacations, choice of shifts, selection of trips or runs, overtime work, special assignments, and a variety of specialized aspects." John A. Lapp, "How to Handle Problems of Seniority," National Foreman's Institute, Inc., New York, 1946, page 4. "One of the most frequently advanced techniques of approximating employment security is through a seniority system in which employment privileges are based upon an employee's length of service. Formal seniority systems have become so closely identified with unions that many believe they exist solely in unionized companies. But the Conference Board has found 110 non-union companies with well-defined seniority systems. . .." National Industrial Conference Board, Inc., "Seniority Systems in Non-union Companies." Con- ference Board Management Record, September.1949, page 385. 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ashwell, who was employed the same date as Frazell, was also similarly employed until she left the Respondent's employ in March 1949. Esther Townsend, num- ber three on the list, also worked consistently through 1950. Vera Brundage and Verle Briggs, number four and five on the list, worked steadily until they' left the Respondent's employ in February 1948 and February 1947, respectively. Likewise the following named men who are ranked from number one through seven on the Respondent's seniority list worked consistently and steadily until the dates they left the Respondent's employment, as indicated by the date opposite each name : Simon Coker_________________________________ June 1947 Joe Brundage________________________________ December 1948 Robert Jones________________________________ February 1947 Clem Allen__________________________________ August 1947 Fred Broom_________________________________ February 1947 Morris Paddock______________________________ August 1947 Joe Bruner__________________________________ February 1947 The Board in cases involving the reinstatement of strikers and discriminatees where fewer jobs exist at the time of reinstatement has heretofore used senior- ity as a proper basis for restoration of the status quo and in the determination of the order in which such individuals must be reinstated." But the application of the seniority formula does not seem to be limited to those instances where - fewer jobs are available at the time of the issuance of the order, for the Board, in the Remington Rand case, 2 NLRB 626, adopted this method, absent the fewer jobs problem. There the company by the closing of one plant, opening another, shifting equipment of still other plants, and transferring operations between plants, located at different places, "introduced factors" which made solution of the reinstatement problems more difficult because while the total number of positions approximated the number of positions existing prior to the strike, there was a radical alteration in the location of these positions. The Board therefore ordered the company to reinstate all the employees involved who were employed. on May 26, 1936, the date of the strike. The Board further directed the company, in carrying out this general order, to reinstate the employees "to their former classifications, on the basis of seniority by classifications," even though there is no mention of a seniority policy at the plant (and none in fact existed), where such positions were open or filled by employees hired after May 26, 1936. [Em- phasis supplied.] By this method, as far as possible, employees were reinstated in plants located in their own towns and those remaining were ordered placed upon a preferential hiring list "on the basis of seniority by classifications" and to be offered reinstatement at a designated plant, as well as other plants, provided positions were still available at the latter, after reinstatement of the strikers at those plants (ibid.). The order in this respect was enforced in N. L. R. B. v. Remington Rand, 94 F. 2d 862, 871-872 (C. A. 2). Thereafter, the Court, upon petition by the Board to adjudge in contempt, found that the company had vio- lated the reinstatement terms of the decree by failing to reinstate many of the strikers to their former positions in accordance with "The Remedy" above men- tioned (130 F. 2d 919). Having adjudged the company in the contempt, the Court ordered the company to purge itself by reinstating the employees as di- 15 Benjamin Fainblatt, et al., 1 NLRB 864, 877, 879 , 306 U . S. 601-603-604; S. L. Allen Company, 1 NLRB 714, 729-730; Republic Steel Corporation, 9 NLRB 219 , 403, enforced as modified (not now important ) 107 F. 2d 472, 478 (C. A. 3), reversed as to refusal to permit deduction of payments received from work -relief projects , 311 U. S. 7; J. A. Bentley Lumber Company , 83 NLRB 803 , 804-806, enforced 180 F. 2d 641 (C. A. 5). SIFERS CANDY COMPANY 1239 rected in the decree and by the payment of compensatory fines to stated employees based on the loss sustained from the failure originally to reinstate the par- ticular employee to his exact old job. Further support as to the appropriateness of the formula used herein may be found in N. L. R. B. v. American Creosoting Company, 139 F. 2d 193 (C. A. 6), certiorari denied 321 U. S. 797. In that case there were less jobs available for strikers upon termination of the strike due to lack of work and labor-saving devices. Accordingly, the Trial Examiner recom- mended that all available positions should be distributed among the employees following a system of seniority to such extent as applied by the company and the remaining employees for whom there were no immediate positions to be placed upon a preferential hiring list. With respect to back pay, the Trial Ex- aminer recommended that a lump sum be distributed among the employees in an amount proportionate to that received by each prior to the strike, computed from the date of the termination of the strike to the date of reinstatement, or being placed upon a preferential hiring list, less the usual deductions. The Board rejected the lump-sum theory and directed back pay for the entire unem- ployment period, without regard to whether the discriminafees would have been employed had there been no discrimination. The court in turn held that this method was punitive rather than remedial, hence beyond the power of the Board. The court thereupon approved the allowance of back pay on the lump- sum theory, but in doing so plainly pointed out the deficiencies of that formula when considered in the light of the seniority method applicable to the reinstate- ment phase of the order and stated, at the page 198, as follows: Thus it will be seen that inference of equal seniority among employees listed in schedule "A" may not be drawn, and it will also be seen that the application of the trial examiner's formula will not achieve mathematical precision in restoration of lost compensation to each of the men, for those with greater seniority may be obliged to share with those having less. In this situation remand to the Board for devising a remedy to more accu- rately compensate employees for lost wages might seem to be indicated. Contemplation of its difficulties, if not its utter impossibility, however, counsels otherwise ... Matured consideration therefore leads to the con- clusion that the trial examiner's plan, even though it fails to bring about mathematical precision in distribution of back wages, fairly achieves equi- table distribution, in View of the factual situation . . . Thus it arrives at restoration of the status quo as near as may be, under the circumstances. Under the formula selected the Respondent is liable for gross back pay for the actual positions it had available and-the average weekly earnings are com- puted upon the average wages paid by the Respondent to employees who worked at those positions during the employment period, which work would have been performed by certain of the discriminatees , absent discrimination. By the same token employees with high seniority who would normally have filled these po- sitions had they been permitted to work are not compelled to share their losses with employees who, because of low seniority, would have been employed less frequently in slack periods. This, of course, acts to the detriment of those employees some of whom receive little back pay, and one nothing whatsoever, but the purpose of such remedial action in the restoration of the status quo as nearly as possible, and not simply to make a general award to all discriminatees, irrespective of their employment expectancy, at the expense of those rightfully entitled to be made whole by reason of their being unlawfully deprived of jobs which they would have had because of their length of service with the Be- 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent . Nor can the Respondent seriously object to this method of computa- tion and distribution since it in no wise increases the amount of gross back pay,. but on the contrary the sum calculated upon this theory is not only more ac-. curate, as stated in the American Creosoting Company, case , supra, but is actually less than if computed on a lump-sum basis.16 It is therefore the opinion and finding of the undersigned that the formula selected , as set forth above, is. reasonable and equitable under all the circumstances of this case. 3. The Respondent 's operations on and after February 14, 1947 The Respondent asserts that on and after February 14, 1947, when it com- menced the manufacture of candy products , it refused to reinstate the discrimi- natees, except in a few instances , because the candy operations , unlike the manu- facture of syrup, required some skill and experience which the discriminatees did not possess. In an effort to support this contention the Respondent states that it employed but 6 of the 24 employees named in Appendix A in its candy operations, and they, only because of their previous experience. It is true that the Respondent did retain only 6 of these employees, but the payroll records also show that of the 24 employees named in Appendix A, 4 left the Respondent's employ before February 1947, 7 were dropped that month, and 13 continued to be employed thereafter . It may also be pointed out that 5 of the 6 employees mentioned by the Respondent as continuing to work in its candy process were employees having high seniority with the Respondent ." In the course of its candy operations the Respondent admittedly hired 9 new employees none of whom had any specialized experience in such operations . In respect to the hiring of new women employees the Respondent Sifers stated : That Gladys Blohm, inexperienced , was hired in March 1949 , because she was a good worker and helped bag and pack candy, which Sifers termed a skilled job; Ida Drake, who some years previously had worked for the Respondent's father, was em- ployed in March 1949 , because she was a "hand chocolate dipper, and I thought possibly that I would dip some hand dipped goods," although apparently she worked only as a wrapper ; Hazel McFarland , who also worked for the Respond- ent's father , was hired in March 1949 , as a wrapper because of her previous experience ; and Agnes Pearman, inexperienced , was hired in January 1949, because she was "a tall girl, [and] very good girl " and employed in the cool room, taking goods from the enrober and sliding them on trays. Concerning new men employed in the candy operations the Respondent Sifers testified that in January 1948 he hired Harold Romig but he could not even remember the employee much less his job or his qualifications ; Eugene Troxel was hired in October 1948 as a hard candy spinner and his experience in this work according to Sifers was, "Well, it seems like he told me he had worked for Loose Wiles in Kansas City"; Kenneth Daugherty , who had no previous experience , was hired in September 1948, as a helper and after 1 month's instruction under the plant superintendent he became a "fair spinner ," a skilled position, according to, Sifers ; Richard Pearman, inexperienced, was hired in October 1948, as a helper and about 1 week later the plant superintendent "broke him in as a spinner" and this job he held until about March 1949 , when he was transferred to operating an enrober machine, which Sifers called a skilled job ; and Harold Hern, inex- 19 Under this formula gross back pay from April 23, 1946, to April 1950 would amount to approximately $ 80,000. 17 These employees are Ethel Frazell , Mabel Ashwell , Esther Townsend , Vera Brundage, and Joe Brundage , discussed above. SIFERS CANDY COMPANY 1241 perienced , was hired in March 1949 , to wait on the wrappers and help move candy cases , which Sifers admitted was unskilled work. The evidence does not too clearly reveal the duties of the new employees but, obviously, the very fact that new and inexperienced employees could be trained in a short time to perform these jobs supports the conclusion that the duties required of these jobs could readily have been performed by the discriminatees. This conclusion is further substantiated in an authoritative document published by the United States Department of Labor in June 1939, entitled Job Descriptions for the Confectionery Industry. There the workers' qualifications are described in the following manner, at page xvii, of the Introduction : Except for those who cook candy, a few machine operators, hand dippers, fancy packers, and departmental foremen, workers in the confectionery industry need possess little skill or technical knowledge. However, some jobs require training and experience in order to reach desired production rate. The work is generally repetitive and monotonous, requiring only a certain dexterity and speed in performing a single operation or series of related operations over and over. . . . Because the work involves lifting and moving heavy batches of candy, men are usually employed in most of the cooking, mixing , and forming operations. Women are almost exclusively employed for hand packing and wrapping , hand dipping , and machine tending or feeding ( as opposed to, machine operation). As these latter operations employ the numerical majority of workers, more women than men find work in the industry. Educational requirements for employment are low, the ability to speak and read English usually being considered sufficient. The specific positions filled by the new women employees , namely, bag filler (Blohm ), wrapper '0 (Drake and McFarland ), and enrobing machine off -beaver m. (Pearman ), are, according to the same authority , beginning and intermediate- jobs, light , requiring no technical knowledge , nor any exercise of considerable.. degree of judgment and "can be learned and performed satisfactorily by work-. ers with little or no experience after they have been trained for short periods, which vary from a few hours to a few weeks according to the skill requirements. of the different jobs." The jobs for which . the new men were hired, spinner n, (Troxel, Daugherty, and Pearman) and enrober machine operator22 (Pearman), are classified as experienced jobs, heavy , and are the only ones in the industry- that require technical knowledge "gained only through an extended period of- training or by experience on related jobs." "Holds cellophane or wax paper bags, one at a time , under a discharge spout and steps; on a treadle , causing coated nuts ... or other confections to drop from hopper ... Into bag. 19 Folds or twists cellophane , tin-foil , or waxed -paper wrapping around individual candy bars . . . or other confections . May place each candy in a box, jar , or other container, after wrapping . Where wrapping is done by machine the operator feeds the machine with, candies to be wrapped or with strips of candy to be cut into pieces and wrapped. This. operation requires a little experience. 20 Slides coated candies from discharge belt-conveyors of an enrobing machine onto trays for cooling or packing. 21 Rolls and elongates hot, pliable masses of hard candy into thin rolls of strips using. gloved hands and batch- roller machine. . . . 22 Controls operation of one or more enrobers , which chocolate coat large quantities of- confections, by regulating supply and temperature of chocolates , starting and stopping.- machines , and keeping machines in good running order ; supervises workers who melt choco- late, feed confections on conveyers ; string coated pieces , and remove coated pieces ; is, responsible for steady and efficient production of machine -coated chocolates. 929979-51-vol. 92--80 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Thus, the Respondent 's argument that the women discriminatees did not have the necessary qualifications to perform the duties required by bag filler , wrapper, or enrober machine off beaver, all unskilled jobs, which were filled by new and inexperienced employees as well as employees named in Appendix A, is wholly without merit . Indeed, the Respondent did eventually reemploy 3 discriminatees, Daisy Frazier , Asminta Hodges, and Nellie McKarnin in March 1949, in similar jobs when it employed about 17 employees , but when the number of employees was reduced in April they were laid off. Thereafter , Frazier and McKarnin were reemployed for the period September to November 1949, and Hodges from No- vember 1949 to February 1950, and none have been employed by the Respondent since the date of their respective terminations . In contrast to the employment permitted the 3 discriminatees , the payroll records plainly show that the new employees , Blohm, Drake, McFarland , and Pearman worked steadily during slack periods when these discriminatees were laid off; e . g., in July 1949, they were employed when the Respondent had only a total of 10 or 11 production workers ; in August, Blohm worked the entire month and Pearman 1 week when the Respondent had but 4 or 5 production workers ; in September , Blohm, Drake, and Pearman were employed when there were 8 employees ; in January 1950, all were employed when 13 persons worked and Drake and McFarland worked 1 week when only 4 workers were employed ; in February substantially the same employment conditions prevailed as in the preceding month ; and in March, Drake, McFarland , and Pearman worked when 6 were employed and McFarland ( part time ) when 3 were working. In its treatment toward the men discriminatees the Respondent adopted the same policy as that applied to the women . Included in the positions which the Respondent had available were those of spinner and enrober operator which jobs were refused to the discriminatees on the ground that they were not qualified therefor . As appears in the foregoing job summaries these positions require some technical knowledge and experience . Had the Respondent actually hired new, though skilled, employees , in these positions there could be little com- plaint against such choice . But the Respondent did not hire skilled employees, instead he selected young and inexperienced workers, so his bare contention that the discriminatees were not qualified , without giving them an equal op- portunity with new men , is neither logical nor reasonable . Again , the Re- spondent stated that Ashwell, the plant superintendent , was able to teach these green employees the job of spinning in less than a month and the enrober operator in a matter of about 4 or 5 months . However, Sifers neglected to mention the degree of skill of efficiency attained by these hastily trained men, except that Daugherty became a fair spinner. It may well be that these em- ployees working as they were in a small plant and under the immediate direc- tion of Ashwell , who was an experienced candy maker and obviously the only supervisory employee at the plant , did not have to assume the full duties and responsibilities required of these positions in large candy manufacturing plants. Certainly , there is no indication that Pearman, the enrober operator , performed the supervisory duties mentioned in this operation as above described. More- over, the job summary of an enrober operator refers to the operation of "one or more enrobers " which , seemingly , in large plants would demand a high de- gree of skill and responsibility of the operator and would not be comparable to conditions at the Respondent 's plant where there was only one such machine which was , no doubt, operated under the immediate direction of the plant super- intendent . While the testimony of Sifers concerning the duties and skills of the new employees after their employment is general , vague; and fragmen- SIFERS CANDY COMPANY 1243 tary, an examination of the payroll records fails, in the opinion of the under- signed, to substantiate the Respondent's contention in respect to these skills and duties. Indeed the records disclose that these employees were engaged in jobs comparable in skill and earnings to other employees previously employed in the manufacture of chocolate syrup. Thus, Romig, whom Sifers could not even remember, was employed from January through May 1948, at $35 per-week, the same wage paid to Joe Brundage, whose name appears in Appendix A, dur- ing the same period. Daugherty, the spinner, was employed in October 1948, at $30 per week and from about the middle of October until April 1949, when he left the Respondent's employ, he earned $35 per week. Pearman, the spinner and later the enrober operator, was employed in October 1948, at $30 per week and from about the middle of October until March 1950, when he left the Re- spondent's employ,he earned $35 per week. Hern, the helper, was employed from early March 1949 until about the middle of April 1949, during which time he earned various sums ranging from about $6 to $29 per week. The records also reveal that George Sharp, an Appendix A employee, received the same rate of pay as Daugherty and Pearman, during the same period ; for instance for the weeks ending November 27 and December 4, 1949; each by working the same overtime, earned $50.08 and $54.68, respectively. Although Sifers testified that Pearman became an enrober operator in March 1949, the payrolls show no increase in his rate of pay but he received the same rate as paid to Sharp and Daugherty, in fact Pearman continued at the same rate of pay until he left the Respondent's employment about 1 year later. The evidence therefore not only fails to support the Respondent's contention that the discriminatees were refused reinstatement solely because of their lack of qualifications but on the contrary the payroll records reveal that both the new and old employees who were reemployed held jobs in the same general classification and received the same rate of pay. The Respondent's lack of qualifications argument, like that used concerning its refusal to reinstate the discriminatees during its chocolate syrup operations, is simply a matter of hindsight. Further, by refusing to give.the discriminatees especially the men, an opportunity to work in these jobs, the Respondent cannot now urge that the discriminatees were not qualified therefor. The position taken by the Respond- ent is somewhat analagous to the one adopted by the company in the Reed & Prince case, supra. There the company in contempt proceedings urged that the dischargee would have been laid off in the normal course of curtailment of its operations, although it did transfer a number of employees, with less seniority, than the dischargee to other departments. The company contended that there was no evidence to show that the dischargee was qualified to work in these de- partments, therefore, it argued, it could not be assumed that-it would have trans- ferred the dischargee had he not been unlawfully discharged. In overruling this contention the court held that it was proper to assume that the dischargee, an old and experienced employee was able to perform work in other departments where the jobs were at the same rate of pay as the dischargee was receiving at the time of his discharge and clearly stated, at page 709: "Particularly is this true when we consider that this employee had no opportunity to demonstrate to- his employers his ability to perform other tasks because of his discriminatory dis- charge." [ Emphasis supplied.] The Respondent's contention is therefore re- jected and it is found that the Respondent refused to reinstate the discriminatees as provided in the Board's order, although it had available jobs, because of their membership and activities in the Union and not because of any lack of skill or experience. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Formula Recommended for the Determination of Back Pay With respect to the method of computing back pay it is observed that com - plications arise from the sharp reduction in the Respondent's production force after February 14, 1947 , with the exception of a few peak production periods.. In view of the curtailment of operations it must be assumed that even had the Respondent selected employees for the layoff and recall upon a nondiscriminatory- basis some of the discriminatees would not have had steady employment and a,- few perhaps would not have been employed at all.. While the Respondent ob- served no strict standards in the recalling of employees it did use seniority to. a certain degree, although admittedly, the Respondent ignored this factor when- it. hired new and inexperienced workers in preference to the discriminatees.- Under all the circumstances , it is the opinion and conclusion of the undersigned,- that since the Respondent did not have sufficient available positions for all. of the discriminatees and the status quo as to each cannot be restored , unless the Respondent could effectuate the layoff and recall upon a nondiscriminatory basis, which it cannot now do, it is reasonable and appropriate to compute gross- hack pay from February 14, 1947, to the date that the Respondent places each, of the discriminatees upon a preferential hiring list, discussed hereafter. Gross back pay shall be determined upon the basis that available positions would have been alloted to the employees named in Appendix A and Appendix B, in separate classifications of men and women, in accordance with their standing on the Re- spondent's seniority list ( pp. 11-16, supra ), and shall be computed , by dividing the total weekly earnings of all the employees in each classification by the number of such employees working. In making this computation the positions and earn- ings of Guy Ashwell , plant superintendent , Mary Smith , clerical , and Robert Lane, . part-time employee are excluded for the reasons heretofore stated (p. 12, supra ): The amount of gross back pay due to each of the discriminatees for the period February 14, 1947, to December 31, 1948, or February 1949, as dis- cussed below, is set forth in Appendix B hereto. As set forth above, Dorothy Frazier, Arminta Hodges, and Nellie McKarnin. were reemployed in March 1949. While the undersigned is convinced that these employees were not afforded the same opportunities of employment as those given to new employees, since the General Counsel does not question the validity of their reinstatement, it is found that the Respondent reinstated these employees and therefore its liability for back pay ceased in March 1949. 4. The reinstatement of the employees listed in Appendix B of the order Paragraph 2 (b) of the Board's order directs the Respondent to offer to the employees named in Appendix B immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. At the hearing the Respondent Sifers -testified that letters' were addressed to Mildred Cranor and Ruth E. Moore, dated February 23 and April 24, 1949, respectively, in which the Respondent purportedly tendered re- instatement to these discriminatees. Although the record is not too clear, ap- parently, the Respondent contends that identical offers were made to each of the discriminatees, for Sifers further testified that he directed his office girl. to write letters "to people who they were supposed" to offer reinstatement and. as he recalled the letters were written. As the letters to Cranor and Moore bear different dates it is obvious that the offers were not made simultaneously. In an effort to explain why Cranor's letter is dated February 23, whereas Moore's letter is dated April 24, 1949, Sifers stated : "I don't think Mrs. Cranor lived here SIFERS CANDY COMPANY 1245 at the time. I think she lived at-that is, out of the country at the time. That possibly might account for that, and I don't think we had her address, maybe. I believe that is correct." Later, Sifers, in response to the direct question by his counsel if the February date was a mistake of the office girl, replied that it could be but that he did not know • because so much time had elapsed. The testimony of Sifers to the effect that offers of reinstatement were sent to each of the discriminatees is equally unconvincing. Again, in answer to a series of direct questions propounded by his counsel, Sifers declared that letters were written in compliance with the decree and to his knowledge they all went out at the same time. Whether the Respondent made valid offers of reintsatement to the discriminatees is a matter which the Respondent could easily have estab- lished by direct evidence rather than the hedging and equivocal testimony of Sifers. If Sifers, as his testimony infers, placed the responsibility of compliance with the reinstatement provisions of the decree upon his office girl, then she should have been called as a witness and testified as to the precise steps taken by her in this respect. Indeed, it would have been a simple matter to have produced copies of any offers of reinstatement made to the discriminatees, with an ex- planation as to the manner in which the offers were communicated to the discriminatees, the dates thereof and what, if any, responses were hadin answer thereto. But Sifers was content to rely solely upon' his own testimony and, seemingly, upon the false assumption that the change of product on February 14, 1947, automatically relieved the Respondent of any obligation. to reinstate the discriminatees. The absence of such evidence precludes a finding that the Respondent has offered reinstatement as required by the Board's order. Further, weighing the testimony of Sifers upon the question of reinstatement in the light of his previously discredited testimony that he had paid. back pay to the em- ployees entitled thereto in Appendix A, that he reinstated the employees on the first shift after the lockout, and that there was no interchange of personnel between shifts, it is the finding and conclusion of the undersigned upon the evidence adduced that the Respondent has not made valid offers of reinstate- ment to the discriminatees in accordance with the provisions of the Board's order. But assuming, arguendo, that each of the discriminatees received letters identical to those addressed to Cranor and Moore, the Respondent still would not be in -compliance with the terms of the order because the Respondent admits that it refused to reinstate the discriminatees solely on the grounds that they lacked the necessary qualifications to fill the available positions. Consequently, any such offers to reinstate were meaningless and were not made in good faith or with any intention of carrying out the actual reinstatement of the discriminatees. The Changes Recommended in the Reinstatement Provisions of the Order The purpose of this hearing, insofar as reinstatement is concerned, is to recom- mend the specific action to be taken by the Respondent in the light of the changes in circumstances which have occurred at the plant since the original hearing. Having found that the Respondent discriminatorily refused to reinstate certain of the employees listed in Appendix B when it had available positions it would seem proper to recommend the customary order of reinstatement. However, the payroll records for the latter part of March and April 1950, disclose that the Respondent had few, if any, positions available and there is no evidence indi- -cating the date when the Respondent -may be expected to resume operations, .accordingly, it would be futile to require the Respondent to offer immediate reinstatement to the discriminatees. Therefore, in order to effectuate the poli- cies of the Act, it is, recommended that the Respondent shall place upon a 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preferential hiring list in separate classifications of men and women, the names of the employees designated in Appendix B and Appendix A respectively, in the order of their seniority with the Respondent, excluding from the list the names of any employees contained in Appendix A whose seniority has been broken by absence from the payroll for a period of 12 consecutive months subsequent to April 23, 1946,2 and they shall be offered employment as work becomes available before other persons are hired for such. work 24 (N. L. R. B. Y. Remington Rand, Inc., 130 F. 2d 919, 925 (C. A. 2) ). The preferential hiring list as recommended is attached hereto and marked Appendix C 25 5. The interim earnings of the discriminatees At the hearing the General Counsel offered in evidence 24 affidavits, or state- ments, prepared by the discriminatees and submitted to the Regional Office showing their respective earnings and places of employment from the date of the lockout until about February 1949. Copies of these affidavits, with a single exception, were given to the Respondent more than a year preceding the hearing. The Respondent objected to the receipt in evidence of these affidavits on the 22 Republic Steel Corporation v. N. L. R. B., 114 F. 2d 820 (C. A. 3). Here the court held that absence from work for 6 consecutive months constituted a break in continuity of service for vacation privileges, resulting in loss of vacation or vacation pay. Rome Products Company, 77 NLRB 1217, 1238-1239. 24 Compare with the remedial relief granted in the following cases. Lewis d Holmes Motor Freight Corporation, 63 NLRB 996, 998-999, where the company reduced its oper- ations and all positions for which the discriminatees were qualified were presently filled by employees having greater seniority, the Board directed that discriminatees be placed upon a preferential hiring list and that they be offered reemployment as jobs became available, in the order of their seniority. In Stainless Ware Company of America, 87 NLRB 138, where the discriminatee's job as production clerk had been discontinued in a retrenchment program, the Board directed that.she be reinstated to that job if reestablished, or to a substantially equivalent job ; if no equivalent job was available, to a job as production employee with the right to promotion to her original job or its equivalent when available. In E. A. Laboratories, Inc., 86 NLRB 711, the Board ordered the com- pany to place unfair labor practice strikers on a preferential hiring list and not to dis- place replacements hired during strike,. since strike had been about 1 year previously and no application for reemployment had been made. In Pacific-Gamble-Robinson Com- pany, 88 NLRB 482, the employees went on strike on August 27, 1948, and on August 30 the company hired replacements at a higher rate of pay than that paid prior to the strike. At the time of the hearing former strikers as well as replacements were working. The Board entered its order of reinstatement in customary form, directing the company to reinstate the discriminatees (the strikers refused reemployment) and if necessary dis- missing all replacements hired on and after August 30, but not employees of the company on that date. The Board further directed that if, after such reduction, there were insuf- ficient positions available, all existing positions should be distributed among the dis- criminatees and the former strikers, following a system of seniority of such other nondiscriminatory practice as the company may have previously applied in its business. Any discriminates or former striker remaining after such distribution, for whom no work 'was immediately available, should be placed upon a preferential list and offered reemploy- ment as work becomes available before other persons are hired. 25 The following Appendix A men are not included in Appendix C because their seniority was broken by absence from the Respondent's payroll for a period of 12 consecutive months from the date appearing after their respective names : Clem Allen, August 1947; W. Howard Briggs, February 1947; Fred Broom, February 1947; Joe Brundage, December 1948; Joe Bruner, February 1947; J. W. Carpenter, August 1947; Simpson Coker, June 1947; Robert Jones, February 1947; Morris Paddock, August 1947; Forrest Sifers, August 1947; J. R. Sifers, June 1946; and George Spears, February 1947. In like manner, and for the same reasons, the following named women are excluded in Appendix C : Mabel Ashwell, March 1949; Vera Brundage, February 1948; Verle Briggs, February 1947; Ruth Holman, August 1947; Dorothy Japhet, June 1946; Erma Lewis, February 1947; Betty Lockart, December 1947; and Jeanette Schofield, November, 1946. SIFERS CANDY COMPANY 1247 ground that they are self-serving declarations and incomplete because they do not include amounts received by the discriminatees as unemployment compen- sation. Counsel for the Respondent declared that while he did not question the respective amounts of interim earnings as stated therein where substantiated by social security records, he did contest earnings reported but unsupported by such records, as well as those affidavits showing no earnings at all. The foregoing affidavits were admitted in evidence by the undersigned. It is also observed that five of the affidavits are not signed,26 but since no objection was interposed on this ground, it is deemed waived by the parties and the affidavits. are con- sidered and treated the same as if they had been properly executed by each of thediscriminatees. Again, the Respondent failed and neglected to adduce any evidence bearing upon its contentions with respect to the interim earnings of the discriminatees . Instead it has elected to rely upon the bare statements of its counsel concerning the contents of the affidavits. Clearly, these assertions carry neither the weight of evidence nor the force of argument. In the light of the Respondent's refusal to prepare back-pay computations or to make any tender of back pay to the discriminatees, despite the fact that it has had the foregoing affidavits for more than a year, it appears to the undersigned that the Respondent has assumed that the duty of working out the details of compliance with the terms of the Court's decree is upon the Board and until such time as the Board presents a formula acceptable to the Respondent it may sit back and do nothing whatsoever. In this the Respondent is mistaken . Here, the Respondent having been found guilty of flagrant violations of the Act, is directed and ordered by the court to take stated remedial action designed to eliminate the effects of its unlawful conduct and to restore the status quo, as nearly as possible. The court decree runs against the Respondent, not the Board, and the duty and responsibility of complying with its terms is upon the Respondent. The deci- sion in the Waterman Steamship case, supra, is in complete accord with this elementary principle. In that case the company, within a reasonable time after the entry of the decree, tendered and actually paid large sums of back pay to. the discriminatees computed on the basis of an erroneous formula. Thereafter; the Board sought to have the company adjudged in contempt for failure to comply fully with the terms of the decree since a great majority of the dis- criminatees , although receiving same back wages, were not fully compensated because of the erroneous method of calculation used by the company. The company urged as part of its defense that the Board (the Regional Office) had refused initially to give any assistance in the preparation of a proper formula,. hence the one adopted by it and the payment of large sums pursuant thereto was a bar to the contempt proceedings. In commenting upon this contention the court stated : "the Board is entitled to demand performance" on the part of the company but it should on request, and as the Board did so after some delay, "cooperate with the employer in framing a proper tender" of back pay,. otherwise the court would be "slow to punish as contemptuous unassisted tenders which are not in all respects correct but made in good faith." [Emphasis supplied.] The court, while refusing to adjudge the company in contempt, in substance directed it to make whole the discriminatees in accordance with the formula proposed by the Board. Thereafter the company did so. If, as the Court held, the submission of unassisted tenders on the part of the company, even though incorrect, is an indication of good faith, then it would seem that w Nellie McKarnin, Sylvester McKarnin , Jerry McKarnin ( who died July 10, 1948), Freida St . Clair, and Cecil - C. St. Clair. Nellie and Sylvester McKarnin testified at the hearing and admitted they neglected to sign their affidavits. 11 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the refusal or failure to make any tenders whatsoever is a plain manifestation that the company has not acted in good faith in the performance of its obliga- tions under the decree. While the undersigned is of the opinion that it would be proper to remand this case to the Respondent and the Regional Director for the purpose of preparing and submitting their respective proposed back-pay computations that procedure is not adopted for the sole reason that it would simply entail further delay in securing compliance with the decree. As previously pointed out, the affidavits show no interim earnings beyond February 1949, hence, it is impossible to compute net back pay subsequent to that date. The neglect of the Regional Director to secure current affidavits is further proof that the facts in this case did not warrant the application for re- mand filed in October 1949. But even after an order of remand was procured, still no effort was made to bring the interim earnings up to date, despite the fact that 6 months elapsed from that date to the date of hearing. Consequently, the objective of the proceeding is seriously handicapped, if not destroyed, because we now have a procedure wherein a hearing was held in April 1950, to determine the amount of back pay due under a decree entered in January 1949, but the determination is restricted to February 1949, by reason of the total absence of any evidence permitting a computation beyond that date. This is truly an anoma- lous situation. In the full acknowledgment that the affidavits, even as to mat- ters purportedly covered, are by no means entirely satisfactory, nevertheless they constitute the only evidence the parties saw fit to adduce in support of the interim earnings problem so, accordingly, they are accepted by the undersigned as the only basis for computing back pay, as stated in the order, "insofar as practicable." After the conclusion of this hearing, the Board issued its decision in F. W. Woolworth Company, 90 NLRB 289, wherein it adopted a new back-pay remedy which provides that interim earnings are to be computed on the basis of sepa- rate calendar quarters, beginning on the first day of January, April, July, and October, and earnings in one particular quarter shall have no effect upon back-pay liability for any other quarter. As the Board specifically stated the remedy is to he applied in "future cases," it would seem that the acceptance of this formula is not mandatory where, as here, the order antedates the decision and is in different terms. However, to the undersigned, the doctrine announced in the Woolworth case is sound and represents a reasonable and fair method of computing back pay. That doctrine is therefore followed in this case to, the extent that the affi- davits report interim earnings on a quarterly basis or where they may be com- puted on such basis with a reasonable degree of certainty. In those instances where the affidavits do not permit the adoption of that formula, net back pay is calculated without regard to separate calendar quarters. In the determination of net back pay subsequent to the periods included here, it is recommended that the Respondent and the Regional Director follow the remedy set forth in the Woolworth case. The Respondent's contention that benefits received by the discriminatees under the State Unemployment Compensation Act should be credited as interim earn- ings is rejected for it is well settled that such benefits are not "earnings" which, under the terms of the Board's order, can be deducted from the back-pay award (N. L. R. B. v. Marshall Field & Co., 129 F. 2d 169, 171 (C. A. 7), affirmed 318 U. S. 253). The Respondent's general assertion that it contests all of the affida- vits which show no interim earnings is also rejected since the Respondent adduced no evidence whatsoever in respect to losses wilfully incurred by any of the dis- criminatees and the affidavits disclose that the discriminatees did register with 11 SIFERS CANDY COMPANY .1249' the United States Employment Service, which action is conclusive that they made every reasonable effort to secure employment ( Ohio Public Service-Com- pany, 52 NLRB 725, 729, enforced 144 F. 2d 252 ( C. A. 6), certiorari denied, 324 U. S. 857; Harvest Queen Mill & Elevator Company, 90 NLRB 320). In determining net back pay the undersigned accepts as correct the earnings substantiated by social security records when there is any discrepancy between. that amount and the sum reported by the discriminatee. 6. Net back pay As appears above, gross back pay and interim earnings are computed on the basis of calendar quarters , where the evidence permits. In determining the amount of net back pay the earnings in a particular quarter shall not affect the Respondent 's liability for back pay in any other quarter. It follows that where the evidence shows that the discriminatees normally would not have been em - ployed in a particular quarter and are not entitled to gross back pay for that quarter there shall ' be no deduction of interim earnings . Fairmont Creamery Company, 64 NLRB 824, 829-830 , enforced , 143 F . 2d 668 (C. A. 10), certiorari denied 323 U. S. 752; South Texas Produce Company, 66 NLRB 1442 , 1443, en- forced 165 F. 2d 102 ( C. A. 5). Further, where the evidence discloses that the discriminatees normally would have worked only a portion of the quarter, interim earnings shall be "adjusted" in the same proportion and as "adjusted" shall be. deducted from the amount of back pay for that period . Thus, if a discriminatee would have worked but seven ( 7) weeks out of the thirteen ( 13) weeks in a given quarter , the Respondent shall be credited with seven-thirteenths (7/13) of his interim earnings for the quarter. The individual cases of the discriminatees are discussed in Appendix B and it is the finding and conclusion of the undersigned that the amounts found therein to be due to the respective discriminatees are, upon the evidence adduced at this hearing, just and reasonable. [Recommended Order omitted from publication in this volume.]