Tennessee Packers, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1966

158 N.L.R.B. 1316 (N.L.R.B. 1966)

1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other conditions of employment and, if an understanding is reached,
embody such understanding in a signed agreement The bargaining unit is
All production and maintenance employees at Respondent 's Grand Rapids,
Michigan , plant, excluding office clerical employees , professional em-
ployees , guards and supervisors as defined in the Act
WE WILL NOT coercively interrogate our employees concerning their union
membership , activities , or sympathies
WE WILL NOT inform our employees that we will not sign a collective-
bargaining agreement
WE WILL NOT threaten our employees with closing the plant if the Union
becomes their bargaining representative
WE WILL NOT suggest to our employees that the Union would not help
them but that a committee of employees within the shop should be formed
to represent them instead of paying an outside union to do so
WE WILL NOT promise our employees wage increases and more overtime
or other benefits if the Union does not become their bargaining representative
WE WILL NOT grant wage increases , hospitalization insurance benefits, or
other benefits, or announce a bonus system for the purpose of discouraging
the union activities of our employees
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of the rights guaranteed to them in Section 7 of
the Act except to the extent that such right is affected by the provisos in
Section 8(a)(3) of the Act
GORDON MANUFACTURING COMPANY,
Employer
Dated------------------- By-------------------------------------------
(Representative ) (Title}
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 500
Book Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No
226-3244
Tennessee Packers, Inc. Frosty Morn Division and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local 405 Case No 26-CA-1388 June 3, 1966
SUPPLEMENTAL DECISION AND ORDER
On June 28, 1963, the National Labor Relations Board issued a
Decision and Order in the above-entitled case, finding that the
Respondent had discriminated against certain named employees in
violation of Section 8 (a) (3) and (1) of the National Labor Rela-
tions Act, as amended, and requiring the Respondent to reinstate
the named employees to their former or substantially equivalent
positions and to make them whole for any loss of pay suffered by
reason of Respondent's discrimination against them 1 Thereafter,
the Board's Order was enforced by the United States Court of
1 143 NLRB 494
158 NLRB No 130
TENNESSEE PACKERS, INC FROSTY MORN DIVISION 1317
Appeals for the Sixth Circuit,' and a decree was entered on
January 8, 1965
On April 23, 1965, the Regional Director for the National Labor
Relations Board for Region 26 issued a backpay specification and
notice of hearing, and the Respondent filed an answer thereto
Thereafter, the Regional Director issued an amended backpay speci-
fication, and the Respondent amended its answers Upon appro-
priate notice issued by the Regional Director, a hearing was held
before Trial Examiner Robert L Piper for the purpose of deter-
mining the amounts of backpay due the claimants
On February 11, 1966, the Trial Examiner issued his Supple-
mental Decision, which is attached hereto, in which he found that
the claimants were entitled to the amounts of backpay therein set
forth Thereafter, the Respondent filed exceptions to the Supple-
mental Decision and a supporting brief
Puisuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins]
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial errors was committed 4
The rulings are hereby affirmed The Board has considered the
Trial Examiner's Supplemental Decision, the exceptions and brief,
and the entire record in this case, and hereby adopts the findings,
s N L R B v Tennessee Packers, Ino, Frosty Morn Dsv, 339 F 2d 203
s The Trial Examiner permitted the Respondent to amend its answer orally at the hear
ing, over a motion by the General Counsel for judgment on the pleadings, even though its
written amended answer filed prior to the hearing did not conform to the requirements of
Section 102 54(b) of the Board's Rules and Regulations, Series 8 as amended
4 We find it unnecessary to pass upon the correctness of the Trial Examiner's ruling
that the identity of the department in which the claimants worked had been determined
by the Board in the prior proceeding in this case, and affirmed by the court of appeals
and was therefore res Judicata Even accepting Respondent's offer of proof, rejected by
the Trial Examiner, we find that its evidence of the division of the claimants' work time
between certain departments during the year prior to their discharge is too speculative to
be of any probative value in determining the nature of their work and the amounts of
backpay due them for the period following their unlawful discharges The General Coun
eel's calculations, based upon earnings in the bacon department, in which the claimants
were admittedly working at the time of their discharges and to which the Board and court
orders required they be reinstated is not overcome by such speculative extrapolation and
the bare allegation that they would not have continued working in that department
Nor is there any merit to Respondent's reliance in its brief to the Board upon the
General Counsel's calculations in the original backpay specifications which were errone-
ously based on earnings in the smoked meats department First Respondent correctly
denied that the claimants were working in that department in its answer to the original
specifications Further, the amended specifications were then corrected to reflect earn
jugs in the bacon department, the department in which we found they had been working
when unlawfully discharged This contention of the Respondent must fail therefore, in
view of the record in these proceedings and its own admission in its original answer that
the claimants were not employed in the smoked meats department when discharged
1318 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
conclusions, and recommendations of the Trial Examiner, with the
modification below.5
[The Board adopted the Trial Examiner's Supplemental Decision.]
5 Respondent contends that , from the $280.65 in medical expenses allowed Hutchison
under its hospitalization plan for treatment of her dependent son during the backpay
period , there should be deducted the sum of $3 25 per month since May 1963, when a
change in the plan's coverage first required employee contributions in that amount for
dependency coverage We agree. Although the Trial Examiner found that the allegation
failed for want of proof, we find that the testimony of Superintendent Barnes as to the
date and amount involved in the change in the hospitalization plan is sufficient to support
the deduction sought by Respondent. Accordingly, we shall deduct a total of $65, or $3 25
per month for the 20 months running from May 1963 through December 1964, inclusive,
from the amount found by the Trial Examiner to be due Hutchison.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On June 28, 1963, the National Labor Relations Board issued its Decision and
Order (hereinafter called the Board Order),' finding that Respondent had dis-
criminatorily discharged Claudine Warren and Ophelia Hutchison and oidermg
Respondent to offer each of them "immediate and full reinstatement to her for-
mer or substantially equivalent position, without prejudice to any seniority or other
rights and privileges previously enjoyed" and make each whole for any loss of pay
suffered by reason of the discrimination. On December 18, 1964, the United
States Court of Appeals for the Sixth Circuit affirmed the Board's Decision and
Order,2 and on January 8, 1965, entered its decree (hereinafter called the court
decree ), enforcing in full said reinstatement and backpay provisions of the Board
Order.
A controversy having arisen over the amount of backpay due under the terms
of the Board Order and court decree, on April 23, 1965,3 the Regional Director
of the Board for Region 26 issued a backpay specification and notice of hearing.
Said specification alleged that neither Warren nor Hutchison had been reinstated
by Respondent, and accordingly the backpay calculations were limited to an interim
period from the dates of their respective discharges to December 30, 1964. On
May 21, Respondent filed its answer to the backpay specification, denying, inter
alia, that Warren and Hutchison had been employed in Respondent's smoked
meats department at the time of their discharges as alleged in the specification.
Relying upon said answer, and having ascertained that the Board had found,
affirmed by the court of appeals, that Hutchison and Warren had been employed
in the bacon department at the time of their discharges, the Regional Director on
June 7, issued an amended backpay specification and notice of hearing, alleging
that Warren and Hutchison had been employed in the bacon department at the
time of their discharges, calculating the amount of net backpay due them upon
the basis of average earnings in the bacon department instead of the smoked meats
department, and again alleging that neither Warren nor Hutchison had been
reinstated. •
On June 29, no answer having been filed to the amended backpay specification,
the General Counsel moved for summary judgment on the pleadings. On July 8
Respondent filed an answer to said motion and requested an extension of time to
answer the amended specification. On July 14, Respondent's motion for an exten-
sion of time to answer was granted, on July 15 Respondent filed its amended
answer, and on July 16 the General Counsel's motion for summary judgment was
denied . Contrary to Respondent's original answer, Respondent's amended answer
alleged that when discharged Warren and Hutchison -had been- regular employees
in the smoked meats department, not the bacon department. In addition to sev-
eral other affirmative allegations , Respondent's answer consisted principally of a
general denial of the allegations of the amended specification.
1143 NLRB 494.
2 N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Div., 339 F. 2d 203.
$ All dates hereinafter refer to 1965, unless otherwise specified.
TENNESSEE PACKERS, INC. FROSTY MORN DIVISION 1319
Hearing was held before Trial Examiner Robert L. Piper on September 22 at
Clarksville, Tennessee . At the opening of the hearing , the General Counsel moved
for judgment on the pleadings on the grounds that Respondent 's answer did not
conform to the requiremr.nts of Section 102.54(b) of the Board's Rules, which
provides, inter alia: ". . if the respondent disputes either the accuracy of the
figures in the specification or the premises on which they are based, he shall
specifically state the basis for his disagreement, setting forth in detail his position
as to the applicable premises and furnishing the appropriate supporting figures."
Although Respondent's :amended answer did not conform to this requirement, in
the interest of expedition and affording Respondent full opportunity to be heard
and to present its defense, Respondent was permitted to amend its answer orally
at the hearing. This amendment included the submission of two documents,
Respondent's Exhibits 1 and 2, to be attached to its answer, consisting of backpay
computations of the two employees for the alleged period upon the basis of aver-
age earnings in the smoked meats department, computed in a manner similar to
the appendixes attached to the General Counsel's specification computing the hack-
pay of the employees upon the basis of the bacon department.
In addition, Respondent amended its answer to allege that on May 8, 1963, it
had changed its hospitalization plan to require employees to make voluntary con-
tributions of $3.25 per month in order to secure dependency coverage, which
amount had not been subtracted from the claim for dependent medical expenses
for Hutchison contained in the General Counsel's specification. Respondent fur-
ther amended its answer to allege on information and belief that Hutchison and
Warren had not made proper efforts to seek employment to mitigate damages dur-
ing the backpay period. Both parties were represented by counsel and afforded all
rights of due process. A brief was received from the General Counsel. Upon the
entire record in the case and from my observation of the witnesses, I make the
following findings, conclusions, and recommendations:
A. The issues
1. The amended specification alleged that Respondent had not reinstated War-
ren and Hutchison as required by the Board Order and court decree and that
accordingly backpay computations were limited to an interim period, from the
dates of discharge to December 30, 1964. Respondent's answer denied that
Respondent had failed to reinstate Warren and Hutchison. The General Counsel
requests a finding that any backpay found for the period alleged be without pre-
judice to the employees' continued right to backpay thereafter until Respondent
offers them reinstatement as required by the Board Order and court decree. Thus
a principal issue is whether Warren and Hutchison have been reinstated as required
by the Board Order and court decree.
2. The principal issue with respect to the calculation of the interim backpay is
Respondent's contention that Warren and Hutchison were employed in the smoked
meats department rather than the bacon department at the time of their discharge.
This is contrary to Respondent' s original answer, which denied that Warren and
Hutchison were employed in the smoked meats department. The calculations in
the amended specification based upon the bacon department revealed a substan-
tially higher amount of gross backpay than those based upon the smoked meats
department.
3. Subsidiary issues with respect to the calculation of backpay are Respondent's
allegation that employees were required to contribute $3.25 a month for hospitali-
zation coverage of dependents, which amount was not subtracted from the medical
expenses claimed for Hutchison, and Respondent's contention, advanced at the
hearing, that in computing the average hours worked per week during the backpay
period by the employees in the appropriate department, Warren and Hutchison,
even though not employed, should have been added to the number of employees
in such department, thus increasing the number in the department by two and
correspondingly decreasing the average hours worked per week.
4. Another issue is Respondent's contention, alleged in its answer, that Respond-
ent did not lay off employees on the basis of seniority but on the basis of ability.
B. Failure to reinstate
Warren was discriminatorily discharged on September 29, 1962, and Hutchison
on October 2, 1962. The amended specification alleged that, although Warren and
Hutchison were hired by Respondent as new employees on July 16, 1964, Respond-
ent had never reinstated either as required by the Board Order and court decree.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Warren was subsequently laid off on October 17, 1964.) Although Respondent's
answer denied that it had failed to reinstate the employees as required. by the
court decree, at the hearing Respondent in substance. admitted that it' had not
reinstated the employees. Respondent's officials admitted that Warren and Hutchi-
son were hired in 1964 as new employees. Respondent's superintendent testified
that employees laid off'more than 30 days lost all seniority rights and started'anew
when recalled, and that this applied to Warren and Hutchison when rehired in
1964. In addition, Warren and Hutchison were reemployed at a rate substantially
below that which they would have been paid had they been reinstated to their for-
mer or substantially equivalent positions. The specification alleged, and the answer
admitted, that the employees in the bacon department had been given wage
increases to a base rate of $1.721/2 per hour before July 1964. Nevertheless
Hutchison and Warren were hired at the same base rate they had been receiving
when discharged in 1962, namely $1.621/2 and 1.60 per hour, respectively. Even
if they had been employed in the smoked meats department when discharged, as
contended by Respondent, Respondent's amended answer reveals that all of the
employees in the smoked meats department also had been raised to $1.721h per
hour before Warren and Hutchison were reemployed. Furthermore, on October 17,
1964, approximately 3 months after having been reemployed, Warren was laid off
by Respondent because of lack of work, although Warren had the greatest senior-
ity of all women employed by Respondent prior to her discharge. She "lost" her
seniority because she was hired as a new employee, as admitted by Respondent.
The Board Order and court decree required that Warren and Hutchison be
given "immediate and full reinstatement" to their "former or substantially equiva-
lent positions without prejudice to any seniority or other rights and privileges pre-
viously enjoyed." Hiring them as new employees with the loss of all seniority, at
a rate substantially below that which they would have been earning had they not
been discriminatorily discharged and which all of the other employees in the
department were earning , clearly did not constitute full reinstatement to their for-
mer or substantially equivalent positions without prejudice to any seniority or
other rights and privileges previously enjoyed .4 It is concluded and found that
Warren and Hutchison have not been.reinstated as required by the Board Order
and court decree. Thus Respondent's liability for backpay, i.e., to make them
whole, under the terms of the Board Order and court decree continues after the
backpay period set forth in the amended specification.
The General Counsel, in addition to requesting a finding that Respondent had
not reinstated the employees as required by the Board Order and court decree,
also requested an order directing Respondent immediately to offer them rein-
statement in writing. This would appear to be both a redundancy and beyond
the jurisdiction of the Board, inasmuch as the outstanding court decree orders
Respondent to immediately reinstate both employees to their former or substan-
tially equivalent positions. The Board is neither empowered to grant, nor the
appropriate forum in which to seek, enforcement of the court decree. The
method and proper procedure for instituting contempt proceedings are well
established.
C. The department of prior employment-bacon vis-a-vis smoked meats
The original specification alleged that Warren and Hutchison had been employed
in the smoked meats department at the time of their discharge, and accordingly
the backpay calculations were based upon the average earnings of the employees
in that department. Respondent's original answer denied that Warren and Hutchi-
son were employed in the smoked meats department when discharged. Pursuant
thereto, and after examination of the Board's Decision and court decree, the
amended specification alleged that Warren and Hutchison had been employed in
the bacon department at the time of their discharge, and the attached backpay
calculations were based upon the average earnings of the employees in that depart-
ment. Respondent's amended answer then denied that the employees had been
employed in the bacon department, and alleged that they had been employed in the
smoked meats department, exactly contrary to its original answer. (The backpav
calculations based upon the bacon department resulted in net backpay figures of
over a thousand dollars each more than the backpay calculations based upon the
smoked meats department. Because of incentive earnings, the average earnings of
the employees in the bacon department were substantially greater than those in the
4 Thomas J. Ayoook, Jr., an individual, d/b/a Vita Foode, 154 NLRB 1716.'
TENNESSEE PACKERS, INC. FROSTY MORN DIVISION 1321
smoked meats department.) The Board's Decision, affirmed by the court, found
that both employees were employed in the bacon department and had been for a
number of years at the time of their discharge. The issue was litigated in the
prior proceeding, found by the Board, and affirmed by the court, and thus the fact
found is res judicata.5 It cannot logically be contended that such finding was a
subsidiary or unimportant issue which was not litigated, inasmuch as the customary
order issued , as it was here, when employees are found to have been dis-
criminatorily discharged, includes reinstatement to their former position and back-
pay based upon such position. Thus determination of the former position is a
prerequisite to determining whether an employee has been reinstated to his for-
mer position and to calculating the amount of backpay lost and is a finding essen-
tial to an appropriate disposition of the matter.
At the outset of the hearing, the General Counsel objected to the receipt of
proof from Respondent that the discriminatees had been employed in the smoked
meats department when discharged, on the grounds that this issue had been decided
by the Board and court and hence was res judicata. The objection was sustained.
Respondent's answer, as amended at the hearing, included calculations of backpay
set forth in Respondent's Exhibits 1 and 2 based upon the average earnings in the
smoked meats department. Respondent made various offers of proof throughout
the hearing in support of its contention that the employees had been employed in
the smoked meats department, including its calculations of backpay. Respondent's
calculations based upon average earnings in the wrong, or smoked meats, depart-
ment thus are immaterial to a calculation of the interim backpay due and do not
meet the requirements of the Board's Rules. Respondent did not produce any alter-
nate calculations based upon data from the bacon department, or dispute the accu-
racy of the General Counsel's calculations based upon the average earnings of that
department. It is concluded and found that, as previously found by the Board
and affirmed by the court, Warren and Hutchison were employed in the bacon
department at the time of their discharges. It is further found that the backpay
calculations in the amended specification properly were made upon the basis of
the average earnings in that department.
D. Respondent's layoff policy
Respondent 's answer alleged that it did not have a layoff policy based on senior-
ity but instead had a policy of layoff based upon ability. The General Counsel
also objected to any proof in support of this allegation, again upon the grounds
that the issue was res judicata. In the original Decision the Board found, and
the court affirmed, that Respondent had a long established policy of layoff based
on plantwide seniority. As a matter of fact, Respondent so contended in the
original proceeding , as its principal defense to an alleged discriminatory layoff of
certain employees. The Board found that Respondent's contention was correct and
that the layoffs were not in fact discriminatory because of Respondent's observance
of its established seniority policy. The matter was fully litigated in the prior pro-
ceeding and the finding is res judicata. Accordingly, Respondent's offer to prove
a different policy of layoffs, based upon ability and factors other than seniority,
was rejected . Warren had more seniority than any other woman employee in the
plant. Hutchison had 31h years of seniority at the time of her discharge in 1962.
When Warren and Hutchison were hired in 1964 as new employees, none of their
seniority was restored. As a result Warren was again laid off 3 months later
because of a lack of work in the bacon department.
E. Alleged willful loss of earnings
Respondent's answer as amended at the hearing alleged on information and
belief that Warren and Hutchison had incurred willful loss of earnings by not
properly seeking employment to mitigate damages from the dates of their dis-
charges . The burden of proof on this issue is on Respondent,6 and it offered
no proof in support of this allegation. On the contrary, the record establishes
from the testimony of Warren and Hutchison their constant and repeated efforts
throughout the 21/4 years encompassed by the backpay period to seek and in some
instances secure other employment . Both of them made immediate applica-
tions at the State of Tennessee Employment Security office, which constituted a
6 Charley Toppino and Sons, Inc., 151 NLRB 1638.
0 I. Posner, Inc., 154 NLRB 202; Mastro Plastics Corporation,, 1,3G NLRB '1342.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continuing application for employment thereafter. Each of them reported regu-
larly to that State office. In addition, Warren was successful in securing employ-
ment in another city, Nashville. She was ultimately forced to abandon this
employment because of the danger involved. She was required to drive 45 miles
from Nashville to her home in Clarksville after work at 2 o'clock in the morning.
On one occasion she went to sleep at the wheel and on another was frightened by
being followed by some men in another car. Because of such dangers she termi-
nated this employment. Warren later secured two other jobs in Clarksville prior
to being hired as a new employee by Respondent.
Hutchison was unsuccessful in securing any employment until being hired as a
new employee by Respondent in 1964. Her records established that she made
some 68 separate applications for employment at various places during the relevant
period. Although she had continuing applications for employment at many places,
during a 6-week period around October of 1963, she did not specifically apply at
any new places because her young son had to undergo surgery for a serious injury.
Inasmuch as she had continuing applications filed at numerous places and testified
that she would have accepted employment if offered, this did not constitute a willful
loss of earnings during this brief period.? It is concluded and found that Warren
and Hutchison incurred no willful loss of earnings.
F. Gross backpay calculations
The General Counsel's amended specification calculated gross backpay on the
basis of the average hours worked in the bacon department each week, for the
calendar quarters from and including the last quarter of 1962 through Decem-
ber 26, 1964, multiplied by the then existing base rate of pay plus the average
hourly incentive earning for such weeks. The specification alleged, and Respond-
ent's answer admitted, that during the backpay period the base rate of pay in the
bacon department had been increased three times, to a final figure of $1.721/4 per
hour. (Respondent in its alternate calculations based upon the smoked meats
department also included and thus admitted the appropriateness of the pay
increases granted in that department during the backpay period.) Thus the
method of calculating the gross backpay of Warren and Hutchison was based upon
the average earnings per week of all the employees in the bacon department. This
is an appropriate and customary method of making such a determination. The
average number of hours worked each week during the backpay period was deter-
mined by dividing the total hours worked in the bacon department by the number
of employees in that department. The average hourly incentive earning was deter-
mined in the same way, by dividing the total hourly incentive earnings of the
employees in the bacon department by the number of employees in that depart-
ment. Thus in computing the average weekly earnings of the employees in the
bacon department and hence what would have been the earnings of Warren and
Hutchison absent the discrimination, the average number of weekly hours was
multiplied by the hourly base rate of pay plus the average hourly incentive earning.
Appendix A attached to the amended specification includes the calculation of
the average hours worked per week and the average hourly incentive earning.
Respondent's alternate calculations based upon the smoked meats department
(found hereinabove not to have been the appropriate department), did not include
any calculation of average weekly hours, although such average hours were used
in its calculation of gross weekly earnings. Apparently Respondent relied upon
the total weekly hours set forth in the Appendix A attached to the General Coun-
sel's original specification covering the smoked meats department. Respondent
contended that the average weekly hours computation should have been made by
dividing the total hours worked in the bacon department by the number of employ-
ees in that department plus two, i.e., Warren and Hutchison, thus resulting in a
substantially lower average hours worked per week than that calculated by the
General Counsel. This contention was based upon a theory that the bacon depart-
ment had available only a given amount of work each week, and if Warren and
Hutchison had not been discharged, the total hours worked would have been
divided am_.ig two more employees. This contention is without merit. It would
result in Warren and Hutchison receiving substantially less gross backpay then
anyone else earned in the bacon department during the relevant period. Clearly
,his would not make them whole for the loss suffered as a result of the
discrimination.
7 Mastro Plastics Corp., Supra.
TENNESSEE, PACKERS, INC. FROSTY MORN DIVISION 1323
' Respondent in its' smoked meats department calculations in each instance com-
puted the average weekly hours by dividing the total hours worked by two more
employees than were actually employed. , Respondent, offered no proof that, if
the amount of -work available in the bacon department did not warrant the reten-
tion of two more employees than were ; actually employed during the backpay
period, all of -the employees would have been retained and none would have been
transferred or laid off. , To the contrary, after. Warren's reemployment, in 1964
in: the bacon department, she .was subsequently laid off because of a lack of work.
Warren had more seniority than any other woman employee in the plant and
Hutchison had 31/2 years of 'seniority. If the amount of work available in the
bacon department did not require two more employees, a transfer or a layoff
would not have affected Warren and, Hutchison. In addition, in, all probability
there was a substantial turnover of employees in the bacon department during the
21/4-year period, which would have enabled Respondent to retain Warren and
Hutchison in that department and still maintain the same number of employees
which it had during the backpay period. Respondent's evidence with respect to
the smoked meats department. established that during the backpay period there
were - frequent changes in personnel, caused by various employees resigning, or
being discharged and being replaced. Assuming the merit of Respondent's argu-
ment, similar activity in the bacon department would in short order have resulted
in the personnel declining to the figure which Respondent actually maintained .dur-
ing the backpay period. If Warren and Hutchison had not been discriminatorily
discharged, there is no evidence in'the record that their pay for the backpay period
would have been substantially less than the average earned by all of the other
employees in the department. - Respondent's argument amounts to a bootstrap
operation designed to reduce substantially the average hours worked per week
and correspondingly the gross backpay due the discriminatees. Respondent offered
no calculations with respect to the bacon department and accordingly the General
Counsel's calculations stand unrefuted.
Respondent also contended that the General Counsel's calculations of average
hours worked per week were erroneous because those employees who worked less
than 24 hours in a given week were excluded in such weekly calculation. Such
a method of calculation has been approved by the Board.8 Patently in determin-
ing the average hours worked per week the inclusion of employees who work
less than 24 hours a week would distort the result and produce an average sub-
stantially below that actually worked by all of the other employees.
G. Net backpay calculations
Appendix A of the amended specification contains the calculations of the
average weekly hours and the average hourly incentive earning for each week,
from the fourth quarter of 1962 to and including the fourth quarter of 1964.
Although the amended specification alleges that the backpay period covered is
from the date of discharge of each employee to December 30, 1964, the actual
computations set forth in Appendixes^,A, B, and C terminate with the week end-
ing December 26, 1964. Accordingly this is the actual termination date of the
computations and the employees are entitled to backpay thereafter until reinstated.
Because Warren was, fired on September-29, 1962, 'and Hutchison' on October 2,
1962,, the first week of both backpay periods ended October 6, 1962.' Appendix B
contains the week by week computation of the gross backpay which would have
been earned by Warren absent discrimination: Appendix C contains the same
computation with respect to Hutchison. In each instance the weekly gross earn-
ings are calculated by multiplying the average weekly hours by each employee's
respective base rate of pay plus the average hourly incentive earning. Each
employee's hourly base rate of pay is correspondingly increased at the same time
and by the same amount of the raises in hourly pay which Respondent admitted
granting the employees in' the bacon department. Each employee's weekly earn-
ings in Appendixes B and C are then totaled for each of the nine quarters encom-
passed within the backpay period. To each,; quarter is added the appropriate
amount for vacation, holiday, and sick pay, "T" club savings, and Christmas
bonuses, as granted by Respondent to all employees in the bacon department.
This results in a total gross backpay amount for each of the quarters. There is
no dispute with respect to such vacation, holiday,, and sick pay, "T" club savings,
8 Herman Brothers Pet Supply, Inc., d/b/a Herman Brothers Bird Products, 150
NL$B 1419.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Christmas bonuses, inasmuch as Respondent included the same amounts in
its backpay calculations submitted as an amendment to its answer
In Appendix C, the computation of Hutchison's gross backpay, medical expenses
are also added, as specifically computed in Appendix D These occurred in the
third and fourth quarters of 1963 and the second quarter of 1964 They covered
hospitalization, operation, and medical expenses for Hutchison's dependent son
The total amount was approximately $280 Respondent had in effect for its
employees a hospitalization plan which included their dependents Respondent's
answer alleged that on May 8, 1963, it changed its hospitalization plan to require
employees to contribute $3 25 per month for dependency coverage Respondent
contended that this amount should have been deducted from Hutchison's claim
for medical expenses , although Respondent did not dispute the claim itself
Although alleged in its answer, Respondent offered no proof concerning the
amount of any required deduction Accordingly Respondent's allegation fails for
want of proof
1 Claudine Warren
After the calculation of Warren's gross quarterly backpay in Appendix B, the
amended specification sets forth Warren's quarterly gross interim earnings, expenses,
and net interim earnings , i e , gross interim earnings less necessary expenses
There is no dispute as to the amount of each employee's net interim earnings
inasmuch as Respondent adopted them in its backpay calculations submitted as an
amendment to its answer Net backpay amounts were then determined by sub-
tracting the net interim earnings from the gross backpay figures for each quarter
Warren's quarterly gross backpay, net interim earnings and net backpay, and
total net backpay due for the period from October 1, 1962, to December 26, 1964,
are as follows
Calendar Quarter Gross Backpav Net Interim Earnings Net Backpay
1962-4 $1,292 59 None $1 293 00
1963-1 943 66 None 944 00
1963-2 1,296 23 $232 19 1 064 00
1963-3 1,184 55 225 22 969 00
1963-4 1 352 69 None 1 353 00
1964-1 1 193 31 250 00 943 00
1964-2 1,306 31 359 26 947 00
1964-3 1 255 12 1 061 82 193 00
1964-4 1,268 52 281 18 987 00
Total net baokpay $8 683 00
2 Ophelia Hutchison
Hutchison's quarterly net backpay amounts were calculated in the same manner
as Warren's, by deductin* quarterly net interim earnings from her quarterly gross
backpay amounts Hutchison's quarterly gross backpay, net interim earnings and
net backpay, and total net backpay due for the period from October 3, 1962, to
December 26, 1964, are as follows
Calendar Quarter Gross Backp'ty Net Interim Earnings Net Backpay
1962-4 $1 313 01 None $1 313 00
1963-1 1 174 49 None 1 174 00
1963-2 1,232 47 None 1 232 00
1963-3 1 363 42 None 1 363 00
1963-4 - 1,468 26 None 1 468 00
1964-1 - 1,204 08 None 1,204 00
1964-2 1,327 29 None 1 327 00
1964-3 1 309 ad $620 14 689 00
1964-4 1,265 10 803 77 461 00
Total net backpay I 1 1 $10 231 00
MOSSGROVE MINING CO., INC. 1325
H. Conclusions and recommendations
It is concluded and found that the net amounts of backpay due to Warren and
Hutchison for the period from the date of their respective discharges to Decem-
ber 26, 1964, are, respectively, Warren, $8,683, and Hutchison, $10,231, plus
interest at the rate of 6 percent per annum on each quarterly amount as provided
in the Board Order and court decree, less any tax withholding required by law,
plus such further amounts of backpay as may have or may hereafter accrue from
December 27, 1964, to the respective date of a valid offer of reinstatement to each
employee by Respondent .9
Upon the basis of the foregoing findings and conclusions and upon the entire
record in this case, I recommend that the Board issue the following:
ORDER
Respondent, Tennessee Packers, Inc., Frosty Morn Division, its officers, agents,
successors, and assigns, shall pay to Claudine Warren the sum of $8,683 and to
Ophelia Hutchison the sum of $10,231, with interest to each at the rate of 6
percent per annum computed on the basis of the quarterly amounts of net back-
pay due, less any tax withholding required by law, as net backpay due„ each
under the Board Order and court decree for the period ending December 26,
1964, plus an undertermined amount of backpay from December 27, 1964, to the
respective date of a valid offer of reinstatement to each, plus interest at the rate
of 6 percent per annum computed in the manner provided herein, less any tax
withholding required by law.
0 N.L.R.B. v. Interurban Gas Co., 354 F. 2d 76.
Mossgrove Mining Co ., Inc. and United Mine Workers of America.
Case No. 6-CA-31k50. June 6,1966
DECISION AND ORDER
On April 15, 1966, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and the General Counsel filed cross
exceptions and a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3('b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Respondent's exceptions, the General
Counsel's exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
158 NLRB No. 137.