Valley Mold Co., Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1974

215 N.L.R.B. 211 (N.L.R.B. 1974)

VALLEY MOLD COMPANY
Valley Mold Company, Inc. andDistrict Lodge No. 13
of the International Associ„ition of Machinists and
Aerospace Workers, AFL-CIO. Cases 9-CA-5745
and 9-CA-5811
December 3, 1974
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On June 24, 1971, the National Labor Relations
Board issued its Decision and Order directing that Re-
spondent make whole certain employees for their losses
resulting from Respondent's unfair labor practices in
discharging or laying them off in violation of Section
8(a)(3) of the National Labor Relations Act, as
amended.' On December 16, 1973, the Regional Di-
rector for Region 9 issued a backpay specification and
notice of hearing, to which Respondent duly filed an
answer. A hearing was held before Administrative Law
Judge George J. Bott on January 29 and 30, 1974, at
Moraine, Ohio, for the purposes of determining the
amount of backpay due the discriminatees. On May 13,
1974, Administrative Law Judge Bott issued the at-
tached Supplemental Decision, in which he found that
the discriminatees were entitled to backpay as set forth
opposite their names in the Administrative Law
Judge's recommended Order. Thereafter Respond-
ent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the exceptions
and brief and has decided to affirm the rulings, find-
ing:,, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Valley Mokl
1 191 NLRB 498
2 In adopting the Administrative Law Judge's conclusion that Respondent
was not denied due process, we note especially the fact that as an &d-
Iudicated wrongdoer, the burden was on the Respondent to show any reduc-
tion in its backpay obligation The Board's rules provide an adequate proce-
dure to protect Respondent's rights Having failed to seek a continuance at
the close of General Counsel's case to seek further evidence other than
through the deposition procedure and having demonstrated an unwilling-
ness to abide by the procedures provided by the Board, Respondent cannot
now convincingly argue that it has been denied due process in any way, or
that it has been prejudiced by the application of the Board's rules in this
proceeding
211
Company, Inc., Englewood, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GEORGE J. Borr, Administrative Law Judge: On June 24,
1971, the Board issued its Decision and Order directing that
Respondent make whole certain employees for their losses
resulting from Respondent's unfair labor practices in dis-
charging or laying them off in violation of Section 8(a)(3) of
the National Labor Relations Act, as amended.' The
Board's Order was subsequently enforced by the United
States Court of Appeals for the Sixth Circuit on October 26,
1972. Controversy having arisen over the amounts of backpay
due under the terms of the Board's Order, on December 16,
1973, the Regional Director for Region 9 issued a backpay
specification and notice of hearing. On December 28, 1973,
Respondent filed an answer.
A hearing was held before me at Moraine, Ohio, on Janu-
ary 29 and 30, 1974. Briefs have been received from General
Counsel and Respondent.
Upon the entire record in the case and upon my observa-
tion of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I PROCEDURAL MATTERS AND RESPONDENT'S DUE PROCESS
CONTENTION
The case involves 8 backpay claimants who were found to
have been discriminatorily discharged by Respondent in Au-
gust 1970 and 17 claimants who were found to have been
discriminatorily laid off for a short period of time in June
1970.2
The backpay specification issued on December 14, 1973,
and on December 28, 1973, Respondent filed an answer in
which it stated in regard to ill the claimants that it was
"without knowledge or information sufficient to form a belief
as to the amounts of net interim earnings , the extent to which
the attempt to mitigate loss of earnings was timely, and
the extent to which the amounts claimed represent other
than a willful failure to minimize loss of earnings...."
On January 4, 1974, Respondent filed with the Regional
Director for Region 9 an application for the taking of deposi-
tions of the eight persons who had been found to have been
discriminatorily discharged.' The application noted a desire
to take the depositions before a notary public in the office of
Respondent's counsel, and stated that the persons sought to
be deposed would be examined on interim earnings and their
efforts to mitigate loss of earnings.
The Regional Director issued an order denying Respon-
dent's application to take depositions on January 10, 1974, on
the ground that good cause for the taking of depositions had
1 191 NLRB 498
2 Six of the dischargees were also laid off in June and are included in the
17
3 Glen Bowen, Mary Dafler, Shirley Hangen, Joanne Innis (Knox), Do-
rothy Johnson, Arthur E . Strange, Kathelene Strange, and Lana Woodgeard
(Moore).
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not been shown as required by Section 102.30 of the Board's
Rules and Regulations, Series 8, as amended, in that the
application did "not appear to be based on the illness or
unavailability of the witnesses," and the witnesses "reside
within reasonable proximity of the place of hearing **'' 1 1
The Regional Director in his order also stated that what
Respondent was actually seeking was "full pre-trial discov-
ery," which the Board has held, with court approval, it will
not permit in unfair labor practice cases.'
As already indicated, the heanng took place before me on
January 29 and 30, 1974. At the commencement of the hear-
ing, Respondent reiterated its objection to proceeding with
the hearing based on the Regional Director's denial of its
request to depose the claimants. General Counsel advised me
that all of the claimants were present and were available for
cross-examination, and I overruled Respondent's objection.
At the hearing General Counsel called as his witnesses all
of the eight claimants whom Respondent had sought to
depose and, having examined them briefly on their interim
earnings and efforts to find employment, turned them over to
Respondent's counsel for cross-examination. On cross-exami-
nation the claimants testified to having made unsuccessful
attempts to obtain employment at 29 different businesses.'
After General Counsel had rested. his case-in-chief, Re-
spondent moved for a continuance in order to take deposi-
tions from the employers whom the claimants had named as
employers where they had sought employment, and also
moved that, at a later date, after said employers had been
deposed, the hearing be reconvened and the claimants
brought back for further cross-examination.6
General Counsel opposed Respondent's motion, and I de-
nied it. In denying Respondent's motion I commented that
the motion was being considered in "its broadest aspects" as
counsel had stated it, noting further that Respondent now
wanted to depose all persons named by the claimants and
have the claimants return for further examination on the
basis of what might be discovered through the deposition
procedure. Upon denial of Respondent's motion, counsel for
Respondent declined to go forward on the ground that he felt
that he could not adequately defend Respondent because he
had been denied a reasonable opportunity to present a de-
fense.
Respondent filed a brief with me in which it repeated its
arguments that it had been deprived of due process of law by
being refused an opportunity to take depositions and to have
the hearing continued, and it asked me to reconsider my
ruling. Although Respondent had not asked only for time to
investigate the claimants' assertions that they had looked for
work at various establishments and for an opportunity to
present evidence on that issue at a reopened hearing, but had
instead reiterated its claim to a deposition procedure, never-
theless, on February 27, 1974, I wrote counsel for Respond-
ent and advised him that I would entertain a motion to reopen
4 On January 23, 1974, Respondent filed with the Regional Director
objections of Employer to order denying application to take depositions, to
which counsel for the General Counsel responded on January 25, 1974
5 The claimants also noted the existence of two union staff members and
two other persons who could corroborate their testimony about their job-
seeking efforts
6 Counsel also included in his motion a request that the hearing be con-
tinued to such time as the testimony could be transcribed and counsel had
an opportunity to read what the claimants had testified to.
the record for "a limited purpose," that is, to take evidence
from any employer named by the claimants. I also stated that
although a deposition procedure requested by Respondent
would not be followed, subpenas would be available to Re-
spondent, if the hearing were reopened, to insure the attend-
ance of employer witnesses at the hearing.
On March 14, 1974, Respondent filed a motion to reopen
the record, which I denied in a ruling made on March 20,
1974, on the ground that Respondent's motion to reopen and
the motion it made at the close of General Counsel's case-in-
chief were essentially identical.7 In my ruling I repeated
that I would, however, reopen the record to take admissible
evidence from any person or employer involved in, or claimed
to be involved in, the claimants efforts to secure employment.
I pointed out that the additional hearing, if held, would be
pursuant to the Board's Rules and Regulations, and that
subpenas would be available to Respondent prior to the hear-
ing. I also indicated that at the hearing I would consider
Respondent's request to recall the claimants if it were made
after Respondent had introduced any evidence it had bearing
on the claimants efforts to secure interim employment.
On March 27, 1974, Respondent filed a motion to reopen
the record "under protest," and it indicated in an accom-
panying letter that it would petition the Federal district
court, at Dayton, Ohio, for injunctive relief
On April 2, 1974, I issued an order reopening the record
for additional hearing to be held at Moraine, Ohio, on April
16, 1974, for the limited purposes previously stated by me.
On April 5, 1974, Respondent filed a complaint in the
Federal District Court for the Southern District of Ohio,
Western Division, and sent me a copy of it along with a
motion to suspend hearing date. In its complaint and applica-
tion for injunctive relief, Respondent asks the court to issue
an injunction ordering that "the Administrative Law Judge
(1) postpone the reopening of the hearing for a reasonable
time in order to accord Plaintiff sufficient time in which to
accomplish the requisite investigation, (2) permit the taking
of depositions in the matter, (3) issue subpoenas to all claim-
ants requiring their appearance at the re-opened hearing."
On April 11, 1974, for the reasons stated therein , I issued
an order withdrawing order reopening record for additional
heanng and closing record. A copy of that order is attached
hereto as Appendix.
Respondent contends that it has been deprived of its consti-
tutional right to a fair trial by the action of the Regional
Director in denying its application to take depositions from
the claimants prior to trial and by my denial of its motion for
a continuance at the end of General Counsel's case to enable
it to take depositions from employers or any other person
having evidence bearing on the claimant's efforts to secure
interim employment. I find no merit in this contention for the
following reasons:
First. Parties to judicial or quasi-judicial proceedings are
not entitled to pretrial discovery as a matter of constitutional
right,' and the Regional Director's action was in accord-
7 One of the purposes for reopening stated in the motion was, "To author-
ize the issuance to Respondent of subpoenas for the purpose of discovery
in the nature of that allowed under the Federal Rules of Civil Procedure,
including the taking of depositions "
8 NL.R B. v Interboro Contractors, Inc, 432 F 2d 854 (C A 2, 1970)
VALLEY MOLD COMPANY
ance with Board policy approved by the courts.' Since the
witnesses (claimants) whom Respondent wished to depose
were not unavailable and all lived reasonably close to the
hearing site, it would be no burden on anyone to have them
present at the hearing if necessary to testify . As appears,
infra, they did appear and were cross -examined by Respond-
ent. I find that the Regional Director did not abuse his discre-
tion by denying Respondent 's application.
Second . Respondent was not prejudiced by the rulings of
the Administrative Law Judge but was in fact afforded more
opportunities to prepare its defense than the law requires. As
stated , each of the principal claimants whom Respondent
sought to depose appeared and each of them was cross-exam-
ined at length 10 After the claimants had disclosed the
names of the employers at which they sought work after they
had been discharged by Respondent , the most that Respond-
ent was entitled to was a continuance for a reasonable period
of time to enable it to investigate the witnesses ' claims, but
it was not entitled to depositions after the close of General
Counsel 's case for essentially the same reasons on which I
have found the Regional Director 's denial of discovery
proper, that is, ( 1) discovery through depositions is not a
required practice in Board proceedings , and (2) there was no
showing that the employers or other persons the witnesses
had contacted in their efforts to get work would not be availa-
ble for trial."
Respondent did not , however , request a continuance to
conduct an investigation , but asked instead for a continuance
to take depositions from employers of other persons who
might have some evidence relating to the claimants ' efforts to
secure employment , a procedure it was not entitled to as a
matter of right . A motion that the hearing be continued for
a reasonable period of time so that Respondent might investi-
gate what the claimants had testified to would have been
granted , but, in my opinion , the motion made, including as
it did a requirement that depositions be taken and the claim-
ants be recalled at some indefinite time for additional exami-
nation , was properly denied.
Although Respondent did not make a specific , unqualified
request for a continuance for investigative purposes , neither
did I offer Respondent that opportunity . That Respondent's
failure to limit its choice was not an oversight is apparent
from its later actions , as described above, including its quali-
fied motions to reopen the record and its action in the Federal
court , but, in any case, subsequently I twice offered Respond-
ent an opportunity to call any employer or other person to
a reopened hearing, with subpenas available to insure their
attendance , to testify on the subject of the claimants' efforts
9 NL R B v Interboro Contractors, Inc, supra, 858, Globe Wireless, Ltd.,
193 F 2d 748, 751 (C A 9), Richard W Kaase Company, 162 NLRB 1320
(1968), 1321 fn 3, B B SA., d/b/a Burger Boy Food-O-Rama, 164 NLRB
975 (1967) See also Raser Tanning Company, 276 F 2d 80, 83 (C A 6,
1960)
10 All of the persons discriminatorily laid off were also available in the
courtroom for cross-examination, and some were called to testify by Gen-
eral Counsel on another issue
11 NLR.B v Interboro Contractors, Inc., supra See also N.L.R B v
Miami Coca-Cola Bottling Company, 360 F 2d 569, 576 (C A 5, 1966) One
of the claimants worked at an unidentified "body shop" in Tampa, Florida,
before he was reinstated by Respondent, but this is an insignificant detail
in the broader picture of Respondent's insistence on a general right to have
discovery Moreover, as appears below, I have allowed Respondent a credit
for the wages which that claimant earned at said employer
213
to find work, and I also indicated that the claimants might
be required to testify again under certain conditions. But
these terms did not satisfy Respondent, as its whole course
of conduct shows, and finally, convinced that Respondent is
unwilling to participate in a reopened hearing without first
going the deposition route, I revoked my order reopening the
hearing.
I am in total agreement with Respondent that procedural
due process requires a "meaningful hearing," 12 but we di-
verge at the point where Respondent maintains that only
through a deposition procedure in a backpay case can it
receive a fair hearing. Insistent on such a procedure, Re-
spondent has neglected another method, namely, a continu-
ance for a reasonable time and the use of subpenas Having
elected to maintain its position on depositions in disregard of
another no less meaningful way of proceeding, Respondent
cannot fairly contend that it was deprived of a fair hearing.
Third Respondent's argument that a deposition procedure
must be used because the alternative is more inconvenient,
inefficient, and costly is not impressive." According to Re-
spondent, if depositions are not permitted it would have to
subpena to the hearing every individual in every company
named by the claimants who "might" be a person contacted
by a claimant or have information about which of his fellow
employees might have been contacted. Respondent does not
make it clear why it cannot investigate first and subsequently
subpena to the hearing the actual person who has admissible
evidence to offer.
Respondent also maintains that a large number of compa-'
nies whose personnel might have been deposed on the com-
pany premises at a convenient time will be put to the expense
and inconvenience of having their personnel appear under
subpena at a hearing if depositions are not allowed, but this
argument overlooks the fact that the General Counsel and
each claimant are also entitled to appear at any deposition
taking, an inconvenience and expense greater by far than that
which would be incurred by any single company whose re-
presentative appeared under subpena.
Finally, the contention ignores an important consideration,
namely, that the persons deposed would still have to appear
before the Administrative Law Judge if credibility resolutions
are necessary, a needless duplication of effort and expense.
In my opinion, whatever merit there may be in the sugges-
tion that Respondent be given before hearing more informa-
tion than it is normally supplied about the claimants' efforts
to secure interim employment, a discovery practice after the
claimants have testified is certainly no less expensive and no
more efficient than the Board's present practice, and it is no
doubt slower.
For the reasons stated, and on the basis of the whole re-
cord, including Respondent's failure to request a continuance
for investigative purposes at the end of General Counsel's
case, its election twice not to unqualifiedly request that the
hearing be reopened under the terms that I had laid down in
my various communications and rulings, and its continued
insistence on obtaining a broad deposition procedure, all of
which factors have unduly delayed a final disposition of the
case, I find that Respondent has not been deprived of due
12 Morgan v United States, 304 U S 1, 18-19
13 This contention is found in Respondent's letter to me dated March 27,
1974, which accompanied its motion to reopen the record
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
process of law by the rulings of the Administrative Law Judge
in not granting Respondent's requests to take depositions
11 CONTENTIONS AFFECTING MORE THAN ONE CLAIMANT
A. Accuracy of the Computations
The backpay specification set forth a formula for measur-
ing the average weekly earnings of discriminatees Glen
Bowen, Mary Dafler, Shirley Hangen, Joanne Innis (Knox),
Dorothy Johnson, Arthur E. Strange, Kathelene Strange, and
Lana Woodgeard (Moore). It also gives a detailed breakdown
of the gross backpay each of said discriminatees would have
earned from Respondent absent the unlawful discrimination,
as well as the interim earnings of these employees, and con-
cludes with the net backpay alleged to be due each individual.
At the hearing, counsel for Respondent stated that, using
the same method the Board had used in determining weekly
average pay, his computations revealed that Bowen's weekly
average was $118.93 instead of $133.80, as set forth in the
specifications, resulting in a deduction of $952.88 in Bowen's
net backpay. Counsel also claimed that the specifications
incorrectly stated the third quarter of 1970 estimated earn-
ings of Dorothy Johnson, Arthur Strange, Kathelene
Strange, and Mary Dafler in that they worked fewer weeks
in that quarter than stated in the specification.
Respondent having specifically disputed the accuracy of
General Counsel's figures and having been permitted to
amend its answer accordingly, an issue was raised as to the
accuracy of the specification in that regard, and it was then
General Counsel's burden to go forward with evidence to
show, if he could, that the amounts set forth in the specifica-
tion were correct. Having failed to do this, I will deduct
appropriate amounts from any backpay due said
claimants."
B. Discriminatees Who Engaged in the Strike
From August 27 through September 14, 1970, union ad-
herents at Respondent's plant were on strike. The record
indicates that discriminatees Johnson, Arthur Strange,
Kathelene Strange, Dafler, Bowen, and Hangen, who were
discriminatorily discharged prior to the strike, participated in
the strike, and Respondent contends that since they would
not have been available for work during the strike, their
backpay should be tolled for that period. Respondent's con-
tention is contrary to established Board policy, and I reject
it.15
C. Employees Discriminatorily Laid Off between June 23
and June 29, 1970
This group of 17 employees lost 3 or 4 days' work during
the week in question as a result of the discrimination against
them, but Respondent claims that because the Respondent
installed a 6-day week and continued it after they were re-
turned to work, all discriminatees recouped their lost time
14 Sec 102 54 and 102 57, Board's Rules and Regulations , Series 8, as
amended Mastro Plastics Corporation, 136 NLRB 1342, 1346 (1962)
15 Winn Dixie Stores, Inc, 206 NLRB 777 (1973), Sunshine Hosiery Mills,
1 NLRB 664
and money within 3 or 4 weeks. It claims that on that account
nothing is due them.
I find no merit in Respondent's contention. Since the,em-
ployees lost wages as a result of the discrimination, the proper
measure of their loss is the wages they would have earned if
they had not been discharged, less net earnings . Moreover,
Respondent's contention is completely inconsistent with the
terms of the Board's Order which was enforced by the court
of appeals.16
III THE INDIVIDUAL CLAIMS
A. Controlling Principles
The law is well settled that the "finding of an unfair labor
practice . is presumptive proof that some backpay is
owed,"" and the General Counsel' s burden is limited to
showing "what would not have been taken from [the
employees] if the Company had not contravened the
Act."18 Another court described the allocation of the bur-
den as follows:
... in a backpay proceeding the burden is upon the
General Counsel to show the gross amounts of backpay
due. When that has been done, however, the burden is
upon the employer to establish facts which would nega-
tive the existence of liability to a given employee or
which would mitigate that liability.19
The failure of a discriminatorily discharged employee to
make a reasonable search for employment constitutes an af-
firmative defense to backpay liability.20 To carry his burden
successfully in this area an employer must prove "losses
which [the employee] willfully incurred" and `clearly unjus-
tifiable refusal to take desirable new employment."21 The
burden has also been described as showing that an employee
"fails diligently to search for alternative work,"22 or "Fail-
ure . . . to make a reasonable search for interim work,"23 or
did not make an "honest good faith effort" to find it.24 In
seeking to mitigate his loss of income, an employee is held
"only to reasonable exertion in this regard, not the highest
standard of diligence. 1121
Respondent contends that Glen Bowen, Dorothy Johnson,
Arthur E. Strange, and Kathelene Strange are not entitled to
any backpay because they did not diligently seek to obtain
interim employment.
16 Valley Mold, Inc., 191 NLRB 498 , 501, 502 (1971)
11 NL. R.B. v. Mastro Plastics Corporation, 345 F.2d 170, 178 (C.A. 2,
1965), cert denied 384 U S 972 (1966).
l8 Virginia Electric & Power Co v NL.R.B, 319 U S . 533, 544
19 N.L.R B. v. Brown & Root, Inc., 311 F 2d 447, 454 (C A 8, 1963)
20 Marlene Industries Corporation v N.L.R.B., 440 F 2d 673, 674 (C A
6, 1971); N.L.R.B. v. Reynolds, 399 F 2d 668 , 669 (C A 6, 1968), N.L.R.B.
v Miami Coca-Cola Bottling Company, 360 F 2d 569, 575 (C A 5, 1966).
21 Phelps-Dodge Corp v NL.R B., 313 U.S 177, 198-200
22 N.L.R B v Mastro Plastics Corp., 345 F 2d 170, 174 (C A 2, 1965),
fn. 3
23 N.L. R.B. v Miami Coca-Cola Bottling Company, supra, fn 20 at 575.
24 N.L.R.B. v. Cashman Auto Co, 223 F 2d 832 , 836 (C A 1).
25 NLR.B. v. Arduini Mfg. Co., 394 F . 2d 420 , 423 (C A. 1, 1968).
VALLEY MOLD COMPANY 215
B. Glen Bowen
Bowen was discharged on Ai gust 14, 1970, and offered
reinstatement on March 13, 1973. After the second quarter
of 1971, Bowen 's interim earnings exceeded what he would
have made working for Respondent and his claim, therefore,
is based only on losses incurred prior to that time. In the third
and fourth quarters of 1970 Bowen had no interim earnings,
according to the specification, but in the first and second
quarters of 1971, Bowen earned elsewhere as much or more
as he would have earned at Respondent.26
Bowen testified credibly and without contradiction that
shortly after his discharge he registered for unemployment
compensation and applied for work at four different compa-
nies in the area . He stated that he made applications only at
places where he thought he had a reasonable chance of being
employed, because he did not have funds for gasoline. He also
testified credibly that he checked back with the four compa-
nies he originally applied to. He said he turned no jobs down,
and was available for employment at all times.
As in the cases of the other discnmmatees, there is no
evidence in the record that there were jobs available for them
in the area for which they were qualified, or any evidence to
contradict their testimony that they looked for work and
turned none down. The facts that Bowen obtained employ-
ment a little over 4 months after he was discharged and
earned practically as much from that point as he would have
earned if he had not been discriminated against makes Re-
spondent's claim in Bowen 's case appear frivolous, and I also
credit his testimony that he registered for unemployment
compensation , applied and reapplied for work at various
companies , and was available for work. Respondent has not
met its burden in Bowen's case.27 I conclude, therefore, that
Bowen is entitled to $2,380.00 in backpay, with interest.28
C. Dorothy Johnson
Johnson's backpay period began on August 14, 1970, and
ended with an offer of reinstatement on March 13, 1973,
which she accepted. She had no interim earnings during that
period.
yin direct examination by General Counsel, Johnson testi-
fied that fromAugust 1970 to March 1973, she was available
for and sought employment and turned no job down. She
registered for unemployment compensation and received it.
She said she found it difficult to get work in the Dayton,
Ohio, area.
On cross-examination Johnson added that she checked
regularly with the city unemployment bureau in Moraine,
Ohio, as well as the state unemployment office, during her
absence from Respondent, and she listed eight employers at
which she had applied for work after her discharge. She
stated that she visited these companies personally and also
made telephone calls to them at later times. Her contacts
were spread out over the entire period of her unemployment,
she said, her last application being in late December 1972.
Johnson's testimony is uncontradicted, and I have no rea-
son not to accept it as true Respondent's position in her case
seems to be that since she had no earnings for such an ex-
tended period, she could not have been looking for work. In
a similar situation in Miami Coca-Cola Bottling Company,
supra, the employer argued that the earnings of two em-
ployees were so "incredibly low" that it made a prima facie
case of wilful losses during the backpay period, and it invited
the court to rule that an employer's proof of "incredibly low"
earnings shifts to the General Counsel the burden of going
forward with evidence that the discriminatees used reasona-
ble efforts to find interim employment. The court held that
it would "decline the invitation" because it was not practical,
and it would significantly hamper the backpay remedy, if
each discnminatee were required to prove the propriety of his
efforts during the entire backpay period."29 In the instant
case, Johnson testified credibly about her efforts to secure
employment, and her lack of success in obtaining employ-
ment does not impeach her testimony or relieve Respondent
of its burden of proving facts to mitigate its liability.36
I find and conclude, therefore, that Dorothy Johnson is
entitled to $12,560.18 in backpay, with interest, plus an
amount of backpay for the period in June 1970, when she was
discriminatorily laid off with other employees, as discussed
below."
D. Kathelene Strange
Kathelene Strange's backpay period began with her dis-
charge on August 17, 1970, and ended with an offer of rein-
statement on March 13, 1973. She testified credibly that from
the time of her discharge until June 1, 1972, when she and
her family went to Florida looking for work, she was available
for work and looked for it in the Dayton, Ohio, area. She
listed five employers where she applied for work before she
left for Florida, four of which took written applications She
stated that she was out look_ng for work practically every
week during that period and revisited the employers at which
she had first applied. She listed her name with the Ohio
Bureau of Employment Services and applied for unemploy-
ment compensation, which she received for the full period.
Mrs. Strange was unable to obtain any employment until
she went to Florida on or about June 1, 1972. She remained
in Florida for 9 months until she and her son Arthur were
offered reinstatement by Respondent in March 1973, which
they both accepted. During that period she was employed by
three employers and earned $636.40.
Respondent's position on Mrs. Strange is essentially the
same as on Johnson's; having earned little or nothing, she
could not have been diligently searching for work, but Re-
spondent offered no evidence to establish this, and there was
nothing in Strange's testimony or demeanor to cause me to
26 Based on Respondent's claim that Bowen's average pay at Respondent
during the period used in the specification was $118 rather than $133
27 The only item that Respondent is able to point to in Bowen's case is
the fact that he went hunting in Michigan with a friend in October 1970
28 Sum arrived at by deducting $952 from the amount set forth in the
specification, based on Respondent's figures in regard to his average weekly
rate.
29 Miami Coca-Cola Bottling Company, supra, fn 20 at 575
30 NL.R B v Cashman Auto Co, supra, fn 24, N.L.R B v Nickey Chev-
rolet Sales, Inc, 85 LRRM 2826 (C A 7), decided February 27, 1974,
Cornwell Company, Inc, 171 NLRB 342, 343 (1968)
31 The sum has been arrived at by crediting Respondent with $170 73 on
the total set out in the specification on the basis of Respondent's figures
regarding her gross backpay for the third quarter of 1970
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discredit her. I find that Mrs. Strange did make reasonable
efforts to secure interim employment.32
I find and conclude, therefore, that Kathelene Strange is
entitled to $11,692.68 in backpay, with interest, plus backpay
for the time she lost during her layoff in June 1970."
E. Arthur Strange
Arthur Strange is Mrs. Strange's son. Having been fired at
the same time as his mother, his backpay period runs from
August 14, 1970, until he was offered reinstatement on
March 13, 1973.
Arthur Strange had no interim earnings from the time he
was discharged until he went to Florida with his family in
June 1972. While living in Florida, Strange found work at
four different employers, earning approximately $2,700.
When he was offered reinstatement by Respondent in March
1973, he returned to Respondent's employ, where he now
works.
Strange testified that he applied for unemployment com-
pensation after his discharge, and also applied and reapplied
for work at five different employers that he was able to name.
He also testified that he "looked for more work than that"
meaning, I infer, that he went to other establishments, but
could not remember them. He also stated that he was looking
and available for work from the time of his discharge to the
end of 1971. In 1972, Strange went to Florida because his
uncle told him he might find work there. The matter was not
fully developed, but it appears that before he left for Florida,
Strange applied to Respondent for work and actually did a
small construction job for Mr. Earl Valley, Respondent's
president. In addition, Strange sought work from and did odd
jobs for a Mrs. Mason before he left for Florida.
Respondent contends that Strange's low interim earnings
establish wilful losses of earnings, but I am unwilling to so
infer, contrary to his uncontradicted and credited testimony,
for the reasons stated in Johnson's and Mrs. Strange's cases.
I find and conclude, therefore, that Arthur Strange is enti-
tled to backpay in the amount of $12,207.22, with
interest."
Dafler was discharged on August 14, 1970, and offered
reinstatement on September 14, 1970. She testified that she
was available for work and looked for it during that period.
32 Mrs Strange was a packer at Respondent . Another discriminatee (Lana
Woodgeard) was hired by Hewitt Soap Company as a packer shortly after
she was discharged , and Respondent argues that this indicates that Strange
could also have been employed there if she really wanted a job There is no
evidence in the record, however, that Hewitt Soap needed any more packers
or that Strange knew that they did Actually, she testified that she did not
It also appears from Woodgeard's testimony that she worked for approxi-
mately a month only at Hewitt and was then laid off, an indication that the
demand for labor at Hewitt was not good either
33 The figure in the specification has been adjusted by deducting $167 61
from gross backpay in the third quarter of 1970 on the basis of Respondent's
figures for that period
34 The amount set forth in the specification has been adjusted to give
Respondent credit for the sum of $916 which Strange earned at a "body
shop" in Florida , which was not listed as interim earnings in the specifica-
tion, and an additional amount of $86 34, based on'Respondent's calcula-
tions, because of an error in the gross backpay listed for the third quarter
of 1970 in the specification
There is no evidence to contradict her testimony, and I find,
therefore, that Dafler is due $238.17, with interest.36
G. Shirley Hangen
Hangen registered for unemployment compensation, ap-
plied for work at five different establishments, and was
available for work during the period after her discharge
on August 17, 1970, until she was offered reinstatement
on September 14, 1970. Indicating the state of the labor
market in the area in 1970, she said that she could not
even get an interview at the places she applied for work
There is nothing in the record to contradict Hangen's tes-
timony, and I find, therefore, that she is due backpay in
the amount of $277.96, with interest, plus an amount to
cover the period of her layoff in June 1970.
H. Joanne Innis (Knox)
Discharged on August 17, 1970, and offered reinstatement
on September 14, 1970, this discriminatee testified credibly
and without contradiction that she applied for work at two
companies and the state unemployment office, which sent her
to another employer for a test. When the latter employer
subsequently offered her a job, she left Respondent's employ.
I find and conclude that Joanne Innis (Knox) is entitled to
$299 in backpay, with interest, because of her discharge, plus
a sum of money because of her layoff, as found below.
1. Lana Woodgeard (Moore)
This employee was discharged on August 17, 1970, and
offered reinstatement on September 14, 1970. She was also
discriminatorily laid off for 3 days in June 1970. Respondent
concedes that the record indicates that this discriminatee
merits the full net backpay claimed. I find and conclude that
she is owed $87.14, with interest, plus a sum of money to
cover her layoff, as set forth below.
J. The Discriminatory Layoffs
Seventeen employees were discriminatorily laid off be-
tween June 23, 1970, and June 29, 1970, and lost from 3 to
4 days work. General Counsel amended the backpay specifi-
cation at the hearing to change the computations listed on
page 9 of the specification. Sworn testimony from a number
of employees was also taken supporting General Counsel's
position. Respondent did not dispute the amended calcula-
tions, but it has taken the position that the employees are
entitled to nothing because their work week was extended
after they were reinstated. I have previously rejected this
contention.36
On the basis of the amended specification and on the entire
record in the case, I find that the following individuals are
due the amounts set forth after their names:
35 Figure in specification adjusted on the basis of Respondent's calcula-
tions indicating error in gross backpay figure for third quarter of 1970
36 Sec II, C, above.
VALLEY MOLD COMPANY 217
Hrs. Lost & Amount
Name I Shif t Rate per Hr. Due
Mary Dafler 1 22.5 @ 2.15 $48.37
Juanita Evans 2 31.5 @ 2.10 66.15
Evelyn Good 1 22.5 @ 2.15 48.37
Shirley Hangen 1 22.5 @ 2.15 48.37
Elmer Harden 3 24 @ 2.15 51.60
Joanne Innix
(Knox) 1 22.5 @ 2.15 48.37
Dorothy Johnson 2 31.5 @ 2.15 67.72
Judith Mast 1 22.5 @ 2.15 48.37
Rita Mast 1 22.5 @ 2.15 48.37
Mary Meadows 3 24 @ 2.10 50.40
Ladonna Mefford 3 24 @ 2.15 51.60
Gloria Standafer 2 31.5 @ 2.10 66.15
Stella Stone 2 31.5 @ 2.15 67.72
Kathelene Strange 2 31.5 @ 2.15 67.72
Martha Williams 3 24 @ 2.15 51.60
Lana Woodgeard
(Moore) 3 24 @ 2.00 48.00
Sylvia Watson 2 31.5 @ 2.00 63.00
A. As a Result of the
Discriminatory Discharges
Name Amount
Glen Bowen $ 2,380.00
Mary Dafler 238.17
Shirley Hangen 277.96
Joanne Innis (Knox) 299.00
Dorothy Johnson 12,560.81
Arthur E. Strange 12,207.22
Kathelene Strange 11,692.68
Lana Woodgeard (Moore) 87.14
Each of the foregoing sums shall accrue interest at the rate
of 6 percent per annum, computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). There
shall be deducted from each of the amounts social security
taxes, income tax withholding, and such other deductions as
may be required by the laws of the United States or the State
of Ohio.
RECOMMENDED ORDER37
On the basis of the findings and conclusions set forth above
it is hereby ordered that Valley Mold Company, Inc., its
officers, agents, successors and assigns, shall pay to the em-
ployees involved in this proceeding as net backpay the
amount set forth opposite their names.
B. As a Result of the
Discriminatory Layoffs
Name Amount
Mary Dafler $48.37
Juanita Evans 66.17
Evelyn Good 48.37
Shirley Hagen 48.37
Elmer Harden 51.60
Joanne Innis (Knox) 48.37
Dorothy Johnson 67.72
Judith Mast 48.37
Rita Mast 48.37
Mary Meadows 50.40
Ladonna Mefford 51.60
Gloria Standafer 66.15
Stella Stone 67.72
Kathelene Strange 67.72
Martha Williams 51.60
Lana Woodgeard (Moore) 48.00
Sylvia Wilson 63.00
37 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
APPENDIX
ORDER WITHDRAWING ORDER REOPENING RECORD FOR
ADDITIONAL HEARING AND CLOSING RECORD
Following my letter dated February 27, 1974, advising
Respondent's counsel that I would reopen the record in the
case for a limited purpose, if a proper motion were filed,
Respondent, on March 14, 1974, filed a Motion to Reopen
the Record, which I denied on March 20, 1974, for the rea-
sons stated therein, but in my Ruling, a copy of which is
attached, I repeated that, upon request, I would reopen the
record for certain purposes and under certain terms and con-
ditions.
On March 27, 1974, Respondent filed a Motion to Reopen
the Record in which it stated, in part, that the motion was
made "under protest" and "in accordance with the Ruling of
Administrative Law Judge, George J. Bott, dated March 20,
1974, to reopen the record for the limited purposes described
therein." In an accompanying letter, counsel for Respondent
advised me, inter alta, that "Respondent will accept your
invitation to move to reopen the record for the limited pur-
pose and under the rules described in your letter of February
27, 1974 . . . ." However, in the letter, counsel continued to
express dissatisfaction with the terms upon which I had ruled
I would reopen the record and indicated that Respondent
would petition the Federal District Court, at Dayton, Ohio,
for injunctive relief.
On April 2, 1974, I issued an Order Reopening the Record
for Additional Hearing to be held at Moraine, Ohio, on April
16, in which I again tried to make it clear that the hearing
would be conducted in accordance with my ruling on March
20, 1974.
On April 8, 1974, I received from counsel for Respondent
a copy of a complaint which Respondent had filed on April
5 in the Federal District Court for the Southern District of
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio, Western Division, and a Motion to Suspend Hearing
Date . In a Memorandum attached to the Motion , Respond-
ent states that it has filed "an Application for Injunctive
Relief from the Ruling of the Administrative Law Judge with
regard to the conditions under which a reopening of the
record would be permitted in the instant case ." In its Motion,
Respondent asked that I suspend the reopening of the hearing
pending decision of the Court on Respondent's Application
for Injunctive Relief "from the limitations placed upon the
reopening of the record."
In its Complaint and Application for Injunctive Relief,
Respondent asks the Court to issue an injunction ordering
that "the Administrative Law Judge (1) postpone the reopen-
ing of the hearing for a reasonable time in order to accord
Plaintiff sufficient time in which to accomplish the requisite
investigation, (2) permit the taking of Depositions in this
matter, (3) issue subpoenas to all claimants requiring their
appearance at the re-opened hearing."
It is now evident to me that Respondent has no intention
and is unwilling to participate in a reopened hearing under
the terms and conditions described in my ruling of March 20,
1974, incorporated by reference in my Order Reopening the
Record for Additional Hearing, dated April 2, 1974. Since
my Order Reopening the Record was based upon my assump-
tion that Respondent would comply with the conditions
outlined in it and since that assumption has been proven
to be ill-founded, the premise on which I ordered the rec-
ord reopened is no longer valid.
Therefore it is ordered that the order reopening the record
for additional hearing be withdrawn and the record closed.
A Decision on the merits of the case will issue in due
course.