Webb Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1969

174 N.L.R.B. 37 (N.L.R.B. 1969)

WEBB MANUFACTURING, INC. 37
Webb Manufacturing , Inc. and Larry A. Cline and
William E. Montgomery and United Steelworkers
of America, AFL-CIO. Cases 8-CA-3600,
8-CA-3600-3 and 8-CA-3605'
January 8, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 31, 1965, the National Labor
Relations Board issued a Decision and Order in the
above-entitled case,2 finding inter alia, that
Respondent had discriminatorily discharged Larry
A. Cline and William E. Montgomery in violation
of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, and directing that
Respondent make whole the above-mentioned
employees for any loss of earnings resulting from
the discrimination. On December 13, 1967, the
United States Court of Appeals for the Sixth
Circuit entered its decree enforcing the Board
Order. A Backpay Specification and Notice of
Hearing was issued by the Director of Region 8, and
pursuant thereto a hearing was held on June 10,
1968, before Trial Examiner John M. Dyer for
determination of the amounts of backpay due the
discriminatees.
On September 17, 1968, the Trial Examiner
issued his Decision in Backpay Proceedings attached
hereto, in which he found that the discriminatees
were entitled to the amounts of backpay therein set
forth. Thereafter, Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision in Backpay Proceedings, the
exceptions and briefs, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
On the basis of the Trial Examiner's Decision in
Backpay Proceedings and the entire record in this
case, the National Labor Relations Board hereby
orders that Respondent, Webb Manufacturing, Inc.,
'The Trial Examiner inadvertently omitted 8-CA-3605 from the case
caption
'154 NLRB 827
Conneaut , Ohio , its officers , agents, successors, and
assigns, shall pay to Larry A. Cline and William E.
Montgomery as net backpay the amounts
determined to be due by the Trial Examiner in his
attached Decision.
TRIAL EXAMINER'S DECISION IN BACKPAY
PROCEEDINGS
HISTORY OF PROCEEDINGS
JOHN M. DYER, Trial Examiner: The National Labor
Relations Board on August 31, 1965, in its Decision under
the above-styled heading, 154 NLRB 827, adopted the
findings, conclusions, and recommendations in Trial
Examiner Alba Martin's June 8, 1965, Decision. Among
other things Trial Examiner Martin held that Respondent
had discriminatorily discharged Larry A. Cline and
William E. Montgomery on August 6 and 31, 1964,
respectively, and recommended that Respondent reinstate
them to their former positions or to substantially
equivalent positions within the meaning of that term as set
forth in Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 NLRB 327. The
Board also adopted Trial Examiner Martin's
recommendation that Cline and Montgomery be
compensated for their loss of earnings caused by
Respondent's discrimination against them, by payment to
them of the amount of wages which each would have
earned from Respondent from the date of his discharge to
the time when Respondent properly offers valid
reinstatement. The gross backpay less interim earnings is
to be computed on a quarterly basis (as per F. W.
Woolworth Company, 90 NLRB 289) with the addition of
6 percent interest (as per Isis Plumbing & Heating Co.,
138 NLRB 716)
On December 13, 1967, the U.S. Court of Appeals for
the Sixth Circuit entered its order enforcing in whole the
Board's Order in this case.
Thereafter, the Regional Office, Respondent, and the
discriminatees were unable to agree on the amounts due
and additionally there being disagreement on whether a
proper offer of reinstatement was made to Montgomery, a
Backpay Specification and Notice of Hearing was issued
by the Director of Region 8, under the authority duly
conferred on him by the Board. The hearing was held in
Conneaut, Ohio, on June 10, 1968, before me.
The backpay specification, as further amended without
objection at the hearing, alleges that Larry A. Cline's
backpay period runs from August 6, 1964, to February 6,
1968, when he declined Respondent's offer of
reinstatement and that his interim earnings exceeded the
wages he would have earned from Respondent in all but 4
of the 15 quarters making up his backpay period.
Respondent does not question the rates of pay and hours
alleged which constitute the gross backpay amounts and
therefore agrees that the gross amounts-of backpay in the
four quarters are correct. Respondent's position is that the
backpay period is less than that alleged.
As to William E. Montgomery, the specification alleges
that' Respondent has not made an offer of full' and
immediate reinstatement of his former position to him and
therefore that the backpay period is still running with the
computations of backpay made only through the second
quarter of 1968. Respondent agreed that the rates of pay
and'hours alleged in the computations of gross backpay
for Montgomery in the specification are correct,' but
174 NLRB No. 7
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges that the backpay period is less than the 16 quarters
set forth.
Respondent in its answer to the backpay specification
claimed that the Region failed to uncover some interim
earnings earned by both of the discriminatees . The answer
advances a number of other contentions as to
Montgomery's search for and availability for full-time
employment, and levels a number of charges at
Montgomery. The answer further alleges that the
Regional Director is biased against Respondent's
representative, Mr. Rector. However, as will be explicated
below, apart from cross-examination of the discriminatees,
Respondent offered no evidence or testimony in this
proceeding.
The parties were given full opportunity to appear, to
examine and cross-examine witnesses, and Mr. Rector and
counsel for the General Counsel availed themselves of the
opportunity to argue orally. Briefs were not filed, but a
motion by Respondent was filed with me following the
hearing and was opposed by the General Counsel. This
motion seeks dismissal of the backpay specification as to
Montgomery, claiming that he was not available for
adequate employment in the area, and that the testimony
(presumably of Montgomery) does not support the
backpay specification. Secondly, the motion seeks
limitation of Cline's backpay period to the time when he
was first employed at Inland Container Corporation in
August 1964.
I deny this motion on the basis of the facts in this case,
which are detailed hereinafter.
Upon the entire record in this case, including my
evaluation of the reliability of the witnesses based both on
the evidence received and my observation of their
demeanor, and further on the failure of Respondent to
support by evidence or testimony its claims as to what it
discovered during the investigation of this matter, I make
the following findings of fact and conclusions of law:
1. THE BACKPAY CLAIM OF LARRY A. CLINE
Larry A. Cline testified that following his discharge on
August 6, 1964, he registered with the Ohio Employment
Commission in Ashtabula, Ohio (no office in Conneaut),
and visited this office three or four times before he
secured work at Inland Container Corporation in
Ashtabula. In his search for work Cline visited other cities
in Ohio including Elyria and Loraine, where he sought
employment at Ohio Edison and Freuhauf Trailer
Corporation. He worked at Inland Container for
approximately a month before being laid off and given the
reason that his work was unsatisfactory. He was not told
in what manner his work wasn't satisfactory.
Cline sought employment and was hired at General
Aniline Corporation in Elyria, Ohio, through a private
employment agency, He worked for this company nearly 6
weeks and was laid off with a number of others in an
apparent general layoff. In the first quarter of 1965 Cline
began working for Union Carbide Company and worked
there until the fourth quarter of 1965. There are no claims
for backpay during the first three quarters of 1965. At
Union Carbide, Cline received $2.70 per hour but was
working a swing shift. In the fourth quarter of 1965 he
accepted a chance to go with Bow Socket Corporation in
Ashtabula at the rate of $2.70 per hour on a day shift
operation. Cline testified that one of the determining
factors for this switch was getting off the swing shift and
being on a day shift so he could attend college at Kent
State Extension in Ashtabula, Ohio.
After being at Bow Socket nearly 6 weeks he was laid
off in a reduction in force during the fourth quarter of
1965. Cline made personal, contacts seeking jobs in
Ashtabula and Conneaut, at companies such as Cleveland
Electric Illuminating Company, Reliance Electric, and
National Distributors. Cline secured a job with True
Temper Corporation in Saybrook, Ohio, on March 18,
1966, and is still employed there. It was while so
employed that he refused Respondent's offer of
reinstatement.
It appears from Cline's testimony that on each of the
occasions when he was laid off from work he made a
diligent search for work utilizing the services of the State
Employment Bureau as well as private employment
agencies and his own personal contacts and managed to
get employment reasonably soon in most instances.
Respondent has not offered any testimony that Cline left
the job market or did not diligently seek work.
The figures for the four quarters for which backpay is
sought are as follows:
Quarters
Gross
Wages
Interim
Earnings Expenses
Net
Back Pay
Third, 1964 $452.40 $338.36 $114.04
Fourth, 1964 $836 $493 44 $74 $416.56
Fourth, 1965 $915.60 $565.76 $349.84
First, 1966 $896 $189.60 $706.40
Total Net Backpay $1,586.84
Respondent has taken two positions as to the backpay
due Cline. During the hearing Respondent claimed his
backpay should be terminated when he left Union Carbide
Corporation to go with Bow Socket Corporation in the
fourth quarter of 1965. In its posthearing motion
Respondent claimed backpay should be terminated with
Cline's first employment at Inland Container Corporation
in the third quarter of 1964. Respondent offered no reason
for this latter position but apparently relies on Inland
Container's termination of Cline for unsatisfactory work
to somehow relieve it from any further liability for Cline.
There are infinite possibilities as to why Cline wasn't
satisfactory to Inland Container but I am not called to
speculate on them or whether such assigned reason is true.
Cline was not out of the labor market and if he was
unsuitable at another job that does not release Respondent
from its liability for having put him in the labor market
because of its discrimination. Respondent's bare
unexplained motion does not provide me with any reason
to terminate Cline's backpay at that point.
As to Respondent's other position that Cline's backpay
period should stop with his termination of employment at
Union Carbide, Cline testified he left a swing-shift job at
one company for a day-shift job at a second company at
about the same pay rate. Such a move was not designed
to injure Respondent nor did Cline take himself out of the
labor market but left one job to begin work immediately
with another employer. His personal reason for the
change, to better himself by attending college, is a
laudatory object and contemplating this he certainly would
not have made the move to Bow Socket if he could have
foreseen that he would be laid off for lack of work at Bow
WEBB MANUFACTURING, INC.
Socket. Respondent makes no such claim, and does not
explain its position. There is no contention that Cline's job
at Union Carbide would have been more secure. In any
event there is nothing to prevent an individual from
changing his job for rational private reasons. Respondent
seems to feel that because the change by Cline apparently
produced a backpay claim for the fourth quarter of 1965
and the first quarter of 1966, Cline shouldn't have made
the change. Clearly Cline's change was not made to
produce such a result and with no further showing by
Respondent its position must be denied.
The decision of the United States Court of Appeals for
the Second Circuit in N.L.R.B. v. 'fastro Plastic
Corporation, 354 F.2d 170, seems peculiL y appropriate
in this case. The court stated in regard to discriminatees
who became self-employed:
The only issue here is whether the discriminatee
willfully incurred a loss of earnings. It would be unjust
to require him to mitigate his damages to the greatest
extent possible but then to penalize him for substantial
but short-lived success. Unless in taking substantially
equivalent or self-employment the discriminatee
willfully forewent greater earnings, his backpay should
not be reduced beyond the interim earnings he in fact
received.
Clearly here Cline did not willfully forego greater earnings
since he moved from one position to another at
substantially the same wages and with the intention of
further self-improvement by attending college.
The Board having sustained the burden of proving the
unfair labor practices, and there being no dispute as to the
gross backpay figures, with Respondent remaining liable
until a good-faith offer of reinstatement is made, it is
evident that the General Counsel has sustained his burden
of proof: In addition the discriminatees were produced, so
that they might testify in regard to their interim earnings
and they have done so. The duty of proving affirmative
defenses or showing lack of a diligent search for jobs is on
Respondent, as are the other matters which Respondent
alleged in its answer. Respondent did not do so either as
to Cline or Montgomery.
In particular as to Cline, I find that Respondent has
not offered any evidence or reasons to demonstrate why
Cline's backpay should be terminated as it seeks. I
therefore conclude and find that Larry A. Cline is entitled
to net backpay for the four quarters set out above, in the
total amount of $1,586.84 plus interest.
II. THE BACKPAY CLAIM OF WILLIAM E. MONTGOMERY
A. Respondent's Defenses
Respondent's answer in addition to stating that the
backpay specification had not shown a 1-2 day job by
Montgomery and that it conflicted with other
employment, alleged that his employment at the Jiggs
Cheney Pure Oil Service Station was not on a full-time
basis because Montgomery had enrolled as a full-time
student in Kent State University in the fall of 1965.
Respondent inferred in its answer that Montgomery's
termination from the City of Conneaut (fourth quarter of
1967) was voluntary because the work interfered with his
education at Kent State. The answer claims that records
at General Electric Company (1-2 day employment in the
fourth quarter of 1967) show that Montgomery was
terminated following an epileptic seizure, for the assigned
reason of falsification of personnel records. (Apparently
39
Montgomery did not report having epilepsy testifying he
did not know he had it.) Respondent claims that
Montgomery falsified his personnel records at Respondent
without stating in what manner. Respondent also claims
that its backpay investigation disclosed that Montgomery
received only nominal earnings at the Conneaut Collection
Agency in the first part of 1968 and that his earnings went
toward purchase of that agency.
In another direction, Respondent's answer claimed that
Montgomery sought to hide his earnings by paying utility
and other bills under a different name and concluded by
wondering how Montgomery supported himself on his
interim wages while paying necessary expenses and school
tuition. Respondent's answer also asserted that it offered
Montgomery reinstatement provided he was available for
full-time work on a 9-hour per day schedule, and that
Montgomery was and is unable to take such full-time
employment as long as he continues his full-time schedule
at Kent State.
B. Third and Fourth Quarters, 1964
The backpay specification for William Montgomery
shows that in the month concluding the third quarter of
1964 following his August 31 discharge, he worked at
Brown Memorial Hospital and earned a total of $19.68.
Montgomery testified he did not seek unemployment
compensation but made personal contacts seeking jobs at
a number of places including the local newspaper in
Conneaut and at Union Carbide Company, Reliance
Electric Company, Inland Container, and Pepsi Cola
Company, in Ashtabula. In the fourth quarter he became
an employee of Puffer Roofing Company in Conneaut but
kept no record of his earnings there. According to
Montgomery's testimony, Mr. Puffer, a distant relative,
had no records which would show Montgomery's earnings
for the 6-1/2 week 1964 period Montgomery worked
there, when in 1968 they sought to determine his interim
earnings. Montgomery said he did not seek another job
during his employment by Puffer as he considered it a
good job receiving $1.75 per hour and working 5 to 6 days
a week as a roofer, dependent of course on the weather.
Further he testified that the report of $140 as earnings for
that 6-1/2 week period was based on an estimate he and
Puffer made from various unnamed personal records.
This estimate of $140 for a 6-1/2-week period seems to
me extraordinarily low, considering Montgomery's
testimony that it was a good job. A gross of $140 for
6-1/2 weeks at $1.75 per hour would mean that
Montgomery worked an average of only 12 hours per
week which is inconsistent with his testimony that he
worked as much as 5 or 6 days a week dependent on the
weather. On the other hand, Respondent made no effort
to show that the weather was such as would have
permitted much greater income during that time.
Noting that the figure of $140 is a guess by
Montgomery, which seems at odds with his testimony, and
not knowing the weather conditions prevailing during the
relevant period, nor how many hours Montgomery could
reasonably have worked as a roofer, I will effect a
compromise on the interim earnings at Puffer by
estimating that Montgomery's assessment of the job as a
good job means that he would have worked an average of
32 hours a week during that 6-1/2-week period. I
therefore estimate and conclude that reasonable interim
earnings during that 6-1/2-week period (which constituted
the entire earnings for the fourth quarter of.1964), amount
to $364 instead of the $140 estimate in the backpay
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specification, and I hereby substitute that figure as a
compromise estimate of the interim earnings figure.
None of the other matters raised by Respondent are
relative to the third and fourth quarters of 1964. I
therefore conclude and find that the following amounts
make up the backpay figures for these two quarters.
Quarters
Gross
Backpay
Interim
Earnings
Net
Expenses Backpay
Third, 1964 $272.80 $19.68 $253.12
Fourth, 1964 $842.00 $364.00 $478.00
C. First Quarter 1965 through Second Quarter 1967
Montgomery testified that he stopped working for
Puffer Roofing in December 1964 and not in February
1965, as was inferred by one of Respondent's questions on
cross-examination. Montgomery cons'inuously sought
employment and in March 1965 began working for Jiggs
Cheney's Pure Oil Service Station in Conneaut where he
remained through the second quarter of 1967. During the
first quarter of 1967, the service station changed hands
and was thereafter known as Tisdale's Pure Oil.
As to this 2-1/2-year period, Respondent claims that
Montgomery reduced his employment hours making the
job a part-time one in order to attend Kent State
University as a full-time student.
Montgomery testified that during his employment with
Jiggs Cheney and Tisdale he worked a standard 40-hour
week from 8 a.m. to 4 p.m., 5 days per week except for
one period when he additionally worked Saturday
mornings following Mr. Cheney's heart attack. He was
paid on an hourly basis and testified that during portions
of this time when work was slack, particularly on
Wednesday afternoons, Cheney would give him time off.
In latter 1965 Montgomery enrolled as a student at the
night school extension of Kent State University in
Ashtabula, taking 12 credit hours as a full-time night
student. His classes were Monday through Thursday,
beginning two nights at 6 p.m. and at 7:15 p.m. on the
other two nights. He testified that his school schedule
never conflicted with his hours of full-time employment at
the service station.
When asked how Montgomery's attendance at night
school would have conflicted with his job under these
circumstances, Respondent's representative answered that
a man could hardly work 9 hours per day on a job and
still attend night school. When asked if Respondent was
prepared to offer testimony to that effect, Respondent
said it was not.
Respondent noted that there was a reduction in interim
earnings beginning in the fourth quarter of 1965 about the
time Montgomery apparently started at Kent State. The
interim earnings dropped $47.85 per quarter from the
previous two quarters and dropped $28 more during the
first quarter of 1966. Respondent claimed that the loss of
earnings must necessarily be from a reduced work
schedule because of Montgomery's school attendance.
However Respondent did not produce any evidence in this
regard and I accept Montgomery's plausible explanation
that he was given time off by Cheney at various times.
Respondent during cross-examination of Montgomery
claimed that there was a more severe reduction in the first
quarter of 1967, however examination of the backpay
specification shows that during that quarter Montgomery's
earnings increased not diminished.
I therefore conclude and find that the following
amounts constitute the backpay figures for the 2-1/2-year
period of the first quarter 1965 through the second quarter
1967:
Gross Net Net
Quarters Backpay Interim Earnings Backpay
First, 1965 $844.80 $30.00 $814.80
Second, 1965 875.20 650.00 225.20
Third, 1965 897 60 650.00 247.60
Fourth, 1965 915.60 602.15 313.45
First, 1966 896.00 574.08 321.92
Second, 1966 910.00 574.08 335.92
Third, 1966 950.40' 574 08 376.32
Fourth, 1966 955.20' 574.09 381.11
First, 1967 1,040.00 722.50 317.502
Second, 1967 1,040.00 614.02 425 98
D. Third and Fourth Quarters 1967
Due to slow business Tisdale decided to run the station
by himself and Montgomery got a job with the City of
Conneaut in the third quarter of 1967. About the same
time he was offered and accepted a job with General
Electric Company in Conneaut, leaving the city job. At
General Electric he worked one 'full day and on the second
day passed out at work. Montgomery testified that when
he woke a doctor was bending over him and asked why he
hadn't told them he had epilepsy. He answered he didn't
know he did and General Electric thereafter terminated
him giving as the termination reason that he had falsified
his personnel records (presumably in not telling General
Electric that he had epilepsy). Montgomery testified he
had passed out once before in the summer of 1967 and
sought medical assistance then and again after this episode
in September 1967. He testified that on both occasions the
physician he consulted did not directly diagnose his
condition as epilepsy and that a neuro-encephalogram
gave no definite conclusion on the matter. Following his
termination by General Electric he returned to the City of
Conneaut and worked for them until he was released on
December 15, 1967, due to the City of Conneaut's
financial condition.
Respondent's claims in regard to these quarters was not
explicated, Respondent merely noting that Montgomery
was discharged for falsification of records and claiming
that he had falsified personnel records at Respondent.
This objection contains no affirmative defense for
Respondent and Montgomery was not sick or out of the
job market during this time. If Montgomery has epilepsy
it did' nd interfere with his work nor has Respondent so
claiiid
I 'therefore conclude and find that the following
amounts make up the backpay figures for the third and
fourth quarters of 1967:
Gross Interim Net
Quarters Backpay Earnings Backpay
Third, 1967 $1,085.60' $1,020.00 $ 65 60
Fourth, 1967 1,092.00 778.70 313.30
'Computation of the gross backpay on the specification is
mathematically incorrect and the correct amount is inserted here.
'The backpay specification for this quarter contains a mathematical
error in determining the net backpay.
'Computation of the gross backpay on the specification is
mathematically incorrect and the correct amount is inserted here.
WEBB MANUFACTURING, INC.
E. First and Second Quarters, 1968
During the first quarter of 1968 Montgomery sought
work in a number of places and utilized the services of the
State Unemployment Commission . He started work with
the Conneaut Collection Agency in March.
Prior thereto , Montgomery received a letter dated
February 5, 1968, from Dale P . Webb, vice president of
Respondent , stating:
You are hereby offered unconditional reinstatement
to your former job at Webb Mfg. Inc.
Please contact me at our office.
Montgomery twice went to the Company ' s office in
response to this letter and found Webb there the second
time. Montgomery told Webb he could come back to
work right then but Webb told Montgomery his hands
were tied until the General Counsel , Respondent's
Representative Harvey Rector, and Montgomery got the
backpay worked out. Unitl then Webb said , his hands
were tied in the matter of hiring Montgomery. Webb told
him that Respondent was working a 9-hour day from 7
a.m. until 4 : 30 p.m. and asked if he could work those
hours. Montgomery said yes that he could work out his
school schedule to work those 9 hours.
Montgomery wrote Webb on February 9,
acknowledging the meeting of that day and stating that:
"At this time , you stated that I could not be rehired until
I had had a conference with Mr. Rector, Mr. DuRose and
myself regarding backpay due me."
On the basis of Montgomery ' s testimony and his
written undenied communication and with no
controverting evidence , I find that Respondent has not
made , an unconditional offer of reinstatement to
Montgomery and consequently Montgomery 's backpay
period was not cut off and continues to run and will
continue to do so until a proper and valid offer of
reinstatement is made to him.
Montgomery worked for the Conneaut Collection
Agency in both the first and second quarters of 1968.
Respondent ' s claim is that Montgomery received only a
nominal salary and that his actual earnings were being
retained for purchase of this agency. Montgomery denied
this allegation on the stand , stating that he only received a
commission on what he collected . Respondent made no
offer to prove its allegation . To the contrary , a letter
signed by the owner of the Conneaut Collection Agency
was received in evidence without objection , giving the
amounts of interim earnings per month received by
Montgomery and containing a statement that there was
no written or verbal agreement with MontgomGhya fos-the
purchase of this collection agency. During thhelj^sgcond
quarter of 1968 Montgomery left Conneaut collection
Agency and began working with City Loan Company of
Ashtabula, Ohio, where he is receiving a wage of $350 per
month plus a car allowance.
I therefore conclude and find that the following
amounts constitute the backpay figures for the first and
second quarters of 1968:
Quarters
Gross
Backpay
Interim
Earnings
Net
Backpay
First, 1968 $1,137.60 $67.00 $1,070.60
Second, 1968 1,144.00 $688.00 456 00
F. Other Respondent Contentions
41
One of Respondent's other contentions that
Montgomery was hiding his earnings by paying utility and
other bills under another name was not further explained
by Respondent. However, while on the stand,
Montgomery testified that at one time he shared an
apartment with another individual and when that person
got married and left he continued the utility services most
of which were in the other person's name and paid the
bills promptly, changing only the telephone to his own
name. Similarly Respondent's claim that Montgomery
could not accept reinstatement while continuing his college
courses at Kent State Extension is shown false by
Montgomery's undenied testimony.
The 16 quarters which have so far passed gives a total
net backpay of $6,620.42 to Montgomery plus 6 percent
interest. In accordance with the findings and conclusions
stated above I note again that the backpay period for
Montgomery is still running and that Respondent has not
made an unconditional valid offer of reinstatement to him.
III. SUMMARY AND CONCLUSIONARY FINDINGS
In regard to Larry A. Cline, I conclude and find that
Cline has refused reinstatement and that the amount of
backpay due and owing Cline is $1,586.84 plus interest
which latter amount has not as yet been determined and
which amount will run until Respondent pays the amount
of backpay in full.
As to William E. Montgomery, the total amount of
backpay for the 16 quarters through June 30, 1968,
amounts to $6,620.42, and to such amount should be
added interest at 6 percent in the manner computed in Isis
Plumbing & Heating Co., supra, and that the backpay
period and such interest and amounts shall continue to
run until a valid offer of unconditional reinstatement is
made to Montgomery and Respondent has paid the total
amount of backpay in full.4
When Respondent tenders the amounts of backpay, it
should withhold such normal deductions as are regularly
made for taxes, etc.
Finally as to Respondent's claim of bias by the
Regional Director, Respondent offered no evidence or
testimony in this regard and I do not see in any event how
such could have been considered in this proceeding.
'During cross-examination Montgomery admitted that he knew an
individual named Loomis and stated that some time during 1965 he
worked one day for Loomis and earned $5. However since throughout
most of 1965 Montgomery was employed on a full-time basis at Jiggs
Cheney's Pure Oil Service Station , and since Respondent made no effort
whatsoever to show when this employment took place and whether or not
it was extra or part-time work which would not reduce the amount of
backpay, I will not consider this amount and will not reduce the net
backpay by this amount