Weinacker Brothers, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 14 (N.L.R.B. 1967)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weinacker Brothers , Inc., and Lorenzo Matthews,
Harry W. Wright, Local 458 , Retail Clerks Inter-
national Association , AFL-CIO, and Elizabeth
Ann Boyette , Donald Harris, Jack Willis Smith
and Local 458 , Retail Clerks International As-
sociation , AFL-CIO, Charging Parties. Cases
15-CA-2486-1, et al., 15-CA-2486-15, et al.,
and 15-CA-2501
June 28, 1967
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 25 , 1965, the National Labor Relations
Board issued a Decision and Order in the above-en-
titled proceeding ,' finding, inter alia, that the
Respondent had unlawfully discharged certain
named employees and directing the Respondent to
make these employees whole for any loss of
earnings resulting from the discrimination against
them. On June 28 , 1966, the United States Court
of Appeals for the Fifth Circuit entered its decree
granting the Board ' s petition for summary enforce-
ment of its Order.2
On December 2, 1966 , the Regional Director for
Region 15 issued a backpay specification and
notice of hearing , and on January 10, 1967, the
Respondent filed an answer. On January 31, 1967,
pursuant to notice, a hearing was held before Trial
Examiner John P . von Rohr. Briefs were filed with
the Trial Examiner by the General Counsel and the
Respondent. In his brief , the General Counsel
moved to amend the backpay specification by
withdrawing his admission that employee Boyette
had been physically incapacitated for a portion of
the backpay period , thereby increasing her backpay
claim . Thereafter , the Respondent filed a motion to
strike the proposed amendment.
On April 17, 1967, the Trial Examiner issued his
Decision on Supplemental Backpay Proceeding, at-
tached hereto , in which he (a) denied the General
Counsel 's motion to amend the backpay specifica-
tion ; (b) found without merit Respondent's conten-
tions regarding elimination or reduction of the
backpay of Burgess, Dortch , Etheredge, and
Turner on the ground that they did not make
reasonable efforts to find employment and/or in-
curred willful losses of earnings ; and (c) recom-
mended that the Respondent be required to pay
specified amounts of backpay to these and other
discriminatees in accordance with the backpay
specification and the parties ' stipulations at the
hearing. Thereafter , the General Counsel filed ex-
ceptions to the Trial Examiner 's Decision and a
supporting brief, and the Respondent filed cross-ex-
ceptions and an answering brief.
166 NLRB No. 4
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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions,
cross-exceptions, and briefs, and the entire record
in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Exam-
iner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent, Weinacker Brothers, Inc.,
Mobile, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
1 153 NLRB 459.
2 N.L R B. v. We,nackerBrothers, Inc, No. 23510
3 We hereby correct the Trial Examiner's inadvertent reference to em-
ployee Burgess as "Boyette," in the third paragraph under the section
entitled "Sadie Burgess "
TRIAL EXAMINER'S DECISION ON SUPPLE-
MENTAL BACKPAY PROCEEDING
JOHN P. VON ROHR, Trial Examiner: On June 25,
1965, the Board issued its Decision and Order in the
above-entitled proceeding (153 NLRB 459) finding that
the Respondent had, inter alia, unlawfully discriminated
against 11 employees. The Order of the Board was en-
forced by the United States Court of Appeals for the
Fifth Circuit on June 28, 1966. Thereafter, a controversy
having arisen over the amount of backpay due the dis-
criminatees, the Regional Director for Region 15,
pursuant to authority conferred upon him by the Board,
on December 2, 1966, issued a backpay specification. No
backpay is alleged to be due W. J. Williams, one of the
discriminatees. On January 10, 1967, the Respondent
filed an answer in which it admitted the amounts alleged
to be due employees Burl Dock, Donald Harris, Lorenzo
Matthews, Jack Smith, and Harry Wright. Accordingly,
it is found that the amount of backpay owing each of these
employees is as specified in the backpay specification.
The amounts due each of these employees are set forth in
the Recommended Order herein. As to the other em-
ployees, these being Elizabeth Boyette, Sadie Burgess,
Cleveland Dortch, Marguerite Etheredge (Oswald), and
Mildred Turner (Leigh), the Respondent's answer
disputes the Board's determination of gross backpay and
interim earnings and further alleges that these claimants
have incurred willful losses of interim earnings.
Pursuant to notice, a hearing was held before me on
January 31, 1967. Briefs have subsequently been
received from the General Counsel and the Respondent
WEINACKER BROTHERS , INC. 15
and they have been carefully considered.' Upon the en-
tire record in this proceeding and from my observation of
the witnesses, I hereby make the following:
I. FINDINGS OF FACT AND CONCLUSIONS
Unless otherwise noted, the facts and compilations
hereinafter set forth are predicated upon agreement
reached by the parties during the course of the hearing
with respect to the gross backpay and interim earnings of
the various discriminatees whose cases are discussed
below. All issues raised by the parties at the hearing or in
their briefs concerning the amount of backpay due any of
these employees is appropriately noted and resolved in
my discussion below.
In view of the Respondent's contention that the in-
dividuals discussed below have incurred willful losses of
interim earnings, I permitted the Respondent to examine
each of them in furtherance of such assertion. Although
I overruled the General Counsel's objection to this
procedure, he cooperated in this matter by making each
of these employees available as witnesses at the hearing.2
Elizabeth Boyette
Boyette's backpay period runs from March 16, 1964,
to December 15, 1964.3 It is undisputed that Boyette is
entitled to new backpay in the sum of $15 for the first
quarter and that no backpay is due her for the third and
fourth quarters.
With respect to the second quarter, the backpay
specification issued by the General Counsel states:
"Boyette was physically incapacitated for work from
5/11/64 through remainder of this quarter. No claim for
backpay is made for this period." In accordance with this
statement, the form "Computation of Backpay" reflects
that the total gross backpay due Boyette for the second
quarter is $253.4 Taking into account the undisputed in-
terim earnings of Boyette during this period, the net
backpay thus due Boyette for the second quarter is
reflected as follows:
Gross backpay $253.00
Interim earnings 137.34
Quarterly net backpay $115.66
The dispute as to the amount of backpay due Boyette
for the second quarter arises from the General Counsel's
posthearing attempt to amend the backpay specification
for this particular period. In this regard, it is preliminarily
noted that Boyette was put on the stand and questioned
by the Respondent concerning the matter of her interim
earnings. During the course of this testimony, Boyette
testified that she took certain steps to obtain employment
immediately after her discharge by the Respondent on
April 29, 1964. Based upon this testimony, the General
Counsel asserts in his brief: "It is contended that she
[Boyette] was in the labor market during the second
quarter of 1964 and is entitled to $408.66 in backpay for
that quarter." In furtherance of this contention, the
General Counsel attached to his brief an amended com-
putation of backpay for the second quarter. The sum of
$408.66 alleged as the net backpay due Boyette was ar-
rived at by amending the quarterly total of gross backpay
from $253 to $546. In other words, the General Counsel
now seeks to abandon the allegation on the original
backpay specification that Boyette was physically in-
capacitated from May 11, 1964, through the remainder of
the second quarter, and instead seeks to amend the
specification so as to claim full backpay, less interim
earnings , for the entire second quarter.
Following receipt of the General Counsel's brief, the
Respondent filed a motion to strike in which it opposes
the General Counsel's attempt to amend the backpay
specification in the manner indicated above. Under all the
circumstances of this case, I find merit to Respondent's
opposition to the General Counsel's proposed amend-
ment. As previously indicated, the backpay specification
specifically puts Respondent on notice that no backpay
was being claimed from May 11, 1964, to the end of the
second quarter by reason of the admitted fact that
Boyette was physically incapacitated during this period.
If the General Counsel was taken by surprise with
Boyette's testimony during this hearing to the effect that
she was not incapacitated during this period, the door was
still open for him to modify or amend the backpay specifi-
cation by giving appropriate notice to the Respondent.
This he failed to do. In fact, when the General Counsel
undertook to question Boyette further concerning this
aspect of her testimony, the Respondent interrupted and
raised a question as to whether he was attempting to alter
the allegation that Boyette was incapacitated as of May
11. To this the General Counsel's representative
responded, "No, we are not going to proceed any further
than that." Under the circumstances, this statement
clearly was tantamount of a disclaimer by the General
Counsel of any intention to amend the backpay specifica-
tion. I have no reason to doubt Respondent's assertion
that it relied on this representation.5 Moreover, and upon
the entire record in this case, I am satisfied and find that
the alleged factual basis upon which the General Counsel
now seeks to amend the backpay specification was not
I On March 8, 1967, the Respondent filed a motion to strike certain
averments in the General Counsel's brief. Since there is no provision in
the Board 's Rules and Regulations providing for a motion of this nature,
the said motion is hereby denied. However, I have considered the conten-
tions and arguments of the Respondent as set forth therein and have
disposed of them in the substantive findings in this Decision
I also hereby grant the General Counsel's unopposed motion to correct
the record transcript herein. Said motion is dated February 28, 1967, and
has been made part of the formal file in this proceeding
2 It was Respondent's assertion , as raised in its answer , that these em-
ployees incurred willful loss of interim earnings by failing to make a
diligent search for interim employment, and/or by failing to accept offers
of suitable employment, and/or by failing to register with the appropriate
Government employment agency. As to Respondent's right to examine
the discnminatees under these circumstances, see N.L.R.B. v. Mastro
Plastice Corp, 354 F.2d 170 (C A 2)
1 The Board found that Boyette was discriminatorily discharged on
April 29, 1964. However, the Board also found that Respondent dis-
criminatorily reduced Boyette's working hours during the period
beginning with the week after the election (the election was held on March
9, 1964), until the date of her discharge.
4 Although the backpay specification initially reflected this amount to
be $259 50, the figure $253 was arrived at by stipulation of the parties at
the hearing
5 Thus, Respondent states in its brief, "Had we been aware that
General Counsel would change his position with regard to the commence-
ment of Boyette's disability, we surely would have explored the matter
further."
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully litigated at the hearing.6 In voew of all the foregoing,
I shall therefore deny what I construe as a motion by the
General Counsel to amend the backpay specification in
the manner heretofore indicated.
In view of all the foregoing, I find and conclude that
Elizabeth Boyette is entitled to total backpay in the sum
of $130.66.7
Sadie Burgess
It is undisputed that the backpay period for Burgess
begins on January 19, 1964, and ends on December 16,
1964.8
Burgess had been employed as a cashier in Respond-
ent's drug department prior to her discharge. Aside from
interim earnings of $55.00 while employed with Respond-
ent during the first quarter, the sole other interim
earnings of Burgess was obtained while employed with
Solmica of the Gulf Coast for approximately 9 weeks dur-
ing weeks during the period September through
November 1964.9
The uncontroverted and credited testimony of Burgess
reflects that she made a diligent search for employment
throughout the backpay period. Following her discharge
she registered with the State empolyment office and
thereafter was in weekly contact with this agency. The
only referral made by this agency was to the Mobile Cigar
and Tobacco Company. However, this employer did not
hire her upon her application. Boyette registered with two
private employment agencies-Long's and Snelling &
Snelling. She credibly testified that on several occasions
representatives of these agencies were about to refer her
to job vacancies, but retracted from doing so upon ascer-
taining that her age disqualified her for employment with
the prospective employers involved. Indeed, Boyette,
whose age was 42 at the time of this hearing, found her
age to be a serious handicap in obtaining employment. On
one occasion she answered a help wanted ad at National
Food Stores but was rejected because she was over the
age of 35. Boyette testified that on other occasions she
lowered her age when applying for jobs, but that this was
to no avail. That Boyette made an earnest effort to obtain
employment is evidenced by her controverted and
credited testimony that she applied at the following drug
and/or department stores; Nixon's Drug Store, Browns
Drugs, Walgreens, Hammel's, Nisner's, Frickes Drugs,
Albright and Woods, Atlantic Mills, John' s Bargain
Stores, Foodtown, and National. She was unsuccessful
6 Although Boyette admittedly was incapacitated during the third
quarter, it appears that the commencement of Boyette's disability hinges
upon the date when she entered the hospital Assuming that she entered
the hospital on only one occasion, Boyette herself was not certain of the
exact date when this occurred. Moreover, absent any notice of General
Counsel's intention to amend the specification, it cannot be said that
Respondent was afforded due opportunity to test Boyette's credibility as
to this aspect of her testimony.
It may be noted also that the General Counsel's belated attempt to
amend the specification does not afford the Respondent opportunity to file
an answer admitting or denying the amount of gross backpay now alleged
by the General Counsel to be due Boyette for the entire second quarter.
This much is required under Sections 102 53 and 102 54 of the Board's
Rules and Regulations As the matter now stands, there is no proof as to
the wages Boyette would have earned had she remained in Respondent's
employ during this period.
9 Respondent's brief reflects that it has abandoned any claim that
Boyette incurred any willful loss of interim earnings . In any event, the
record establishes that Boyette took diligent steps to seek employment at
all times that she was available for work, and I so find.
in obtaining employment with any of these employers. In
view of the foregoing extensive efforts of Boyette to ob-
tain employment, I reject Respondent's contention, as
stated in its brief, that "Mrs. Burgess could have obtained
employment during this period of high employment when
all employers were looking for experienced help." Ac-
cordingly, I conclude that Respondent has failed to carry
the burden of establishing that Boyette failed to make
reasonable efforts to obtain suitable employment or that
she incurred any willful loss of earnings. 10
Based upon the stipulation of the parties at the hear-
ing." 11 The following are the pertinent computations
with respect to Burgess: 12
1st Quarter
Gross backpay
Interim earnings
Quarterly net backpay
$400.00
55.00
$344.50
2d Quarter -
Gross backpay $520.00
Interim backpay none
Quarterly net backpay $520.00
3d Quarter
Gross backpay $533.35
Interim earnings 73.12
Quarterly net backpay $460.23
4th Quarter
Gross backpay $512.67
Interim earnings 195.00
Quarterly net backpay $317.67
Cleveland Dortch
The backpay period for Cleveland Dortch, who
worked for the Respondent for 7 years as a service sta-
tion employee, runs from April 24, 1964, to September
30, 1964.
Although the record reflects that Dortch had no interim
earnings, the uncontroverted testimony of this employee
reflects that he made a diligent search for employment
throughout his backpay period. He registered with the
State employment agency immediately after his dis-
charge and thereafter checked back with it at least once
a week. He filed an application with the International
Paper Company, which was the only job referred to him
by this agency, but failed to pass an aptitude test and
therefore was not hired. The record reflects that Dortch
also personally filed applications with the following com-
panies: Alabama Drug Dock, Scott Paper Co., Sears &
9 Although Burgess was not discharged until February 3, 1964, the
above backpay period also takes into account the finding of the Board that
Respondent discriminatonly reduced her hours of work about 2 months
prior to her discharge.
9 The interim earnings of Solmica totaled $323 62 She was terminated
from this job in November
'° It is well settled that the such burden of proof must rest with the
Respondent See New England Tank Industries, Inc., 147 NLRB 598,
and cases cited in fn 1 1 therein.
11 The Respondent entered into this stipulation, as it did with respect to
the other employees whose cases are discussed herein , subject to its right
to prove a willful loss of interim earnings
12 The computations in General Counsel's brief reflect that he now
seeks a sum of $9 58 net backpay in addition to the net sum which he
stipulated to at the hearing Since this is not in accord with the stipulation
reached at the hearing , his unfounded claim for this additional amount is
rejected.
WEINACKER BROTHERS , INC. 17
Roebuck, Courtlands , Lord's Tire and Supply, and
several warehouses in Mobile. In addition, Dortch
testified that he sought work at 15 or more service sta-
tions in Mobile and Pritchard , Alabama.
In contending that Dortch should be awarded no
backpay because he did not make a diligent search for
employment , Respondent asserts in its brief that " it is im-
possible that a filling station employee who wanted work
in Mobile during the summer of 1964 could have obtained
it." However , the Respondent has not shown the ex-
istence in the vicinity of any sources of actual or potential
employment for one in Dortch's position which he should
have explored but did not . Neither is there any evidence
that Dortch ever rejected any suitable offer of employ-
ment. Accordingly, and in view of Dortch 's testimony
aforesaid , I find that Respondent has not shown that
Dortch incurred any willful losses of earnings.
Upon the stipulation of the parties at the hearing, the
following reflects the backpay due Dortch: 13
2d Quarter
Gross backpay $504.17
Interim earnings none
Quarterly net backpay $504.17
3d Quarter
Gross backpay $284.17
Interim earnings none
Quarterly net backpay $284.17
Marguerite Etheredge (Oswald)
Etheredge was discharged from her position as cashier
in Respondent 's grocery department on January 13,
1964. Her backpay period runs from the latter date until
April 19, 1964. Her interim earnings consist of $20 which
she earned while employed at Long's Grocery for 2 days
during the second quarter , and of $205.34 while em-
ployed at the Shamrock Laundry & Cleaners during the
third quarter.
Based upon the credited and uncontroverted testimony
of Etheredge , I am persuaded and find that she made an
earnest and diligent effort to seek employment
throughout her backpay period. This employee, who was
43 years old at the time of her discharge, registered with
the State employment service in latter January 1964 and
thereafter returned to this agency once or twice each
week. 14 She also filed an application with Long's, a
private employment. agency, but was never given a refer-
ral since she was not qualified to fill the secretarial and
bookkeeping type positions which were the principal
source of job openings handled by this agency. More im-
portantly, the credited testimony of Etheredge reveals
that during the entire backpay period she engaged in an
extensive effort to obtain work by personally making nu-
merous applications with employers who employed per-
sonnel with her job qualifications . The various companies
with whom she made such application included the fol-
lowing: The Fair Store , Eddie's Pawn Shop , B. & H., Al-
bright and Wood, Creighten Towers, Namis Packing
Company, Whitehurst, Merchant 's Supply, S. H. Kress,
the Regan Company, the Record Shop , Food Town,
John 's Bargain Store , and Kwick Check.
13 I will deny the General Counsel 's unsupported claim in his brief that
Dortch is entitled to more backpay than that reflected in the stipulation
reached at the hearing . The General Counsel seeks a net total of $792,
whereas the agreement of the parties shows this amount to be $788.34.
14 As to her efforts to seek employment immediately after her
discharge , Etheredge credibly testified , "I first went around to different
The Respondent has offered no evidence whatsoever
to indicate the availability of any suitable job openings for
which Etheredge should have made application but did
not. In view of this and the foregoing testimony of
Etheredge concerning her diligent efforts to obtain em-
ployment , I reject Respondent ' s contention that
Etheredge "did not make a sincere effort to get work." I
further reject the suggestion made in Respondent's brief
that any failure of Etheredge to obtain work was
"because she did not feel well enough to work."
Etheredge credibly testified that she was in good health
at all times during the backpay period except for a 6-day
period in March 1964, at which time she was in-
capacitated due to a back ailment . The General Counsel
has excepted this period in the backpay specification and
makes no claim for backpay for these 6 days.
Upon the stipulation of the parties at the hearing, the
following reflects the backpay due Etheredge:
1st Quarter
Gross backpay $403.80
Interim earnings none
Quarterly net backpay $403.80
2d Quarter
Gross backpay $524.94
Interim earnings 20.00
Quarterly net backpay $504.94
3d Quarter
Gross backpay $546.92
Interim earnings 205.34
Quarterly net backpay $341.56
4th Quarter
Gross backpay $18.74
Interim earnings none
Quarterly net backpay $18.74
Mildred Turner (Leigh)
Mildred Turner was employed by the Respondent as
head cashier in the grocery department . Her backpay
period begins on February 10, 1964, the date of her
discharge , and ends August 4, 1964.
Notwithstanding that Turner did not have any interim
earnings , the record establishes that this employee did not
incur any loss of willful earnings during her backpay
period. Thus, the credible and uncontroverted testimony
of this employee reveals that during this period she at-
tempted to obtain work, albeit unsuccessfully , with the
following employers : Greers, the Springhill Laundry, Na-
tional Food , Food Town, Delchamp , A & P, Constan-
tine's Restaurant , Kwick Check, and the Five and Ten
Cent Store. After her discharge , Turner also registered
with the State employment service but was not referred
to any jobs by this agency.
As in the cases of the other employees heretofore
discussed , Respondent has not shown the existence of
any actual or potential employment which Turner should
have explored but did not. Accordingly , and in view of
the extensive efforts made by Turner to obtain employ-
ment during her backpay period , I find no merit in
Respondent's contention that she incurred a willful loss
of interim earnings.
places asking for a job I couldn't get it so I decided I would go to the
unemployment place." In view of this credited testimony, I do not believe
that Etheredge should be penalized for not registering with the State em-
ployment service until 2 weeks or so after her discharge
18 DECISIONS OF NATIONAL
Upon the stipulation of the parties at the hearing, the
following reflects the backpay due Mildred Turner: 15
1 st Quarter
Interim earnings $190.67
Quarterly net backpay none
Total $190.67
2d Quarter
Interim earnings $572.0016
Quarterly net backpay none
Total $572.00
3d Quarter
Interim earnings $227.33
Quarterly net backpay none
Total $227.33
RECOMMENDED ORDER
Upon the basis of the foregoing findings of facts and
pursuant to Section 10(c) of the Act, I shall recommend
15 Turner admittedly was incapacitated from February 10 to 28, 1964
This period has been excepted from the computations set forth below.
LABOR RELATIONS BOARD
that Respondent Weinacker Brothers, Inc., its officers,
agents, successors, and assigns, shall pay to the em-
ployees named below the amounts set forth opposite their
names with interest at 6 percent per annum, computed in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716, less the tax withholdings required by Federal
and State laws.
Elizabeth Boyette $ 130.66
Sadie Burgess 1,642.40
Burl Dock 370.00
Cleveland Dortch 788.34
Marguerite Etheredge (Oswald) 1,269.04
Donald Harris 446.85
Lorenzo Matthews 145.98
Jack Smith 743.48
Mildred Turner (Leigh) 990.00
Harry Wright 144.52
16 The $572 shown here is in accordance with the parties ' stipulation.
Respondent 's brief erroneously reflects this figure to read $500 72.