L.B. Hosiery Co., Inc.

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents' illegal activities, including the aforesaid refusals to reinstate, go to the very heart of the Act and indicate a purpose to defeat self-organization of their employees and that other unfair labor practices proscribed by the Act are to be anticipated from Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless the order herein is coextensive with the danger. Accordingly, in order to make effective the interdependent guaran- tees of the statute and thus effectuate the policies of the Act, it will be recom- mended that Respondents cease and desist from engaging in the unfair labor practices found and from in any other manner infringing upon the rights of employees guaranteed by the Act and that Respondents post the notice attached hereto as Appendix A. (See Standard Dry Wall Products, Inc., 91 NLRB 544.) Since it has been found that the evidence is not sufficient to sustain the allega- tions of the complaint, to the effect that Respondents discriminatorily discharged J. C. Cox, and not sufficient to sustain paragraph 16 of the complaint, it will be recommended that these allegations be dismissed. [Recommendations omitted from publication in this volume.] THE L. B. HOSIERY CO., INCORPORATED AND LEE MAISEL, D/B/A MYERS- TOWN HOSIERY MILLS and AMERICAN FEDERATION OF HOSIERY WORK- ERS. Case No. 4.-CA-59. June 11, 1952 Supplemental Decision and Order On March 10, 1950, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding, which order was thereafter enforced by the United States Court of Appeals for the Third Circuit by a decree entered on April 18, 1951. The decree pro- vided, inter alia, that the Respondents make whole certain of their employees for losses of pay suffered by reason of the Respondents' discrimination against them. On October 3, 1951, the Board issued an order remanding the proceeding to the Regional Director and order- ing that a further hearing be held for the purpose of adducing evidence with respect to the amounts of back pay to which the dis- criminatees might be entitled. On February 8, 1952, Trial Examiner Louis Plost issued his Supple- mental Intermediate Report and Recommendations finding that cer- tain of the discriminatees were entitled to specified amounts of back pay and that no back pay was due certain other discriminatees, as set forth in the copy of the Supplemental. Intermediate Report and Recommendations attached hereto. Thereafter, the Respondent L. B. Hosiery Co., Incorporated, herein referred to as the Respondent, filed exceptions to Supplemental Intermediate Report, record and proceed- ings, the General Counsel filed exceptions to Supplemental Intermedi- ate Report, and both filed supporting briefs. 99 NLRB No. 91. THE L. B. HOSIERY CO., INCORPORATED 631 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 [Members Houston, Styles, and Peterson]. The request of the Respondent for oral argument is hereby denied,, as the record and briefs, in our opinion, adequately present the issues and positions of the parties. The Board has reviewed _the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modi- fications, and additions set forth below." 1. The Trial Examiner found that Howard Kiscaddin incurred a willful loss of earnings for the period from July 1, 1948, to October 1, 1948, by voluntarily leaving Tither Brothers, where he had a job equal to the one he had with the Respondents. The General Counsel has excepted to this finding. We find merit in this exception. Kiscaddin testified that at about the time he left Tither Brothers he was being transferred from day shift to night shift work, the light- ing in the plant was bad, and rather than hazard damaging his eye- sight he decided to operate the gas station. Kiscaddin further testified that although he was working nights on another job at the time of the hearing, the lighting conditions were better. The testimony -with respect to the poor lighting conditions in the Tither Brothers plant was corroborated by another witness for the General Counsel. We therefore find that the period from July 1, 1948, to October 1, 1948, was not a period of willful loss, and that the Respondents should therefore make Kiscaddin whole for any loss of pay suffered during that period. The Trial Examiner stated in his Report that no attempt was made 'to show Kiscaddin's profit or loss in his gas station venture. Kiscad- din testified, however, as quoted in the Intermediate Report, that he had no earnings during the period he was operating the gas station, and that his next employment was with Classic Hosiery as a knitter. We shall therefore award Kiscaddin back pay for this period, without any deduction for interim earnings. 'The Respondent has excepted to the failure of the Trial Examiner to find that only two knitter positions were available after the plant reopened . The Respondent Maisel made no appearance at the reopened hearing. No evidence was presented by the Respond- ent in support of this contention , other than the testimony of Jack Lustman , a witness who was not credited by either of the Trial Examiners who conducted the hearings in this case. We therefore find no merit in this exception. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Computation Howard Kiscaddin Back Pay Period From 2/27/48 to 6/15/49 Gross Back Pay Average Weekly Earnings____________________ $92.79 Number of Weeks in Back-Pay Period ---------- 67 Gross Back Pay for Weeks____________________________ $6, 216. B3 Average Daily Earnings______________________ $18.56 Number of Additional Days in Back-Pay Period__ 3 Gross Back Pay for Days_____________________________ 55.68 Total Gross Back Pay________________________________ $6,272.61 Interim Earnings Total Earnings______________________________ $3,814.82 Less Expenses Allowed_______________________ 0 Net Interim Earnings________________________________ $3,814.82 Net Back Pay---------------------------------------- $2,457.79 2. The Respondent has excepted to the Trial Examiner's failure to allow as a credit against the back pay awarded to Lillian Gassert -and Grace Breidigan the sums which these individuals customarily spent for the care of their children when working. We find, as did the Trial Examiner, that there is no merit to the Respondent's contention. Personal or domestic economies of these individuals necessitated by the Respondent's unlawful deprivation of employment does not re- dound to the Respondent's credit. 3. The Trial Examiner recommended that back pay be awarded Carrie Gassert for the entire period from March 28, 1949, the date of her discriminatory discharge, to May 19, 1949, the date of her recall by the Respondents. We do not adopt this recommendation. Gassert testified that she did not register with the United States Employment Service, or any State agency, nor make any effort to find work until she obtained part-time employment on May 3, 1949. Gassert gave no satisfactory reason for her failure to seek employment during this period.3 We therefore find that the period from March 28, 1949, to May 2, 1949, represents a period of willful loss of earnings. Our back-pay order for this dischargee is therefore limited to the period from May 3, 1949, to May 19, 1949. 2 Because of certain errors in the Trial Examiner's computation , we find it necessary to revise the entire computation. S Gassert testified at the hearing on back pay that, on March 28, 1949 , the date of the discriminatory discharges, Irving Lustman told the dischargees that they need not worry, that they would have jobs. This testimony directly contradicts her testimony in the earlier proceedings in which she testified that Irving Lustman said nothing about future jobs. We do not credit Gassert's testimony in the reopened hearing in this respect. THE L. B. HOSIERY CO., INCORPORATED 633 Computation Carrie Gassert Back-Pay Period From 5/3/49 to 5/19/49 Gross Back Pay Average Weekly Earnings___________________________ $61.25 Number of Weeks in Back-Pay Period________________ 2 Gross Back Pay for Weeks________________________________ $122.50 Average Daily Earnings_____________________________ $ 12.25 Number of Additional Days in Back-Pay Period ------- 2 Gross Back Pay for Days________________________________ 24.50 Total Gross Back Pay____________________________________ $147.00 Interim Earnings Total Earnings_____________________________________ $62.40 Less Expenses Allowed______________________________ 0 Net Interim Earnings--------------------------------- __ 62.40 Net Back Pay-------------------------------------------- $54.60 4. The Trial Examiner recommended that Edith Schaeffer be awarded back pay for the entire period from March 28, 1949, the date of her discriminatory discharge, to May 19, 1949, the date of her re- call by the Respondents. We do not adopt this recommendation. The Trial Examiner found that Schaeffer did not register with the United States Employment Service, or any State agency, and did not make any other effort to obtain employment. The Trial Examiner credited Schaeffer's testimony that Irving Lustman told her on March 28, 1949, that the plant would reopen shortly. The Trial Examiner further found that Schaeffer later received a letter stating that the plant had "ceased all manufacturing operations" and that her em- ployment was terminated "effective Friday, March 25, 1949." 4 The Trial Examiner then found that Schaeffer had a right to rely upon the statement on March 28 by Irving Lustman regardless of when the letter was sent, and that Schaeffer's failure to seek employment did not constitute a willful loss of earnings. We do not agree. Under all the circumstances, we find that, after the receipt of the Respondent's letter, Schaeffer should have then made a reasonable effort to find employment. This she did not do. We shall therefore limit the Respondent's back-pay liability to the period from March 28, 1949, through March 30, 1949. 4 Although the Trial Examiner stated that the date of the receipt of this letter is not clearly established, we found, in the earlier proceeding, that these letters were postmarked March 80, 1949. 634 DECISIONS OF.NATIONAL LABOR RELATIONS BOARD Computation Edith Schaeffer Back-Pay Period From 3/28/49 through 3/30/49 Gross Back Pay Average Weekly Earnings--------------------------- $40.70 Average Daily Earnings----------------------------- 8.16 Number of Days in Back-Pay Period------------------ 3 Gross Back Pay for Days--------------------------------- $24.48 Interim Earnings Total Earnings and Expenses------------------------------ 0 Net Back Pay------------------------------------------- $24.48 5. The Trial Examiner found that Paul Garnet purchased a busi- ness on August 1, 1949, and intended to remain in such business "if the enterprise proved profitable." The Trial Examiner also found that a profit was made during every week of operation of this business and that the cutoff date for back pay for Garnet should be August 1, 1949, the date on which the business was purchased. The General Counsel has excepted to these findings. We find merit in this excep- tion. The mere fact that Garnet became self-employed does not in- dicate, in and of itself, a decision not to return to work for the Re- spondents if offered reinstatement.5 As Garnet did not at any time unequivocally indicate a decision not to return to the Respondents' em- ploy, and as he accepted reinstatement when offered, we find that Garnet is entitled to gross back pay from the date of his discrimina- tory discharge, March 28, 1949, to the date on which he accepted the Respondents' offer of reinstatement, April 1, 1950, including that period during which he was self-employed; less his net earnings dur- ing the entire back-pay period.7 6. The Trial Examiner found that the Respondents never made a bona fide offer of reinstatement to James Ludwig, and that the back- pay period as to Ludwig should run until such an offer is made. The Respondent has excepted to this finding. We do not agree with the Trial Examiner's finding. In March 1950, the Respondents, by letter, offered Ludwig reem- ployment as a knitter. Identical letters were sent at about the same time to Garnet, Matz, Lutz, and Williamson. Garnet and Matz ac- Cf. Baxter Bros, 91 NLRB 1480; Adams Motors, Inc.; 96 NLRB 1198. " Harvest Queen Mill & Elevator Company, 90 NLRB 320, 323. ' There is no evidence in the record with respect to Garnet 's earnings during the period in which he was self-employed . The General Counsel's offer of proof on this point was rejected by the Trial Examiner. We believe that such evidence is relevant in the deter- mination of the net back pay due Garnet . Should the parties be unable amicably to adjust the amount of back pay due Garnet on the basis of the hearing heretofore had and the Trial Examiner's findings in the Supplemental Intermediate Report, we shall order a further hearing for the purpose of taking further evidence in this connection. THE L. B. HOSIERY CO., INCORPORATED 635 cepted the offer and returned to work. Lutz and Williamson notified the Respondents that they declined the offer. Ludwig did neither. As shown in the record, Ludwig, who was in California at the time, did not accept the Respondents' offer of reemployment, but instead wrote to the Respondents that he desired time to go back to Pennsylvania in order to determine what the wages and working conditions were in the Respondents' plant.8 We find that the Respondents' offer of reem- ployment was unconditional and bona fide." We shall therefore limit the Respondents' back-pay liability with respect to Ludwig to the period from March 28, 1949, the date of his discriminatory discharge, to March 30, 1950, the date on which Ludwig mailed his reply to the offer of reinstatement. Computation James Ludwig Back-Pay Period From 3/28/49 to 3/30/50_ Gross Back Pay Average Weekly Earnings_____________________ $88.32 Number of Weeks in Back-Pay Period------------ 52 Gross Back Pay for Weeks______________________________ $4,592.64 Average Daily Earnings ______________________________ $17.66 Number of Additional Days in Back-Pay Period-------- 4 Gross Back Pay for Days______________________________ 70.64 Total Gross Back Pay_ _________________________________ $4,663.28 Interim Earnings Total Earnings_________________________________ $1,050.41 Less Expenses Allowed__________________________ 562.00 Net Interim Earnings ___________________________________ 88.41 Net Back Pay_________________________________________ $4,174.87 7. While we substantially agree with the Trial Examiner's findings with regard to the back pay due Francis Matz and Russel R. Lutz, we find it necessary to revise his computations because of certain errors appearing therein. 6 The deposition of Ludwig, which was taken in California, contains the following ques- tion and answer : Q. Was it your desire to go back to work for the Company after receiving that letter from them? A. It was my desire to go back to see how things stood. I wouldn 't go back to work for the same Company unless the wages were the same , or unless I could make a decent living. I didn't know how things stood. I thought there was only one way to find out and that was to go back and find out. . . . The General Counsel , in his brief to the Trial Examiner in the back-pay proceeding, limited his computation of Ludwig's back pay to the period ending with this offer of reinstatement. 636 DECISION'S OF NATIONAL LABOR RELATIONS BOARD Computations Fra wis Matz Back-Pay Period From 3/28/49 to 3/28/50 Gross Back Pay Average Weekly Earnings --------------------- $106.48 Number of Weeks in Back-Pay Period --------- 52 Gross Back Pay for Weeks___________________________ $5,536.96 Average Daily Earnings______________________ $21.29 Number of Additional Days in Back -Pay Period- .1 Gross Back Pay for Days _____________________________ 21.29 Total Gross Back Pay______________ __________________ $5,558.25 Interim Earnings Total Earnings ------------------------------- $1,805.17 Less Expenses Allowed ----------------------- 53.64 Net Interim Earnings________________________________ $1,751.53 Net Back Pay---------------------------------------- $3,806.72 Russel R. Lutz Back-Pay Period From 3/28/49 to 3/23/50 Gross Back Pay Average Weekly Earnings-------------------- $100.03 Number of Weeks in Back-Pay Period ---------- 51 Gross Back Pay for Weeks____________________________ - $5,101.53 Average Daily Earnings_______________________ $20.01 Number of Additional Days in Back-Pay Period- 3 Gross Back Pay for Days_________ ____________________ 60.03 Total Gross Back Pay________________________________ $5,161.56 Interim Earnings Total Earnings_______________________________ $3,695.13 Less Expenses Allowed 10______________________ 362.34 Net Interim Earnings________________________________ 3,332.74 Net Back Pay---------------------------------------- $1,828.82 Order Upon the basis of this Supplemental Decision and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, The L. B. Hosiery Co., Incorporated, and Lee Maisel, doing business as Myerstown Hosiery Mills, Myers- town, Pennsyl-vania, their officers, agents, successors, and assigns, 10 The following figures used in our computations vary somewhat from those used by the Trial Examiner . Travel to Ephrata , Pennsylvania, from 9/25/49 to 3/23/50-25 weeks and 4 days-a total of 6,930 miles . This reduces the total miles traveled to 10,067, which at 6 cents a mile allowance totals $604 .02. A credit is allowable against this for the 19' miles traveled by Lutz daily while working for the Respondents : 42 weeks and 2 days-- 4,028 miles at 6 cents a mile or a total of $241 .68. Net travel allowance : $362.34. THE' L. B. HOSIERY CO., INCORPORATED 637 shall pay to the employees listed below, who were found to have been discriminated against by the Respondents by a Board Decision and Order issued on March 10, 1950, as enforced by a, decree of the Court of Appeals for the Third Circuit entered on April 18, 1951, the fol- lowing respective amounts of net back pay : Kenneth E. Hildebrand________________________________ $0 Howard Kiscaddin_____________________________________ 2, 457.79 Russel R. Lutz----------------------------------------- 15828.82 Lillian Gassert-________________________________________ 304.00 Carrie Gassert________________________________________ 84.60 Grace Breidigan--------------------------------------- 304.00 Edith Schaeffer---------------------------------------- 24.48 Grace Hibshman--------------------------------------- 0 Hilda Miller------------------------------------------ 238.64 Pauline Haffer ---------------------------------------- 254. 15 James R. Ludwig -------------------------------------- 4,174.87 Edwin L. Williamson ---------------------------------- 29692.57 Francis Matz------------------ 3, 806.72 ------------------------------------------ Helen Kline------------------------------------------- 257.12 Margaret Benninghoff----------------- ------------------ 0 Supplemental Intermediate Report and Recommendations On September 29, 1949. Trial Examiner John H. Eadie issued his Intermediate Report in the above matter (4-CA-59) which was tried before him at Lebanon, Pennsylvania, between June 15 and July 5, 1949, inclusive. On March 10, 1950, the National Labor Relations Board, herein called the Board, issued its Deci- sion and Order in the matter, which order was thereafter enforced in a decree entered on April 18, 1951, by the United States Court of Appeals for the Third Circuit, proving inter alga that the Respondents make whole certain of their employees for loss of pay suffered by reason of the Respondents' discrimination against them. Thereafter, it appearing to the Board that the question of the amount of back pay due the said discriminatees presented issues of fact which could best be resolved by a hearing, the Board on October 3, 1951, issued an "Order Remand- ing Proceeding to Regional Director for Further Hearing," wherein it ordered the proceeding to be reopened before a duly designated Trial Examiner for the purpose of adducing evidence relative to the amount of back pay to which the discriminatees might be entitled and remanded the proceeding to the Regional Director for the Fourth Region for the purpose of arranging such hearing. Pursuant to notice a hearing was held at Lebanon, Pennsylvania, on October 29 to 31, 1951, inclusive, before Louis Plost, the undersigned Trial Examiner duly designated in the matter. The Respondent, L. B. Hosiery Co., Incorporated, entered an appearance' ' The General Counsel adduced proof that attempts had been made to serve Lee Maisel d/b/a Myerstown Hosiery Mills but that registered mail service was returned with the notation that addressee could not be found. A telegraphic rder from the Trial Examiner to Lee Maisel under date of November 16 was also returned unclaimed. Documents sent later were also returned by the U. S. Post Office. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union did not appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. The parties waived oral argument. A date was set for the filing of briefs and/or findings of fact and conclusions of law.' A brief has been received from the General Counsel. At the opening of the hearing the Respondent, The L. B. Hosiery Co., Incor- porated e moved, in effect, to dismiss the action for the reason that : ... the Board has no jurisdiction, no authority to order a further hearing on its own initiative in this matter, the original order of the Board having been reduced to a decree of a court, Circuit Court of Appeals, ..., and only by obtaining permission from the court in which the decree has been en- forced and in which the original order of the Board has been merged, only by obtaining permission of that court can the Board now act any further in any respect, including the ascertainment of any back pay that is due under the decree now, not under the order of the Board. The undersigned denied the motion. The Respondent further moved, in effect, to dismiss the action for the reason that prior to the Board's petition to the Court of Appeals for the Third Circuit for enforcement of its order herein the Respondent had requested the Board to reopen the record and take testimony touching on the back-pay issues which request was denied by the Board, and further that the Board can take no further action without first obtaining permission of the United States Court of Appeals for the Third Circuit which now has jurisdiction of the matter. The undersigned denied the motion. The Respondent moved to dismiss on various other grounds, all motions to dismiss being denied. After the close of the hearing the undersigned granted a motion by the General Counsel to reopen the record for the sole purpose of taking the deposition of one of the discriminatees now resident in California' Such deposition was taken in San Francisco, California, on December 20, 1951, and is incorporated in the record herein as Trial Examiner's Exhibit No. 2. Upon the entire record and from his observation of the witnesses, the under- signed makes the following findings and recommendations : 1. Basis for findings The undersigned has assumed that the average weekly earnings of each dis- criminatee during the 3-month period immediately preceding the unlawful dis- charge, as such earnings were reported to the Social Security Administration, is the amount such discriminatee would have earned weekly if continued in employment by the Respondents during the period of discrimination. The undersigned has been compelled to adopt this method of computation, first, because the books and records of The L. B. Hosiery Co., Incorporated, were 2 Upon motions of the General Counsel made after the close of the hearing the Chief Trial Examiner extended the time for filing briefs from November 14, 1951, to January 2, 1952, and again to February 5, 1952. 3 Unless otherwise stated "Respondent" shall herein refer to the Respondent appearing at the hearing, to wit : L. B. Hosiery Co, Incorporated. 4 On November 9, 1951, the Respondent moved to quash the application to take deposi- tion. On December 28 the Respondent 'moved to supress the deposition taken. '' The undersigned denied both motions The covering documents are placed in the file of exhibits as Trial Examiner's Exhibit No. 3. THE L. B. HOSIERY CO., INCORPORATED 639 not produced; second, the books and records of Lee Maisel, d/b/a Myerstown_ Hosiery Mills, were not produced. These Respondents are found by the Board to be chargeable. The Board found that the sale of the business by L. B. Hosiery Co., Incorporated, to Lee Maisel was fictitious and that Maisel's purported individual proprietorship was merely a disguised operation of L. B. Hosiery Co., Incorporated. Lee Maisel did not appear at the hearing. Robert J. Rosenthal, a former employee of the Board, testified that on May 18, 1951, while engaged in an official investigation to determine back pay in the instant matter, he visited the Respondent's plant, then operated as Lee Maisel d/b/a Myerstown Hosiery Mills, and was told by Jack Lustman, president of the Respondent, L. B. Hosiery Co., Incorporated, that the payroll records of the Respondents were not at the plant ; that on May 28, 1951, he was told by said Lustman that the records were lost. The records were not produced. Rosenthal's testimony was not disputed and is credited by the undersigned. Rosenthal further testified that by agreement he met with Lustman and one Gustave Garfield, an attorney apparently representing the Respondents, in New York and was then given a payroll purporting to be that of Myerstown Hosiery Co., Incorporated. These documents were in a bundle ; they were later photo- stated, and the originals returned. Rosenthal had no knowledge of the authentic- ity of the documents given him by Garfield. Lee Maisel did not appear. The attorney for L. B. Hosiery Co., Incorporated, carefully pointed out on the record that he did not represent any Respondent other than L. B. Hosiery Co., Incorpo- rated. Lustman refused to give any testimony in behalf of any other Respondent other than L. B. Hosiery Co., Incorporated. The undersigned credits Rosenthal's testimony with respect to the documents he received in New York from Attorney Garfield. The undersigned finds that the records of Lee Maisel, d/b/a Myerstown Hosiery Mills, are not in evidence herein, and that the books and records of L. B. Hosiery Co., Incorporated, are likewise not in evidence. 2. The discriminatees The Board found that 16 of the Respondent's employees were to be made whole for losses suffered by reason of the discrimination of the Respondent against them. Of these employees, Howard Kiscaddin and Kenneth E. Hildebrand were illegally discharged on February 27, 1948, and the others on March 28, 1949. The General Counsel stated on the record that no back pay was due Kenneth E. Hildebrand. Grace Hibshman and Margaret Benninghoff, named- as discriminatees in the Board's order, did not appear to testify. Back-Pay Computations 1. Howard Kiscaddin Howard Kiscaddin found by the Board to have been illegally discharged February 27, 1948, testified credibly that he registered as unemployed with the Pennsylvania State Employment Service, Bureau of Unemployment Compensa- tion, affiliated with the United States Employment Service, herein called Unem- ployment Bureau ; 3 that he looked for work in surrounding towns and on March 5 Daniel E. Long, manager of the Lebanon branch office of the Unemployment Bureau, testified that registration for unemployment insurance meant also automatic registration for available employment. B40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 18, 1948, obtained employment as a knitter with Tither Brothers at Manheim, Pennsylvania. Kiscaddin held this job until July 1, 1948. On July 1, 1945, he quit his job at Tither Brothers and rented a gas station. Kiscaddin testified that he gave up this venture after 2 weeks and sometime in August 1948 went to work as a knitter at Classic Hosiery, Incorporated, where he remained until "the end of June 1950." Kiscaddin testified that on June 15, 1949, he received an offer of employment as a knitter from the Respondent, Myerstown Hosiery Mills, which he declined to accept. Kiscaddin was asked by the General Counsel to itemize his expenses incurred while seeking employment. He named several towns he allegedly visited in an effort to find work, giving the mileage traveled as "roughly 18 miles," and "I guess that is about 16 miles one way." He specified no dates the trips were made, nor gave the names of the plants visited. As to one certain town he visited he testified, "I was there, I would say three times." Kiscaddin further testified : Q. Did you keep any accurate account of what the cost was of these various trips you made looking for work? A. No, I didn't. I based it on a previous ruling, I believe, the Government, sometime before the war, 10 cents a mile. Q. Do you know where you got that ruling? A. I believe I heard at the Post Office or at Middletown, one time. Upon Kiscaddin's testimony with respect to the expenses he incurred in travel while seeking work, the undersigned can make no finding and recommends that this item be disallowed. Kiscaddin further claimed $8.29 for telephone calls otherwise unspecified except as "that would be to Reading and over to Ephrata." The undersigned recom- mends that this item be disallowed. Kiscaddin claimed 50 cents expended for notarizing a document sent to the Board, and 12 cents for postage in correspondence with the Board. Clearly, had it not been for the Respondent's discrimination, Kiscaddin would not have been put to the expense of corresponding with the Board, however as it was not expense incurred while seeking employment it cannot be allowed. The Respondent sought to show that Kiscaddin was engaged in an independ- ent business of selling and servicing lawn mowers during the period. The record shows that Kiscaddin did not engage in this enterprise until sometime in August 1949, after he was refused reinstatement. Kiscaddin testified that on March 18, 1948, he obtained employment as a knitter with Tither Brothers, Manheim, Pennsylvania ; that he remained at Tither Brothers until July 1, 1948; that during this period, March 18, 1948, to July 1, 1948, his total earnings were $1,556.66. Kiscaddin further testified that on July 1, 1948, he voluntarily quit his job with Tither Brothers in order to rent a gas station. With reference to this venture Kiscaddin testified : A. Well, I decided-1 had a chance to take over a gas station from- that was in July, July 1, 1948, until two weeks later-that would be about the 15th. Q. You worked at the gas station for two weeks? A. Yes. Q. What do you mean by taking over a gas station? A. Well, I had sort of rented it on trial purposes. THE L. B. HOSIERY CO., INCORPORATED 641 Q. And you rented it for two weeks? A. Yes. Q..What happened after the two weeks? A. I went back to knitting. I had always wanted to be a-I always wanted to stay at knitting, but I was trying to get a better job all along to equal the pay that I had lost. Q. What date did you go back to a knitting job then? A. August of 1948. Q. While you were at the gas station , did you earn anything? A. No. TRIAL EXAMINER PLosT : Just a minute. Q. (By Trial Examiner Plost) You say in August of 1948 you went back to a knitting job? A. Yes. Q. And what happened to the gas station? A. The fellow took it back. Q. Did you pay anything for that gas station when you took it over? A. I paid a month's rent. Q. A month's rent? A. Yes. The undersigned believes Kiscaddin's testimony that "I always wanted to stay at knitting, but I was trying to get a better job all along to equal the pay that I had lost," to be inconsistent inasmuch as at the time he quit Tither Brotlers^ he was earning more than he did with the Respondents. Kiscaddin testified that after he gave up the gas station he next obtained employment with Classic Hosiery Incorporated, in August 1948. His reported earnings with Classic Hosiery were put in the record by a stipulation offered by the General Counsel. This stipulation shows that his earnings with Classic Hosiery began October 1, 1948. No attempt was made to show his profit or loss in the gas station venture and no attempt was made to cover the period from approximately July 15, the date Kiscaddin allegedly again was seeking work as a knitter, until October 1, 1948. Upon the entire record considered as a whole, including his observation of Kiscaddin on the witness stand, the undersigned is persuaded that Kiscaddin did not begin work at Classic Hosiery until October 1, 1948, and does not credit his contrary testimony. Because Kiscaddin quit a job equal to that he had with the Respondents, the undersigned is persuaded that the period July 1, 1948, to October 1, 1948, rep- resents a period of willful loss on his part. On the state of the record the under- signed will recommend that the Respondents be not held chargeable for any loss Kiscaddin sustained during this period. The parties stipulated that Kiscaddin 's earnings from October 1 , 1948, until June 15, 1949, when he refused the Respondents' offer of reinstatement, were as follows : October 1, 1948 to December 31, 1948-------------------------- 1,104.00 January 1, 1949 to March 31, 1949------------------------------ 620.88 April 1, 1949 to June 15,1949 ----------------------------------- 533.28 Kiscaddin's average weekly earnings for the 3 months prior to his unlawful discharge were $92.70. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name : Howard Kiscaddin Back-Pay Period Computation 6 From : 2/27/48 To : 6/30/48 From : 10/1/48 To : 6/15/49 Gross Back Pay Average Weekly Earnings------------ $92.70 No. of Weeks in Back-Pay Period------ 54 Gross Back Pay for Weeks------------ $5,005.80 Average Daily Earnings-------------- $18.54 No. of Additional Days in 'Back Pay Period ---------------------------- 3 Gross Back Pay for Days------------ $55.62 Total Gross Back Pay------------------------ $5,061.42 Interim Earnings Total Earnings----------------------- $3,814.79 Less : Expenses Allowed---------_- $0 Total Net Interim Earnings------------------- $3,814.79 Net Back Pay----------------------------------------- $ 1,246.63 Hilda Miller and Pauline Haffer Hilda Miller and Pauline Haller' were found by the Board to have been discriminatorily discharged March 28, 1949, and recalled to work May 19, 1949. 'Upon the entire record, the undersigned finds that the two employees named above registered with the Unemployment Bureau, obtained no employment during 'the period of the discrimination, and incurred no unusual expenses seeking work as a result of the discrimination. Each was unemployed for a period of 7 weeks and 3 days. The parties stipulated to the average weekly earning of each; the stipulated figure being used as a basis of computations by the undersigned. Computation Name ------------------------------ -------------------- Hilda Miller Stipulated weekly earnings------------------------------ $31.40 7 Weeks and 3 Days --------------------------- --------- 238.64 Interim Earnings--------------------------------------- 0 Recommended back pay to Hilda Miller -------------- -_- 238.64 Name-------------------------------------------------- Pauline Haffer Stipulated weekly pay average--------------------------- $33.44 7 Weeks and 3 days------------------------------------- 254.15 Interim earnings--------------------------------------- 0 Back pay due to Pauline Haffer to make her whole for the Respondent 's discrimination--------------------------- 254.15 Helen Kline Long Helen Kline Long who appears in the original record as Helen Kline, having married since the original hearing, was found by the Board to have been dis- charged discriminatorily on March 28, 1949, and reinstated May 19, 1949. 6 The undersigned does not make use of the "Woolworth formula" as it was adopted June 12, 1950, whereas the order herein was made on March 10, 1950. * Haffer's name is spelled Hoffer in the transcript of the instant proceeding, and HatTer in the original transcript. THE L. B. HOSIERY CO., INCORPORATED 643 Long registered with the Unemployment Bureau but found no other employ- merit during the period of discrimination. Long testified to making four trips by car seeking work , she claimed 10 cents per mile for the distance covered but admitted that the figure, 10 cents per mile, was arbitrary as no accurate record was kept, and further testified that she traveled with her then-intended husband in his car, and that she had not paid him for the trips or agreed to do so because "he didn 't ask me." Under the circumstances the undersigned will recommend that Longs claim for expenses incurred in seeking work be not allowed. The parties stipulated that Long's average earnings prior to her illegal dis- charge were $33.83 per week. Computation Back Pay Due---------------------------------------- Helen Kline Long Stipulated weekly earnings---------------------------- $33.83 7 Weeks and 3 Days---------------------------------- 257.12 Interim Earnings------------------------------------- 0 Recommended payment to Helen Kline Long-------- ---- 257. 12 Lillian Gassert and Grace Breidigan Lillian Gassert and Grace Breidigan, found to have been illegally discharged on March 28, 1949, and reinstated May 19, 1949, both registered with the Unem- ployment Bureau, and obtained no other work during the period of unemploy- ment caused by the Respondents' discrimination. In the case of each, the Respondent contends for a credit against the amount claimed due as the sum necessary to make the employee whole under the Board's order. Lillian Gassert is married. While working for the Respondents she paid $5 •weekly for the care of her child while at work. During the period of her idle- ness brought on by the Respondents' discrimination, Gassert cared for her child herself and thus "saved" the $5 weekly payment. The Respondent contends that this "saving" should be credited to it. The undersigned finds no merit in the Respondent's contention. The parties stipulated that Lillian Gassert's earnings prior to her discharge were $40 weekly. Computation Back Pay Due------------------------------------------- Lillian Gassert Stipulated earnings weekly ------------------------------ $ 40.00 7 Weeks and 3 Days------------------------------------- 304.00 Interim earnings---------------------------------------- 0 Recommended as due Lillian Gassert --------------------- 304.00 Grace Breidigan is also married. While working she paid $10 weekly for the care of her children. She did not have this expense while out of work. The Respondent contends for credit as to this weekly payment . The under- signed finds no merit in the contention. Breidigan testified credibly that her average earnings prior to her discharge were $40 weekly. Computation Name ------------------------------------------------ Grace Breidigan Pay rate --------------------------------------------- $40. 00 Weekly 7 Weeks and 3 Days ---------------------------------- 304.00 Interim earnings--------------------------------------- 0 Recommended as due Breidigan ------------------------ 304.00 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carrie Gassert Carrie Gassert, found to have been illegally discharged March 28, 1949, and recalled May 19, 1949, obtained part-time employment at the Mt. Aetna Manu- facturing Company in Myerstown. She did not draw unemployment benefits. During the entire period of her unemployment with the Mt. Aetna Manu- facturing Company, she earned $62.40. Carrie Gassert testified without contradiction that her earnings during the period January 1, 1949, to March 31, 1949, for work performed in the Respond- ents' plant totaled $796.25, the weely average for the 13-week quarter being $61.25. Computation Back Pay Due__________________________________________ Carrie Gassert Average weekly pay____________________________________ $61.25 7 Weeks and 3 Days_____________________________________ 465.50 Interim earnings________________________________________ 62.40 Recommended as being due Carrie Gassert________________ 403. 10 Edith Schaeffer Edith Schaeffer, discriminatorily discharged March 28, 1949, and reinstated May 19, 1949, testified that she did not register for unemployment compensation with the Unemployment Bureau, and sought no employment during the period of her illegal discharge. Schaeffer testified that on March 28, 1949, she was told by Irving Lustman (found by the Board to be the treasurer of the Respondent, L. B. Hosiery Co., Incorporated), that the plant would be reopened shortly. All of the other female discriminatees testifying at the hearing corroborated Schaeffer. The undersigned credits her testimony and finds that at the time the plant was closed and the employees illegally locked out, Irving Lustman, a responsible official of the Respondent, told Schaeffer and the other female employees that it was the Respondent's intention to reopen the plant "in a few days or weeks, they didn't know exactly." 8 At a later date, not clearly established, Schaeffer received a letter from the Respondent informing her that the plant had "ceased all manufacturing opera- tions," and that her employment was terminated "effective Friday, March 25, 1949." In view of the fact that Schaeffer had been told by the Respondent on March 28 that the plant would reopen, she had a right to rely on the Respondent's statement regardless of when the letter was sent to her, it being clear, however, that it was sent after the discharge. The undersigned is convinced and finds that Schaeffer's failure to seek em- ployment during the interim of her illegal discharge does not constitute a willful loss of earnings, in view of all the circumstances in the case. Schaeffer's earnings are determined to have been an average of $40.70 weekly. Computation Back Pay Due__________________________________________ Edith Schaeffer Weekly average pay____________________________________ $40.70 7 Weeks and 3 Days____________________________________ 309.32 Interim earnings_______________________________________ 0 Recommended payment_________________________________ 309 32 8 Testimony of Edith Schaeffer. THE L. B. HOSIERY CO., INCORPORATED 645 Paul Garnet Paul Garnet was found to have been discriminatorily discharged by the Re- spondent on March 28, 1949. Garnet testified credibly that he registered with the Unemployment Burgau ; that on April 8, 1949, he found employment with the Annville Stone Company and worked for this concern for 3 days, earning a total of $28.60; that on April 14, 1949, he went to work for the Reading Railroad Company at Rutherford, Pennsylvania, remaining at this job until August 1, 1949. His earnings on the railroad job during the period were $644.48. Neither the job with the stone company nor the railroad were at his.-trade of knitter, but were that of a laborer. Garnet further testified that on August 1, 1949, he bought a milk-collecting business, paying $5,100 for the route ; that he made a profit over his operating expenses of this business every week, and that at the time he bought the business he intended to remain in it "if the enterprise proved profitable." On March 23, 1950, Garnet received an offer of employment from the Re- spondents which he accepted, returning to work on April 1, 1950. Regarding the disposition of his milk business upon his return to work for the Respondents, Garnet testified : Q. (By Mr. Kowal) What did you do with the business? A. I kept operating it, hiring a man to run the truck, collect the milk and deliver. Conclusions, Garnet testified that at the time he bought the milk route he intended-to stay in business "if the enterprise proved profitable." From the amount he invested in its purchase it is quite evident that Garnet fully expected the enterprise to be profitable. The record is clear that Garnet's milk business made him a profit every week beginning with the first week he operated it. In the opinion of the undersigned, so long as the business carried itself and showed a profit, Garnet's condition precedent had been met. The size of the profit was immaterial. As long as there was profit Garnet could expect to increase it week by week. It must therefore be assumed that Garnet had abandoned his desire to return to work in the Respondents' plant, when be achieved '*profitable" self-employment. The Board has indicated that it will not toll back pay after a discriminatee has decided not to return to his old job because his self-employment "had begun to show a profit." To hold otherwise than that Garnet abandoned his claim for reinstatement at the time his self-imposed condition of "profitable" self-employment was met means that be would be permitted to play fast and loose with his rights and force the Respondents to underwrite his business venture An order of the Board is intended to be remedial, not punitive. The Board seeks to reestablish the status quo, not to punish. In the opinion of the undersigned should the Board permit Garnet to become profitably self-employed and further permit him to hold a claim against the Respondents until such time as his profits reached some suitable arbitrary figure, which of course he would increase as he saw fit, before the Responcients are released from further obligation does not realistically reestablish the status '$o or determine the parties' legal rights and obligations but forces a new obligation upon the Respondents, which is punitive, not remedial. The Board can correct, it has not the power to punish. The undersigned is of the opinion that the cutoff date in Garnet 's case must be the time his "enterprise became profitable" which was August 1, 1949. The undersigned will recommend that back pay to Garnet cease with this date. See Banter Bro8., 91 NLRB 1480, footnote 6. 215233-53-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds support for his findings in the fact that at the time Garnet accepted the Respondents' offer of reinstatement he did not sell his busi- ness but employed a man to operate it for him. Garnet testified that he incurred unusual expenses in seeking work. He testi- fied that he made trips by automobile to various towns in Pennsylvania seeking -work as a knitter, and claimed mileage at 6 cents per mile for them but could not give any definite date the trips were made. Garnet testified : Q. (By Mr. Kowal) And could you give us the dates of these trips as exactly as you can, or the period between which you made them? A. They were made at intervals between the time I was reemployed. The accurate dates I couldn't give you. Garnet testified that he expended $8.91 for telephone calls seeking work. The sum is not otherwise itemized. Garnet testified that he made 4 trips to Annville in connection with the 3- -day job with the Annville Stone Company. The distance was 14 miles round trip from his home. He also testified that his transportation expense while working for the railroad was $102.50. He arrived at this figure by reason of making 12 trips weekly, over a period of 15 weeks and 2 days (April 14-August 1, 1949). The distance from Lebanon to Rutherford is 21 miles. The trips were all made by Garnet in his automobile. Garnet further testified that he originally figured the cost of transportation at "three or four cents a mile" but then raised the figure to 6 cents per mile because a mailman told him that the Government allowed 6 cents a mile to postal employees. Garnet testified that at "six cents per mile" all his transportation costs amounted to $315.36, and that this figure included $102.50 for travel while employed by the railroad. Garnet also admitted that he "made a lot of trips" after March 1950 for which he now claims compensation. Garnet purchased and operated the milk route August 1, 1949. On the state of the record the undersigned can only recommend that Garnet be made whole for his trips to and from Annville and his trips to and from Rutherford. The other items claimed are not supported by any definite and probative evidence. Garnet also testified that while employed by the Respondents he traveled 18 miles daily by car to and from work. The Respondents should be credited with this against the mileage allowed. The undersigned will so recommend. The record is clear that Garnet's average weekly earnings prior to his dis- charge were $101.91, or $1,324.85 for a quarter of 13 weeks. Computation Name: Paul Garnet Back Pay Period From: 3/28/49 To: 8/1/49 Gross Back Pay Average weekly earnings ---------- $101.91 No. of weeks in back-pay period____ 18 Gross back pay for weeks---------- $1, 834.38 Total gross back pay_______________________ $1,834.38 Interim Earnings Total earnings____________________ $673.08 Less: expenses allowed ------------ $60.44 Total net interim earnings__________________ $612.64 Net Back Pay---------------------------------------- $1,221.74 THE L. B. HOSIERY CO., INCORPORATED 647 Francis Matz The Board has found that Francis Matz was illegally discharged by the Respondents on March 28,1949. Matz registered with the Unemployment Bureau. He could obtain no work until July 1949, at which time he was employed by the Hoover Company as a house-to-house salesman. He worked for the Hoover Company until September, his total earnings with Hoover being $506.41. In September 1949, Matz obtained employment as a knitter with Otto Schubert, West Wyomissing, Pennsylvania. Matz testified that at the time he obtained work at Schubert's, he did not expect to return to the Respondents. He was laid off for lack of work in January 1950. His total earnings at Schubert's were $1,023. Matz again registered with the Unemployment Bureau. He obtained no employment until February 1950, at which time he obtained a job in a wood- working plant as a woodworker. He remained in this plant, Musagrand Pro- duction, Incorporated, of Brooklyn, New York, until March. His earnings there were $275.76 for the entire period. On March 28, 1950, he was recalled by the Respondents. During the period above discussed, Matz also worked as a janitor at night for a church, earning $10 weekly ; however, as he testified that he also had this job and income while with the Respondents before his discharge, the undersigned will ignore it in his computations. Matz testified that he was offered a job by the Fre-Mar Hosiery Company, of Manheim, Pennsylvania, sometime in April 1949, which he did not accept because the Company operated with antiquated machinery and consequently his earnings would be small and taking the job would necessitate his traveling ,80 miles each day. Matz also refused a job as a knitter in Philadelphia because it was 40 miles from his home and he was at the time employed by Hoover. Matz claimed as extraordinary expenses in connection with his losses because of the Respondents' discrimination: (a) $11.64 train fare to New York; and (b) $42 room rent while in New York on the woodworking job. Matz' average earnings during the 3-month quarter preceding his discharge, as reported to the Social Security Administration according to law, were $108.52 weekly. Matz' testimony was not contraverted and is credited by the undersigned. Computation Name : Francis Matz Back Pay Period From : 3/28/49 To : 3/28/50 Gross Back Pay Average weekly earnings ---------- $108.52 No. of weeks in back-pay period____ 52 Gross back pay for weeks----- ____ $5,643.04 Average daily earnings------------ $21.70 No. of additional days in back-pay period-------------------------- 1 Gross back pay for days -- --------- $21. 70 Total gross back pay______________________ $5,664.74 Interim Earnings Total earnings____________________ $1,805.17 Less : expenses allowed____________ $53. 64 Total net interim earnings __________________ $1,751.53 Net Back Pay_________________________________________ $3,913.21 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Russel R. Lutz Russel R. Lutz discriminatorily discharged by the Respondents March 28, 1949,. was offered reinstatement March 2'3, 1956, and declined the offer when made. Upon being discharged Lutz registered with the Unemployment Bureau and began looking for work. He could find no work until May 18, 1949, when he ob- tained employment with Hershey Estates Company . This job was not at his trade, but in an amusement park as an "auto scooter" operator. Lutz worked for Hershey until September 11, 1949. His earnings at Hershey's amounted to $975.78. On September 25, 1949, Lutz found employment with Milda Hosiery Corpora- tion where he is still employed . He was employed as and is still working as a knitter. His earnings from September 25, 1949, to March 23, 1950, at Milda Hosiery were $2,719.35. - The above findings are based on Lutz' undenied testimony which the under- signed credits. Lutz' average earnings while with the Respondents were $100 .03 weekly. Lutz testified that while employed by Milda Hosiery be looked for another job, and that during all the time he sought employment both before and after his employment with Milda , he kept an accurate account of his expenses in a book ; however, he testified, the book had been lost. Lutz further testified that prior to losing the book he prepared a statement from it which covered his expenses, and forwarded it to the Board 's. investigator. Using this statement to refresh his memory, Lutz testified` as to his expenses ; however, he admitted that he had no independent recollection of any of the items of expenses to which he testified and was reciting the contents of the document. The document furnished the Board , being a summary made from a running record, is past recollections recorded upon which the undersigned may make findings. The record discloses : 2 trips to Hershey, Pa. seeking job-12 miles each way-48 Miles 4 trips to Ephrata, Pa . seeking job-45 miles round trip-180 Miles 4/6/49-1 trip to Bethlehem , Pa.-seeking job-round trip-153 Miles 4/9/49-trip to Phoenixville, Pa.-seeking job-round trip-110 Miles 4/16/49-trip to Phoenixville, Pa.-seeking job-round trip-110 Miles 4/26/49-trip to Elkton, Md.-seeking job-round trip-160 Miles 6 round trips each week to Hershey while employed there-24 miles round trip-144 miles each week 5/18/49 to 9/11/49-16 weeks and 3 days-2,376 Miles 6 round trips weekly to Milda Hosiery, Inc., Ephrata , Pa -45 miles round trip-270 miles weekly 9/25/49 to 3/23/50-25 weeks and 5 days-6,975 Miles Total miles traveled , 10,112 Miles Lutz testified that all trips were by automobile and the expense was 6 cents per mile. He would, therefore, in-order to be made whole , be entitled to receive from the Respondents for travel occasioned by the Respondents ' discrimination, $606.72. Lutz testified that while employed by the Respondents ," he traveled to and from work 19 miles daily . Allowing this as a credit of : 42 weeks and 1 day (95 miles per week) ------------------------ 4,028 Miles at 6 cents per mile or______________________________________ $241.68 Recommended as due and allowable for travel I net) ------------ $365.04 THE L. B. HOSIERY CO., INCORPORATED 649 Computation :Back Pay Due : Russell R. Lutz Average weekly earnings -------------- $100.03 No. of weeks in back-pay period --------- 51 Gross back pay for weeks -------------- $5,101.53 Average daily earnings ----------------- $20.01 No. of additional days in back-pay period'- 3 Gross back pay for days-------------- --- $60.03 Total gross back pay------------------------- $5,161.56 Interim Earnings Total earnings--------------------- $3,695.13 Less : expenses allowed------------- $365.04 Total net interim earnings------------------ $3,330.09 Net Back Pay----------------------------------------- $1, 831.47 Edwin L. Williamson Edwin L. Williamson, found to have been unlawfully discharged March 28, 1949, was offered reinstatement March 23, 1950, by the Respondents, which reinstatement he refused. Williamson testified credibly that he registered with the Unemployment Bureau and found no work until July 15, 1949, when he was employed by Prestige, Inc., at Lester, Pennsylvania. His earnings on this job were $472.68. Again out of work he next obtained 2 days' work at Sellersville, Pennsylvania, earning $3. On August 4, 1949, he was hired as a knitter by the Fre-Mar Hosiery in Man- heim, Pennsylvania, and has held that position steadily since that time. His earnings at Fre-Mar from his first employment, August 4, 1949, to March 23, 1950, were $2,031.86. During his employment by the Respondent, Williamson's average earnings were $99.94 weekly or $1.300.78 per quarter. Jack Lustman testified that on September 21, 1949, he personally typed and sent a letter to Williamson addressed to his Middletown address which was returned noted : "Addressee removed, no forwarding address." Neither the returned envelope nor, its contents was offered. Williamson testified that his family removed from Middletown in September -or October of 1949; that no forwarding address was left for mail, and further .that he did not notify the Respondents that he had moved. Inasmuch as the purported contents of the alleged letter do not appear in the record, the undersigned cannot find that the letter contained an offer of em- ployment, if he believed it were in fact sent ; however, upon the state of the record as a whole and from his observation of the witnesses the undersigned is not persuaded that Lustman, in behalf of the Respondents, by letter on September 21, 1949, made an offer of reemployment to Williamson. The undersigned so finds. Williamson testified that he "hitch hiked" to Camden, New Jersey, in search of work ; while there he expended for lodging the sum of $2. In addition to this sum, Williamson testified that on July 15, 1949, he made two trips to Sellersville in connection with the 2-day job he had there. The expense of these trips was $6. In addition thereto he made eight week-end trips to and from Lester and his home in Middletown, while he was employed by Prestige, Inc. He boarded in Lester and traveled home on week ends. The trips cost $7.20 each railroad fare, to a total of $57.60. Williamson was not contradicted, The undersigned credits his testimony 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and will recommend that the amounts claimed by Williamson as loss be allowed in full. Computation Back pay-------------------------------------------- Edwin L. Williamson Due and recommended as extraordinary expenses Trips to Sellersville_______________________________ $6.00 Railroad fares, Lester, Pa------------------------ 57.60 Lodging ----------------------------------------- 2.00 $65.60 Williamson testified that he spent $2.80 each week for fare while in Respondents' employ. Credit 8 weeks @ $2 80 to Respondents-------------- $22.40 Total due-expenses incurred From : 3/28/49 To : 3/23/50 Gross Back Pay Average weekly earnings ----------- $99.94 No. of weeks in back pay period____ 51 Gross back pay for weeks ---------- $5,096.94 Average daily earnings_____________ $19.99 No. of additional days in back-pay period--------------------------- 3 Gross back pay for days ------------ $59.97 Total gross back pay_______________________ $5,156.91 Interim Earnings Total earnings_____________________ $2,507.54 Less: expenses allowed------------- $43.20 Total net interim earnings__________________ 2,464.34 Net Back Pay----------------------------------------- $2,692.57 James R. Ludwig James R. Ludwig was found by the Board to have been discriminatorily dis- charged by the Respondents on March 28, 1949. Ludwig is now a resident of Rio Linda, California. He did not testify at the hearings ; however, his deposition was taken, by order of the undersigned, at San Francisco, California, on December 20, 1951. The Respondents did not appear at the taking of the deposition. Ludwig's10 credible testimony as disclosed by his deposition is that his wages for the 3-month period, January 1 to March 31, 1949, as reported to the Social Security Administration, amounted to a total of $1,148.20 or a weekly average of $88.32. Upon his discharge by the Respondents, Ludwig registered with the Unem- ployment Bureau, and applied for work at various plants, at his trade and also for "anything they had to offer." The first work he obtained after his unlawful discharge was with the Prestige Hosiery Company at Philadelphia, Pennsyl- vania. This job lasted from May 1949 to June 1949. Ludwig quit the job because the plant was being moved to Pottstown,. Pennsylvania, and further because his earnings were too small to maintain his family at Reading, where he lived and had an equity in a house, and at the same time live in Philadelphia which is 58 miles from Reading. Ludwig's expenses for board, lodging, and week-end trips home while employed. by Prestige amounted to $12. His gross earnings at Prestige Hosiery were $269.61. 10 The deposition is hereby incorporated in the record as Trial Examiner's Exhibit No. 2. THE L. B. HOSIERY CO., INCORPORATED 651 Ludwig next obtained employment with Dunlop Tire and Rubber Company at Reading. He got the job in June 1949. It lasted 3 days. His total earnings on it were $15. Ludwig then looked for a job again , visiting the places to which he had previously applied as well as other plants, and finally found work in July 1949 with the Fre-Mar Hosiery Corp ., Inc., at Manheim , Pennsylvania . He held this job until sometime in September 1949, at which time he was discharged because- his employer found out that he had sought work at another plant. Ludwig testified that his total earnings at Fre-Mar were $192. He testified that his expenses for gasoline and oil used in driving to and from work from Reading to Manheim amounted to $40. Ludwig then moved to California . He first obtained the names of various knitting mills in California and wrote them inquiring for work ; he then sold his home, and drove with his family to Sacramento , California , leaving Pennsylvania the latter part of September 1949. Ludwig testified that the trip took 8 days, and that the total cost was $400 . He arrived at the cost in the following way : I knew what I had when I started and I knew what I had when I wound up in California. The difference was the expense. The day after his arrival in California , Ludwig drove to southern California, to seek work in the plants to which he had written. He obtained a job with the Citrus Hosiery Mills and the Redlands Hosiery, at Redlands, California. Both companies are the same and operate in the same building. Ludwig had this job from October 1, 1949, to December 31, 1949. His earnings during the period were $26.80 from Citrus and $394.75 from Redlands . On December 31, 1949, Ludwig was laid off, but was rehired in January 1950 and worked until February 15, 1950. He testified that his earnings from January 1, 1950 , to February 15, 1950, were $152.25. Ludwig testified that after obtaining the Redlands job, he brought his family from Sacramento to Redlands, a distance of 460 miles , but he was unable to testify as to the expense incurred. Ludwig was laid off by Redlands in February 1950 and then actively sought work again and registered with the Unemployment Bureau in San Bernardino, California. The next job Ludwig obtained was with Mitchell-Sillman Warehouse Company at Salinas , California , in April 1950. The job was as a helper installing machinery in a grain elevator. Ludwig testified that this job began April 1, 1950, and lasted about 11/2 weeks. The records of the Social Security Administra- tion show that Ludwig received $72 50 from the Mitchell-Sillman Company. The next employment Ludwig obtained was as a knitter with Trimfit Hosiery Company at Anaheim, California . He worked for this company from July 7, 1950, until January 21, 1951. Ludwig's tax withholding statement shows that Trimfit paid him from July 7, 1950, to December 31. 1950, $316 and $1,694.91, a total of $2,010.91 The balance of the time is not reported; however, Ludwig testified that his average earnings at Trimfit were $120 weekly. -In February 1951, Ludwig had 80 hours of work at $1.36 per hour with the Shaffer Tool Works at Brea, California. Ludwig obtained a job with the U . S. Government at McClellan Field in, Sacramento , which he still has. This job pays him $62.40 weekly based on a 40-hour week. It is quite clear that Ludwig made every possible effort to obtain employment when not employed ; that he was willing to and did take work outside his own trade, and that he incurred no wilful losses. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ludwig testified that on March 29, 1950, he received a registered letter from the Respondents.' The letter was read into the record, it is dated March 14, 1950, and read as follows : Mr. JAMES R. Lunwio 815 Thorn Street Reading, Pa. DEAR Mn. LUDWIG: You are herewith offered employment at this establishment as a knitter. If we do not hear from you on or before noon Thursday, March 23rd, 1950, we will know that you are not interested in employment offer. Very truly yours, MYERSTOWN HOSIERY MILLS. Ludwig testified that on March 30, 1950, the date being fixed by a post office registry receipt,' he answered the Respondents' letter. Ludwig had no copy of his reply. He testified : I said that I would be interested in their employment offer if I was given enough time to move and straighten my affairs out in ,California axfd- go back to Pennsylvania and take my family along. That was the only way I could afford to do so. I explained it in the letter, and told them about how much time I needed, to the best of my recollection. Ludwig testified that he would not have gone back to work for the Respondent until he first determined that he "could make a decent living." Lustman testified that on September 18, 1949, he personally typed and mailed a letter to Ludwig reading, "Kindly communicate with us immediately relative to employment here." The letter was returned by the post office. The returned envelope was not offered in evidence. On the evidence considered as a whole, his observation of the witnesses, and all the circumstances in the case, the undersigned credits Ludwig and does not credit Lustman and finds that at no time since his discharge did the Respondents make a bona fide offer of reinstatement to Ludwig. The undersigned will therefore recommend that back pay run against the Respondents in the case of James R. Ludwig until such time as the Respondents offer to Ludwig reinstatement to his former or substantially equal employment. In making his computation the undersigned will compute Ludwig's back pay to the day he testified by deposition, namely December 20, 1951. The undersigned will recommend that Ludwig's expenses while employed by Prestige Hosiery Co. at Philadelphia, at Fre-Mar Hosiery at Manheim, and his expenses in moving from Pennsylvania to California, be allowed. Computation 5-49=6-49 --------------- Prestige Hosiery Co-------------------- $269.61 6-49=(3 or 4 days )_____ Dunlop Tire & Rubber Co--------------- 15.00 7-49=9-49 ---------------- Fre-Mar Hosiery_______________________ 192.00 10-1-49=12-3=49_ Citrus Hosiery Inc--------------------- 26.80 1-1-1950-2-15-1950_____ Redlands Hosiery Mills----------------- 394.75 4-1950. (11 weeks)_____ Redlands Hosiery Mills----------------- 152.25 7-7:1950-1-21-51___ Mitchell-Selliman----------------------- 72.50 Trimfit Hosiery________________________ 316.00 Trimfit Hosiery________________________ 1, 694.91 u The date the letter was received is fixed by the postmark, according to Ludwig's testi- mony. The envelope was not introduced. Ludwig testified that he recorded a copy of the letter and his reply in the alderman's office, San Bernardino, California. 11 Not in evidence. THE L. B. HOSIERY CO., INCORPORATED- 653 7-7-1950-1-21-51-Con ----- Trimfit Hosiery________________________ $360.00 Shaffer Tool Works_____________________ 108.80 3-25-.51=December 20-51_ U. S. Government______________________ 2,421.12 Total 6,023.78 Allowable Expense Prestige job------------------------------------------------------- $122.00 Pre-Mar job------------------------------------------------------- 40.00 California Moving-------------------------------------------------- 400.00 $562.00 Name : James B. Ludwig Back-,Pay Period (to continue until bona fide offer of employment is made.) From : 3/28/49 To : 12/20/51 Gross Back.Pay Average weekly earnings --------- $88.32 No. of weeks in back-pay period___ 142 Gross back pay for weeks -------- $12,541.44 Average daily earnings ---------- $17.66 No. of additional days in back-pay period------------------------ 4 Gross back pay for days ---------- $70.64 Total gross back pay______________________ $12,612.08 Interim Earnings Total earnings___________________ $6,023.78 Less: expenses___________________ $562.00 Total net interim earnings_________________ $5, 461.78 Net Back Pay----------------------------------------- Conclusions and Recommendations Upon the foregoing findings and the computations made in accordance there- with, the undersigned makes the following determination, as directed by the Board's Order of October 3, 1951, and recommends that the Respondents pay to those employees found to be discriminated against by the Respondents in the decision of March 10, 1950, as enforced by the United States Court of Appeals for the Third Circuit, the sums set after their names as follows : Kenneth E. Hildebrand_______________________________________ $0 Howard Kiscaddin___________________________________________ 1,246.63 Russel R. Lutz----------------------------------------------- 1,831.47 Lillian Gassert---------------------------------------------- 304.00 Carrie Gassert----------------------------------------------- 403.10 Grace Breidigan--------------------------------------------- 304.00 Edith Schaeffer---------------------------------------------- 309.32 Grace Hibshman--------------------------------------------- 0 Hilda Miller------------------------------------------------- 238.64 *Pauline Haffer_______________________________________________ 254.15 ***James R. Ludwig--------------------------------------------- 7,150.30 Edwin L. Williamson_________________________________________ 2,692.57 Francis Matz------------------------------------------------ 3,913.21 Paul Garnet------------------------------------------------- 1,221.74 ***Helen Kline-------------------------------------------------- 257.12 Margaret Benninghoff----------------- _---------------------- 0 *Haffer spelled "Hoffer" in transcript of remanded hearing. **Ludwig's back pay to run until offer of reinstatement made. ***Klein-designated as "Helen Kline Long" in transcript of remanded hearing.