Hill Transportation Co.

HILL TRANSPORTATION COMPANY 1015 HILL TRANSPORTATION COMPANY AND MACKENZIE COACH LINES, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL No. 633 (AFL). Case No. 1-C X823. February 5,1953 Supplemental Decision and Recommendation On February 4, 1948, the National Labor Relations Board, herein called the Board, issued a Decision and Order in the above-entitled proceeding, which was thereafter enforced by a decree entered on December 7, 1948, by the United States Court of Appeals for the First Circuit. The decree provided, inter alia, that certain persons, herein called the claimants, who had been discriminatorily dis- charged by the Respondents, were entitled to back pay to be paid by the Respondents for the period of the discrimination against them. On April 29, 1952, Trial Examiner Albert P. Wheatley issued his Report Concerning Back Pay, a copy of which is attached hereto, finding that the claimants are entitled to certain specific amounts of back pay.' Thereafter, one of the Respondents, through its trustee in bankruptcy, filed exceptions to the Trial Examiner's report. The Board 2 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 report, the exceptions thereto, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : With respect to 2 of the 6 claimants involved herein, the Trial Examiner found, and we agree, that Harold J. Bartlett and Alkeenon Nichols were entitled to back pay from the date of the Respondents' discrimination against them until December 20, 1947. The Respond- ent contends that the cutoff date as to these employees should be July 1947, because that is the date the Board's General Counsel relied upon in a brief filed at one stage of the bankruptcy proceeding. While this is true, the record shows that the General Counsel relied upon the assertion of an officer of the Respondents that Bartlett and Nichols had been offered and refused reinstatement in July 1947; I As fully set forth in the Trial Examiner 's report, an involuntary petition in bank- ruptcy was filed against one of the Respondents and there was a dispute as to the amounts of back pay to which each claimant was entitled . On October 4, 1951 , the Board issued an order reopening the record for the purpose of determining these amounts . In accord- ance therewith the Trial Examiner conducted a hearing between February 26 and March 4, 1952. The authority of the Board to make the back-pay computations in this matter has recently been affirmed by the Supreme Court of the United States. Nathanson, Trustee V. N. L. B. B., 344 U. S. 25. 2 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 [Chairman Herzog and Members Murdock and Peterson]. 102 NLRB No. 100. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whereas, as found by the Trial Examiner herein, such offers were not received by these employees. Consequently, the Trial Examiner properly determined, from the record as a whole, that the back-pay cutoff date was December 20, 1947, as this is the date that the jobs of Bartlett and Nichols were discontinued. The Trial Examiner found that the amount of gross back pay due to C. R. Bunn, one of the dischargees, was $1,482.63. At the time of the hearing, Bunn's whereabouts were not known and there was no adequate record of his interim earnings. Since the hearing, however, Bunn has been located and the parties entered into a stipulation on December 22, 1952, which provides evidence that Bunn's interim earnings amounted to $1,061.98. The stipulation is hereby approved and made a part of the record. Accordingly, we find that the amount of net back pay due to Bunn is $420.65. Recommendation Upon the basis of this Supplemental Decision and the entire record in the proceeding, the National Labor Relations Board hereby respect- fully recommends to the United States Court of Appeals for the First Circuit that its decree, entered on December 7, 1948, be amended to incorporate therein the respective amounts of net back pay required to be paid by the Respondents to each of the claimants, as follows : Elwyn L. Bartlett---------------------------------- $779.43 Harold J. Bartlett--------------------------------- 1,331.25 Clifford R. Bunn---------------------------------- 420.65 Gerry S. Kimball---------------------------------- 243.30 Alkeenon Nichols---------------------------------- 1,114.54 Robert Varney------------------------------------ 862.42 Report Concerning Back Pay STATEMENT OF THE CASE On January 3, 1947, the National Labor Relations Board, herein called the Board, issued a complaint against Hill Transportation Company and Mac- Kenzie Coach Lines, Inc., herein called Respondents, alleging that they had en- gaged in unfair labor practices in violation of the National Labor Relations Act, herein called the Act. After appropriate proceedings, the Board on Febru- ary 4, 1948, ordered "Hill Transportation Company and MacKenzie Coach Lines, Inc., and their officers, agents, successors, and assigns" to pay certain persons back pay from the date of discrimination found by the Board to the date of an offer of reinstatement. On June 7, 1948, an involuntary petition in bankruptcy was filed against MacKenzie Coach Lines, Inc. On December 7, 1948, the United States Court of Appeals for the First Cir- cuit entered its decree enforcing the Board's Order of February 4, 1948. There- HILL TRANSPORTATION COMPANY 1017 after, the Board filed with the referee in bankruptcy its proof of claim for back pay for some of the persons covered by the court's decree. The referee held a hearing on April 17, 1950, at which he entertained an amendment to the claim and took evidence. On June 29, 1950, the referee disallowed the claim. On July 7, 1950, the Board petitioned the District Court of the United States for the District of Massachusetts for review of the order of the referee. In his December 1, 1950, certificate to the district court, the referee assigned as his reasons for disallowing the Board's claim that the persons covered by the back- pay order were not employees of the bankrupt ; that the claims of these persons had, in any event, been compromised ; and that the claims were not liquidated. On September 27, 1951, the district court ruled that "neither the reasons given by the Referee, nor the additional reasons urged in this Court by the Trustee in Bankruptcy warranted the Referee' s action in disallowing the Board's amended claim."' On September 28, 1951, the district court entered its order setting aside the referee's disallowance of the amended claim of the Board. The referee was also ordered to permit the matter to stand in abey- ance for 2 months to permit the Board, in accordance with the National Labor Relations Act, to fix the precise amount now owing from the bankrupt to the Board and to file with the referee an amendment to its claim showing such amount. Thereafter the trustee in bankruptcy of MacKenzie Coach Lines, Inc., appealed to the United States Court of Appeals for the First Circuit from the order of the district court. On February 11, 1952, the aforesaid circuit court entered its decision affirm- ing the order of the district court (194 F. 2d 248). Pursuant to a notice of further hearing, dated February 12, 1952, and signed by the Board's Regional Director for the First Region, Boston, Massachusetts, a further hearing was held before the undersigned on February 26, 27, 28, 29, and March 3 and 4, 1952, in which the trustee in bankruptcy and his attorney, counsel for the National Labor Relations Board, and the president of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 633 (AFL), herein called the Union, participated. The notice of further hearing stated that the purpose of said hearing was: ... to determine the amount of back pay due Elwyn Bartlett, Alkernon' Nichols, Robert Varney, Harold Bartlett, C. R. Bunn and Gerry Kim- ball.' At the hearing before the undersigned the trustee attempted, as he did before the referee and the courts, to have a determination made that some of the discharged employees were not employees of the bankrupt and that therefore the trustee was not obliged to make restitution to them. The undersigned ruled that such an issue was not properly before the undersigned in view of the prior proceedings, including especially the order of the Board as enforced by the circuit court on December 7, 1948, wherein the back-pay liability was imposed jointly and severally upon Hill Transportation Com- pany and MacKenzie Coach Lines, Inc. The undersigned has considered this matter further and is still of the opinion that he has no authority at this stage of the proceedings to rule upon such matters. At the hearing before the undersigned the trustee renewed his efforts to establish a compromise settlement of the back-pay liability. Because the undersigned was at that time unfamiliar with the prior proceedings and not in a position to rule whether this issue was properly before him, the under- 1100 F. Supp. 489. A misspelling. The name should be Alkeenon Nichols. 3 The persons named in the Board's Order as enforced by the circuit court. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed received evidence with respect to this matter conditionally, i. e., sub- ject to a determination as to whether such matter was properly before the undersigned. After further consideration the undersigned is of the view that this matter is res judicator at this stage of the proceedings and that the evi- dence with respect thereto should not now be considered.4 Because the undersigned was not familiar with the prior proceedings and not in a position to rule with respect to such matters, at the hearing before him the undersigned considered the possibility that the trustee's liability might be limited so as not to extend beyond the amounts specified in the Board's claims before the referee. After further consideration of the matter and in view of the remand of these proceedings "to fix the precise amount now owing . . . and to file with the Referee an amendment to its claim show- ing such amount" (100 F. Supp. 489, 491) the undersigned believes and finds that this matter is not properly before him for consideration. In the opinion of the undersigned his sole responsibility herein is to deter- mine, in accordance with the provisions of the Board's Order as enforced, the amount of back pay now outstanding, if any. The Board's Order as enforced by the United States Court of Appeals for the First Circuit provides, inter alia, that Hill Transportation Company and MacKenzie Coach Lines, Inc., shall6 (a) Offer Elwyn Bartlett, Harold Bartlett, Alkernon Nichols, Robert Varney, and C. R. Bunn immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges in the manner set forth in the Intermediate Report in the section entitled "The remedy" ; (b) Make whole in the manner set forth in "The remedy" the persons whose names appear in Appendix A of this Order [Elwyn Bartlett, Alkeenon Nichols, Robert Varney, Harold Bartlett, C. R. Bunn, and Gerry Kimball] for any loss they may have suffered by reason of respondents' discrimina- tion against them. The pertinent provisions of the section entitled "The Remedy," states : It will be recommended that respondents offer to each of them [Elwyn Bartlett, Harold Bartlett, Alkeenon Nichols, Robert Varney, C. R. Bunn, and Gerry Kimball] except Gerry Kimball" immediate and full reinstate- ment to his former or substantially equivalent position' without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of such discrimination by payment to each of them of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him" to the date of 32 Kimball was offered and refused his former position on or about November 11, 1946. 33 In accordance with the Board's consistent interpretation of the term, the expres- sion "former or substantially equivalent position" is intended to mean "former posi- tion wherever possible, but if such position is no longer in existence, then to a sub- stantially equivalent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 34 In the cases of the five men who went on strike on March 25 [Robert Varney, Harold Bartlett, Gerry Kimball, Alkeenon Nichols, and C. R. Bunn], it appears that they remained on strike until on or about March 27. It is accordingly recommended that back pay be awarded them commencing March 27, 1946, except in the case of Gerry Kimball who testified that he made no attempts to obtain other employment until 6 weeks after his discharge. In his case, it is recommended that back pay commence at that time. 4 If this evidence should be considered the undersigned believes such evidence inadequate to show that the Board approved any settlement agreement. 6 See T5 NLRB 1203. HILL TRANSPORTATION COMPANY 1019 offer of reinstatement" less his net earnings SB during that period. It appears from the record that there are at the present time less em- ployees in the unit [maintenance and repair shop employees] than at the time of the commission of the unfair labor practices. Although it does not appear whether or not this is a temporary situation, the undersigned [the Trial Examiner who presided at the original hearing] will provide for this contingency in the event that the size of the unit has been permanently reduced. It is accordingly recommended, in the event there are not now sufficient positions available, that all employees hired since March 25, 1946, within the appropriate unit, shall, if necessary, be dismissed by respondents to provide employment for those employees to be offered and who shall accept reinstatement. If thereupon, there is not sufficient employment immediately available for the employees to be offered and who shall accept reinstatement, then all positions shall be distributed by respondents among the employees presently working, excluding those dismissed, and the em- ployees to be offered and who shall accept reinstatement in accordance with respondents' usual method of reducing their force, following such system )f seniority or other non-discriminatory procedure as has been heretofore applied by respondents in the conduct of their businesses. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list, with priority determined among them in accordance with such system of seniority or other non- discriminatory procedure as has heretofore been applied by respondents, and thereafter, in accordance with such list, be offered reinstatement to their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work. " In Kimball's case, it is recommended that back pay be awarded only to the date he refused employment on November 11, 1946. 36 See Matter of Crossett Lumber Company, & NLRB 440. The record reflects that Respondents gradually discontinue (for business rea- sons) the use of maintenance and repair shop workers and eventually went out of business. Nevertheless, during this period and at times when Respondents would not normally have utilized the services of some of the dischargees in the maintenance and repair shop, Respondents employed certain individuals, whose employment began after the date of the discharges herein, as bus operators. Thus a question arises as to whether in computing gross back pay, consideration should be given to the probability that absent discrimination, during periods when work for mechanics slackened, the dischargees would have been employed as bus operators. The text of the section of the Board's Order, as enforced, entitled "The Remedy" (quoted above) appears not to require Respondents to offer bus operators jobs to the dischargees as part of the reinstatement requirement. Furthermore in the opinion of the undersigned, bus operators jobs are not substantially equiva- lent to the positions which the dischargees held prior to their discharges.' Nevertheless, the purpose of the Board's Order is to effectuate the policies of the National Labor Relations Act and to expunge the effect of prior unfair labor practices and the text of the Order must be read in this light. As thus inter- preted, it seems apparent that the Order is not to put the dischargees in a worse position financially than they would have been except for Respondents' unfair labor practices. Furthermore, the section of the Board's Order entitled "The Remedy" makes it apparent that the requirements with respect to reinstatement 6 There are substantial differences of pay and different types of services are required. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are distinguishable from those concerning back pay. Thus the reinstatement provisions of the Order require offers of former or substantially equivalent posi- tions-offers of jobs as mechanics-whereas the back-pay provisions encompass all wages the dischargees would have received absent discriminations against them. The record herein reflects many instances when maintenance and repair shop workers became bus operators. Thus it seems probable that absent the discharges the individuals involved herein, during periods of slack work in the maintenance and repair shop, would have been afforded an opportunity to con- tinue in Respondents' employ as bus operators. It follows that a ruling that Respondents were not required to offer available bus operator jobs to the dis- chargees would penalize said individuals because of Respondents' unfair labor practices and inequitably deprive them of earnings which they otherwise prob- ably would have had. Accordingly, in computing gross back pay, the undersigned has endeavored to determine the periods when the dischargees would have been employed as mechanics and the periods when, because of slack work in the maintenance and repair shop, the dischargees would probably have been em- ployed as bus operators. The Calculation of Back Pay It is apparent from an examination of the record herein that there were not enough mechanics' jobs during the whole back-pay period ° to go around among all the dischargees. This means that all the dischargees would not have been employed steadily between the time of their discharges and the time when the back-pay period ends. Thus, one of the requirements of an accurate back-pay formula is to provide some method for determining how many of the employees are entitled to back pay during each week in the back-pay period. In addition, it must provide a system for determining which of the dischargees would have been employed, absent discrimination, in each week of the back-pay period. Respondents' records show that no steady or normal number of hours of work per week was available during the back-pay period. Since most of the dischargees were employed on an hourly pay-rate basis, some provision must be made to determine the number of hours of work which were available to each of them during the back-pay period. The General Counsel proposed a simple formula for determining gross back pay. He would have gross back pay consist of the average predischarge weekly earnings of each claimant multiplied by the number of weeks in the back-pay period. On the other hand, the Respondents' desire that only the actual earnings of the replacements for the discriminatees be the meas- ure of the back pay for them. The General Counsel's formula is inapplicable since it fails to consider the reduction in jobs available for the dischargees and does not provide for reduced hours of employment available during the back-pay period. The Respondents' formula is inappropriate for the reason that it fails to take into account the different rates of pay as between the dischargees and their replacements. It is manifestly not a fair remedy to award a dischargee back pay at the rate of 80 cents per hour when his rate of pay, absent the dis- crimination, would have been $1 per hour. In view of these considerations, the undersigned has employed a formula which does provide for all the contingencies previously related and which borrows elements from the suggested formulae of both the General Counsel and the Respondents. During the first 4 weeks following the discharges there were fewer jobs occu- pied by replacement mechanics than there were dischargees. However, from 1 Back-pay period ends December 20, 1947. HILL TRANSPORTATION COMPANY 1021 April 28 through June 22, 1946, the number of mechanics employed by Respond- ents ran from a low of 10 to a high of 13 (more than the number of mechanics employed in the week of the discharges). (Appendix A.) This implies that the reduced employment between March 27 and April 27, 1946, was caused not by economic factors but by the upset conditions resulting from the discharge of virtually the entire staff of mechanics on the former date. Accordingly it ap- pears that absent discrimination, the dischargees would have continued working through June 22, 1946, at the same rates of pay and for at least the same number of hours they had worked theretofore. Hence, their average weekly earnings prior to their discharges multiplied by the number of weeks in this period is an appropriate measure of their back pay for the period from the date of the dis- charges through June 22, 1946. Thereafter, however, the employment of mechanics appears to have receded to lower levels for reasons unrelated to the discharges and the problems created by the existence of fewer jobs than dischargees needs to be provided for. The question of how many dischargees would have been employed as mechanics in any given week after June 22, 1946, is answered by an examination of Respondents' payroll records to determine the number of mechanics actually employed. For if Respondents actually employed four mechanics in, say, the week ending June 29, 1946, it is reasonable to believe that absent discrimination they would have likewise employed four of the dischargees in that week, and so on throughout the back-pay period. Thus, for every week in the back-pay period (after June 22, 1946) the number of replacements employed has been regarded by the undersigned as the number of jobs available for dischargees (Appendix A). Another question which stems from the need to compensate some dischargees for portions of their back-pay periods during which they would have occupied jobs as bus drivers is : Were there, during these times, always enough jobs as bus drivers to go around among all such claimants? This question is answered in the affirmative by the data in Appendix B, which is an analysis of the Respondents' records to show the number of bus drivers employed by weeks who were hired for the first time after the discharges in question took place. The next element to be considered is a basis for allocating the available jobs among the dischargees. In view of the section of the Board 's Order entitled "The Remedy" the undersigned has adopted seniority as the basis for distributing available jobs (Appendix C). Thus, the jobs were allocated among the oldest of the dischargees , and reduc- tions in force applied first to the youngest of the dischargees in order of seniority. Inasmuch as the hours of employment fluctuated between weeks, and among the various replacements during the back-pay period (as well as among the dis- chargees prior to their discharge) the question is raised-how much would the dischargees who would have been employed have earned? This may be answered by an examination of the total number of hours worked in each week by the re- placement mechanics. For if a staff of 4 replacement mechanics worked a total of 168 hours in a given week, there is no reason to believe that a similar amount of work would not have been available to the dischargees absent discrimination. As to the probable allocation of these hours among the dischargees, no accurate index is at hand to determine this; hence the average weekly hours worked by the replacements is allocated to each of the dischargees for whom work was available (Appendix A). In our sample week referred to above, each of 4 of the most senior dischargees has been considered eligible to the gross back pay repre- sented by 42 hours of work. Most of the dischargees had been paid on an hourly basis prior to their dis- charge. For these, their gross back pay has been calculated by multiplying their 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hourly rate by the average hours of work they would have had, absent discrimi- nation. Complications were encountered in the cases of Elwyn Bartlett and Clifford Bunn. The methods for determining their hourly rate of pay are dis- cussed below. However, their gross back pay has been computed in the same way as that of the other dischargees as described above. Interim Earnings The source of the main data as to interim earnings of the dischargees was the reports of the Social Security Administration. Since these account for earnings on a quarterly basis, the amounts reported have not always coincided in time with the payroll periods of Respondents 8 This is of importance since at times when no gross back pay is accruing to the credit of a claimant , no monies he may have earned in the same times are properly deductible from the total gross back pay." The consequent necessity of making an adjustment of interim earnings to account for this contingency was met by ascertaining the number of working days in the quarter affected, dividing the quarter 's earnings by this figure to obtain a daily earning rate, and finally multiplying the daily earning rate by the number of days in the quarter in which gross back pay was accruing to the claimant's credit. In summary , gross back pay has been computed as follows : 1. For the period from the date of the discharges to June 22, 1946, multiply the dischargees' average weekly earnings prior to their discharge by the number of weeks in this period. 2. For the remainder of back-pay period : a. Dischargees are eligible to mechanics jobs in the same number as there were replacements working in each of the weeks in the back-pay period. b. Jobs are allocated on the basis of seniority. c. The average hours worked by the replacements multiplied by the pre- discharge rates of pay of the dischargees equals their gross back pay. d. In those weeks when no work as a mechanic was available for a dischargee, back pay was calculated for him as a bus driver. This consisted of the average weekly earnings of all the bus drivers employed by Respondents in the weeks in question (Appendix D). e. Total gross back pay less total net interim earnings equals net back pay. f. Net back pay less amounts already paid by Respondents equal amounts presently remaining to be paid. Elwyn Bartlett (See Appendix E) Elwyn Bartlett's employment with Respondent commenced on March 24, 1943. At the time of his discharge on March 22, 1946, he was a mechanic and his average earnings weekly totaled $63.509. The record does not indicate his hourly rate of pay prior to his discharge but does indicate that after his reemployment on May 26, 1947, he averaged $1.09 per hour. From the entire record herein this appears to be the approximate hourly rate of Elwyn Bartlett prior to his discharge and will be used herein in computing his gross back pay. By letter dated May 19, 1947, Bartlett was informed that MacKenzie Coach Lines had "a position which you can fill" and was requested to "report for work 8 Thus , for instance, the back-pay period of a claimant might end on July 30 whereas the comparable report of interim earnings would include all earnings for the months July, August, and September. 9 N. L. R. B. v Hudson Motor Car Co., 136 F. 2d 385 ( C. A. 6). HILL TRANSPORTATION COMPANY 1023 on Monday, May 26, 1947." Bartlett reported for work on this date and counsel for the Board does not seek back pay for him beyond May 26, 1947. The payroll records (General Counsel Exhibits Nos. 15C, 15A) indicate that Elwyn Bartlett received 1 week's vacation pay in addition to his regular pay in the week ending June 6, 1945. About 6 months later in the week ending November 28, 1945, he received another week's vacation pay in addition to his regular pay. From this, the undersigned concludes that in addition to his regular pay, in the ordinary course of events, Elwyn Bartlett would have received 2 weeks' vacation pay in the year 1946 had he not been illegally discharged. Accordingly, this amount has been credited to the gross back pay due him (Appendix E). The record herein reflects that absent discrimination Elwyn Bartlett nor- mally would have earned during the period from March 22, 1946, to May 26, 1947, a total of $3,605.43 (Appendix E). Elwyn Bartlett's interim earnings during the period involved herein (from March 22, 1946, to May 26, 1947) totaled $2,276. The following table concerns Elwyn Bartlett's interim earnings and is self-explanatory : Name of employer Period employed Earnings 10 Sherman's Garage_______________________________ 4-1-46--6-430-46 $252 William Yeaton_________________________________ 4-1-46-6-30-46 208 Sherman's Garage_______________________________ 7-1-46-9-30-46 240 William Yeaton_________________________________ 7-1-46-9-30--46 216 Boston and Maine Transportation________________ 10-1-46-5-26-47 1,360 The record reflects that Elwyn Bartlett has received from Respondents $550 which is to be deducted from his net back pay leaving the net amount of $779.43 remaining to be paid him (Appendix E). Harold Bartlett (See Appendix F) Harold Bartlett worked for Respondents about 1 year before he was dis- charged on or about March 27, 1946. At the time of his discharge Harold Bart- lett's weekly earnings averaged $68.996. There is conflicting evidence as to whether Harold Bartlett was offered re- instatement and declined such. On the basis of Harold Bartlett's testimony, which the undersigned credits, and the entire record herein the undersigned be- lieves and finds that Harold Bartlett was not offered reinstatement and did not decline an offer of reinstatement. Absent discrimination Harold Bartlett would have earned a total of $4,729.28 (see Appendix F). Harold Bartlett's interim earnings, computed as follows, totaled $3,239.53. Name of employer Period employed Earnings Charles Farmer________________________________ 4-1-46-630-46 11$87.62 Paquette & Trafton_____________________________ 4-1-46-6-30-46 88.00 7-1-46-9-30-46 683.75 10-1-46-12-31-46 628.60 "The record reveals that during this period Bartlett also received $15 or $20, for work commenced prior to his discharge but completed thereafter. This sum is not deductible as interim earnings as Bartlett had enjoyed this independent source of income prior to the date of the discrimination against him (see 6'ifers Candy Company, 92, NLRB 1220). 11 Expenses incurred in driving to and from work, between Kittery, Maine , and Roches- ter, New Hampshire, a distance of about 70 miles per round trip at $.05 per mile for 20 days have been deducted from the total earnings from Charles Farmer (see Crossett Lumber Co., 9 NLRB 440'). 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name of employer Period employed Earnings Philip Rowe & Carrol Trafton------------------- 1-1-47-3-31-47 $197.00 4-1-47-6-30-47 390.10 United Aircraft-------------------------------- 1-1-47-3-31-47 " 164. 46 Stanley Ware------------------------------- 7-1-47-12-20-47" 1,000.00 The record herein reflects that $500 was paid to the Union which was distrib- uted proportionately among the dischargees. Harold Bartlett's share of the $500 totaled $158.50 which sum is to be de- ducted from the net back pay leaving the net amount of $1,331.25 remaining to be paid him (see Appendix F). C. R. Bunn (See Appendix G) C. R. Bunn's employment with Respondents commenced January 5, 1946. At the time of his discharge on March 27, 1946, he was a mechanic and his earnings weekly averaged $47.619. Bunn was reemployed by Respondents and worked as a bus driver operating a bus on a regular route for about 5 days in October 1946. The payroll records reveal that he earned a gross amount of $29.95 during the week ending Octo- ber 23, 1946. The record herein reveals that immediately after the termination of this employment, Bunn left the vicinity of Respondents' business and since that time his whereabouts have been unknown. The record, including state- ments of counsel, further reveals that efforts to locate him have not been fruitful. No evidence was offered in the proceeding before the undersigned concerning interim earnings of Bunn 14 Under normal circumstances where interim earnings and availability for employment cannot be ascertained because of the absence of information con- cerning the whereabouts of the dischargee the undersigned would recommend that the maximum amount of back pay that might be due such individual be held in escrow a reasonable time pending the ascertainment of such information (interim earnings and availability for employment) and the establishment of the correct amount due such individual. However, in view of the bankruptcy proceedings, the cessation of business by Hill Transportation Company, the length of time that has already elapsed since the entry of the Board's Order, the fruit- less efforts to locate Bunn,15 and the expediency of bringing this proceeding to a successful conclusion at an early date, the undersigned has endeavored to arrive at a reasonable method of effectuating compliance on the basis of available in- formation and recommends that such be accomplished in the following manner : That back pay due Bunn be ascertained by computing what he would have earned, absent discrimination, between March 27 and October 23, 1946 and deducting therefrom $29.95, which he earned during the week of October 23, 1946,18 and that the resulting sum be deposited with the Treasurer of the United States to the credit of Bunn. 12 The following expenses incurred in seeking and holding the job at United Aircraft have been deducted from earnings at this concern which is located in East Hartford, Connecticut. $10 a week for 6 weeks for room-$60; 6 round trips to see family, 300 miles per round ti ip @ 5 cents a mile-$90 ; $3 per day for meals for 30 days-$90. 13 $1 an hour, 40 hour weeks, for the 25 weeks in the back-pay period. 14 As noted above Bunn was employed as a bus operator in October 1946. However, there is no evidence that at that time Respondents endeavored to ascertain Bunn's interim earnings. 15 Although the record does not reveal any direct attempts by Respondents to locate Bunn after October 23, 1946. 19 Bunn did not receive any portion of the $500 paid by Respondents to the Union or any other sums that should be deducted from his net back pay. HILL TRANSPORTATION COMPANY 1025 The record herein reflects that absent discrimination Bunn would have earned a total of $1,482.63 (see Appendix G). The amount of net back pay remaining to be paid is $1,452.68. Gerry Kimball ( See Appendix H) Under the terms of the Board's Order, as enforced, Gerry Kimball's back pay is computed for the period May 9 to November 11, 1946. Prior to his discharge on March 27, 1946, Kimball worked as a maintenance and repair shop worker at $1 an hour and his earnings averaged weekly $52.328. Absent discrimination Kimball normally would have earned a total of $1,503.88 (see Appendix H). Kimball's interim earnings totaled $1,135.38. Name of employer Period employed Earnings Aime Prince Garage-------------------------- 5-9-46-10- 1-46 $840.00" Prince & Tibbs Inc-------------------------- 10-1--46-11-11-46 295.381 Kimball received from Respondents $125.20 7° which is to be deducted from the net back pay leaving the net amount remaining to be paid of $243.30 (see Appendix H). Alkeenon Nichols (See Appendix I) The record reveals that Nichols' employment with Respondents began July 5, 1944. At the time of his discharge Nichols was employed in a dual capacity. He drove a regularly scheduled bus to the Portsmouth Navy Yard in the morn- ing and then proceeded to the garage and completed the day there as a member of the maintenance and repair unit and then drove a scheduled return trip from the Navy Yard. His average weekly earnings at the time of his discharge were $52.289. His normal rate of pay was 80 cents per hour. There is conflicting evidence as to whether Nichols was offered reinstatement and declined such. On the basis of the entire record, including Nichols' testi- mony with respect to this matter which the undersigned credits, it is found that no such offer and declination was made. Accordingly, the period to be used in computing Nichols' back pay is from March 27, 1946, to December 20, 1947. The record herein reflects that Nichols' gross back pay totals $4,281.17 (see Appendix I). Nichols' interim earnings totaled $3,085.96. Name of employer Period employed Earnings Gurton King------------------------------- 3-26-46- 1- 1-47 $1,000.00 H. O. Rondeau Shoe Co-------------------- 1- 1-47- 3-31-47 388.26 4- 1-47- 6-30-47 621.34 7- 1-47- 9-30-47 625.01 10- 1-47-12-31-47 451.35 3,085.96 The record herein reflects that Nichols has received from Respondents $80.67 which is to be deducted from the net pack pay f0 due him leaving the amount $1,114.54 remaining to be paid. 11 Forty dollars a week for 21 weeks. u Social-security records reveal that Kimball received from Prince & Tibbs Inc. $640 for period 10-1-46-12-31-46 and above figure ($295.38) was arrived at by taking 6/13 of $640. 19 This I. Kimball's share of the $500 paid by Respondents to the Union and distributed by the Union. 1° The record reveals that $500 was paid to the Union which was distributed by the Union proportionately among the dischargees . Nichols received the sum stated above. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Varney (See Appendix J) Robert Varney's employment with Respondent commenced October 22, 1945. At the time of his discharge on March 27, 1946, Varney was a mechanic and his weekly earnings averaged $54.555. There is conflicting evidence as to whether Varney was offered reinstatement and declined such. He denied such was the case. On the other hand, Gerald R. Robinson, an official in each of the companies involved herein, testified that in July 1947 a letter was sent to Varney stating: P. O. Box 216, Hampton, N. H. July 21, 1947. Mr. Robert Varney 20 Wentworth Street Rochester, N. H. Dear Sir : You are hereby informed that this Company has a position which you can fill. Please report for work on Friday, July 25, 1947. If for any reason you do not care to accept this offer of work , please let us know at your earliest convenience. Very truly yours, MACKENZIE COACH LINES, INC. G. R. ROBINSON, President Robinson further testified that thereafter he received "in the ordinary course of mail" a postal card, addressed to him at Post Office Box 216, Hampton, New Hampshire, bearing a post office stamp showing the card had been mailed from Rochester, New Hampshire, July 23, 1947, at 1 p. in. and stating: Mr. Robinson I thank you for your letter. I will be unable to except [sic] your job. As I am working steady now. Sincerely, ROBERT VARNEY, 20 Wentworth St. Rochester, N. H. There is no evidence that the aforementioned postal card actually bears (or does not bear) the signature of Varney. Varney was not confronted with this card while on the witness stand as a witness for the Board and was not called as a rebuttal witness after the card was received in evidence. Con- sequently Varney gave no testimony directly relating to this card although he did testify he was not at any time notified that he was "being offered a job- a position with either Hill or MacKenzie" ; that he never received any offer of reinstatement ; that he did not receive a letter offering employment ; and that he did not "tell MacKenzie Coach Lines or Hill Transportation that you [Varney] were employed on a permanent basis and had no desire to return to employment." As noted above, the card was received in the ordinary course of mail, is postmarked within a few days of the date of the letter offering employment, and is postmarked from the vicinity of the addressee of the letter. Under these circumstances, and despite the evidence indicating Robinson's testimony should not be credited unless corroborated, the under- signed finds that the aforementioned letter offering employment to Varney HILL TRANSPORTATION COMPANY 1027 was sent to him (Varney) and received by him or someone on his behalf and that he (Varney) did not thereafter accept such offer. Accordingly, the undersigned concludes that Varney's back pay should be computed from March 27, 1946, to July 23, 1947. The record herein reflects that absent discrimination Varney would have earned a total of $3,346.27 1 see Appendix J). Varney's interim earnings totaled $2,348.22. They have been computed as follows : Name of Employer Period Employed Earnings W. A. Stackpole------------------------------- 4-1-46- 6-30-46 $638.90 7-1-46- 9-30-46 344.29 Robinson's Esso Service______________________ 10-1-46--12-31-46 400.00 Prue Motor Transportation____________________ 1-1-47- 31-47 517.94 4-1-47- (i-30-47 360.40 7-1-47- 7-23-47 21 86.69 The record herein reflects that Varney has received from Respondents $135.63 22 which is to be deducted from the net back pay due him leaving $862.42 currently remaining to be paid him (see Appendix J). Total Back Pay Due In view of the foregoing the undersigned finds that the amount of back pay now outstanding under the provisions of the Board's Order, as enforced, totals $5,783.62. 21 Varney earned $34 &.75 in the period July 1 to September 30, 1947 [16 /64x346.75- $86.69] since there are 16 working days to July 23, 1947 , the end of the back-pay period, and 64 days in the entire working quarter. n Varney's portion of the $500 given to the Union. 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A Average hours worked by replacement mechanics and number of jobs available April 1, 1946-December 20, 1947 Date week ending i (1) of replacee- ment mechanics working (2) Avera hours (ad- lusted) worked ' (3) Date week ending I (1) of replaaccee- ment mechanics working (2) Average - justed) worked I (3) 1946 1947 April 6----------------------- 3 ---------- February 8------------------- 4 40 April 13---------------------- 5 ---------- February 15 ------------------ 3 3734 April 20---------------------- 4 ---------- February 22 ------------------ 4 3634 April 27---------------------- 5 - 1--------------------- 3 3594 May 4---- ------------------- 10 ---------- March 8-------------------- 3 3835 May 11---------------------- 12 - 3 3134 May 18----------------------- 12 ---------- March 22--------------------- 3 2934 May 25----------------------- 12 - 30)1 June 1----------------------- 12 ---------- April 5 --------------------- 3 4135 June 8------------------------ 12 --------- April 12--------------------- 8 39 June 15----------------------- 13 - 19--------------------- 2 3835 June 22-- --------------------- 10 - 35 June 29---------------------- 4 54)4 May 3------------------------ 1 July 6----------------------- 6 4294 May 10------------------- 1 4435 July 13----------------------- 5 7035 May 17----______---__-------_ 1 8534 July 20----------------------- 6 6735 May 24__------------------___ 1 10035 July 27---------------------- 6 6235 May 31----------------------- 1 63 August 3 -------------------- 6 63 June 7------------------------ 1 81% August 10-------------------- 6 57 June 14--------------___--____ 7435 August 17-------------------- 6 6034 June 21------------------- __-- 1 67 August 24-------------------- 6 6734 June 28--------------- _------- 1 9835 August 31-------------------- 6 8235 July 5 ----------------------- 1 6334 September 7__________________ 6 6035 July 12 ----------------------- 1 97% September 14_________________ 6 5434 July 19-----. ----------------- 0 0 September 21---_------------ 6 5335 July 26_______________________ 0 0 September 28_________________ 6 6134 August 2--------------------- 2 54 October 5--------------------- 6 5134 August 9--------------------- 2 66 October 12 -------------------- 7 4534 August 16---------- --------- 2 6734 October 19-------------------- 7 42 August 23-------------- ------ 2 6035 October 26-------------------- 6 54 August 30 ------------------- 3 5734 November 2------------------ 4 6035 September 6 ----------------- 3 4634 November 9------------------ 4 5134 September 13----------------- 3 6034 November 16----------------- 4 51 September 20 ---------------- 2 7935 November 23----------------- 4 5335 September 27------------- _-- 1 7434 November 30----------------- 4 4335 October 4--------------------- 1 7234 December 7 ----------------- 5 4434 October 11 -------------------- 1 8434 December 14----------------- 5 5234 October 18 -------------------- 1 6034 December 21----------------- 5 56 October 25 ------------- __---- 1 6834 December 28----------------- 4 3734 November 1------------------ 1 6634 November 8 ----------------- 1 6235 1947 November 15----------------- 1 7434 fanuary 4-------------------- 5 48 November 22 ----------------- 1 6934 fanuary 11 ------------------- 5 4634 November 29 ----------------- 1 73 fanuary 18------------------- 5 4634 December 6------------------ 1 61 fanuary 25------------------- 5 39 December 13__-_------------- 1 6434 February 1------------------- 4 41 December 20------------------ 1 3734 1 The payroll periods for Hill Transportation Co. end 3 days prior to the MacKenzie payroll periods. Since data in both pay records needed to be joined, this was done by adding the "Hill" data for a given week to the MacKenzie data for the week ending 3 days after. Thus, "Hill" data for the week ending May 1, 1946, for example, was coupled with MacKenzie data for the week ending May 4, 1946, etc. f All hours worked were converted to their equivalent in straight-time hours for convenience in computa- tion Thus, if 44 actual hours were worked these were reckoned as 46 "adjusted" hours (40 straight-time hours; 4 overtime hours at 134 times straight-time rate is equivalent to 6 hours at straight-time rate for a total of 46 straight-time or "adjusted" hours). HILL TRANSPORTATION COMPANY 1029 Appendix B Number,of new bus drivers employed by weeks, June 16, 1946, through December 20, 19471 Week ending Hill Re Kenzie Total Week ending Hill Mac- Total 1946 1947 June 22------------------ 2 2 4 March 22---------------- 3 0 3 June 29------------------ 2 2 4 March 29 ---------------- 2 0 2 July 6-------------------- 2 3 5 April 5------------------ 3 0 3 July 13------------------- 2 4 6 April 12------------------ 3 0 3 July 20------------------- 2 5 7 April 19------------------ 3 0 3 July 27------------------- 2 4 6 April 26 ------------------ 3 0 3 August 3----------------- 2 5 7 May 3------------------- 3 2 5 August 10---------------- 1 8 9 May 10 ------------------ 1 3 4 August 17---------------- 1 9 10 May 17 ------------------ 0 4 4 August 24---------------- 2 7 9 May 24------------------ 0 5 5 August 31--------------- 3 6 9 May 31 ------------------ 0 5 5 September 7------------- 3 6 9 June 7------------------- 0 5 5 September 14------------ 4 6 10 June 14------------------ 0 5 5 September 21------------ 5 3 8 June 21------------------ 0 5 5 September 28------------ 4 3 7 June 28------------------ 0 7 7 October 5---------------- 5 3 8 July 5-------------------- 0 7 7 October 12--------------- 3 2 5 July 12 ------------------- 0 10 10 October 19--------------- 3 2 5 July 19 -------- ---------- 0 9 9 October 26--------------- 3 2 5 July 26 ------------------- 0 7 7 November 2------------- 4 2 6 August 2----------------- 0 9 9 November 9------------- 4 2 6 August 9----------------- 0 8 8 November 16------------ 4 2 6 August 16---------------- 0 8 8 November 23 ------------ 3 3 6 August 23---------------- 0 9 9 November 30------------ 3 2 5 August 30---------------- 0 9 9 December 7-------------- 4 3 7 September 6------------- 0 9 9 December 14------------- 1 2 3 September 13 ------------ 0 7 7 December 21------------- 1 1 2 September 20 ------------ 0 7 7 December 28------------- 1 0 1 September 27 ------------ 0 5 5 October 4---------------- 0 5 5 1947 October 11--------------- 0 5 5 January 4---------------- 0 0 0 October 18 --------------- 0 4 4 January 11--------------- 1 0 1 October 25--------------- 0 6 6 January 18--------------- 1 0 1 November 1------------- 0 6 6 January 25--------------- 1 0 1 November 8------------- 0 2 2 February 1-------------- 2 0 2 November 15 ------------ 0 2 2 February 8-------------- 2 0 2 November 22 ------------ 0 2 2 February 15------------- 2 0 2 November 29 ------------ 0 2 2 February 22------------- 2 0 2 December 6-------------- 0 2 2 March 1----------------- 2 0 2 December 13 ------------- 0 1 1 March 8----------------- 3 0 3 December 20 ------------- 0 1 1 March 15---------------- 2 0 2 I Only those working 24 hours or mote were included in this group. Appendix C Dischargees ranked in order of seniority, highest at top Name Date hired Name Date hired 1. Kimball, Gerry 5------------ March 17, 1943. 4. Bartlett, H ------------------ May 24, 1945. 2. Bartlett, Elwyn L------------ March 24, 1943. 5. Varney, Robert-------------- October 22, 1945. 3. Nichols , Alkeenon-------__-__ July 5, 1944. 6. Bunn, Clifford--------------- January 5, 1946. 250983-vol. 102-53-66 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix D Average earnings of bus drivers-selected weeks in 1946-1947 Date week ending Average earnings I Date week ending Average earningst 1946 1947 June 29--- ---------------------------- $47 73 June 14 ------------------------------- 45.73 July 13------------------------------- 51 22 June 21 ---------------------------- 52 36 November 2--------------------------- 46 87 June 28 ------------------------------- 59 73 November 9------------------------__ 44 25 July 5--------------------------------- 66 80 November 16-------------------------- 45 33 July 12---------------------------- 63.96 November 23-------------------------- 43.42 July 19-------------------------------- 67.56 November 30-------------------------- 44.57 July 26 -------------------------------- 66 27 December 28 -------------------------- 38 40 August 2------------------------------ 66 29 August 9 ------------------------------ 63 75 1947 August 16----------------------------- 65 88 February 1--------------------------- 32.73 August 23-------------------------- 64 78 February 8-------------------------- 30 99 August 30 ----------------------------- 64 84 February 15-------------------------- 32 73 September 6- ------------------------- 66 86 February 22--------------------------- 31 73 September 13 -------------------------- 67 21 March 1 ------------------ 34 87 September 20---------------------_--_ 68 32 March 8_------------------------- 33.19 September 27------------------------- 54.03 March 15------------------------------ 34 23 October 4------------------- 62 67 March 22 ----------------------------- 34 61 October 11---------------------------- 56 12 March 29 ----------------------------- 37 98 October 18 ---------------------------- 61.23 April5 ----------------------------- 30 12 October 25------------------------_-_ 49 30 April 12------------------------------ 28 72 November 1-------------------------- 55.93 April19----------------- - 32 35 November 8 --- -----_ _ 53.26 April 26------------------------------- 29 20 November 15------------------------- 57.08 May 3 -------------------------------- 42 84 November 22---------------------__-_ 42 74 May 10------------------------------ 52 62 November 29-------------------------- 52 38 May 17---------------------------- 74 31 December 6------------------------- 45.91 May 24-------------------------- 57 96 December 13-------------------------- 52 69 May 31------------------ --- 56 70 December20---------------- --------- - 24.19 June 7--------------------------------- 52 93 I Men working fewer than 24 hours in any given week were excluded . Since bus drivers were usually paid 75 cents per hour, this means that those earning less than $18 (750 X 24 hours=$18) were excluded from the average (Harvest Queen Mill & Elevator Co., 90 NLRB 320). Appendix E Bartlett, Elwyn L. Hourly rate of Pay before Discharge, $1.09 Back-pay period Job classification in which eligible for Adjusted hours for Gross hack back pay back pay pay (1) June 22, 1946 through May 26, Mechanic Back pay for this period -------------- $825 62 1947. of 13 weeks is computed at the rate of $63 509 per week. (2) June 22, 1946 ____________________ Mechanic ----------------------------- 24338ii i 2, 652.79 Gross back pay-------------------------------------------------------------------------------- $3,478 41 Add: Vacation pay for 1 yr--------------------------------------------------------------------- 8127.02 Total gross back pay------------------------------------ ------------------------------ 3.605 43 Less. Interim earnings -------------------------------------------------------------------------- 2,276 00 Net Back Pay ---------------------------------------------------------------------------- 1,329.43 Less amount already paid by respondents--------------------------- ------------------------------------------------------- 550 00 Net amount remaining to be paid--------------------------------------------------------- 779 43 I Hourly rate of pay multiplied by "adjusted hours for back pay." 2 Two weeks' pay at $63 509 per week equals $127.02. HILL TRANSPORTATION COMPANY 1031 Appendix F Bartlett, Harold J. Hourly rate of Pay before Discharge, $0.92304 Back-pay period Job classification in which eligible for back pay Adjusted boors for back pay Gross back pay (1) March 27, 1946 through June 22, Mechanic- Back pay for this period is -------------- $862.45 1946. computed at the rate of $68.996 per week for 12!,1 weeks. (2) June 23, 1946 through April 12, Mechanic----------------------------- 2,08336 1,923.15 1947. (3) April 13, 1947 through July 26, Driver-------------------------------- -------------- 821 32 1947 (4) July 27, 1947 through September Mechanic----------------------------- 492% 454.83 20, 1947. (5) September 21, 1947 through De- Driver-------------------------------- -------------- 667.53 cember 20, 1947. Total gross back pay--------------------------------------------------------------------------- $4,729 28 Less: Total interim earnings -------------------------------------------------------------------- 3,239.53 Net Back Pay--------------------------------------------------------------------------- 1,489 75 Less : Amount already paid by respondent------------------------------------------------------ 158 50 Net amount remaining to be paid--------------------------------------------------------- 1,331 25 Appendix G Bunn, Clifford R. Hourly rate of Pay before Discharge , $0.87591 Back-pay period Job classification in which eligible for back pay Adjusted hours for back pay Gross back pay (1) March 27,1946----------------- Mechanic Back pay for this period is computed at the rate of $47.619 per week for 1236 weeks. $595.24 (2) June 23, 1946 through June 29, Driver '------------------------------ 47 73 1946. (3) June 30, 1946 through July 6, Mechanic--------- ------------------- 42% 37.44 1946. (4) July 7,1946 through July 13,1946 Driver-------------------------------- 51.22 (5) July 14,1946 through October19, Mechanic----------------------------- 83035 727.35 1946 (6) October 20, 1946 through Octo- Mechanic----------------------------- 327 23 65 23, 1946. Totals------------------------ 1,482.63 Total Gross Back Pay-------------------------------------------------------------------------- $1,482 63 Less. Interim Earnings------------------------------------------------------------------------- 29 95 Net Back Pay and Net------------------------------------------------------------------- 1,452.68 Bunn's hourly rate of pay did not appear in the record . His earnings for the 6 full weeks worked prior to his discharge were $314 64. The other closest employee in terms of earnings was Varney who earned $323 33 for the same 6 weeks. Bunn's earnings are 2 69 percent lower than Varney's. Varney's rate of pay was $ 90 per hour. A rate 2 69 percent lower than $ 90 is $.8758 per hour This figure is taken by the under- signed to be a reasonably close approximation of Bunn's predischarge hourly rate of pay and is so used in this calculation of gross back pay 3 Average weekly earnings of all regularly employed drivers (24 hours or more in given week) is attributed to claimant as gross back pay as a driver. 3 Claimant is entitled to one-half of 1 week's pay in the week ending October 26, 1946. He is credited, therefore, with one-half the average hours worked by the replacement mechanics in that week. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix H Kimball, Gerry S. Hourly rate of Pay before Discharge, $1 period Job classification in which eligible for Adjusted hours (}roes back back pay back back ck pay y pay (1) May 9, 1946 through June 22, Mechanic: Back pay for this period is -------------- $340.13 1946. computed at the rate of $52 328 per week for 634 weeks. (2) June 23, 1946 through November Mechanic----------------------------- 1,16334 1,163.75 11, 1946. Total Gross Back pay-------------------------------------------------------------------------- $1,503.88 Less: Interim Earnings------------------------------------------------------------------------- 1,135.38 Net back pay----------------------------------------------------------------------------- 368.50 Less: Amount already paid by Respondent----------------------------------------------------- 125.28 Net amount remaining to be paid--------------------------------------------------------- 243.30 Appendix I Nichols, Aikeenon Hourly rate of Pay before Discharge, $0.80 period Job classification in which eligible for back pay back Adjusted boors for back pay Gross back pay (1) March 27, 1946 through June Mechanic Back pay for this period is -------------- $653.61 22, 1946. computed at the rate of $52.289 per week for 1234 weeks. (2) June 23, 1946 through April 19, Mechanic----------------------------- 2,122 1,697.60 1947. (3) April 20, 1947 through May 24, Driver-------------------------------- -------------- 256 93 1947. (4) May 25, 1947 through July 12, Mechanic----------------------------- 51534 412.60 1947. (5) July 13, 1947 through July 26, Driver-------------------------------- -------------- 133 83 1947. (6) July 27, 1947 through December Mechanic----------------------------- 1,36044 1,088.20 20, 1947 Total------------------------------------------------------------------------------------------- $4,242.77 Add: Vacation pay for 1947 '-------------------------------------------------------------------- 38.40 Total gross back pay ---------------------------------------------------------------------- 4,281.17 Less: Interim earnings-------------------------------------------------------------------------- 3,085.96 Net back pay----------------------------------------------------------------------------- 1,195 21 Less: Amount already paid by Respondent----------------------------------------------------- 80 67 Net amount remaining to be paid--------------------------------------------------------- 1,114.54 ' Nichols received $38.40 in vacation pay in the week ending August 1, 1945, and again in the first quarter of 1946. From this the undersigned concludes that in addition to his regular pay, in the ordinary course of events, Nichols would have received $38.40 as vacation pay in the year 1947 had he not been illegally discharged. THE L. B. HOSIERY CO., INCORPORATED 1033 Appendix J Varney, Robert Hourly rate of Pay before Discharge, $0.90 Back-pay period Job classification In which eligible for back pay Adjusted hours for back pay Gross back pay (1) March 27, 1946 through June 22, Mechanic : Back pay for this period is -------------- $681.94 1946. computed at the rate of $54.555 per week for 12,t weeks. (2) June 23, 1946 through June 29, Driver-------------------------------- -------------- 47.73 1946. (3) June 30, 1946 through October Mechanic ----------------------------- 99794 897.98 26, 1946. (4) October 27, 1946 through No- Driver-------------------------------- -------------- 91.12 vember 9, 1946. (5) November 10, 1946 through Mechanic- ---------------------------- 59994 539.78 February 8, 1947. (6) February 9, 1947 through Feb- Driver-------------------------------- -------------- 32.73 ruary 15, 1947. (7) February 16, 1947 through Feb- Mechanic ----------------------------- 3694 33.08 ruary 22, 1947. (8) February 23, 1947 through July Driver-------------------------------- -------------- 1,021.91 23, 1947. Total gross back pay---------------------------------------------------------------------------- $3,346.27 Less: Interim earnings-------------------------------------------------------------------------- 2,348.22 Net back pay---------------------------------------------------------------------------- 998.05 Less: Amount already paid by Respondent----------------------------------------------------- 135.63 Net amount remaining to be paid--------------------------------------------------------- 862.42 THE L. B. HOSIERY CO., INCORPORATED AND LEE MAISEL, DOING BIISI- NESS AS MYERSTOWN HOSIERY MILLS and AMERICAN FEDERATION OF HOSIERY WORKERS . Case No. 4-CA-59. February 5, 1953 Second 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 provided, inter alia, that the Respondents make whole certain of their employees for losses of pay suffered by reason of the Respond- ents' discrimination against them. On October 3, 1951, the Board issued an Order remanding the proceeding to the Regional Director for the Fourth Region and ordering that a further hearing be held for the purpose of adducing evidence with respect to the amounts of back pay to which the discriminatees might be entitled. On February 8, 1952, Trial Examiner Louis Plost issued his Sup- plemental Intermediate Report and Recommendations finding that certain of the discriminatees were entitled to specified amounts of back pay and that no back pay was due to certain other discrim- inatees. In this report, the Trial Examiner found that Paul Garnet, who had purchased a business on August 1, 1949, had intended to re- 102 NLRB No. 106.