Brown and Root, Inc.

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has frequently held that in determining the status of persons alleged to be independent contractors , the Act requires the application of th,; "right of control" test.' Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished the rela- tionship is one, of employment, and where control is reserved only as to the result sought the relationship is that of independent contractor. On the basis of the entire record it is clear that both the driver-owners and driver-renters do not possess the independence of action as to the manner and means of accomplishing their work which is an essential characteristic of an independent contractor. Accordingly, we find the driver-owners and driver-renters are employees within the meaning of Section 2(3) of the Act,4 and we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers of taxicabs at the Employer's St. Louis, Missouri, place of business, excluding all other employees, office clerical employees, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 'Albert Lea Cooperative Creamery Association , 119 NLRB 817, and cases cited in footnote 18. 4 See, Albert Lea Cooperative Creamery Association, supra; Nu-Car Carriers, Inc, 88 NLRB 75. Brown and Root, Inc., Wunderlich Contracting Company, Peter Kiewit Sons Company, Winston Bros. Company, David G. Gordon, Condon-Cunningham Co., Morrison-Knudson Com- pany, Inc., J. C. Maguire & Company, and Chas. H. Tompkins Co., doing business as joint venturers under the names of Ozark Dam Constructors and Flippin Materials Co. and Fort Smith, Little Rock & Springfield Joint Council , A.F.L. Case No. 26-CA-111.1 July 31, 1961 SUPPLEMENTAL DECISION AND ORDER On June 27, 1952, the Board issued a Decision and Order in the above-entitled case, finding that Respondents had discriminated against certain named employees in violation of Section 8 (a) (1) and (3) of the Act? Thereafter, the Board's Order was enforced-in part by the United States Court of Appeals for the Eighth Circuit, and a decree was entered on September 18, 1953, against Respondents doing business as joint venturers under the name of Ozark Dam Con- Formerly Case No 32-'CA-111. 2 99 NLRB 1031 . On August 15, 1952, the Board issued an Order Correcting Decision and Order, hereinafter attached as Appendix A. 132 NLRB No. 38. BROWN AND ROOT, INC., ETC. 487 structors.3 The decree provided, inter alia, that Respondents make whole the employees named therein for any loss of pay suffered by reason of Respondents' discrimination against them. On January 4, 1957, the Regional Director for the Fifteenth Region issued a backpay specification and on July 9, 1957, Respondents filed an amended answer thereto.4 Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner James R. Hemingway, for the purpose of determining the amounts of back- pay due the claimants. On January 8, 1960, the Trial Examiner issued his Supplemental Intermediate Report, attached hereto, in which he found that certain of the claimants were entitled to specific amounts of backpay. There- after, Respondents and the General Counsel filed exceptions to the Supplemental Intermediate Report, and supporting briefs. 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 Rodgers, Leedom, and Fanning]. 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.5 The Board has considered the en- 203 F. 2d 139 , petition for rehearing denied 206 F. 2d 73. The Board 's Order was set aside insofar as it pertained to Respondents doing business under the name of Flippin Materials Co. * On March 23 and 27, 1957, oral argument was held before Trial Examiner C. W. Whittemore on a motion by the General Counsel to strike portions of Respondent's first answer to backpay specification. Thereafter, upon the filing of Respondents ' amended answer, the parties entered into a stipulation whereby the General Counsel's motion to strike was withdrawn. During the course of the hearing , Respondents submitted to the Board an inter- locutory appeal from a ruling of the Trial Examiner permitting the General Counsel to introduce into evidence 13 reels of microfilm , containing approximately 26,000 documents from Respondents' payroll records and personnel files. The Board, by telegram to the parties dated August 8, 1958, affirmed the Trial Examiner's rulings and on August 20, 1958, denied Respondents' request to appeal further on this matter . Respondents con- tend they were denied a fair hearing by the use of the microfilms , particularly the Trial Examiner's utilization of them in the "secrecy " of his chambers , and allege that in all instances the Trial Examiner used the films to support the accuracy of the General Counsel's computation The backpay period in the present case covers several years The pertinent records were stored by Respondents in their private vaults , and Respondents refused to relinquish them on the grounds the records had to be kept intact for pending litigation before an- other governmental agency. Board agents thereupon obtained permission from Respond- ents to make microfilmed copies of the records for use in computing the amounts of back- pay due the claimants. These films, along with a projector, were made available to Respondents during the hearing, as required by the Board's interlocutory decision. In addition, Respondents at all times had in their possession the original copies of the reeords. We note that, at the commencement of the hearing, several days were devoted to verifi- cation and explanation of the microfilmed records, and thereafter they were projected and examined in the hearing room whenever an issue arose involving their contents Respond- ents readily stipulated as to their authenticity . Under the circumstances, we fail to see how Respondents were prejudiced because the Trial Examiner , after the hearing, used the microfilms in comparing and verifying the various backpay computations before him Contrary to Respondents' contention, in several instances the microfilmed records were used by the Trial Examiner to Respondents ' benefit. ( See, e g , the computation in re- gard to Harvey E. Marehant.) In sum, we find no merit in Respondents' aforesaid contentions. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tire record in this case, including the Supplemental Intermediate Report and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, additions, and modifications set forth below.6 1. THE GROSS BACKPAY FORMULA As the parties were unable to agree on the amounts of backpay due the claimants, in accordance with the Board's Rules and Regulations, the General Counsel issued a backpay specification which was served on Respondents on January 4, 1957. The specification computed the amounts of backpay due each claimant under a comprehensive back- pay formula, set forth in the specification and described in detail in the Intermediate Report. In essence, the General Counsel's formula, computes the average hours of all employees working in each claim- ant's job classification, for each week of the period of discrimination found by the Board and the Eighth Circuit, supra. These average hours, which are taken to be the closest approximation of the number of hours which would have been worked by such claimant absent the discrimination, are multiplied by the appropriate hourly wage rate to arrive at the proper amount of gross backpay due each claimant.7 Respondents contend that the General Counsel's backpay formula is punitive rather than compensatory, and that it substantially over- states the amount of backpay due each claimant. As an alternative, Respondents have submitted their own proposed backpay formula, which is discussed below. The Trial Examiner found the General Counsel's formula to be the "most appropriate" under the circum- stances, and computed the amounts of backpay due accordingly. Respondents except to the Trial Examiner's ruling. We have carefully analyzed the backpay formula proposed by the General Counsel, and find, in agreement with the Trial Examiner, that it provides the most accurate method in the present case for determining the amounts of gross backpay due the claimants. Be- cause of the intermittent nature of construction work, it is unlikely that the claimants involved herein would have worked regular, suc- cessive 40-hour weeks throughout their backpay periods, in the ab- sence of discrimination. Rather, their work experience would most likely have resembled that of other, comparable employees during the relevant periods. Contrary to Respondents' contention, the utiliza- We deny Respondents' request for oral argument, as the record and briefs adequately present the issues and the positions of the parties These computations were made by the General Counsel with the assistance of a Board senior industrial analyst Certain adjustments were made in the formula to accommodate such factors as overtime and employees working in more than one job category. We adopt the Trial Examiner's use of these adjustments , as they conform to the Board's prac- tice in previous backpay cases . See, e.g., Ozark Hardwood Company, 119 NLRB 1130, 1158, enfd. as modified 282 F. 2d 1 (C.A 8). BROWN AND ROOT, INC., ETC. 489' tion•of the average adjusted hours of comparable employees in arriv- ing at gross backpay amounts is not a novel formula, "punitively"' chosen for use against Respondents in the present case. The same formula has been approved by the Board in numerous cases involving- similar circumstances.8 Respondents contend that the average adjusted hour method is in- appropriate in the present case, as Respondents' work force after the- strike declined to such an extent that insufficient work would have been available in any event for the returning strikers. Thus, while acknowledging that the Board in its original decision found replace- ments in a number equaling or exceeding the claiming unfair labor practice strikers,' Respondents urge that the General Counsel's for- mula makes no allowance for a later decline in the number of replace- ments, and in the specific amount of work assigned to those replace- ments. These arguments, we find, are not in accord with the record evidence. Respondents' own exhibits indicate that their work force numbered approximately 600 at the termination of the strike in December 1949, and thereafter remained at that level, or higher,, throughout 1950, except for the weeks of the January ice storm and the May flood.10 Moreover, we have found that, in every instance but one," the number of replacements in each job category continued throughout each quarter of the backpay period to be equal to, or in excess of, the number of claimants for that period.12 In place of the backpay formula adopted by the Trial Examiner, Respondents suggest a formula whereby the total work actually per- formed by replacements would be divided among all the strikers. Respondents point out that the figures obtained by this " lump sum" method are "relatively small," whereas those obtained under the 8 See, e.g., Friedman-Harry Marks Clothing Company , Inc., 1 NLRB 411 , 431, enfd. 301 11 S. 58 (point not discussed). See also Kartarik, Inc, 111 NLRB 630, 633, enfd: 227 F. 2d 190,, 192-193 ( C.A. 8) ; The Babcock & Wilcox Company, 121 NLRB 26, 29; Ozark Hardwood Company, supra O The LAM, or "economic" strikers, are dealt with in section V, infra. 10 Any decline in available work during these weeks is automatically reflected in lower average adjusted hours as computed under the General Counsel's formula. " See Appendix B, a worksheet containing a chart of replacements 'as of each quarter of the backpay period . (This chart, except where specifically indicated, considers as re- placements only those employees named as such in Respondents' own backpay exhibits ) The exception referred to above occurred in the case of jackhammer operators. As the record reveals that jackhammer operators performed work virtually identical to that of air tool operators , we have treated these job categories as interchangeable ; the payroll records indicate that in fact employees moved between these categories from week to week. 12 Although we have found, infra, reinstatement at Flippin to be substantially equivalent reinstatement, we have not included Flippin vacancies in our calculation of available posi- tions for Ozark strikers, as we have found sufficient positions available at Ozark. Cf. Eagle-Picher Mining & Smelting Company, 16 NLRB 727, 119 F. 2d 903 (C.A. 8 ), relied on by Respondents, where the Board specifically found that the number of claiming strikers exceeded the number of positions available after the strike . It might be noted that, upon later discovering sufficient positions available for the claimants , the Board sought, albeit unsuccessfully for procedural reasons, to withdraw 'the lump sum formula. 141 F 2d 843, 325 U.S. 335 490 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's formula are substantial. However, analysis re- veals that the posed disparity is attributable not to a "declining work force," as alleged by Respondents, but rather to fundamental errors in Respondents' application of their own formula. For example, Respondents have sought to divide the available work among all strikers, and not merely among those for whom the General Counsel claims backpay. Thus, although the General Counsel claimed back- pay for only 27 carpenters, Respondents propose to divide the "avail- able work" by 73, the total number of carpenters appearing on the Joint Council's lists. Some of these, as the Board has found, did not properly request reinstatement and were not reinstated. There is, therefore, no valid reason why Respondent should be permitted to receive credit for other possible backpay claims never presented to it, and of course never paid by it. Respondents' duty was to reinstate those unfair labor practice strikers who properly requested reinstate- ment and were available for work, and they may not plead in mitiga- tion of this duty the fact that there were other strikers who might have requested or accepted reinstatement, but did not do so. In addi- tion, some of the strikers for whom no backpay is claimed were actu- ally put back to work. While Respondents' formula seeks to allocate the available work among all strikers, including those actually re- instated, it does not include in the allocable total the work actually performed by the reinstated employees.13 We note also that Respondents seek to credit the backpay claimants with only a fraction of the work actually performed, but offset against this the total interim earnings of the claimants. The sug- gested computation would be contrary to Board practice and unfair even under a lump sum method of computation."' The Board has been entrusted with broad discretion in choosing an appropriate backpay formula, as warranted by the circumstances 1D In determining the question of "available work" under their formula, Respondents propose to reduce the number of replacements contributing to this total by the number of promotional replacements who might have been reassigned to old jobs in replacements' job classifications, thereby reducing the allocable total. Respondents justify this approach by the Board's statement, in "The Remedy" section of the original decision , that "if there are not sufficient positions available in appropriate classifications, the Respondents shall make room for the employees ordered reinstated by dismissing or demoting, to the extent necessary, employees occupying such classifications, who were hired or promoted to such classifications after December 3, 1948 ." (99 NLRB at p 1062 ) However, contrary to Respondents' assumption , the record shows that in many instances, there were sufficient replacements in claimants ' job classifications, aside from promotional replacements, to make room for the claimants . Thus, the job shifts assumed by Respondents in many instances were not, in fact, necessary. This becomes clearer when it is noted that Respondents' formula reassigns virtually all promotional replacements, including those holding jobs of strikers not even involved in this proceeding . In any event, in our view the reassignment of promotional replacements is relevant at the compliance stage herein only in determining the appropriateness of the backpay formula. Under all the circum- stances, we have found infra the "average adjusted hours" formula to be appropriate in the present case. 14 See, e.g., Ford Motor Co., 29 NLRB 873, 912-913. BROWN AND ROOT, INC., ETC. 491 of each case.15 It is necessary only that the formula utilized - be reasonable and fair in carrying out the terms of the Board's Order.' In the present case, we find the formula proposed by the General Counsel and on analysis accepted by the Trial Examiner to be reason- able and fair, and we adopt it in computing the amounts of backpay due the claimants. H. SHIFT DIFFERENTIAL Prior to the strike, certain of the claimants received, in addition to their regular wage rates, a premium differential of $0.05 an hour for working on the "graveyard" shift. The General Counsel computed backpay for such claimants on the assumption that they would have continued to receive the premium rate in the absence of discrimina- tion. However, the Trial Examiner omitted the premium differential on the theory that no claimant had any "fixed right or privilege" to it, and might not have continued to receive it even in the absence of discrimination.'7 We find merit in the General Counsel's exception. The fact that the shift premium was not guaranteed to the claimants is, we find, irrelevant." If a preponderance of the evidence indicates that the claimants would have been paid at the premium rate, absent dis- crimination, they are entitled to receive such a rate in the computa- tion of their backpay. In this connection, the record indicates that a substantial number of replacements in several of the classifications worked the "graveyard" shift throughout the period of discrimina- tion, and that all such replacements were paid the premium rate. Accordingly, in such classifications, where a particular claimant was regularly paid the premium prior to the strike, we find it reasonably inferable that he would have continued to receive the premium in the absence of discrimination. A study of Respondents' payroll re- veals that a substantial number of replacements in the classifications of aggregate conveyor operator, batch and mix operator, and pump operator worked the "graveyard" shift and received the shift differen- tial following the strike. Therefore, claimants in the aforementioned categories who received the premium prior to the strike are, we find, entitled to such differential in the computation of their gross backpay.19 We shall revise the Trial Examiner's computations accordingly. 15 Phelps Dodge Corp . v. N.L.R.B., 313 U.S. 177, 198. 15Kartarik, Inc, supra ( 227 F. 2d 190, 192-193 ) ; Ozark Hardwood Company, supra (282 F. 2d at p. 7). 17 The Trial Examiner awarded the shift differential to three claimants who were eventually reinstated to the "graveyard" shift. We adopt such findings insofar as they are consistent with our holding infra. >e West Texas Utllstles Company, Inc , 109 NLRB 936. 19 Claimants thus entitled to shift differential are Onimus Kyles, James R. Marler, and W. W. Lackey. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. REINSTATEMENT BY FLIPPIN MATERIALS CO. In its opinion in the enforcement proceeding, the Eighth Circuit denied the Board's Order of reinstatement as to employees of Flippin Materials Co., finding that Flippin and Ozark were separate em- ployers for purposes of determining the nature of the strike.. The General Counsel construed the foregoing to require that Flippin and Ozark be considered as separate entities for all purposes, and com- puted backpay for Respondents' employees on the theory that re- instatement to Flippin vacancies could not be considered substantially equivalent employment for claiming Ozark strikers, but merely em- ployment producing deductible interim earnings. We agree with the Trial Examiner's rejection of this approach, for the reasons stated in the Intermediate Report. In addition, we note the Board's original decision contained the following finding: In the circumstances of this case, as revealed herein, we believe and find that all parties understood such vacancies to be avail- able at both Flippin and Ozark. As we have already noted, most of the strikers were ultimately offered reinstatement and re- instated without regard to any distinction between their Flippin or Ozark status at the time of the strike. (99 NLRB at p. 1046, footnote 30.) The Eighth Circuit did not disturb this finding, and we adopt the Trial Examiner's conclusion on this point .20 IV. RES JUDICATA We agree with the Trial Examiner's ruling that Respondents may not relitigate issues already decided by the Board and court at earlier stages of this proceeding. Thus, such matters as the status of em- ployees as strikers, the authorization of the Joint Council to submit reinstatement applications for strikers, the effect of Respondents' communications with Council, and the merits of Respondents' "over- load" theory as a defense have already been considered and passed upon in the earlier case,21 and further contentions as to these ques- tions are not relevant in this proceeding.22 20 Member Leedom would not find that reinstatement at Flippin is the equivalent of reinstatement at Ozark. In view of the decision of the court of appeals in the enforce- ment proceeding, he thinks that Ozark and Flippin should be treated as separate em- ployers for all purposes . He would, however, toll backpay for those Ozark strikers reinstated at Flippin from the date of the original Intermediate Report to the date of the court's decision. 21 We find no merit in Respondents ' contention that the Charging Party is not a labor organization . The issue has been fully litigated in a previous proceeding on the merits. Council was certified by the Board as bargaining representative for certain of the em- ployees, and the Board in that proceeding found that Council was a labor organization within the meaning of the Act. See Brown and Root, Inc , at al., d/b/a Ozark Dann Constructors, 77 NLRB 1136, 1138-1139. Moreover, neither the Act nor the Board's Rules and Regulations require that an unfair labor practice charge be filed by a labor organization . See Rules and Regulations ( Series 8 ), Section 1029. 21 Cf. Monroe Feed Store, 122 NLRB 1479 , 1484. Respondents imply that the Eighth Circuit reserved judgment as to the "bona fide" character of Council 's January 15, 1950, BROWN AND ROOT, INC., ETC. 493 At various stages of the compliance proceeding, both parties, as well as the Trial Examiner, have alluded to certain mechanical and -factual errors in the Board's prior decision, relating to such matters as dates, names, etc. Where we have found such errors to have been made, we have corrected them under our specific reservation to that effect in the prior proceeding 23 All other alleged "errors," as in- dicated in the prior paragraph, were substantive matters fully liti- gated, and we shall not disturb our earlier findings on these points. V. IAM STRIKERS The Board in its original decision found that certain of the strikers, represented in separate units by the IAM, were "economic" rather than "unfair labor practice" strikers, and that they were therefore ,entitled to reinstatement and backpay only if vacancies existed at the time they properly applied for reemployment. Of 36 complainants in the IAM classifications, the Board found on the evidence that 13 had made such proper application for employment, and referred for -compliance investigation the determination as to whether suitable vacancies existed at the time of these strikers' applications. The General Counsel's backpay specification alleged that suitable vacancies for the 13 IAM strikers occurred on various dates between January 5 and March 24, 1950, and assigned to each striker one of the vacancies, computing backpay for each from the date the par- ticular vacancy assigned to him became available a' The Trial Examiner rejected this approach on the ground that it improperly assumes Respondents had a duty to seek out the economic strikers when vacancies became available after their application. As the Trial Examiner found no vacancy in the appropriate classification to have existed on the date any IAM striker applied for employment, he found that, under the Board's original Decision, none of the IAM letter to Respondents, requesting reinstatement for certain strikers . This 1s clearly not the case, 203 F. 2d 139 at p. 147. The court's opinion merely directed the Board in compliance proceedings to determine whether the strikers on the January 15 list were available for reemployment during the backpay period , and whether positions were avail- able for them. We have, infra, carefully considered all the evidence presented on these matters, and the Trial Examiner has done likewise . See, e.g., his findings, which we adopt, that Flippin , Harris, and Kent, whose names appeared on the January 15 list, were not available for reemployment. 2399 NLRB at p. 1063. We deny the General Counsel's motion to correct the prior Board finding as to the substantial equivalence of Haynes' reinstatement as a laborer (99 NLRB at p. 1060, footnote 56). All facts in connection therewith were known to the Board and considered in the prior proceeding, and that issue may not now be re- litigated. In any event, the General Counsel has not excepted to the Trial Examiner's finding that Haynes is due no backpay because he made an inadequate effort to find interim employment, and we adopt that finding pro forma. The General Counsel's con- tention as to Alvie Boyd, an IAM striker, is rendered moot by our determination , onfra, regarding the IAM strikers as a group. 24 These vacancies were assigned to the strikers on the basis of comparable wage rates. Where two claimants were "competing " for the same vacancy, seniority was used to establish a priority. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers had been discriminated against, and therefore that no back- pay was due them. The General Counsel excepts to this ruling. Like the Trial Examiner, we are constrained to hold the evidence presented by the General Counsel insufficient to establish that vacan- cies were available when the IAM strikers applied to Respondents for employment 25 Moreover, we reject the theory urged by the General Counsel, to the effect that the 13 IAM strikers were entitled to appro- priate vacancies as they arose. The record discloses that Respond- ents' normal employment practice was to hire "the first man that came up that could fill the bill." There is no indication that Respondents normally placed other applicants for employment on a preferential hiring list, or later notified them when vacancies became available. In the circumstances of this case, we hold that Respondents had no obligation to seek out or prefer the JAM strikers for vacancies which opened up after their application.26 We therefore adopt the Trial Examiner's ruling on this point. We find no independent evidence in the present case that Respond- ents, in denying the 13 IAM strikers reemployment at the time of their request, were motivated unlawfully, or motivated other than by an actual absence of vacancies.27 On the contrary, we note that all the 13 IAM strikers who requested reinstatement were eventually re- instated by Respondents to an available position, or offered reinstate- ment which they declined. Accordingly, under all the circumstances, we find, with the Trial Examiner, that the IAM strikers were not discriminated against, and are not entitled to backpay.28 21 The General Counsel contends , inter alia, that on January 3 , 1950, Respondents stated In a letter to the Joint Council that there were vacancies for three thin-wall tubing installers, five oilers, and one pipefitter ( see original Board Decision , 99 NLRB at p. 1045, footnote 29), and that these classifications were in reality those possessed by certain of the IAM claimants prior to the strike , the change in name being occasioned by a subsequent Davis-Bacon Act reclassification This contention was made for the first time by the General Counsel in his brief. The backpay specification does not allege that the TAM strikers were entitled to the January 3 vacancies , and the General Counsel has failed to identify these vacancies on Respondents ' subsequent payrolls, or to compute backpay for the claimants on this basis. Thus, Respondents had insufficient notice of the General Counsel's position on this matter , and the issue was not litigated at the backpay hearing. Accordingly, even assuming that certain of the IAM strikers were entitled to jobs in other classifications , which is not at all clear from the record, we cannot under the circumstances find that the January 3 vacancies were available for, and appropriate to, the IAM strikers as of the times of their applications for reemployment. "0 See Atlas Storage Division, P & V Atlas Industrial Center, Inc , 112 NLRB 1175, footnote 15, enfd 233 F. 2d 233, 237-238 (C.A. 7), where the Board held that a com- pany had no duty to seek out an economic striker when no vacancy existed at the time of his request to return to work , but became available sometime thereafter . The Board stated that the company 's duty was merely to refrain from discriminating against the striker should he request employment again See also California Cotton Cooperative Association Ltd, 110 NLRB 1494, 1502 77Cf Anchor Rome Mills, Inc., 110 NLRB 956, 957-959, enfd . 228 F. 2d 775 ( C.A 5), cert denied 352 U S 802. 21 These claimants are Harold Arrowsmith , Alvie Boyd, Houston D Crosby, Lewis E. Davis, Raymond A. Hotalling, Thomas E Hurst, Corley O. Langston , T. A. Marchant, V. O. Miller, Samuel J. Pearl, Harry Ivan Satterlee, Ewell D. Smith, and Dewey F. Trivett. BROWN AND ROOT, INC., ETC. VI. CLAIMANTS NOT TESTIFYING 495 Pursuant to the Board's Order, as enforced by the Eighth Circuit, the backpay specification claimed backpay for 75 former strikers. Of these, 40 appeared in person at the backpay hearing, testifying as to their attempts to secure interim employment, and the amounts of their interim earnings, if any., Certified earnings records of the Social Security Administration were offered by the General Counsel as to 71 of the 75 employees, and certain affidavits, personnel files, and other relevant documents were also offered. In his Intermediate Report, the Trial Examiner awarded backpay to 20 of the 35 claimants who failed to testify, inferring their avail- ability for employment with Respondents from social security earn- ings reports, interim earnings admitted by the General Counsel, or subsequent reemployment by Respondents. He denied backpay to eight of these claimants, finding no evidence of their availability for employment. Respondents except to the Trial Examiner's finding of backpay for the 20; the General Counsel excepts to his dismissal as to the 8.29 The Trial Examiner correctly notes that there is no rule requiring the General Counsel to produce all backpay claimants for examina- tion by Respondents. On the contrary, it is well established that the burden is on Respondents to prove that a claimant willfully incurred loss of earnings during his backpay period, or for some other reason is not entitled to receive backpay for the period of discrimination 30 It is true that, in proceedings of this sort, the General Counsel cus- tomarily undertakes to produce as many claimants as possible. How- ,ever, the General Counsel's function in this connection is merely ad- -v-lsory and cooperative in assisting generally to assemble evidence. In the pr"tsent case, the General Counsel was admittedly diligent in attempting to produce claimants. Respondents concede this in their brief, and admit that they themselves made no effort to produce the missing claimants.31 We find no error in the Trial Examiner's award .of backpay to the 20 claimants not appearing in person at the back- pay hearing, and as to whom periods of discrimination have already 29 Of the remaining seven who did not testify , four were IAM strikers , for whom we have found no backpay in any event (Arrowsmith, Davis , Miller, and E D. Smith). The other three ( Choate, Hayes, and Petty ) present special situations , and no exceptions have been filed to the Trial Examiner's findings as to them $0 Ozark Hardwood CO, supra ( 119 NLRB at p 1134) ; Alaska Chapter of Associated General Contractors of America, Inc, 119 NLRB 663, footnote 21 31 Respondents contend they relied on a promise by the General Counsel to produce the claimants . However, the record discloses no such promise . On the contrary, the General Counsel repeatedly stated at the hearing that the burden of proof as to willful idleness and interim earnings rested upon Respondents , and intimated that some claimants would not be called by it because the amounts of their backpay were small , and the dis- tances they would have to travel would be too great. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been found by the Board and approved by the Eighth Circuit.12 We= shall award these claimants the following amounts of backpay : 13 Bailey, Benjamin W-11 --------------------------- $1,276 Beal, Jones P.35 ............... . _______________ __________________ P35 Blecker, Robert R------------------------------- Carlton , H. L.38--------------------------- ------ Cloven, George---------------------------------- Drown, Wm. H 37 James, John H---------------------------------- Jencks, R. H------------------------------------ Killian, D . E.38................................ =- Kyles , Onimus 38--------------------------------- Landry, C. C----------------------------------- Lazenby, A . M---------------------------------- Mashaw, J. W---------------------------------- Mooney, Carl40............. ..................... Pfingston,Jake---------------------------------- Smith, Elbert C_________________________________ Stamps, C. D 41---------------------------- ------ 367 81 571 208 100 214 401 191 4, 708 1, 093 1,466 66 468 307 345 367 82 See Earl I. Si/ers, d/b/a Si/era Candy Company, 92 NLRB 1220, 1246-1247; Hall' Transportation Company, 102 NLRB 1015 , 1016, 1024 . Cf E/co Manufacturing, Inc, 111 NLRB 1032, 1035, where no backpay was awarded a witness who was asked to appear and refused . There is no contention in the present case that any claimant expressed such a refusal to appear. ss Except where indicated , these amounts coincide with those computed by the Trial Examiner in his Intermediate Report. ss We grant the General Counsel 's motion to add Benjamin W. Bailey's name to- Schedule B of the Board's original Decision , from which it has heretofore inadvertently been omitted. The Trial Examiner mistakenly found that Benjamin W. Bailey's name had been added to Schedule B by the Board 's correcting order of August 15, 1952, attached hereto as Appendix A. We also hereby correct that portion of the correcting order adding the name of "Alvie Boyd" to Schedule B of the original Decision ; "Alvie Boyd" should read "Arnold, Hayes G." as Though correctly computing Beal's backpay, the Intermediate Report inadvertently lists, in the computation section, Beal 's backpay period to end on February 3 The correct date is February 14 as The Board's original Decision found that Carlton was offered reinstatement by Re- spondents on March 6 , 1950 (99 NLRB at p. 1053 ). At the backpay hearing, the General Counsel's motion to correct this finding to July 25, 1950, was referred to the Board by the Trial Examiner. We grant the General Counsel's motion, as it is clear that our earlier finding was a mechanical error. All the evidence, including Respondents' own exhibit at the original hearing, indicates that Carlton was offered reinstatement on July 25, 1950. We have revised the Trial Examiner 's computations accordingly (See Appendix D.) as Although Drown did not personally testify, Houston A. Jones, a contractor, testified that Drown worked for him during the backpay period, and Jones verified the amount of Drown's interim earnings sa In the absence of exceptions by the General Counsel , we adopt the Trial Examiner's finding that Killian's earnings of $192 for the first quarter should be deducted from his gross backpay in their entirety. RD In accordance with our finding, supra, section II, we have recomputed Kyles' back- pay to include the $0.05 per hour shift differential. "The Intermediate Report contains a typographical error, in that Mooney's backpay period ends July 25, 1950 , instead of July 25, 1959 "The Board Decision left for compliance investigation the determination as to when a vacancy first became available for Stamps (99 NLRB at p 1054) Although Respond- ents' payroll Indicates that a replacement was hired in Stamps ' job classification as early as January 12, 1950, the backpay specification claims backpay for Stamps no earlier than February 3, 1950. We adopt the Trial Examiner 's utilization of February 3, 1950, as the date for commencing the computation of Stamps ' backpay. BROWN AND ROOT, INC., ETC. 497 Stone, C. L-------------------------------------- $509 Walker, V. B.42---------------------------------- 157 Wood, Russell T--------------------------------- 365 As to the other eight employees, we find merit in the General Counsel's exception. The Board has already found that these em- ployees were discriminated against on certain dates when they applied for reemployment with Respondents, and were refused. Thus, as stated above, the burden of proof in this proceeding is on Respond- ents to show that these employees were not in the labor market during the backpay period, or for some other reason were not entitled to backpay. We do not think that the failure of the General Counsel to call these employees to testify, or to discover evidence as to their interim earnings, is a substitute for affirmative evidence by Respond- ents on these matters.43 Accordingly, we shall award backpay to these eight claimants, in the following amounts : 44 ,Dorell, Chas------------------------------------- $2,694 Ford, Jason S----------------------------------- 529 Freeman A. D---------------------------------- 2,175 Lynch, S^. L------------------------------------- 1,689 Mashaw, Roy------------------------------------ 455 Patton, H. C------------------------------------ 455 Rains, Willis---------------------------------- 455 Wells, John D---------------------------------- 1,148 Particularly in the circumstances of this case, we believe that the award of backpay, in the above amounts, to 28 claimants who did not testify is legally proper and binding upon Respondents. The pres- ent case has been in litigation for an inordinate length of time; it must finally be brought to a close. In this context, we nevertheless desire to afford Respondents some reasonable opportunity to examine these claimants before the awarded backpay is turned over to them. Accordingly, the Regional Director is instructed to hold in escrow the amounts of backpay awarded the claimants who did not testify, and to make suitable arrangements to accord Respondents, together with the General Counsel's representative, an opportunity to examine them as to their interim earnings and activities. The Regional Di- rector shall make a final determination whether any interim earnings or other amounts, in excess of those shown herein, are revealed which are properly deductible from a claimant's backpay award under exist- ing Board precedent. Where so determined, the Regional Director shall make such deductions and return the amounts deducted to Re- spondents. The Regional Director is further instructed to report to 42 Walker died January 3 , 1953. Respondents' first amended answer admits that Walker made a reasonable search for employment during his backpay period. 43 Although some discriminatees were not called to testify , the General Counsel claimed no backpay for those who, it was learned, were not in the labor market. See, e.g., Herman E . Hayes. " See Appendix C for our computations as to these claimants. 498 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD the Board when these matters have been finally resolved, and in any event no later than 1 year from the date of this Supplemental Deci- sion, the status of these cases at such time. VII. THE INDIVIDUAL CLAIMANTS WHO TESTIFIED AT THE BACIU'AY HEARING Thirty-one claimants, other than the IAM strikers, testified at the backpay hearing. We adopt the Trial Examiner's findings in their entirety as to 13 of these claimants, and award them the following amounts of backpay, as found by the Trial Examiner :41 Francis Flippin --------------------------------- 0 E. E. Harris ------------------------------------ 0 Geo. W. Haynes --------------------------------- 0 W. A. Kent ------------------------------------- 0 Donald C. Plymate ------------------------------ 0 D. W. Bailey ----------------------------------- $533 J. B. Brents ------------------------------------ 455 V. W. Cooper ----------------------------------- 1,009 F. P. Marberry ---------------------------------- 375 James R. Marler -------------------------------- 2 155 T. H. Parris ------------------------------------ 2,806 Robert M. Rutledge ----------------------------- 1,284 Hoy Shaw -------------------------------------- 75 As to the remaining 18 claimants who testified, we adopt the Trial Examiner's findings and recommendations, with the following modifications : 1. Truman E. Anderson: During the strike, Anderson was employed as a teacher at Southern Baptist College, 135 miles from the dam project. Pursuant to a telegram from his local, Anderson reported to Respondents for employment on January 3,1950, but, as the Board has found, was discriminatorily denied reinstatement. Anderson's job at the college was taken when he returned. Respondents contend that Anderson voluntarily quit profitable in- terim employment, and therefore should be denied backpay. We do not agree. This is not a case where, during the backpay period, a claimant has quit one job to look in vain for another.41 Here, Ander- son quit his teaching job solely for the purpose of ending the strike and applying for reinstatement with Respondents. His employment at the college therefore did not occur during the backpay period, but prior to it. Accordingly, we agree with the Trial Examiner's finding that Anderson did not abandon employment during the backpay period 47 2. J. N. Bevan, Jr.: It was stipulated that Bevans made a reason- able search for employment. We adopt the Trial Examiner's finding that Bevans' earnings at Silas Mason, reported on the social security 'O No exceptions were filed to the Trial Examiner 's findings as to Flippin , Harris, Kent, and Plymate Accordingly, we adopt these findings pio forma See footnote 23, sapaa, as to Haynes 40 Cf , e g, Ozark Hardwood Co., supra ( 119 NLRB at p 1139). 47 See West Texas Utilities Co., Inc, supra, at 946 BROWN AND ROOT, INC., ETC. 499 records for the period ending March 30, 1950, did not occur during the backpay period ending March 8, 1950. We rely in particular on Bevans' specific testimony that his earnings at Mason took place after March 20, 1950, and on Respondents' admission that Bevans had no' earnings during the backpay period. 3. Glenn H. Bonner: Bonner's period of discrimination extends from January 15 to July 29, 1950, as found by the Board in the prior proceeding. Respondents content that Bonner was out of the labor market from February to April 1950, when, Respondents allege, he was repairing his house. Bonner's testimony at the backpay hearing was confused as to dates, but he testified that an affidavit executed by him on January 12, 1954, reflected the dates more accurately. Bonner's affidavit indicates that he worked on his house in February 1950, and that his grocery and hauling jobs took place between March and July 1950, as found by the Trial Examiner. The General Counsel claims no backpay for Bonner during January and February 1950, when, as we find, he was repairing his house and becoming accustomed to his arti- ficial-eye. We adopt the Trial Examiner's findings and computations as to Bonner's 'backpay. 4. Lee R. Cutler: The Trial Examiner found that Cutler earned $25 during the backpay period cutting wood, prior to working on Reed's farm, but inadvertently failed to deduct this sum as interim earnings. We shall make this deduction 48 5-Eugene N. Cypert: Respondents contend that Cypert held a per- sonal grudge against Ozark because of an incident involving his father, and would not have accepted reinstatement in any event. However, in a letter,to Ozark's superintendent dated January 1, 1950, Cypert specifically requested reinstatement to the project, "without malice." We therefore find no merit in Respondents' contention. Respondents also allege that, because of his hearing defect, Cypert was physically unfit for reinstatement. However, the record indicates that, on March 21, 1950, Cypert was reemployed by Flippin as a car- penter, doing substantially the same kind of work he had done pre- viously. Cypert apparently could hear satisfactorily with his hearing aid, as he was able to answer questions put to him at the hearing. We find that Cypert's defect did not render him unfit for reemployment as a carpenter at the damsite. Although Cypert was reinstated by Respondents on March 21, 1950, he received Respondents' offer of reinstatement on March 8, 1950. The Board's prior decision inadvertently failed to find that Cypert's period of discrimination ended March 13, 1950, 5 days after he received Re- spondents' offer, rather than March 21, the date Cypert returned to es It is unnecessary to infer, as did the Trial Examiner, that Cutler received no cash benefits while working on the farm, as Cutler testified positively that he received no such benefits 614913-62-vol 132-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. We hereby correct our prior finding and revise the Trial Ex- aminer's computation as to Cypert's backpay. (See Appendix D.) In our computations, we shall deduct $56 rather than $38 as Cypert's interim earnings for the first quarter of 1950, the amount substantiated by the social security reports and Cypert's own testimony. 6. R. V. Dunn: The Trial Examiner awarded Dunn backpay from January 15 to July 25, 1950. Respondents except, on the ground that Dunn was not in the labor market during this period. After Dunn was discriminatorily refused reinstatement by Respond-' ents on January 15,1950, he purchased a farm near his father-in-law's residence. Thereafter, until June 25, 1950, Dunn had no employment other than working on his farm. The record indicates that Dunn spent his time during this period making improvements on his farm and preparing the soil for fall harvesting. Starting on June 25, 1950, and extending beyond the end of his backpay period, Dunn worked full time at the Tennessee Valley Authority. We do not agree with Respondents' contention that Dunn, was not in the labor market during the backpay period. As the Board has held, self-employment does not in itself indicate withdrawal from the labor market 49 However, we note that Dunn reported no interim earnings from his work on the farm. It appears that the only crop Dunn actually harvested, cotton, was not sold until after the backpay period. The amount of the proceeds from the cotton harvest does not appear on the record. Under the circdmstances, we shall credit Dunn with an amount equal to the average Arkansas farm laborer's income during the period Dunn worked on his farm 50 The wages Dunn received from his interim employment with the Tennessee Valley Authority, will, of course, also be deducted. (See Appendix D for the compu- tation of Dunn's net backpay.) 7. W. A. Gardner: The Trial Examiner lists Gardner's gross interim earnings during the second quarter of 1950 as $527. Respondents con- tend this figure should be $952. The record indicates that, during the second quarter, Gardner earned $473 from L. E. Myers, $130 from Broadway Electric Company, and $270 51 from Bagby Elevator and Electric Company. Accordingly, Gardner's gross interim earnings during the second quarter were $873. As Gardner's allowable expenses were $91 for this quarter, his net See ,Monroe Feed Store, supra, at 149G, and cases cited therein so See the Trial Examiner's similar findings with respect to claimants Cutler and Lippe, which we adopt The appropriate figures have been derived from United States Depart- ment of Agriculture charts, introduced as exhibits in the backpay hearing we do not adopt the Trial Examiner's general ruling with respect to crops cultivated during the backpay period, but not harvested until afterward 6' This figure is Gardner's own estimate, as determined from his withholding state- ments The social security records reflect only $54 from Bagby for this period We accept Gardner's higher estimate BROWN AND ROOT, INC., ETC. 501 interim earnings were $782. We shall revise Gardner's total back- pay award accordingly. 8. Ray L. Hale : The Trial Examiner recommends backpay for Hale in the amount of $597. Respondents except to this finding on grounds that (a) Hale applied for reinstatement only as a foreman; (b) Hale refl}sed reemployment in February 1950; and (c) Hale's testimony should be stricken, as he was an eccentric and uncooperative witness. We find no merit in these contentions. As to (a) and (b), these issues were decided in the unfair labor practice case and may not be relitigated in this proceeding.52 As for (c), the record fails to disclose a basis for finding that the Trial Examiner erred in admitting and. considering Hale's testimony. Under the circumstances, and as it, appears to us that ultimately Hale sufficiently answered all relevant questions to the best of his ability, we deny Respondents' motion to strike Hale's testimony. 9. Jessie A. Kil f oy : We affirm the Trial Examiner's finding that Kilfoy exercised due diligence in seeking interim employment. How- ever, contrary to the Trial Examiner, we do not infer that, after June 1950, Kilfoy "may not have tried to get work through his union." Kilfoy testified affirmatively that he registered for work with Local 382, Operating Engineers, throughout the backpay period, and kept in contact with them "about every week or every two weeks." In find- ing that Kilfoy exercised due diligence, we also take into considera- tion Kilfoy's World War I injury, rendering him incapable of per- forming certain types of manual labor. 10. W. W. Lackey: Although the Trial Examiner properly found Lackey's backpay period to end May 21, 1951, he inadvertently com- puted Lackey's backpay through part of the third quarter of 1951. We shall revise the Trial Examiner 's recommended award accord- ingly. (See Appendix D.) In conformity with our findings, supra, as to shift differential, we shall credit Lackey with the premium rate throughout his backpay period. 11. Frank J. Lippe : We agree with the Trial Examiner's conclu- sion that Lippe diligently searched for interim employment during his backpay period. However, we do not adopt his subsidiary finding that Lippe "apparently did not register with the employment agency." Lippe testified that he did register with the employment agency, and checked with it every week for about 10 weeks, looking for a job. In computing Lippe's backpay, the Trial Examiner utilized the average adjusted hours of a single employee, J. H. McCracken. How- 63 We note incidentally that Hale testified at the backpay hearing that he applied for reinstatement to "anything that was available . whether a foreman 's job or what it might be," and that his refusal of Moore 's offer of a job was in February 1951 and not February 1950, as alleged by Respondents ( See the original Board Decision, 99 NLRB at p. 1053, footnote 44 ) 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, once sufficient replacements have been identified in Lippe's clas- sification (see Appendix B), the proper basis for computing Lippe's backpay is the average adjusted hours of all employees in the clas- sification of working foreman. We shall compute Lippe's backpay on this basis rather than that utilized by the Trial Examiner. (See Appendix D.) 12. Harvey, E. Marchant: We adopt the Trial Examiner's finding that Harvey E. Marchant was not reinstated to a substantially equiv- alent position until September 11, 1951, when he was offered his former job of crane operator. However, contrary to the Trial Exam- iner, we do not rely on the fact that Marchant's job of crane operator may have been available throughout his backpay period. The Board rejected a -similar finding of the Trial Examiner in the unfair labor practice case, holding that one of the interim positions occupied by Marchant may have constituted substantially equivalent employment, despite the continued presence of crane operator replacements.63 The question of substantial equivalence was left for compliance. We agree with the Trial Examiner's ultimate conclusion that Mar- chant's interim positions with Respondents were not, prior to Septem- ber 11, 1951, substantially equivalent to his former position of crane operator. Marchant was paid $1.75 per hour as crane operator prior to the strike. Although, on December 4, 1950, Marchant was rein- stated by Respondents to a job paying $1.8125 an hour (truck-tractor operator), and'on April 2, 1951, to a job paying $2.125 an hour (struc- tural ironworker), the record indicates that earlier, in November 1950, the rate for crane operators had been raised to $2.25 an hour. Thus at all times during his backpay period, prior to September 11, 1951, M,archant was assigned to a job paying substantially less than Re- spondents' prevailing rate for crane operators 54 We therefore shall award Marchant the amount. of backpay recommended by the Trial Examiner. 13. John TV. Marchant: On January 25, 1950, John W. Marchant was reinstated to the position of mechanical repairman at a rate of $1.50 per hour. Prior to the strike, Marchant was classified as an ironworker at $1.75 per hour, and the Board in the unfair labor prac- tice case found that Marchant's reinstatement as mechanical repair- man was not substantially equivalent to his original job .15 However, Respondents contend this finding was erroneous, as Marchant's prior classification of ironworker was incorrect, and that it was changed in the interim to mechanical repairman pursuant to Davis-Bacon Act proceedings. - 99 NLRB at p 1052 64 See the Board's finding as to John Marchant, 99 NLRB at p. 1055. s-- 99 NLRB at p. 1055. BROWN AND ROOT, INC., ETC. 503 Like the Trial Examiner, we believe these contentions should have been raised in the unfair labor practice proceeding, when questions concerning periods of discrimination were specifically-considered and passed upon. However, we note that Marchant's testimony at the backpay hearing, while it indicated some confusion as to his proper formal classification, was emphatically that Respondents did not rein- state him to his former position. Prior to the strike, Marchant ap- pears to have held somewhat of a privileged position, working "on his own" on several of Respondent's electric cranes. After the strike, Marchant was assigned to work on diesel equipment in the quarry, which, he testified, was less desirable because of the large amounts of grease and dirt on the equipment. We affirm our prior finding that Marchant was not reinstated to an equivalent position on Jan- uary 25, 1950, and award Marchant backpay as computed in the Inter- mediate Report.56 14. A. J. McFarland: McFarland's status as a striker was deter- mined by the Board in the unfair labor practice proceeding.57 We do not, therefore, adopt the Trial Examiner's observations pertaining -thereto in footnote 77 of the Intermediate Report. In computing McFarland's backpay, the Trial Examiner found that McFarland was not out of the labor market during the time he was self-employed as a farmer under the GI training program. He also found that the subsistence payments McFarland received were de- ductible as interim earnings. We agree with these findings.56 How- ever, we also note that McFarland's on-the-job subsistence payments were relatively small, and there is no indication that McFarland actively searched for other employment while working on his farm. Under the circumstances, we shall, in addition to the subsistence pay- ments, credit McFarland with an amount of interim earnings equal to the average Arkansas farm laborer's income during the 5 months McFarland worked on his farm.59 (See Appendix D for. the computa- tion of McFarland's net backpay.) 15. Calvin C. Mynatt: We adopt the Trial Examiner's findings with respect to Mynatt's backpay. For the reasons stated in the Intermediate Report, we deduct as interim earnings the GI subsistence payments received by Mynatt while employed at Cook's, as well as the wages paid him by Cook.60 88 Respondents concede in their brief that Marchant's pay rate, for backpay purposes, should include shift differential We therefore adopt the Trial Examiner' s finding in this regard 57 99 NLRB at p 1055, footnote 49 51 See 0rark Hardwood Co, supra (119 NLRB at p 1133) , The cases cited by the General Counsel, involving unemployment compensation, are, we find. inapposite. They do not, as here, involve payments in the nature of compensation for services performed. 50 See footnote 50, supra. 80 See our findings, supra, in regard to McFarland See also Taylor Manufacturing Company, Incorporated, 83 NLRB 142, 144. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 16. Clyde S. Putney: Respondents except to the Trial Examiner's finding that Putney had no interim earnings during the third quarter of 1950. We find merit in this exception. Evidence introduced at the backpay hearing indicates that Putney's social security reports might inadvertently have lumped together his third and fourth quarter earn- . ings as having occurred entirely within the fourth quarter. The Trial Examiner found the evidence insufficient to support such a conclu- sion. However, we note that the General Counsel in his brief to the Trial Examiner admitted the inaccuracy of the social security reports in this respect, and conceded that Putney earned $456 during the third quarter. We shall, accordingly, recompute Putney's backpay on this basis, as urged by Respondents. (See Appendix D.) 17. T. R. Roberts: We adopt the Trial Examiner's general findings in regard to Roberts' backpay. However, we note, and hereby correct, the following errors in the Trial Examiner's treatment of Roberts' expenses: (a) In the first quarter of 1950, Roberts was properly credited with $110 for room and board while working at Oak Ridge.61 However, he should be credited with only $38 for round trip travel between Chil- dersburg.and Oak Ridge, and not $75, as alleged by the General Coun- sel and found by the Trial Examiner.ea Thus, Roberts' allowable expenses for the first quarter are $148, and his net backpay for that period, $553. (b) The Intermediate Report is not clear in describing the nature of Roberts' second quarter expenses. The $320 claimed by the General Counsel for this quarter consists of $220 for room, board, and travel, and $100 for moving his family to Somerset. Like the Trial Examiner, we allow these expenses.83 With the above corrections, the proper amount of backpay due Roberts is, we find, $1,172. 18. George Tulipana: Respondents except to the Trial Examiner's failure to deduct as interim earnings the value of Tulipana's labor in improving his gas station during the backpay period. We find no merit in this exception. The record indicates that these "improve- ments" were of an incidental-and continuing nature, and that similar improvements were made by Tulipana before and after his backpay period.84 In any event, Tulipana testified that his time and labor involved were minimal, and no evidence was offered by Respondents to contradict this testimony. We do not find it necessary to adopt the Trial Examiner's analysis of the effect of capital improvements on interim earnings generally. O' Contrary to Respondents' contention, Roberts lived at home while working for Re- spondents , and would not have had these expenses absent Respondents ' discrimination. 61275 miles each way, at $0.07 per mile. ea Harvest Queen Mill & Elevator Company, 90 NLRB 320, 338. °' See Acme Mattress Company, Inc., 97 NLRB 1439, 1443 BROWN AND ROOT, INC., ETC. 505 We affirm the Trial Examiner's other findings with regard to Tulipana, and his computations as to Tulipa.na's backpay. ORDER On the basis of the foregoing Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that Respondents Brown and Root, Inc., Wunderlich Contracting Company, Peter Kiewit Sons Company, Winston Bros. Company, David G. Gordon, Condon-Cunningham Co., Morrison-Knudson Com- pany, Inc., J. C. Maguire & Company, and Chas. H. Tompkins Co., doing business as Joint Venturers under the name of Ozark Dam Constructors, Mountain Home, Arkansas, their agents, successors, and assigns, shall pay to the employees involved in this proceeding as net backpay the amounts set forth in Appendix E of this Supple- mental Decision and Order. APPENDIX A ORDER CORRECTING DECISION AND ORDER On June 27, 1952, the Board issued a Decision and Order in the above-entitled proceeding (99 NLRB 1031). IT IS HEREBY ORDERED that the aforesaid Decision and Order be, and it hereby is, corrected as specified below: 1. On page 1045, line 1, by inserting after the word "practice" the words "strikers to the extent and in the amount that permanent replacements were." 2. On page 1056, footnote 52, by inserting after the last word of the footnote the following sentence : "Truman Erwin testified that he applied personally at the plant for reinstatement `about the 1st of January,' 1950. However, in view of the over- whelming evidence in the record that the Respondents during the period after the termination of the strike had a continuing need for laborers and so notified the Joint Council, and that the Respondents did hire all laborers who applied from among the strikers, we do not find that Truman Erwin made proper personal application for reinstatement after January 3, 1950." 3. By deleting the name of Lucian R. King from Schedule ,B and inserting it in Schedule D; and by inserting on page 1049, following table, the following paragraph- Although Lucian R. King had his name placed on the Joint Council's De- cember 21, -1949 application list, he testified that he did not in fact wish to go back to work immediately. He did, however, apply personally for his job in February 1950 and was refused. The record shows that King's name on the December 21, 1949, list was immediately approved as eligible by the Respond- ent's representative. Under the circumstances, we find that King in fact and effect rejected a proper offer of reinstatement, which relieved the Respondents of further obligation toward him. We shall, accordingly, dismiss the complaint as to King. 4. On page 1061, by deleting from the list of names beginning on line 3, "Arnold, Hayes G., 1-4-50," and by inserting at the appropriate places in the list of names "Boyd, Alvie `January 1950'." By deleting "Arnold, Hayes G." from Schedule C, and by inserting in Schedule C "Boyd, Alvie." By deleting from Schedule D and inserting in Schedule B: "Boyd, Alvie"; "Forbes, Herbert"; "Holt, J. E."; and "Shaw, William E." On page 1056, by inserting before the caption "Millwright" the following: I `Mechanical Repairmen (Flippin) Claiming strikers ---------------- 4 Promotional replacements -------- 6 Replacements ------------------- 1 Discriminatory replacements 17 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Application Joint Offer of reinstate- Personal Council meet Reinstated Arnold, Hayes G.-_________________ 1-4-50 ------- 4-13-51 ------- (At hearing) Forbes, Herbert ___________________ _______ 1-15-50 7-25-50 ------- Holt, J. E. ------------------------ _______ 1-15-50 7-25-50 ------- Shaw, William E. __________________ _______ 1-15-50 4-13-51 --------- IT IS FURTHER ORDERED that the aforesaid Decision and Order as printed, shall ap- pear as hereby corrected. Dated, Washington, D.C., August 15, 1952. PAUL M. HERZOG, Chairman,. JOHN M. -HOUSTON, PAUL L. STYLES, IvAR H. PETERSON, Members, NATIONAL LABOR RELATIONS, BOARD. APPENDIX B WORKSHEET Classification Claim- Replacements working in claimants' job classifications ants 1/8/50 4!1/50 7/2/50 10/1/50 1/7/51 4/1/51 7/1/51 Ag Conv Ops---------------------- 1 6 6 3 1 1 • 1 Air Tool Ops---------------------- 2 b 17 8 Batch and Mix Ops--------------- 1 1 1 1 (') (') Carpenters------------------------ -27 28 29 23 21 (') (`) (') Cement Finishers----------------- 1 2 2 1 (') (') (') (') Crane Ops------------------------- 1 5 6 7 4 1 1 1 Dinkey Ops ----------------------- 2 d 10 8 6 (`) (*) (`) (') Electricians----------------------- 4 8 10 9 (') (') (') (') Form Setters---------------------- 1 11 8 3 (') (') (') (') Ironworkers----------------------- -7 7 8 6 i 5 4 1 2 Jackhammer Ops------------------ 4 1 2 e 1 (') (') (') (') M111wrights ----------------------- b 1 (') (`) (') (') (') (') (') Pump Ops------------------------ 4 7 7 4 2 1 1 1 k Riggers---------------------------- 1 2 2 2 (') (') (") (') Sandblasters----------------------- 1 11 (') (') (') (') Signalmen------------------------- 1 6 (') (') (') (') Vibrator Ops---------------------- iI (`) (') (') C) (') Wagon Drill Ops------------------ 1 1 1 m 1 1 1 1 Working Foremen----------------- 1 1 1 1 (') (') (') (') Payroll 4/8/51 (James H. Hawkins, badge No. 1829.) b Computed by Respondents as of 1/22/50 Trial Examiner found no backpay due Flippin, Harris, Hayes, Kent, and Plymate. No exceptions filed. Therefore, number of claimants reduced to 22. d Computed by Respondent as of 1/15/50 Trial Examiner found no backpay due Choate. No exceptions filed. Therefore, number of claimants reduced to 6 Only one ironworker claims backpay for this period and beyond (J. Marchant). g Only one jackhammer operator claims backpay for this period and beyond (D W. Bailey). h Trial Examiner found no backpay due Petty, the sole claimant No exceptions filed. i Only one pump operator claims backpay for this period and beyond (J Kilfoy). New discriminatory replacement H I Pool, badge No. 2188 k New discriminatory replacement R. T. Morris, badge No 1943 Trial Examiner found no backpay due Haynes, the sole claimant. No exceptions filed Air tool operator found to be probable job transfer for wagon drill operators. From 7/2/50 and thereafter, many new air tool operators appear on the payroll as discriminatory replacements. In addition, other& working as discriminatory replacements in earlier periods reappear (See, e. g, R L. Stone, badge No. 4372, 10/1/50). We have identified only one per quarter, as the General Counsel specifies only one backpay claimant in this category. G. E. Anderson, badge No. 1143 (1/8/50-4/30/50); C. W. Bayless, badge No. 1008 (4/30/50-7/23/50). N.b.-Asterisk indicates total working replacements not computed, as no backpay claimed for these periods. BROWN AND ROOT, INC., ETC. APPENDIX C 507 Calendar quarter Hours Pay rate Backpay 1: Dorell, Chas (electrician) (1-15-50 to 7-25-50) ------- 1950-1 1950-2 1950-3 617 734 167 $1 775 1 775 1.775 $1, 095 1,303 296 Total------------------------------------------- --- ------------ ------------ 2,694 2. Ford, Jason S (carpenter) (1-3-50 to 3-8-50) --------- 1950-1 385 1 375 529 Total-------------------------------------------- ------------ ------------ ------------ 529 3. Freeman, A. D. (cement finisher) (1-15-50 to 7-25-50) _ 1950-1 1950-2 1950-3 548 646 144 1 625 1 625 1 625 891 1,050 234 Total------------------------------------------- ------------ ------------ ------------ 2,175 4. Lynch, S. L. (carpenter) (1-15-50 to 7-25-50) --------- 1950-1 1950-2 1950-3 482 611 138 1 375 1 375 1 375 663 840 186 Total-------------------------------------------- ------------ ------------ ------------ 1,689 5. Mashaw, Roy (carpenter) (1-15-50 to 3-8-50) -------- 1950-1 331 1 375 455 Total----------------------------------------- ------------ ------------ ------------ 455 '6. Patton, H C (carpenter) (1-15-50 to 3-8-50) --------- 1950 331 1 375 455 Total-------------------------------------------- ------------ ------------ ------------ 455 7. Raines, Willis (carpenter) (1-15-50 to 3-8-50) -------- 1950-1 331 1 357 455 Total ------------------------------------------ ------------ ------------ ------------ 455 8. Wells, John D (air tool operator) (1-15-50 to 7-25-50) - 1950-1 1950-2 1950-3 478 571 128 975 975 975 466 557 125 Total------------ ------------------------------- ------------ ----------- ------------ 1,148 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX D Gross Net Net Calendar quarter Hours Pay rate back- interim back- pay earnings pay 1. Eugene N Cypert----------- 1950-1----------- 331 $1 425 $472 $56 $416 Total--------------L------ -------------------- ---------- ---------- ---------- --------- 416 2. H L Carlton---------------- 1950-1 438 1 25 548 75 - 473 1950-2 ------------ 575 1 25 719 880 0 1950-3 ------------ 124 1 25 1 155 57 . ^., 98 Total--------------------- -------------------- ---------- ---------- ---------- ---------- 571 Gross Farm , TVA Total Net Calendar quarter back- earnings interim interim back- pay earnings earnings pay 3 R V. Dunn------------------ 1950-1 (1/15-3/31) $826 $205 ---------- $205 $621 1950-2 ------------ 1.168 243 $86 329 839 1950-3 (7/1-7/25) 281 ---------- 258 258 23 Total--------------------- ------------------ --------- 1,483 Gross Net Net Calendar quarter Hours Pay rate back- Interim back- pay earnings pav 4 W. W. Lackey--------------- 1950-1 ------------ 207 $1 30 $269 0 $269 1950-2------------ 587 1 30 763 $212 551 1950-3 ------------ 606 1 30 788 688 100 1950-4 ------------ 348 1 30 452 688 66 ------------------- 195 1 55 302 - 1951-1 -----------_ 583 1 55 904 169 1951-2 (4/1-5/20) 307 1 55 476 91 Total--------------------- -------------------- 5 Frank J. Lippe--------------- 1950-1 ------------ 523 1 675 876 246 630 1950-2 ------------ 603 1 675 1.010 243 767 1950-3 (7/1-7/25) 174 1 675 291 79 212 Total-------------------- ----------- -------- ---------- ---------- ---------- ---------- 1,609 Gross GI sub- Farm Total Net Calendar quarter back- sistence earnings interim back- pay earnings pay 6. A. J. McFarland------------- 1950-1 (1/15-3/31) $944 $110 $82 $192 $752 1950-2 ------------ 1,153 330 243 573 580 1950-3 ------------ 269 110 79 189 80 Total--------------------- ---------- ---------- ---------- --------- ---------- 1,412 Calendar quarter Gross backpay Net interim earnings Net backpay 7. Clyde S Putney---------------- 1950-1 (1/15-3/31) $663 $416 $247 1950-2 ------------ 840 719 121 1950-3------------ 866 456 410 1950-4 (10/1-10/26) 274 b 140 134 Total------------------------ 912 o Lackey's earnings at Walt's Service Station, Kansas City, Missouri, did not take place until later in the quarter. b $456, prorated for the period between October 1 and 26, 1950. BROWN AND ROOT, INC., ETC. 509'. APPENDIX E Amounts Due the Claimants Anderson, Truman E--------- $948 Arrowsmith, Harold S________ 0 Bailey, Benjamin W---------- 1, 276 Bailey, D. W________________ 533 Beal, Jones P________________ 367 Bevans, J. N., Jr------------- 529 Blecker, Robert R------------ 81 Bonner, Glenn M------------ 1, 138 Boyd, Alvie------ ___________ 0 Brents, J. B----------------- 455 Carlton, H. L_______________ 571 Choate, Wirt W______________ 0 Cloven, George______________ 208 Cooper, V. W--------------- 1,009 Crosby, Houston D----------- 0 Cutler, Lee R_______________ 436 Cypert, Eugene N____________ 416 Davis, Lewis E______________ 0 Dorell, Chas_________________ 2, 694 Drown, Wm. H-------------- 100 Dunn, R. V a---------------- 1,483 Flippin, Francis______________ 0 Ford, Jason S_______________ 529 Freeman, A. D______________ 2, 175 Gardner, W. A.______________ 1, 776 Hale, Ray L_________________ 597 Harris, E. E_________________ 0 Hayes, Herman E------------ 0 Haynes, Geo. W------------- 0 Hotalling, Raymond A-------- 0 Hurst, Thomas E_____________ 0 James, John H_______________ 214 Jencks, R. H---------------- 401 Kent, W. A----------------- 0 Kilfoy, Jessie A______________ 4, 878 Killian, D. E________________ 191 Kyles, Onimus --------------- 4,708 Lackey, W. W_______________ 2,106 Landry; C. C---------------- $1,093. Langston, Corley O---------- 0 Lazenby, A. M______________ 1,466 Lippe, Frank J_______________ 1,609 Lynch, S. L_________________ 1,689 Marberry, F. P______________ 375 Marchant, Harvey E---------- 1, 271' Marchant, John W_ __--_--__ 863 Marchant, T. A______________ 0, Marler, James R_____________ 2, 155 Mashaw, J. W--------------- 66 Mashaw, Roy________________ 455 McFarland, A. J_____________ 1,412, Miller, V. O_________________ 0 Mooney, Carl________________ 468 Mynatt, Calvin C-------- ____ 623' Parris, T. H------------------ 2, 806' Patton, H.'C---------------- 455, Pearl, Samuel J______________ 0 Petty, Hubert L______________ 0 Pfingston,Jake --------------- 302' Plymate, Donald C----------- 0, Putney, Clyde S______________ 912 Raines, Willis---------------- 455, Roberts, T. R________________ 1, 172 Rutledge, Robert M__________ 1, 284 Satterlee, Harry Ivan --------- 0 Shaw, Hoy__________________ 75 Smith, Elbert C______________ 345 Smith, Ewell D______________ 0 Stamps, C. D________________ 367 Stone, C. L_________________ 509 Trivett, Dewey F------------- 0 Tulipana, George_____________ 1, 263 Walker, V. B________________ 157 Wells, John D_______________ .1, 148 Wood, Russell T_____________ 365 Mistakenly referred to as R 0 Dunn in the Board 's original Decision SUPPLEMENTAL INTERMEDIATE REPORT 1. STATEMENT OF PROCEDURE Following unfair labor practice charges, the Board , on June 27, 1952, issued its Decision and Order finding certain unfair labor practices in the Respondents' failure or refusal to reinstate two groups of strikers (one being designated unfair labor practice strikers, the other economic strikers ) and ordering that the Respondents make them whole for losses resulting from such unfair labor practices. On March 24, 1953, the Court of Appeals for the Eighth Circuit enforced the Board's Order except as to the Respondent Flippin Materials Co.' That company is not, therefore, subject to the Board's Order. On January 4, 1957, the Regional Director issued backpay specifications for those employees allegedly covered by the Board's Decision and Order, as modified by the court,2 for whom backpay was found to be due. 1 203 F 2d 139 2 This eliminated nine discriminatees : William I Curtis, Troy Engles, Walton Ford, Lester M. Holden , Raymond Hudson , Royal E Losch, W. E. Morgan , Dilly C. Redus, and Kern K Russell, former Flippin employees 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent filed an answer and, on July 15, 1957, an amended answer, in which it took issue with the specifications both generally and specifically in many respects. The issues raised, so far as relevant, will be considered hereinafter. Pursuant to notice, a hearing on the backpay specifications was held at Houston, Texas, between August 5 and 15, 1958; at Mountain Home, Arkansas, between September 23 and October 15, 1958; and again at Houston, Texas, on December 2 and 3,-1958. . At the opening of the hearing, the General Counsel made a motion to correct five alleged errors in the Board's Decision and Order, or in the schedules attached thereto, which affected 'the right to, or amount of, backpay claimed by the General Counsel to be the correct amount due to five employees. The motion as to the first three employees concerned, Alvie Boyd, H. L. Carlton, and George W. Haynes, depended on alleged evidence in the record of the original proceedings. Counsel and the Trial Examiner at the time of the hearing were not aware of the fact that on August 15, 1952, the Board issued an Order Correcting Decision and Order of June 27, 1952, because this order was introduced in evidence at proceedings held in New Orleans in May 1957 and the exhibits introduced there were not produced for a long time after the beginning of the backpay hearing. Most of the corrections listed in the order failed to appear in the printed volume of the Board's Decision and Order. Among the corrections made in this order were three with reference to Alvie Boyd. Two of these inserted Boyd's name on the list of JAM men conditionally entitled to rein- statement and backpay. One correction directed that his name be included with those on Schedule B attached to the Board's Decision and Order. Schedule B is a list of unfair labor practice strikers who had been reinstated before the date of the Board's Decision and Order and who were entitled to backpay only. It is likely that Boyd and other employees whose names were included in this directive (transferring several names from Schedule D to Schedule B) were intended only to be transferred to Schedule C and that the letter "B" was a typographical error for "C." The error, if it was one, 'is unimportant in view of my findings as to the IAM men and in view of"tb fact 'that all those included in this direction, with the exception of Boyd, were Flippin strikers who, by the court's modification of the Board's Decision, were not entitled to relief anyway. With respect to the first three named claimants, as the Board may have made its findings on evidence in the record at variance with that mentioned by the General Counsel, it is not for the Trial Examiner to say that there is a patent error in the Board's Decision. I therefore denied the motion, leaving it to the Board to determine on exceptions. However, 3 took evidence with respect to the three named employees as an offer of proof to be used by the Board should it be inclined to modify its original findings. The motion as to the remaining two employees involves patent variances between the schedule attached to the Board's Decision and Order and the Board's actual findings. In such instance, I concluded, the Board's findings of fact are to be relied on as paramount to the schedules of names appended to the Decision and Order .3 At the close of the hearing, the Re- spondent moved to amend its amended answer by adding to section 1, paragraph No. 8, adopting and making a part of that pleading Respondent's Exhibit No 35 BP, a computation of backpay based on the Respondent's theory and contentions. At the same time, it also moved to amend its amended answer to allege that Frank J. Lippe, a mechanic working foreman, was a supervisor within the meaning of the Act. The motions were granted. The Respondent argued orally at the close of the hearing but the General Counsel waived oral argument. Both the General Counsel and the Respondent filed extensive briefs 'with the Trial Examiner. These have been considered. II. THE ISSUES A. Correctness of conclusions drawn by the General Counsel as to the effect 'of the court's decision The Respondent in this proceeding has made numerous arguments on issues which were either passed upon in the unfair labor practice proceedings or should have been raised there but were not. I do not pass on such contentions here as they are beyond the scope of these proceedings. s The Board dismissed the complaint as to Troy Engles (99 NLRB 1056, footnote 52) but Included his name as a discriminatee entitled to backpay in Schedule B attached to the Decision and Order. The Board Included Benjamin Bailey as a claimant In the body of the Decision (99 NLRB 1048) but omitted his name from Schedule B, apparently through oversight. BROWN AND ROOT, INC., ETC. 511 1. What the Board and court decided a. Decisions of the Board In proceedings in earlier cases,4 the Board found a unit, appropriate for collective bargaining, consisting of certain Ozark employees, without including Flippin em- ployees therein, and it found an unlawful refusal by Ozark alone to bargain withL respect to such employees. As a result of the refusal to bargain, employees of both Ozark and Flippin struck. In the Board's Decision in this case, it found that both, groups of employees (excluding a group of IAM-represented employees) were unfair labor practice strikers on the ground that Ozark and Fhppin were one employer. It therefore ordered reinstatement of all unfair labor practice strikers insofar as jobs were available for them, if they had not already been reinstated or offered reinstate- ment. The Decision as to IAM -represented strikers will be mentioned hereinafter. In determining the availability of jobs for the strikers, the Board found three different types of replacements and found the number of each type in each job category. As a result of its calculations, it found that there were more such replace- ments in each job category than there were returning strikers and, therefore, that all unfair labor practice strikers were entitled to reinstatement . It ordered reinstatement with backpay for those employees who had not been offered reinstatement before the date of the Board's Decision and Order, and it ordered backpay alone for those found to have been offered reinstatement . It further found the dates of application for reinstatement of each striker and the date of reinstatement or offer thereof where that had occurred. In some instances, it found that strikers who had been employed by Ozark were in fact reinstated after the strike when they were reemployed at the Respondent Flippin. b. The decision of the court The court denied enforcement of the Board's Order as to Respondent Flippin and its employees because of prior proceedings by the Board against the Respondents as separate employers, culminating in the court's decision in N.L.R'B v. Ozark Dam Constructors, 190 F. 2d 222. The court in this case commented that "the question whether the Board was precluded from consolidating Ozark and Flippin into one employer for the purpose of this proceeding is not free from doubt . ." After expressing the view that the question was res judicata because of the prior proceed- ings, mentioned above , the court said, "But ^ if the ^ issue was not res judicata 4inn a strict sense, we are still of the opinion that there is an inadequate basis in the record for visiting the sins of Ozark upon Flippin." I take this to mean that, as the Board and court had, in the refusal to bargain case, treated Ozark and Flippin as separate entities in finding that Ozark alone had refused to bargain, it would not be proper to find that Flippin strikers were unfair labor practice strikers. As sympathetic strikers Flippin employees would at best have been economic strikers and would not be entitled to reinstatement if permanent replacements had been hired ' in their place . Since no new remedy was fashioned for Flippin strikers as economic strikers, they were dropped from the case. The Board's Order as to Ozark was enforced and the case was remanded to the Board for the purpose of determining the amount of backpay due. 2. The disputed effects of the court's decision a. The General Counsel's theory It is the theory of the General Counsel that, because the court denied enforcement of the Board's Order as to Flippin strikers, Ozark and Flippin were to be treated as separate employers, and from this, the General Counsel argues that striking em- ployees of Ozark were not, therefore, reinstated if they were given jobs only at Flippin after the strike. As a result of this conclusion by the General Counsel, the backpay period of such of the claimants in this case was computed in the specifications as running either to the time of actual reemployment by Ozark itself or to the end of the work for employees in the same job classification (whichever was first ), merely showing earnings of such employees while at Flippin as interim earnings. The Respondent takes issue with this theory and method of computing backpay. It contends that Flippin and Ozark were, for the purposes of the backpay proceed- ings, one employer and that assignment of Ozark strikers to Flippin, on rehire, was, as the Board found, reinstatement. * Brown and Root, Inc, et al , d/b/a Ozark Dam Constructors , 77 NLRB 1136; Brown and Root, Inc, et at, 86 NLRB 520 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Conclusions as to the contentions of the parties Although the General Counsel's theory appears plausible, and although it might be applied in other cases if used from the outset, I am of the opinion that it should -not be used here. In the first place, I am not satisfied that the result of the court's decision was to sever all ties and relationship between Ozark and Flippin. In the ,earlier case against the same Respondents, the Board had proceeded against Ozark alone on a charge of violation of Section 8(a)(5) of the Act.5 Had Ozark and 'Flippin been one employer for all purposes, Flippin as well as Ozark would have -been responsible for the refusal to bargain, but the Board did not then so contend. It is obvious, therefore, that the Board regarded Ozark and Flippin as one employer for some but not all purposes. By my reading of the court's decision, the court is -not saying that Ozark and Flippin could not under any circumstances be treated as one employer. It merely decided that Flippin employees, in joining the strike against :Ozark because of the latter's refusal to bargain with the Joint Council (representing Ozark employees), were not themselves unfair labor practice strikers and that their -employer, Flippin, was not obliged to reinstate them as though they were. I am of the opinion that the court's decision should not be extended beyond the question sub- mitted to it and that it is not to be concluded that Ozark and Flippm were not joint employers for any purpose. In the second place, to say that Ozark and Flippin were separate employers for all purposes is to disregard actual facts, for both were organized by the same joint ven- turers for the purposes of performing their respective functions in the building of the Bull Shoals Dame Both were under the same management. The same produc- tion manager supervised both. A single personnel office handled the hiring of em- ployees of both, and Ozark and Flippin employees were frequently transferred from one to the other, often without change of job classification. Ozark transferees to Flippin testified they still received Ozark paychecks. A jackhammer operator at Ozark might have been transferred to Flippin as a jackhammer operator, or a car- penter at one might have been transferred back and forth always as a carpenter and at the same rate of pay. Although separate payrolls were kept by Ozark and Flippin, they had the same timekeepers as well as the same personnel department. The pay- rolls were made up in the same accounting department, the rates of pay by classifica- tion were apparently the same, and conditions of work, making allowances for the -differences in functions of Ozark and Flippin, were much the same. The fact that separate payrolls were kept for Ozark and Flippin is not important. The reason therefore may have been for legitimate accounting reasons that would apply even in cases of groups of employees hired by a single employer. Beginning in June 1950, Ozark also kept separate payrolls of its employees working on the dam and those working on the powerhouse. In cases of temporary transfers, I conclude from pay- roll records in evidence, employees with Flippin badge numbers sometimes retained That number on the Ozark payroll, the number being preceded by the letter "F" to show that it was a Flippin badge number. Sometimes on social security reports •Flippin employees would be shown as employees of Ozark. Considering all that could be taken into account, I am not satisfied that the Board's decision depended on a premise which was totally nullified by the court. Finally, I believe it is neither administratively desirable nor proper to hold that Ozark did not reinstate those returning Ozark strikers who were assigned by the joint personnel department to work at Flippin. It is not desirable because at the time or times when returning Ozark strikers were being reinstated to jobs at Flippin this was apparently in line with the Board's thinking. The Board's Decision and Order, which issued on June 27, 1952, adopted the view of the Intermediate Report, issued August 15, 1951, in this respect. If the Board were going to alter the computation of back- ,pay ex post facto from the date of the court's decision, it should at least toll backpay in the intervening period on the same principle as that recognized when it tolls back- pay between the date of the Intermediate Report and that of the Board's Order in cases where it reverses a Trial Examiner's recommended dismissal of a discriminatory discharge complaint and in similar cases.? Thus, on this principle, backpay would be tolled from the time that a claimant was hired back and assigned to Flippin until ,: Brown and Root, Inc, at at., 86 NLRB 520. e See NLRB v. Ozark Dam Constructors, 190 F 2d 222 (C A. 8). '' Custom Underwear Manufacturing Company, 108 NLRB 117. Cf Union Bats Terminal of Dallas, Inc, 98 NLRB 458; International Hod Carriers, Building and Common Laborers Union of America, Local #341 (J. H Pomeroy and Company, Inc ), 117 NLRB s724; Washington Coca-Cola Bottling Works, Inc, 122 NLRB 7; Wooster Division of Borg-Warner Corporation, 121 NLRB 1492. 1 BROWN AND ROOT, INC., ETC. 513 the date of the court's decision (March 24, 1953) and this would, for most of the claimants, be after the end of the backpay period. But to my way of thinking, it would be not merely undesirable, it would be im- proper now to recompute backpay on the theory that what was, until the date of the court's decision, considered reinstatement ceased thereupon to be reinstatement by the court's' decision on another point. It will be remembered that the Board ordered unconditional reinstatement only for those employees listed in Schedule A attached to its Order. It found that those listed in Schedule B had been reinstated and ordered, for them, no reinstatement but only backpay. It even found specific dates of rein- statement of employees listed in Schedule B. The Board never modified these find- ings. The General Counsel's theory not only would require me to alter the Board's findings as to the, date of reinstatement, but would require me to read into the Board's Order that which is not there-an order of reinstatement for employees listed in Schedule B who had previously been deemed reinstated at Flippin. I have no authority to do this. One, of the employees whose backpay is computed on the theory that assignment, upon reemployment after the strike, to Flippin was not reinstatement was listed in Schedule A (John W. Marchant) and his backpay was computed to September '10, 1951, which was 11 years before the court decision issued. Two employees whose backpay was so computed were on Schedule B and two were on Schedule C. As the Board found reinstatement as to the two on Schedule B-D. W. Bailey and Eugene Cypert -I am bound thereby and cannot compute backpay to a different time even if I were persuaded that the result of the court's decision in some manner justified a modification of the Board's Decision and Order. Such modification, however, would be for the Board and not for me to make. The backpay of both of those whose names appeared on Schedule C, IAM (economic) strikers, was com- puted to a time ending before the court's decision issued (Corley O. Langston, whose backpay was computed in the specifications from February 11 to December 16, 1950, and T A. Marchant, from February 25, 1950, to January 18, 1953). It would be unnecessary, therefore, in any of the cases mentioned, to compute what backpay might have been due for any time after the date of the court's decision (if backpay were tolled to that date), for none accrued thereafter in any event. Whether or not the employment of any of the foregoing employees who worked for Flippin after the strike were employed in their own classification and type of work "(i.e., whether or not reinstated to the same or a substantially equivalent job) will be considered hereinafter when I take up individual cases. . As a result of the foregoing considerations, I conclude that I am bound by the Board's Decision that Ozark strikers, rehired and assigned to Flippin, were rein- stated. This will change the terminal date of the backpay used in the specifications for the several employees mentioned. B.• Respondent's contention that the period of discrimination should be limited to the period during which replacements continued to be employed In tile' Respondent's view, the period of discrimination exists only so long as replacements were actually employed in the job classification of backpay claimants, and therefore the Respondent sees no right to backpay after the replacements ceased to be employed. This view confuses the substantive problem of discrimination with the procedural one of remedy. The discrimination exists because the Respondent refused to reinstate the discriminatees at the time the Board found that it should have reinstated them. Once the discrimination is shown, the remedy is designed to continue from the date of the discrimination to the date when the discrimination is rectified by a bona fide offer of reinstatement. Where backpay is called for, any time during the period of discrimination when the discriminatees would not have worked even if not discriminated against would be omitted. For example, in the absence of discrimination, the discriminatee would not be likely to have been em- ployed after the Respondent permanently ceased all operations in which the dis- criminatee was qualified to work. Thus, the latter condition measures the backpay period but not the discrimination. Because the Board ordered reinstatement of employees not already reinstated or offered reinstatement to jobs that were available and decided that jobs were available so long as any of three enumerated types of replacements were in the Respondent's employ on the date of application for reinstatement, the Respondent assumes that backpay is measured by the period when such replacements continued in the Respondent's employ to the exclusion of returning unfair labor practice strikers: This misconceives the Board's theory of available positions. it may have been that work ,(and therefore positions) was available for returning strikers because Hof an increase in work 'and the need for additional men. In such instance there 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be no need for replacement, but if returning strikers were not hired, while others were, the discrimination would be shown regardless of replacements on the payroll. In such instance, backpay would have nothing to do with replacements already on the payroll or the duration of their employment. It is only if positions are not otherwise available that resort is made to the positions of replacements. Then the jobs of replacements are treated by the Board as the same as vacancies. But treating the jobs of replacements as vacancies is not the same as measuring the duration of the jobs the discriminatees would have had by the duration of employment of the replacements exclusive of prestrike employees. It is important to determine 'the existence of "vacancies" in the form of jobs of replacements only because the Board does not penalize old employees whose right to jobs is at least equal to that of the discriminatees, and therefore the Board does not require their displacement in order to make room for discriminatees. But this does not mean that, had the Respondent done what it should have done and reinstated the dis- criminatees at the time the Board found it should have, the retained old employees would have had superior employment rights thereafter. Reinstated discriminatees are not second-class employees who could be expected to be laid off fast in any subsequent layoff. Consequently, from the time they should have been reinstated they are deemed to have employment rights equal to all other employees in the same job classification, except insofar as seniority rights or other lawful bases for discrimination (none of which existed here) may prevail. From the time that the discriminatees should and could have been reinstated, for purposes of determining backpay, the Board proceeds on the equitable principle that that was done which ought to have been done, i.e., it considers that discriminatees are employees again, albeit unpaid ones. Thereafter, the Board is no longer concerned with the identity of replacements as such. In a case like the present one, the Board is then concerned with the total number of employees employer in each classification and with their earnings in order to utilize actual on-the-job experience in determining the amount of backpay to which the discriminatees would be entitled. The period of employment of striker replacements' as distinct from that of other employees does not, therefore, determine the duration of discrimination nor fix the backpay period. Once reinstated, the discriminatee's right of job tenure would be as good as any other employee's, not merely as good as that of replacements. There could be no certainty that, when a replacement is shown to have gone off the payroll, the dis- criminatee would have gone off the payroll at the same time. In the first place, the replacement might have gone off the payroll voluntarily and not involuntarily- there is no evidence here to the contrary-and it cannot be said that the discrimi- natee would necessarily have gone off at that time. In the second place, since the discriminatee, from the time he should have been reinstated, is on a par with all employees in his classification for the purpose of fixing job continuance, his right to backpay continues so long as .it cannot be shown that he, specifically, would have been terminated. Since the Respondent did not recognize seniority as affecting job tenure, the order in which employees would be laid off absent discrimination. is un- certain. The Respondent has not undertaken to prove that the discriminatees would have been laid off in a reduction in force before nonreplacements. It merely pro- poses that, for want of evidence to the contrary, the discriminatees should be deemed to have the same job rights as replacements. I find no valid reason for the adoption of such a presumption. Since the Respondent's unfair labor practice created the difficulty of ascertaining what would have happened absent discrimination, the burden should be on the Respondent to show that, although as many employees as, or more than, the number of discriminatees in any given classification were kept on the payroll, a discriminatee would have been the one laid off at a time of reduction in force rather than a nondiscriminatee. In order to measure the duration of the backpay period of each discriminatee by the duration of the jobs of replacements it would be necessary to show that a given discriminatee would have displaced replacement A instead of replacement B, C, or D. Since the discriminatee was not reinstated when he should have been, it is impossible to tell which replacement he would have displaced The Respondent's proposed method of determining the end of the backpay period is unworkable as well as con- trary to the Board's theory of reinstatement. C. Dates of commencement of backpay Availability of Jobs for Unfair Labor Practice Strikers The Respondent complains that, not only is the end of the backpay period used for individual claimants fixed in the specifications too late but in many cases it- is BROWN AND ROOT, INC., ETC. 515 fixed too early. I have heretofore partly disposed of the argument concerning the end of the backpay period (which does not necessarily coincide with the severance of replacements) and shall dispose of the termination date of backpay of individual claimants or classifications of employees hereinafter. With respect to the beginning date, the Respondent, in effect, is complaining of the accuracy of the Board's findings respecting dates of applications for reinstate- ment and its findings respecting the vacancies available for returning strikers as of the date of application. The accuracy of the Board's findings are not subject to challenge in these proceedings. If enough vacancies existed on the dates of respec- tive applications for reinstatement to take care of all who were entitled to reinstate- ment, backpay would begin with the date of application. It is not necessary to determine the later date of hire of discriminatory replacements if there were enough vacancies on the date of application in the form of any of the three kinds of re- placement defined. Only if there were insufficient vacancies in the form of such replacements on the date of application would the commencement of backpay ever run from the later date of hire of a discriminatory replacement. The Board's find- ings respecting the dates of application for reinstatement were not disturbed by the court of appeals and so are res judicata here. But with respect to the Board's findings as to the number of vacancies available for returning strikers both the General Counsel and the Respondent presume that the elimination, by the court, of the Respondent Flippin also eliminated job vacancies at Fhppin. in the form of replacements. If this is the effect of the court's decision, the number of vacancies .found by the Board to exist on the dates of application for reinstatement would be 'reduced by the number of replacements at Flippin which were counted in the total by the Board. The General Counsel assumed that, in ascertaining the availability of jobs for returning strikers, replacements at Flippin should not be counted. The Respondent indulged in a like assumption. But if assignment of returning Ozark strikers to Flippin be reinstatement, it may well be argued that replacements at Flippin as well as at Ozark should be counted in determining the availability of jobs for Ozark strikers. However, the problem is not quite so simple as that. The so-called replacements at Flippin were, presumably, replacements, not for unfair labor practice strikers at Ozark, but for economic strikers at Flippin. Under these circumstances, should the jobs of replacements for economic strikers be treated as jobs available to the Ozark unfair labor practice strikers? Perhaps not as a gen- eral rule, but because Ozark and Flippin had a more or less common work force, there might be instances where jobs of Flippin replacements should be deemed to be vacancies for Ozark strikers. Suppose that during the strike a replacement of, say, a striking jackhammer operator at Ozark was hired by Ozark and, still during the term of the strike, was transferred to Flippin. A returning unfair labor practice striker at Ozark might be contended to be entitled to the job of such transferee replacement. Also, whatever the situation might be with respect to the first two classes,-of replacements at Flippin, I am of the opinion that men hired at Flippin in the same classification as that of returning unfair labor practice strikers (former Ozark employees) after the time when the said strikers were entitled to reinstate- ment 'should be deemed to be discriminatory replacements as to the Ozark unfair labor practice strikers. Before applying this conclusion to the facts to determine the dates of availability of jobs to unfair labor practice strikers, however, it might be well to determine the availability of jobs at Ozark alone. Because the Board and the Trial Examiner in the unfair labor practice hearing in this case did not list the names of those men classed as promotional replace- ments, replacements, and discriminatory replacements, I have had no means of eliminating merely the names of Flippin replacements and have found it necessary to prepare a list of Ozark replacements myself from evidence introduced at the original hearing in this case. In doing this, I have encountered certain difficulties in fitting individual employees into the three classes of replacements adopted by the Board. For example, in ascertaining who should and who should not be deemed a replacement, the Trial Examiner in the unfair labor practice hearing in this case included some "old employees" and excluded others as replacements. He did not limit his inclusion of "old employees" in the replacement group to promotional replacements but included also men who had worked for Ozark at some prior time and had been rehired during the strike in a job category in which they had not previously been employed .8 The Trial Examiner did not indicate, however. into which of the three classes of replacements such "old employees" should be placed. This employee does not necessarily constitute a promotional replacement, although he might be put in a group which included promotional replacements. The fact s See 99 NLRB 1085 614913-62-vol. 132-34 -516 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD that he is described as an "old employee" tends ,to exclude him from the definition -of "replacements," -for the word "replacements" was defined as "new -employees hired in strikers' classifications during the period of the strike." Although not a "new employee" literally, this type of former employee was treated by the Trial Examiner in his Intermediate Report as though he were a new employee for the purposes of determining replacements and therefore, as I see it,-he should definitely be included as a replacement of some kind and he would naturally fall in one of the first two groups of replacements, i.e., either "promotional replacements" - or "replacements." With this in mind, I have prepared the list of names- winch is attached hereto as Appendix A, showing the names of those I consider to be Ozark replacements of one kind or another. Because of variations to be -found in the employment record of various employees, other difficulties arise in determining whether or not to count a given employee as some kind of replacement. In these instances, where deviation from the literal definition of the three types of -replace- ments raised a question as to the inclusion of a name, I omitted such name from the list referred to even though, considering the overall solution devised -by ' the Trial Examiner and his intent to exempt only those deemed part of-the regular work force, the name might have been included. If a man was hired during the strike but was not on the payroll at the end of • the strike and was later rehired after a -returning striker had applied for reinstatement, I have treated such rehire as a dis- criminatory replacement. As a result of my study, I conclude that, without regard to available jobs at Flippin, there were, at the date of the applications found by'the 'Board, ample jobs at Ozark available for claimants in all job classifications except in that of jackhammer operator.9 In the jackhammer category there were four claimants. On the Ozark payroll on the dates of application there was one replacement and one discriminatory re- placement. A new man was hired in this classification on February 15, 1950 Obviously there would be insufficient jobs available for all four claimants as jack- hammer operators if the available Flippin jobs are not counted. However, if the jobs of discriminatory replacements at Flippin are counted, as I believe they should be, enough jobs would have been available for all on the dates of application by the four, respectively. However, even assuming for the sake of argument that the jobs of discriminatory replacements at Flippin should not be counted as available to the claimants herein, the Board has here, as it has consistently in other cases, required reinstatement of discriminatees to their former or substantially equivalent positions. Hence, assuming that the claimants could not be reinstated as jack- hammer operators, they could have been given substantially equivalent positions. The most likely equivalent position would have been that of air tool operator, since a jackhammer is an air tool, the rates of pay were identical, and the payrolls indi-' 'cate that employees were transferred from one job to the other. The Board found in the air tool operator category five claimants, eight replacements, seven promo- tional replacements, and four discriminatory replacements. Eliminating Flippin strikers, there were only two claimants in this job category. If all types of replace- ments at Flippin were eliminated, there would be on the Ozark payroll 9 old em- ployees rehired during the strike in a striker's category for the first time, 5 promo- tional replacements, 7 replacements, and 7 discriminatory replacements, a total of 28 available jobs, which would be more than enough to take care of the 2 claimants in-this category and any former jackhammer operators for whom there were no jackhammer jobs available on the dates of application. On the record, therefore, I find that the dates of commencement of backpay are as shown in the specifications. Because the Flippin payrolls are not in evidence, it is impossible to determine the backpay of the claimants to jackhammer jobs on the basis of average hours of such operators employed at Flippin. As only two replacements of any kind were em- ployed at Ozark in January 1950, I could allocate those positions to the first appli- cants: D. W. Bailey and C. L. Stone and compute their gross backpay on the basis e The Board found no available position for C. D Stamps, a form setter and stripper. until the date of hire of a discriminatory replacement in that category It was stipu- lated at the unfair labor practice hearing that a discriminatory replacement was hired between February 1 and July 25, 1950 I found (in addition to certain old employees who were rehired during the period of the strike In the form setter and stripper category for the first-time) five promotional replacements and five replacements (during the period of the strike) not to mention a number of hirings that I would classify as discriminatory replacements. However, as the General Counsel has computed backpay for Stamps only from February 3, 1950, the date of employment of the first discriminatory replacement after February 1, 1950, and as this accords with the Board's Decision and Order, that date will not be disturbed If any change is to be made, it will be for the Board to make it -- " BROWN AND ROOT, INC., ETC. 517 .of average hours of jackhammer operators alone, and I could , as to Jencks and Killian, the other two claimants , compute their gross backpay on the basis of the average hours of air tool operators from January 15 to the week of February 19, 1950, when additional jackhammer - jobs became available. If I were to do so, however, the result would be to increase the gross backpay of Jencks and Killian over that computed by the General Counsel because the air tool operators in that period worked an average of 205 hours to an average of 185 hours for jackhammer -operators. Under the circumstances, I shall compute the backpay of all on the basis -of the average hours of jackhammer operators as the General Counsel did. D. Method of computing backpay 1. Adjusted average hours a. Use of average hours worked by all employees in classification as against average - hours worked by replacements The Respondent contends that backpay should be calculated , not on the basis of the average hours of all employees in a particular classification , but on a basis of the actual earnings of those who replaced the discruninatees and who in turn would have been replaced by the latter upon reinstatement . When the Respondent, in its amended answer, avers that, under the method for determining backpay used .in the specifications , it requires the payment of wages to discriminatees for periods of time after discrimination has ceased by the discharge, layoff or other termina- tion of the discriminatory replacement," it suggests that it would consider a par- ticular replacement as being in the individual job of a particular discriminatee and 'would determine the backpay of each discriminatee on the basis of a specific re- placement as his counterpart, terminating backpay for the discnminatee when the particular replacement was terminated . But in proposing its own formula, the Respondent does not proceed on this basis. Instead, it used replacements as a -class rather than as individual counterparts . In its brief, it describes its proposed method and then reasons that in periods when there are more "vacancies" (i.e., re- placements who would have to be removed under the Board 's Order to make room for a returning striker having paramount rights ) than discriminatees, the latter's backpay would be determined on the basis of the average number of hours worked by the replacements; and when the "vacancies" are fewer than returning strikers, each striker would be entitled to a proportionate part- of the average hours worked by replacements. This method proposed by the Respondent is, according to it, de- signed to take .into account the fluctuations in the size of the work force so that if, in a given week, no replacements worked,. the discriminatees would not be credited with any backpay for that week. The fallacy in this ,reasoning has been disclosed - already in section II, B, above. In fashioning a backpay remedy, the Board aims to restore discriminatees as nearly as possible to the state they would have been in absent discrimination. However, 'because reconstruction of the situation that would have existed absent discrimina- tion involves too many unknown facts and variable possibilities , that situation can- not literally be reconstructed . It can only be approximated. To the extent that the elements entering into the computation of backpay are known facts, they will be used. Thus, it is possible to know the rate a discriminatee in a particular classi- fication would have been paid had he been reinstated wherever records show that all employees in that classification were paid at a given rate during the backpay period. In other matters , the degree of certainty vanes. Where absolute certainty is impossible , a presumption may be resorted to when probabilities favor such pre- sumption. For example, it cannot with certainty be known how many hours the discriminatee would have worked had he been reinstated when he should have been, for although the discriminatee may have, throughout the backpay period, been in good health and able to work, he might have, had he been reinstated when he should have been , suffered an accident or contracted an infectious illness in the Respondent's employ during the backpay period which he .would not have suffered or contracted elsewhere, thus rendering him incapable of working. But this is a mere possibility and not a probability ; so, absent proof that he would have been unable to work during any given period if at the Respondent, it is considered as probable that he would have been available to work at the Respondent to the same extent as elsewhere during the backpay period. Now, although the Board did not in its Decision and Order identify, by name, the persons in the various categories of replacements , it is possible, from evidence available, to identify them. That is something which, if not certain, can reasonably ,be ascertained, and, if the Respodnent's proposed formula were otherwise sound, 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such facts might be used. But it is not certain which replacement would have been displaced by any specific discriminatee and, because even probabilities cannot be shown, no presumption can be indulged in that any given discriminatee would have been given the work of any given replacement. But even if counterparts could be named, there is no genuine probability that the hours of work available to the particular discrimmatee would have coincided with those which were in fact avail- able to his replacement. In the first place, the replacement might have lost time from work for reasons personal to him. Furthermore, the situation here is not the same as one where the job is- unique (as a job might be if the discriminatee had been an operator of -the only machine of its kind in use by his employer), and in the case at, hand if the-'Respondent had reduced,-its force during any given week, the probability that Respondent would have laid off the discriminatee at the same time it did his replacement is so slight as to amount to pure chance. The basis for se- lection of men for layoff is not shown. The agents of the Respondent making lay- offs may each have used a subjective test-one personal to each-giving varying degrees of weight to seniority, skill, strength, personality, or a combination of some, all, or none of these. To assume that the discrininatee would have been laid off at exactly the same time and for the same length of time as his replacement is to treat each as an automation identical in all respects with the other. This is con- trary to fundamental knowledge and is not a proper foundation for a presumption. Exactly the same considerations that stand against the treatment of the one dis- criminatee as having a prospect of a job only for the duration of the job of one replacement also stand against the treatment of the prospects of discriminatees as a class as being identical with those of replacements as a class. Once restored to, their former or substantially equivalent positions, the discriminatees should have had, a chance- for retention, at times,.9 f sreduction in force the same as any employee in the same classification, including' prestrike employees, and not merely the same chance as any replacement. There is neither certainty nor probability that, as a class, they would have been laid off or would otherwise have lost time from work in the same degree as the replacements. Hence, no basis for a presumption exists here that the discriminatees' job tenure would have been the same as that of their replacements. The identity of the discriminatees, once they have been reinstated, is with their entire classification and not merely with the replacements who should have been removed to make a place for them. The use of average hours of all employees in a given job classification „ is not only a proper one,io its is here the most appropriate one. I shall, therefore, use the General Counsel's formula based on average hours of all employees and not merely those of replacements. b. Adjustments made by General Counsel in formula used in specifications in determining average hours (1) Determination of- overtime to be credited to claimants The specification,s,, are, drawn on the, basis of an adjustment in average hours by giving overtime hours a value of 1 1h that of straight time and lumping all such hours together. Thus, if 100 straight-time hours were worked in a given week by all em- ployees taken into account and 10 overtime hours were worked during the same period, whether by one, all, or an•intermediate number of-employees, the specifications translate the 10 overtime hours into 15 straight-time hours, making a total of 115 straight-time hours to be averaged by the number of men working. The Respondent objects to this method, claiming that the proper method to adjust the averages for the purpose of determining gross backpay would be to add all hours worked by all employees in the category (adding both straight-time and overtime hours as straight-time hours), divide the sum of this addition by the number of men working, and then multiply the quotient in the last step by the hourly straight-time rate up to 40 hours and by 11/2 times the straight-time rate for any hours exceeding an average of 40. By the Respondent's method, the discriminatees would receive a credit for an average number of hours a week, lumping straight-time and overtime hours to- gether to reach an average in which all overtime pay might disappear unless most of the men in the category who were employed in a given week worked a 40-hour week and a substantial number of them worked overtime. The Respondent's method more- 10 N.L R B v. Remington Rand, Inc, 94 F 2d 862 (C.A 2) ; Harvest Queen Mill & Elevator Company, 90 NLRB 320, footnote 3 The Board's backpay formula is discre- tionary so long as it is not arbitrary and bears an appropriate relation to the statutory policies N L R.B v East Texas Steel Castings Company, Inc, 255 F 2d 284 (CA 5) BROWN AND ROOT, INC., ETC. 519 rover ignores Sunday and holiday work.ii As between these two methods of com- puting averages, I consider that which gives discriminatees an average of overtime hours as well as an average of straight-time hours as fairer and more closely approxi- mating the actual situation, because the chances of the discriminatees' receiving over- time work and pay would have been in the same proportion as the chances of any employee on the payroll for that week, and from an inspection of the payrolls, I judge that overtime work wasIsometimes.done on otie, shift,'althoughKmen on other shifts or even on the same shift might not have. worked a 40=hour week. 'With no ,certainty as to which shift the discriminatee would have worked on, the average of men on all shifts may reasonably be used. There is no proof that overtime was given on a preferential basis; so I infer that anyone had as much chance as anyone else to get it. The method which has been employed by the General Counsel in -determining the averages is one that has been used without question in previous cases, although I am unaware that the propriety of this practice has ever been put in issue before. Once it is determined that overtime is to be determined on the basis I have found appropriate, no objection can be made to the procedure of translating over- time hours into 11/2 times straight-time hours (because pay for such hours was in that ratio) and of determining average pay by multiplying the adjusted average hours. so determined, by the straight-time rate of pay. (2) Exclusions from averages The General Counsel made further modifications of strict averages in the method employed in reaching the results shown in the specifications by (1) omitting from the -determination of average hours the time worked by any employee who worked less than 24 hours a week (unless the majority worked less than 24 hours in that week), and (2) omitting the hours worked in a given classification by employees who, in the same week, also worked in other classifications. The analyst who prepared the specifications testified that his purpose in disregarding the two types of employees mentioned was to,avoid a "downward bias." On the,surface, this explanation appears to be arbitrary and, when I first considered it, before examining the payroll records, it appeared to me to ignore the most desirable objective, that of distributing all the work available in a given job classification to all the men in that classification. How- ever, this presupposes that the amount of work available is to be determined on the basis of the number of hours actually worked by all men who worked in that classi- fication. For example, it may be supposed that, if you have a work force of 10 men and in a given week 8 of them work 40 hours each and 2 work 16 hours each, there would be a total of 352 hours of work available to be divided by 10 men and that the partial absence of the 2 men merely served to increase the amount of work available -for the other 8 men. And, further, it might be supposed that, in the same situation, if 2 replacements were put on the squad to work for 3 days when the 2 regular men were absent, this would increase the number of total hours of work available to 400 without increasing the number of men actually working above 10 at any one time and hence you could divide 400 by 10 and get an average of 40 hours. Upon in- spection of the payroll records, however, I decided that this method of calculating average hours was impractical and unduly complicated by variations in the possible situations. An examination of the payrolls led me to conclude that, except in cases of general inactivity owing to inclement weather, the most usual instances of men working less than 24 hours a week occurred when employees were quitting or were terminated for one reason or another and when new employees were starting, because new employees more frequently than not started in midweek or toward the end of the week rather than at the beginning. Furthermore, the new employees could not be considered literally to be replacements for those who dropped off the payroll, for the number of new employees seldom coincided with the number leaving the payroll. Thus the number of employees in a given classification fluctuated from week to week. This cannot be attributed solely to the amount of work available. It would depend to some extent on the ability of the Respondent to hire new men as fast or faster than men dropped out when work was increasing. Another difficulty in trying to average out the amount of work available on the basis of treating new employees as replace- ments for men who dropped out so as to count their hours worked in conjunction with the hours of the men who were replaced during a given week is that you cannot be sure the new men are doing the same work as those who dropped out. I would infer from the fact that certain men on a given shift appeared to work the same number n During some holiday weeks the payroll shows in many instances as many overtime as straight-time hours were worked by employees although few worked 40 straight-time hours. 520' DECISIONS OF NATIONAL LABOR RELATIONS BOARD of straight-time and overtime hours that such men may have been working as a team, But it cannot be ascertained from an examination of the payrolls how many teams there were and whether new men were assigned to one team or another. I also ob- served that a man from one classification might be temporarily assigned to work in another classification for an hour or a day or two or an intermediate number of hours. Inclusion of the time of such temporary transferees in the averages would certainly result in a downward bias because the discriminatees would be entitled to as much pay as would be earned by any regular, full-time employee, and the inclusion of the time of such supernumeraries and the division of the total number of hours by the, number of regular employees and supernumeraries would result in a lower average than the average of regular employees. After an extended examination of the pay- roll records and an.attempt to determine averages on other bases, I reached the con-, clusion that the method employed by the General Counsel was the only practical, method and it is at the same time a fair one. In the course of my examination of the payrolls and determination of average hours, I tried a method which included all regular workers even though they may have worked less than 24 hours in a given week. I found that the result produced by this method varied so imperceptibly from that reached by the, General Counsel: as.to.make the benefit of using such alternate method negligible . In most instances it resulted only in a difference of a few hundredths of an hour in the average adjusted hours in a given week. The exclusion from the averages of the time of men who worked in more than one classification is likewise fair because although the discriminatees might have an equal opportunity' to work -as, many hours a week as regular employees who worked in more than one classification, it cannot be assumed that each man would be equally as competent to work in specific classifications other than his own. And yet if the, time of men who worked in more than one classification were included only to the. extent that it would fall in their regular classifications, the Respondent as well as the General Counsel might have cause to complain. Often the work in a different classi- fication resulted in a man's receiving overtime pay for work in his own classification. For example, a carpenter who works 24 hours as a millwright in a given week might have worked 36 hours the same week as a carpenter, and he would be shown as having worked 16 straight-time and 20 overtime hours as a carpenter. As I have. already decided that overtime hours should be counted as one and one-half times that of regular hours, the Respondent might complain in this instance. On the whole,' it is fairer and more practical to exclude from the averages the time of men who worked in more than one category. For the purpose of showing errors in the General Counsel's computation of average hours, the Respondent took, as an example, the week ending July 30, 1950, and, by use of IBM methods, tabulated for each classification of worker the number of men employed in that classification, their rate of pay, the number of straight-time hours, and the number of overtime hours. The Respondent then pointed to the differences in the number of men in these classifications and in the number of hours worked as between the General Counsel's computation of average hours and the Respondent's mechanical computation. One difficulty standing in the way of accepting the Re- spondent's figures as proof of errors is that, by its mechanical method, every man in the classification whose name is%shown on the payroll is counted, whether or not that man worked as many as 24 hours in that week or whether or not he even worked at all.12 Accuracy in the General Counsel's adjusted average hours can be shown only if his formula is followed. By following his formula, I checked the carpenter classi- fication in full, and I spot checked the other classifications, doing a week here and there. I found that his figures were accurate with rare exceptions and that such errors as existed tended more to favor the Respondent's interest than the claimants'. Because I have not checked each classification in full, however, I shall not raise the General Counsel's figures when I find they were too low, so any possible errors the other way may be offset, but where I have found the General Counsel's figures too high, I have reduced them.13 12 There are instances in the payroll records where a man's name is carried on the payroll for weeks with no showing of hours worked Presumably this is a case of industrial accident or the like. Including such an individual in the number of woikers would certainly result in an inaccurate picture of average hours 13 The Respondent showed that the General Counsel overlooked three jackhammer operators on the payroll during the week ending July 30, 1950 If the hours of those three were added to those of the four used by the General Counsel, the result would be to raise the adjusted average hours for that week from 45 to 48 The reason for the General Counsel's oversight is obvious, because the payroll records as to the additional three jackhammer operators were not very clear. BROWN AND ROOT, INC., ETC. , , 521' 2. Shift differential . Before the commencement of the strike, the Respondent paid a 5-cent premium to employees on the graveyard shift, the latest of its three shifts. In computing back- pay, the General Counsel included this 5-cent premium in the backpay of each claim- ant who had been on the graveyard shift when the strike started. The Respondent- contests the correctness of the inclusion of this premium pay. The General Counsel's reason for including it is based on the premise that the Board, in computing a figure that is designed to make a discunnnatee whole, includes not only wages, but also' bonuses 'and other emoluments going with the job.14 The Respondent's objection is based on the reasoning that the claimants would have been entitled to such premium pay only if it could be shown that they had a right to be reinstated on the night shift when they applied for reinstatement after the end of the strike. The Respondent denies that they were entitled as a matter of right to the shift-differential pay. The Respondent's position appears to have merit. In this case, the discrimination occurred not at the beginning of the strike when certain of the claimants were on the graveyard shift but at the end of the strike when they sought reinstatement-and then they were entitled to reinstatement only if jobs in appropriate classifications were available. The General Counsel made no effort to determine how many jobs might have been available on the graveyard shift, if any. But assuming for the sake of argument that, jobs were available in sufficient number on that shift to provide jobs for all claimants who had been on that shift before the strike, there is no evidence that the Respond- . ent's employees had any fixed right or privilege of working on any particular shift. So far as the evidence discloses, employees hired by the Respondent were assigned to. the shift where they were needed without their having any choice in the matter, and the Respondent placed employees on the shift where it decided it needed them without recognizing any special rights, privileges, or preferences. Furthermore, an examination of payroll records discloses that men are not always on a single shift throughout the week. One man might be on the day shift for 2 days, the swing shift, for 2 days, and the night shift for 1 day in a given week. On this state of the proof, therefore, I find that no claimants had any right to a shift differential or any privilege of picking his shift. I omit the shift-differential premium from my calculation of backpay except where backpay accrued after reemployment. E. Reinstatement rights of economic strikers The Board 'found that certain employees, those represented by the IAM, were' economic strikers and, in its Order, in substance , directed their reinstatement upon their personal applications if jobs were available. The principal issue in the current proceedings is whether or not such returning strikers were entitled to the first openings in their classifications occurring after their personal application or whether the Re- spondent was free of all duty to them if no IAM claimant was on the spot to make a personal application between the time when a vacancy occurred and the time when it was filled. It is the General Counsel's position that, if jobs were not available to, these applicants at the time of their applications , the Respondent should, in effect. have established a preferential list and, when job vacancies occurred, called the men whose names were on the list and offered them jobs. The Respondent, on the other hand, contends that it was under no duty to seek out the economic strikers for replacement and that its only duty was to hire them upon their personal application- if job openings at that time existed The right to backpay depends upon a finding of discrimination , and a finding of discrimination against returning economic strikers in a case like this depends on the refusal of the Respondent to reemploy them although positions are available. The unfair labor practice strikers had a right to reinstatement as long as replacements held jobs, but the economic strikers were not entitled to reemployment so long as permanent replacements had been hired in their positions and no vacancies existed' for them at the time they applied for rehire. The Board recognized this limitation on the rights of economic strikers in this case when it said, "As economic strikers,. these complainants were entitled to reinstatement only if vacancies existed at the time of their proper [personal) application for employment." This imposes no duty on the part of the Respondent to recall the economic strikers It places the duty on the economic strikers to apply for jobs No discrimination was found by the Board as to these men. Such finding was left to be determined upon compliance' investigation. Before a discrimination can be found in this case. three elements ., Cf Deena Articare Incorporated . 112 NLRB 371 (insurance benefits ) • Moss Planing 1101 Co 110 NLRB 9,23 (Christmas cifts) : Century Cement 3fanit fact urinry Coinpanp Inc. 100 NLIIB 1323 ( Christmas bonus) 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must be shown: (1) There must be a vacancy in the type of job the economic striker held before the strike, (2) the returning economic striker must make personal application for the job which is vacant, and (3) the Respondent must refuse to give him the available job. Unless a discrimination has first been shown, there can be no basis for an order either of reinstatement or of compilation of a preferential list from which men are to be called as needed. Accordingly,, I find that the Respondent had no duty to seek out the TAM strikers and offer them jobs as vacancies occurred.15 The investigation in the backpay hearing disclosed that only one job vacancy existed on the very day that an application was made. In all the other cases, no vacancy was established to exist on the very day of application. The sole instance of a vacancy existing on the same day was in the case of the claimant Virgil O. Miller. He did not testify at the backpay hearing, but he had testified at the unfair labor practice hearing in 1951, that he applied on "about January 5" and that he guessed it was about 10 a in The first new man hired as mechanic repairman was hired on January 5, 1950 (B. D. Sanders, badge No 2919). The next new man hired in that classification appeared on the payroll on January 10, 1950. No economic strikers applied at that time. The General Counsel, proceeding on the theory that it was the Respondent's duty to offer reinstatement to the TAM men as jobs became available, made no effort to prove the existence of any vacancy at the very moment of application. To be sure of the time of a vacancy and the time of the filling of that vacancy, I would want to see whatever is available in the Respondent's records to show a requisition for the particular type of worker involved and the employment records in the per- sonnel files of the new men hired into the jobs of mechanic repairmen or other classifications of employees represented by the TAM Only in this way could the exact date of employment be established. The Respondent frequently hired men the day before they reported for duty (i e., the EOD date). The burden is on the General Counsel to prove the discrimination and therefore to call for such records as would prove the time of vacancy and of the new hire. As matters stand, the only evidence of a vacancy is the appearance of a new name on the payroll. This shows the EOD date but not necessarily the actual day of hire. In the case of Sanders, however, it makes little difference whether the date of hire or the EOD date is used because I notice from the payroll for the week ending January 8, 1950, that Sanders worked a full 8-hour day on January 5. 1950, on the day shift. This means that Sanders had actually entered on duty on the morning of the 5th before Miller appeared at the personnel office to apply for the job. Hence, the job vacancy was filled when he applied This being true, I find that the General Counsel has failed to show discrimination as to Miller, and that he has likewise failed to show discrimination as to any of the other TAM men. It follows that none of them is entitled to backpay. I do not therefore show their names in the succeeding pages where the cases of individual claimants are dealt with. F. Contention of the Respondent that claimants who do not testifly are not entitled to backpay The Respondent contends that no backpay should be awarded to claimants who did not testify. It apparently reasons that it has been deprived of due process if the General Counsel fails to produce each of the claimants as a witness so that the Respondent might cross-examine him. Production of each alleged discriminatee as a witness is not necessary in unfair labor practice cases and I know of no rule that requires the General Counsel to perform this function in backpay hearings. If the General Counsel fails to call a witness who might give testimony which the Re- spondent believes might assist its case, the Respondent is privileged to apply for the issuance of a subpena and, when the witness appears, request that the Respondent be permitted to cross-examine the witness because of his adverse interest. The only reason why the Respondent might desire the claimant's presence is to prove the facts that the Respondent is charged with establishing. It is therefore in- cumbent on the Respondent to produce the witness if it wishes to benefit by his testimony. Some of the claimants were not called because they were ill at the time of the hearing. The Respondent did not seek a' postponement on account thereof. Two were deceased before the backpay hearing. 15 Atlas Storage Division, P & V Atlas Industrial Center, Inc, 112 NLRB 1175 (at 1180, footnote 15), enfd 233 F 2d 233 (CA 7) And see Rugcrofters of Puerto Rico, Inc, 112 NLRB 724 There is no evidence here that the personal applications were in- tended to be continuing applications for employment as distinguished from applications for immediate reemployment See American Snuff Company, 109 NLRB 885 BROWN AND ROOT, INC., ETC. 523 The claimant's right to backpay does not have to rest on proof which he supplies. His rights may be determined on the basis of any competent evidence in the record, including any inferences that may properly be drawn. In the absence of any such evidence, it may be that the claim should be disallowed. I shall, therefore, not adopt a compendious rule that each claimant must testify in order to be entitled to backpay, but I shall consider each case on all the evidence available. In some instances there is a lack of evidence to show availability for employment after the dates of application for reinstatement made by the Union on behalf of certain claimants. In such instances, I believe no backpay should be found. But if I find any evidence of availability, I shall find the amount of backpay due regardless of where the evidence comes from. G. Findings as to backpay of individual claimants With the exception of IAM-represented claimants, I have computed the backpay of each claimant in alphabetical order. The figures shown have been rounded out to'the•nearest dollar for simplification. 1. Truman E. Anderson, electrician The Respondent admits that Anderson's backpay period begins January 3 and ends March 13, 1950. The Respondent denies that he made a reasonable search for employment during the backpay period and denies that he would have worked for the Respondent for as many hours during the backpay period as is claimed by the General Counsel. At the end of the strike, Anderson was teaching in the electrical shop of South- ern Baptist College. His contract with the college was for a 9-month school year, plus summer school. When he received a telegram from his local union to report back to the Respondent for work on the dam on January 3, 1950, he gave up his teaching job and returned. It has already been found that he was discriminatorily refused a job upon his application on January 3, 1950. At the time, the super- intendent told Anderson that he would let him know when he wanted him back, and in March he did so. Between January 3 and March 13, 1950, when Anderson was notified by the Re- spondent to report to work, he registered at the State employment office at Walnut Ridge, Arkansas, and returned there once a week or sometimes oftener. Twice that office called him to notify him of possible jobs. The first was at the Red River Arsenal. Anderson filed an application there and took an examination but received no call until a year later. The second was at a textile factory. This job had been filled by the time Anderson got there. Independently, Anderson spent about $8 in long-distance telephone calls about jobs. (No claim was made for this in the specifications and no effort was made to prove the precise amount spent.) He made applications at two construction jobs and a shoe factory (which offered Anderson a job 3 days after he returned to work for the Respondent), made trips to Jonesboro, and telephoned the union business agent,in Little Rock about possible jobs. He found no employment before he was recalled to the Respondent. I find that Anderson was diligent in his search for employment. He was justified in giving up his teaching job under the circum- stances, and he was not able to return to it because someone else was employed to take his place. I find no willful loss incurred thereby. I shall compute Anderson's backpay on the basis of the average adjusted hours worked by electricians at the rate of pay for electricians working for the Respondent during the backpay period. Anderson's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings back pail 1950 1(1/3-3/13) -------------------- $948 0 $948 2. Benjamin W. Bailey,16 carpenter , The specifications claim backpay for this claimant from December 21, 1949, to October 31, 1950, the period found by the Board to be his backpay.period.17 The 16 Bailey's name originally was not on Schedule B, nttached to the Board's Decision and Order (those entitled to backpav onlv), but the omission was corrected by order dated August 15, 1952 The General Counsel's motion regarding Bailey at the opening of the backnav hearing was, therefore, unnecessary 17 The Respondent appeared to assume that the backpay period should end with the date of the offer of reinstatement which, in this case, was made on October 26. 1950 The 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifications show interim earnings and expenses for Bailey. The interim earnings are admitted and require no proof and none was offered. Bailey did not testify. In computing his backpay, therefore, I omit expenses as a reduction of interim earnings. His backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1949 IV (12/21-31) -------------------- $107 $5 $102 1950 I______________________________ 737 200 537 II______________________________ 840 223 617 III______________________________ 866 1,331 0 IV (10/1-31) --------------------- 274 254 20 Total backpay______________________ _____ ____----- 1,276 3. D. W. Bailey, jackhammer operator The General Counsel contends that the claimant was never reinstated because he was never again on the Ozark payroll and because Flippin was held by the court to be a separate employer. The General Counsel, therefore, claims that Bailey's backpay period is from January 3, 1950, to March 1, 1953. I have already reached -the conclusion, as heretofore explained, that I cannot change the findings of the Board and the court did not expressly require a recomputation of backpay as to Ozark discriminatees. Respondent denies the terminal date claimed in the specifica- tions. I shall compute D. W. Bailey's backpay for the period January 3. to July 31, inclusive, since the Board found that he was reinstated on August 1, 1950. During the first quarter of 1950, Bailey had no employment except what he created for himself in cutting timber to sell or in clearing rights-of-way for the highway department. At the time of the backpay hearing Bailey was deceased and his wife testified sketchily to his earnings. Her memory of dates was poor and she was unable to testify to the period of time when he cut timber. Her estimate. of his earnings from cutting timber was $200 from work done intermittently over a 6-month period. As she was unable to fix the date when these earnings began, I have no way of fixing them as in the backpay period at all. But the General Coun- sel, in the specifications, shows interim earnings for Bailey in the sum of $105 as the allowable offset to backpay for the first quarter of 1950.18 I take this to be ,-conceded and, as no greater amount is proved in the first quarter of 1953, I shall use the figure in the specifications. I have previously explained why the shift differ- ential claimed by the General Counsel will not be included. D. W. Bailey's back- pay is as follows: Period Gross Year Quarter backpay Net interim earnings Net backpay 1950 1(522 hours) -------------------- $509 $105 $404 II------------------------------ 541 479 62 III(7/1-31)---------------------- 169 102 67 Total backpay---------------------- ----- --------- 533 4. Jones P. Beal, ironworker 19 The Respondent, in its amended answer, admits that Beal's backpay period is be- tween January 3 and February 14, 1950, and that he was an ironworker before the strike, but denies that Beal made a reasonable search for other employment, denies Board, however, granted 5 days In which to receive and accept the offer (99 NLRB 1047). Bailey was reinstated on November 1, 1950. If the offer is not accepted, the date ,of Its receipt Is customarily the date ending the backpay period If the offer Is accepted, the backpay period ends with reinstatement or with a date 5 days after the date of the offer, whichever Is first In point of time. 18 The Respondent appeared to take the position that the General Counsel had a burden of proving not only what was conceded, but also of proving that the claimant did not earn more than the amount shown as interim earnings In the specifications. The amount shown as Interim earnings in the specifications Is an admission requiring no proof If additional Interim earnings are to be shown, the burden Is on the Respondent to show -them 19 The proper designation Is structural Ironwork to distinguish It from reinforcing iron- work The former is a higher skilled job, and the rate of pay is higher. BROWN AND ROOT, INC., ETC. 525 that he was available for employment by the Respondent, denies that his interim earnings did not exceed that shown in the specifications, and alleges that Beal .refused "suitable" employment offered him by the Respondent on January 3, 1950. The Respondent offered no evidence of any of the assertions made in its answer. ,Particularly, it failed to prove that it offered Beal his former or substantially equiv- .alent employment before February 14, 1950, and that Beal had refused the offer. This was evidence that should have been offered sin, the. original hearing.' The Board's findings that Beal made a personal application for employment and that ,he was offered reinstatement on February 14, 1950 (and not before), would have foreclosed the Respondent from relitigating the facts alleged in any event. The burden was on the Respondent to prove any willful loss incurred by Beall and to -prove the alleged greater interim earnings. It offered no proof thereof. Beal did not testify, but the evidence shows interim earnings for Beal in the first quarter of 1950 in the amount of $140.50 at an electrical company of Dallas, Texas. As Beal returned to work for the Respondent on February 14, 1950, and continued to work there until August 1950, I infer that Beal's earnings at the electrical company ;preceded his return to the Respondent. This creates a positive inference that Beal was in the labor market, available for work, and suffering no willful loss. Beal's 'backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay -1950 1(1/3-2/3) ---------------------- $508 $141 $367 5. J. N. Bevans, Jr.,au carpenter The Board found that, -after the strike; Bevans applied for reinstatement in person and that he was offered reinstatement on March 8, 1950. This fixes the limits of the backpay period. The specifications show no interim earnings during the backpay period. The Respondent's answer denied that Bevans was unemployed during the packpay period and called attention, to the fact that the social security' account of Bevans "indicates earnings of $244.80 during the calendar quarter ending March 31, 1950."; Bevans was not questioned about the earnings shown in the social security account when he was on the witness stand. However, on direct examination, he testi- fied that between January 3 and March 8, 1950, he was unemployed, and he accounted for his movements and efforts to obtain employment throughout the backpay period. The social security information is not contrary to his testimony that he was unem- ployed during the backpay period as he might have received such earnings between March 8 and 31, 1950. I also take official notice of the fact that the social security records show the employee's earnings in' the quarter in which they are reported, which ,.may or may not be the quarter in which the work was done or the compensation was paid. In the absence of evidence that the work was done in the backpay period, I find no reason to show the said sum as interim earnings during the backpay period. It .was stipulated that Bevans made a reasonable search for employment. The Respondent argues in its brief to the Trial Examiner that it was an error to exclude evidence in the backpay hearing that "his Union" failed to notify Bevans of the Respondent's willingness on January 3, 1950, to reinstate him. The Board found that Bevans made personal application for reinstatement, on January 3 and was re- jected. The Respondent was therefore trying to relitigate the unfair labor practice hearing. Once Bevans was rejected, he had no further duty to apply to Ozark or Flippin until the Respondent offered his reinstatement. This did not occur before March 8, 1950. Excluding shift differential, Bevans' backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay .1950 1(1/3-3/8) --------------------- $529 0 $529 20 On page 2908 of the transcript in the backpay hearing Bevans was asked by the General Counsel's representative what attempts he had made to find employment Bevans is shown to have testified, "Well, sir, when I come back and they refused to hire me and I went up to the employment office they didn't have anything " Upon Respondent's ,objection that this was repetitious, I sustained the objection believing at that time that Bevans answer was " when I came back, they refused to hire me when I went up to the employment office . . " and believing that, he was, referring to the Respondent's employment office, because this appeared to be going into matters covered in the original hearing Noting that I misunderstood his answer, I now reverse my ruling and let the answer stand as shown. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Robert R. Blecker, carpenter As found by the Board,.Blecker made application for reinstatement on January 3, 1950, but was not offered reinstatement until March 8, 1950.21 The Respondent, in its amended answer, denies that Blecker was available for employment or desired" reinstatement,, denies that he was available for employment by the Respondent and that he did not. receive substantially equivalent employment elsewhere. It alleges that Blecker obtained permanent employment before the termination of the strike, that he abandoned the.strike and his right to reinstatement, and that he did not apply for reinstatement. No evidence was offered of these allegations22 The allegation that he did not apply for reinstatement is contrary to a stipulation entered into at the unfair labor practice hearing and the finding of the Board thereon. Blecker did not testify. However, his application for reinstatement on January 3, 1950, shows that he was available for employment by the Respondent. I find no evidence, there- fore, which would toll or reduce backpay. Blecker's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 I(1/3-3/8)--------------------- $529 $448 $81 7. Glenn M. Bonner, carpenter Bonner was out of the labor -market in January and February 1950 and no back- pay is therefore claimed for him between January 15, 1950, the date of the Joint Council's application on his behalf, and the end of February of that year. During the balance of the backpay period, while not otherwise employed, Bonner sought work at least once a week in Berryville, Arkansas, where he lived. Specifically he testified that he applied at a die-cast;,plant near Harrison, Arkansas, and at various lumberyards in Berryville and Eureka Springs, Arkansas. Bonner's memory of dates was faulty, a•not surprising condition 8 years after the date of the discrimina- tion. Bonner 'testified that the .dates given in an affidavit signed by him in 1954 were more likely to be accurate and I rely on the affidavit for that purpose.23 How- ever, where a discrepancy exists between his testimony and his affidavit as to the amount of his earnings I have taken the largest amount conceded. During March and April 1950,,Bonner picked up an occasional day's work catching and hauling chickens for a dealer. In June 1950 he,got a job driving a truck for about 4 to 6 weeks at $25 a•week. Soon after the end of this job, Bonner was offered a job as a carpenter, his former classification, by .the Respondent, and he was reinstated on July 29, 1950. Bonner did not register at the State employment office. An issue is raised con- cerning the reasonableness of his search for interim employment. Bonner testified that he did not apply for unemployment insurance-because he thought he could get as much from 'his picking up odd jobs as he could from unemployment insur- ance. It does not appear that .he knew that he could apply for job references at n The Board found that he•was reinstated on March 8 . The Intermediate Report finds that he was sent a register$dt letterson that dateollering,'him reinstatement 'The pay- rolls and personnel files do not show that Bleaker was rehired However, this does not affect the dates of the backpay period. 21 It is incumbent on the Respondent to prove facts tending to reduce the amount of backpay due. Denying that the claimant did not have interim earnings or did not have more than is already conceded does-not throw the burden of proof on the 'General Counsel to prove that the claimant had no earnings or had no earnings other than those shown in the specifications. =In its brief to the Trial Examiner, Respondent insisted that -backpay should end with April 1950 because Bonner testified that that was when, according to his memory, he returned to work for the Respondent after he received a letter offering him reinstate- ment The Respondent argues that April should be accepted as the terminal date even though it was obvious that Bonner was in error about the date and even though the evidence discloses no offer by the Respondent of reinstatement before July 25, 1950, and even though the Respondent's own ,records show that.Bonner was rehired on July 29 1950, and not before. In its brief the Respondent imputes bias to the Trial Examiner by argu- ing that the Trial Examiner "tried to get [Bonner] to say that the dates in his prior written statements . . . were more accurate than his present memory" This "attempt" consisted of the following questions • "Trial Examiner • I will just ask the witness with respect to the Respondent's Exhibit 15 [his affidavit] to explain any, discrepancies •betwecn the information given on that form and the testimony he has given here.-A Well, that is it. The only thing I might have got my dates mixed up. Trial Examiner • Which is correct" The Witness : This is nearer correct than what I stated " BROWN AND ROOT, INC., ETC. 527 the State employment office without registering for unemployment insurance. Fail- ure to register at the State employment office does not, in itself, bar backpay.24 I find that Bonner was diligent in his search for work. Bonner owned 40 acres of land which he called a farm, but,most of it was pas- ture. Some of it was wooded, and he occasionally cut wood and took it to town to sell. By these efforts he received an estimated $85. One acre of his land was in garden, but no evidence was adduced to show whether or not he marketed any vegetables. Between the end of his job as a truckdriver, on which he was paid $25 a week, a job which he lost when he refused to buy his groceries from his em- ployer at a higher cost-than that for which he could buy-them across the street, he just stayed around home, Bonner testified on cross-examination, and cut a little wood and sold it. However, on redirect, he testified that-he went into town every weekend to get groceries, and would then make inquiries for jobs and that he would do the same when he would bring in a load of wood during the week. On all the evidence I find no willfully incurred loss. The specifications show no earnings from the sale of wood. In effect, Bonner was self-employed while cutting wood, and his net profits should be shown as interim earnings, but there is no evidence of the value of standing trees, or any costs involved in the operation. As the total amount of earnings is relatively small and as standing trees are (I infer from evidence in the record, which accords with my observation) fairly plentiful in the Ozarks, I shall treat the entire amount as interim earnings, in the absence of evidence making a more exact finding possible. The Respondent argues that, as Bonner was not in physical condition to return on January 15, 1950, the date when the Joint Council made an application for a number of employees, including Bonner, it was Bonner's duty to make application when he was in physical condition. This argument overlooks the fact that the Re- spondent rejected the application on Bonner's behalf. Thereafter, it was the duty of the Respondent to offer reinstatement to the employees denied reinstatement; it was not their duty to apply for reinstatement 25 The physical condition which the Respondent contended rendered Bonner unfit for work on January 15, 1950, pertained to one of his eyes. In February 1949 he had an operation for removal thereof and in January 1950 he returned to the hos- pital to have a false eye inserted. The specifications except the period from Janu- ary 15 to February 28, 1950, from the backpay period on this account, because Bonner used this time as an adjustment period. Whether or not he would have used that much time if he had been offered reinstatement earlier is uncertain. Had the Respondent accepted the application of the Joint Council on Bonner's behalf, Bonner might have been capable of making arrangements to report within a reason- able time thereafter. Although I find that the Respondent's obligation was not dis- charged as to Bonner, I shall, like the specifications, omit the period from January 15 to February 28, 1950, from the backpay period because, whether idleness for that period was fully necessary or not, Bonner did not seek work in that period. The Respondent contends that Bonner was not a striker. This contention was disposed of by the Board's finding that Bonner had been discriminated against. In 'any event, evidence in the original record shows,that Bonner stayed out because he refused to cross the picket line. By so doing, he joined the strike as a sympathizer. Bonner's backpay is as follows: Period Gross Year Quarter backpay Net interim earnings Net backpay 1950 I(3/1-31)---------------------- $330 0 $330 II------------------------------. 840 $150 690 III(7/1-25)---------------------- 253 135 118 Total backpay---------------------- ----- --------- 1,138 8. J. B. Brents, carpenter The Board found that Brents had been offered reinstatement on March 8, 1950, and been reinstated on March 21, 1950.26 Claim-is made for backpay only to March 13, 5 days after the date the offer was made, as approved by the Board.27 24 R K Baking Corp., 120 NLRB 772 ; Ozark Hardwood Company, 119 NLRB 1130 zs Morristown Knitting Mills, 80 NLRB 731 ; Happ Brothers Company, Inc, 90 NLRB 1513 2 The letter offering reinstatement gave Brents until March 20, 1950, to report His personnel file shows that he was hired on March 20 but was directed to report for work •on March 21 n 99 NLRB 1031, at 1047. 528 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD The Respondent argues that Brents is not entitled to backpay because Brents . . did not know the strike was over, did not authorize the Union to apply for reinstatement for him and did not know that ODC had offered on 1/24/50 to rehire the men who showed up. If the Union had advised him of ODC's letter, he would have reported. . . Brents is not entitled to backpay because he would have been hired if he had reported to work. This argument assumes facts not proved and assumes at least one fact which is contrary to the evidence. 'Without regard to specific, authorization, the Union as "statutory bargaining representative of the Joint Council strikers" had, the Board held, the necessary' authority to make -application for the reinstatement of those strikers, of whom Brents was one. The Respondent did not make an unqualified offer on January 24, 1950, to reinstate all the strikers found entitled to be,reinstated. Although the Respondent could, by discharge or demotion of replacements, have rein- stated all employees to their former or substantially equivalent positions, the Re- spondent merely offered to employ "as many . . men as possible" if they made personal application. That it intended by this offer not to reinstate all those who were entitled to reinstatement is evident from the fact that some former strikers who applied thereafter were rejected. In the circumstances in which this language was employed, the words "as many . as possible" must be taken to mean "as many as the Respondent chose to employ" since it was unwilling to discharge, demote, or transfer replacements in order to make room for strikers. Although the Board did not state that the Respondent's letter of January 24 was not a bona fide offer of reinstatement,28 it did so in effect by finding that the letter was a rejection of the demand of the Joint Council 'and by :finding the period of discrimination for many strikers, including _Brents, to run between the date of the Joint Council's application of January 15, 1950, and the `varidus-'dates found to be those of reinstatement or offer of reinstatement as shown-in the Decision and Order. Further, the Board stated- at 99 NLRB 1043 that "the rejection by the Respondents of the Joint Council's blanket demand on January 15, 1950, made it unnecessary for these listed strikers to apply personally at the dam site." If the so-called offer of January 24, 1950, had been found to be a bona fide offer of reinstatement, the Board would not have found that personal application was unnecessary nor would the Board have found that the period of discrimination for Brents was between January 15 and March 8, 1950 (plus 5 days allowed in which to accept). It is clear that Brents was not obligated to make a personal application in response to the January 24 letter. 29 Hence, his lack of awareness of it is immaterial. u The Respondent asserts that Brents would have been hired if he had personally applied in response to the suggestion made in Respondent's letter of January 24, 1950. There is no evidence to support this assertion. The Respondent argues that Brents made no application to Flippin for employment and, therefore; for that reason, among others, failed to make reasonable effort to obtain other employment. As Flippin hired only through the personnel office of Ozark, application at Flippin was included in the application to Ozark of January 15, 1950, and personal application was not necessary. The Respondent contends that Brents was not entitled to any backpay because he- did not make a reasonable search for work. During the backpay period Brents was living in Morrilton, Arkansas, a county seat of approximately 5,500 population. He, testified that he registered with the State employment service in Morrilton, drew un- employment compensation, and reported there every 2 weeks, at which time he was asked what he had done, and he gave to the clerk a list of places to which he had been to seek work. He could remember only a few of the places where he had applied. These were all in Morrilton. He was offered no jobs and was referred to none by the employment service. The Respondent sought to discredit Brents' testimony that in 1950 he registered with the State employment service in Morrilton. Brents' per- sonnel folder contained information only about a registration in Harrison, Arkansas, in 1949. At the end of the hearing it was stipulated that the Respondent's records showed that Brents had received $60 in unemployment benefit payments in 1950- based on the benefit year of 1949 (first quarter). It does not appear whether these 2' Without discussion , the Board found that the Respondent's letter of January 24, 1950, rejected the Joint Council's request of January 15, 1950 See 99 NLRB 1031, at 1041. 11 Contrast the finding as to Brents with that as to Putney, footnote 39, 99 NLRB- 1031, at 1049. Putney was in the list of workers which the Respondent stated it would' reemploy. 80 The same arguments are made by the Respondent with respect to other claimants It will be unnecessary in each case to reiterate what I have said here. BROWN AND ROOT, INC., ETC. 529 payments were received as a result of registration at Harrison or at Morrilton. . Furthermore, there is no evidence to show that Brents did not receive additional payments based on earnings in 1949 from some employer other than the Respondent. I credit Brents' testimony. The backpay period for Brents is only about 2 months. It was not shown that Brents in that time ceased to report to the employment office in an effort to find employment. I find no evidence of willful loss. Brents' backpay is as follows: Period Cross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/13) ------------------- $455 0 $455 9. H. L. Carlton, dinkey operator Carlton's name is included in the specifications with a claim for backpay for the period between January 15 and July 25, 1950. The Board found his period of dis- crimination to be January 15 to March 6, 1950. At the opening of the hearing the General Counsel moved to amend the last date to July 25, 1950, on the ground that the Board's finding was contrary to the evidence. As only the Board may amend its findings, I denied the motion. Carlton did not testify either at the original hearing or at the backpay hearing The social security reports, showing Carlton's earnings during 1950, indicate that he had not retired from the labor market. The Respondent denies that Carlton made a reasonable search for employment and denies that Carlton was available for em- ployment by the Respondent during the backpay period. The Respondent does not state on what it. bases its assertions. That Carlton was in the labor market and available must be presumed from the fact that the Joint Council made application on his behalf on January 15, 1950, and the fact that he had earnings in the first quarter of 1950. The Respondent offers no evidence that Carlton was ill or otherwise unable to work. The fact that Carlton may have been working outside the State of Arkansas during the backpay period, as might be suggested by the social security report of his earnings, did not mean that Carlton was unavailable for employment by the Respondent.31 ,Carlton's backpay is as follows: Period Cross Net snterini Net Year Quarter backpay earnings backpay 1950 1(1/15-3/6) -------------------- $385 *$55 $330 *Prorated. 10. Wirt A. Choate, ironworker It is admitted that the backpay period is January 15 to July 25, 1950. As Choate's net interim earnings in the first and second quarter of 1950 were in excess of gross backpay, the only period with which we need be concerned is that from July 1 to 25, 1950. During that period he earned $291.60 in interim employment which exceeds the gross backpay of $268.60 shown in the specifications. However, the specifica- tions,show $51.20 in expenses and net earnings of $240.40. Choate did not testify at either the unfair labor practice or the backpay hearing, and no proof was offered of the claimed expenses. The expenses are, therefore, disallowed, and I find that no backpay is due to Choate. 11. George Cloven, signalman Cloven testified at neither hearing. The Respondent does not concede that he was available for work during the backpay period, January 3 to February 7, 1950. The Board found that the Joint Council made application for reinstatement of Cloven on January 3, 1950, and Cloven' s name is on the January 15 list sent by the Joint Council to the Respondent, albeit Cloven is there listed as an ironworker instead of as a signalman.32 The Board drew an inference of availability from the applica- tions for reinstatement made by the Joint Council on behalf of the returning strikers,33 Cloven did, in fact, return to the Respondent's employ on February 8, 1950. I si Southern Furniture Manufacturing Company, 91 NLRB 1159, enfd. 194 F 2d 59 (CA. 5 ) , cert. denied 343 U S 964. 52 See footnote 26 in Board' s Decision and Order, 99 NLRB 1043, to the effect that the discrepancy is immaterial. 33 See footnote 29, 99 NLRB 1045 The Board here was speaking of men in the classi- fication listed by the Respondent as ones in which it needed men; but the others, although not offered jobs, would likewise have been available under the same reasoning 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find no evidence to rebut the inference that he was available during the backpay period. Cloven's backpay without shift differential is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/3-2/7) --------------------- $208 0 $208 12. V. W. Cooper, ironworker The Respondent claims that Cooper was not available for employment, by the Respondent before June 1950 (when he made a personal application for a job), be- cause he "was permanently employed in substantially equivalent employment ' The fact that Cooper was outside the State is immaterial.34 Likewise is it immaterial that Cooper may have had other employment, whether or not substan- tially equivalent.35 Cooper's backpay period is January 15 to July 25, 1950. The General Counsel shows, in the specifications, interim earnings at C. F. Braun & Co. during the first and second quarter of 1950, but shows Cooper as unemployed in the third quarter.36 Cooper testified, however, that, after being rejected by the Respondent in June 1950, he got a construction job at Los Alamos, New Mexico, in the latter part of June and worked there for about 3 months and earned about $100 a week. His estimate appears to have been high in view of the fact that he gave his hourly rate as $2.05 (he believed-I find that he was not certain) • and testified that he worked a 40-hour week, weather permitting, and that there was not a great deal of overtime-perhaps an hour a week. However, the claimant's estimate of his average earnings must be accepted in the absence of a more accurate computation. I shall, therefore, credit the Respondent with Cooper's interim earnings for 31h weeks at $100 per week in the third quarter of 1950. As this sum ($350) exceeds the gross backpay for that quarter shown in the specifications, no backpay will be due for that period. Cooper's interim earnings for the first quarter of 1950 also exceeded his gross backpay. His backpay for the second quarter of 1950, therefore, is the only one to be figured. In that quarter his backpay is as follows: Gross Net interim Net backpay earnings backpay $1,153 $144 $1,009 13. Lee R. Cutler, air"tool operato1 The Board found that Cutler had made application 'for reinstatement on January 15, 1950, through the Joint Council and had been reinstated-on May 24, 1950. On the latter date, Cutler was hired as a laborer at 85 cents an hour, which was 121h cents below his former rate of 971h cents. However, 5 days later he was-reclassified temporarily to vibrator operator for 2 days at $1 an hour which was 21h cents above the rate for that job, and the Board found that this job was substantially equivalent to that of air tool operator. Cutler was permanently reclassified to vibrator operator on June 5, 1950, at the rate of $1 an hour. The Board found no discrimination after May 24, 1950. That is, therefore, the cutoff date: The Respondent alleges that Cutler did not make a reasonable search for' interim employment and that he was not available for employment by the Respondent before May 24, 1950. That he was available appears to be clear. In addition to making application for reinstatement on January 15, 1950, through the Joint Council, Cutler applied in person twice thereafter before he was rehired on May 24. The Respondent adduced no evidence of an offer of reinstatement before the one resulting in his reinstatement on May 24, 1950. On the entire record, I find that Cutler was available for employment throughout the backpay period. In January or February 1950, Cutler cut some wood and made about $25. He applied for a job with civil defense "in the West" and "tried employment services" in Mountain Home, Arkansas, but found no work. Soon after cutting wood, Cutler was asked to take over a farm for one L. P. Reed, who was going into the real estate business in Missouri. Cutler was to get all the crops. Cutler applied for GI 34 Southern Furniture Manufacturing Company, 91 NLRB 1159, enfd 194 F. 2d 59 (C A 5), cert denied 343 1 S 964 ss Phelps Dodge Corp v. N L R B , 313 U S 177; N L R B v. Blanton Co , 121 F 2d 564 (C A 8) ; NLRB v. Keystone Freight Lines, 126 F. 2d 414 (C A. 10) ; N L R.B v. Weirton Steel Co, 135 F 2d 494 (C.A 3) se The social security information shows no reported earnings in the third quarter of 1950 for Cooper. BROWN AND ROOT, INC., ETC. 531 training as a farmer although he testified that he received no compensation from the Government. He testified that he had his crops in when Reed returned and resumed possession and control of the farm. Cutler also testified that he received no com- pensation from Reed for his work, that all he got was butter, milk, and eggs while there and that he had built his own house from the woods. He testified that when Reed returned, the latter told him he was not satisfied with the way Cutler was doing things. The explanation of his failure to receive anything was so garbled that I can make little or no sense out of it.37 However, Cutler's testimony makes it clear that when he told the Veterans Administration that he was no longer farming, that administration barred him from further rights. No effort was made by the parties hereto, through Reed or the Veterans Administration, to get a more exact explana- tion. Three days after Reed returned and took over his farm, Cutler returned to work for the Respondent. In the absence of evidence to show that Cutler's loss of possession of Reed's farm was attributable to his own fault, I do not find that Cutler incurred a willful loss. However, I believe that he should be charged with some interim earnings for the time he spent on the farm and looked for no other work. If Cutler had an enforce- able agreement with Reed, the agreed amount which he should have received, whether demanded or not, might be deducted from gross backpay. (Sterling Furniture Com- pany, 109 NLRB 602, 605.) But here the evidence does not make it plain whether or not there was an enforceable agreement, or, if so, the value thereof. If the agree- ment was verbal; it might have been unenforceable. In any event there appears to be no way of ascertaining the value of the crops so that cannot be used as the measure of interim earnings. The General Counsel apparently felt that Cutler should be charged with some interim earnings because the specifications show $54 in the first quarter and $108 in the second quarter as interim earnings from L. P. Reed for farm work. How this is computed was not explained. If it was intended to be the equiva- lent of wages for farm labor, it was low. Cutler testified that he was on the farm for 3 or 4 months. Since he returned to work at the dam on May 24, 1950, just a few days after Reed repossessed his farm, Cutler must have started farming in about mid-February. I find it difficult to believe that, if Cutler applied for self-employment benefits under the GI bill, he would not, in 3 or 4 months' time, have received any payments thereunder, especially as his testimony indicates that he was receiving schooling until he was dispossessed by Reed. Apparently he was not being paid for on-the-job training. Absent any.evidence to the contrary, I find that Cutler received no cash benefits. An exhibit introduced in evidence by the Respondent shows the value of farm labor in Arkansas. On the basis of these figures, I find that Cutler should be charged with interim earnings in the first and second quarters of 1950 in the amount of $150 each quarter. The Respondent, in its brief, assigns as reasons why Cutler should not receive back- pay (1) that he was out of the State, (2) that he had not personally authorized the Joint Council to make application for his reinstatement, (3) that he did not know the strike was over when he applied for work, (4) that he did not mention being a striker when he made application, and (5) that while he was on GI training on the farm, he was not on the labor market. I have already disposed of the first and second of the above allegations in connection with other claimants. The third reason is immaterial. If the Respondent had offered Cutler's agent, the Joint Council, to reinstate him at a specified time, the agent would have been responsible for letting Cutler know, and Cutler would then have learned that the strike was over. If Cutler applied for rehire without knowing whether or not the strike was over, this might prove that he intended to return to work regard- less of the strike-in other words, he may have intended to abandon the strike if he thought it was still continuing. However, it does not appear that he did intend to do so until after the strike was, in fact, ended and until after the Respondent had dis- criminated against all those found by the Board to have been discriminated against, in- cluding Cutler. Therefore, Cutler's attitude toward the strike after January 15, 1950, is immaterial. With respect to the fourth reason set forth above, that was disposed of by the Board in connection with the application of C. L. Stone in footnote 51 of its 37 After testifying that when he took Reed's farm he "figured on going to school, this GI school, the GI Bill of Rights I was going to get and go into farming," Cutler testified, "He [Reed] came back and said he wasn't satisfied with what I had done so that lost my schooling because I got a letter that when my stuff burned up was in there that they wrote from right here to this school, Mountain Home, that they would see I never got in another school because I didn't come a time and they wouldn't take my word for what happened " No effort was made to get a further explanation 614913-62-vol . 13 2-3 5 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision and Order. As to contention (5), it has already been decided by the Board that acceptance of GI on-the-job training is not an incurrence of willful loss or with- drawal from the labor market 38 Cutler 's backpay is as follows: Period Gr088 Year Quarter backpay Net interim earnings Net backpay 1950 1 (1/15-3/ 31) ------------------- $466 $150 $316 11(4/1-5/24) -------------------- 295 150 145 Total backpay______________________ ----- --------- 461 14. Eugene N. Cypert, carpenter Claim is made by the General Counsel for backpay for Cypert for the period from January 15, 1950, to November 30, 1952, although the Board found that he was reinstated on March 21 , 1950, when he reported to Ozark for work in response to an offer of reinstatement which he received on March 8 , 1950. The General Counsel proceeds on the theory that Cypert's assignment by the Ozark employment office to work at Flippin on March 21 , 1950, did not constitute reinstatement in view of the court's ruling that Ozark and Flippin were separate employers. I have previously disposed of this argument adversely to the General Counsel.39 Cypert testified at the original hearing and admitted that he had received from the personnel office an offer of reemployment on March 8 , 1950. The Board made no finding concerning this offer by the Respondent but merely found that Cypert was reinstated on March 21, 1950. Had the Board found that Cypert had received this offer, backpay, according to the Board's practice in this case, would have been cut off 5 days after the date of receipt of the offer, which in this case would be March 13, 1950. Although the failure to make a finding of receipt of the offer appears to be an oversight , I shall, in accordance with the Board's findings, compute Cypert's backpay to March 21, 1950. The Respondent, in cross-examining Cypert, sought to prove matters not in issue according to the pleadings, and made an offer of proof that Cypert was not a striker. The offer was rejected inasmuch as the Board had already found discrimination.40 The Respondent also sought to prove that Cypert held a personal grudge against the Respondent which caused him to form a determination not to accept employ- ment at Ozark even if offered. Cypert was not obliged to decide whether or not he would return to Ozark before he received an offer of reinstatement . When he did receive it, he returned. The fact that he was put on the Flippin payroll I con- sider to be immaterial and as not providing that he would have refused to work for the Respondent 41 In Cypert's case, as with others , the Respondent contended that the application made Eby the Joint Council on his behalf was not a proper application for, reinstate- ment as Cypert had not- given the Joint Council specific authority to do so. There is no merit in this contention as I have previously pointed out and as the Board previously found. The Respondent contends that, by accepting employment with other employers during the strike, Cypert abandoned his employee status with the Respondent. There is no evidence that Cypert took such work as substantially equivalent em- - ployment. The contention is without merit.42 The Respondent contends that Cypert admitted interim employment in the first quarter of 1950 other than that which was shown in the specifications. Cypert's memory for occurrences and dates was, like that of many other witnesses after the lapse of so many years, confused and imperfect. Taking Cypert's testimony as a 8 Ozark Hardwood Company, 119 NLRB 1130, at 1133. ea The illogical aspect of the General Counsel's argument might be illustrated by assum- ing that^Cypert had, upon rehire, worked 1 day on the Ozark payroll before being trans- ferred to the Flippin payroll. As there appears to be no question of the right of Ozark to transfer its employees to Flippin , I see no reason to object to an assignment to Flippin at the outset 40 In its offer of proof the Respondent called attention to a letter by Cypert in which he mentioned leaving the Respondent in December 1948 On the basis of this letter, even if the offer of proof were to be received, I could not find that Cypert was not a striker. The letter was carelessly drafted and there appears to be an obvious omission at the crucial point. 41 It is conceivable that the result of Cypert's medical examination may have influenced the personnel office to put Cypert on the Flippin payroll as less hazardous work, as his hearing apparently was worse at the time of his reinstatement 4= Phelps Dodge Corp v NLRB, 313 U.S. 177. BROWN AND ROOT, INC., ETC. 533 whole, and all other evidence available, I find that the specifications set forth Cypert's interim earnings with reasonable accuracy. It may be noted that on sub- pena from the Respondent, Cypert produced personal records of his employment, but the Respondent did not see fit to have any read into the record or otherwise introduced in evidence . I find Cypert's backpay (without shift differential) is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/21)* ------------------ $524 $38 $486 *The General Counsel computed 472 hours in this period . There would be 471 hours if the weeks ending on January 15 and March 26 were both included. If reinstated upon application , Cypert would presumably have started on January 16, as the week ending the 15th should not be included . As he would have worked less than half a week in the week ending March 21, I do not include that either. 15. Charles Dorell , electrician The Board found that the Joint Council made application for reinstatement of Dorell on January 15, 1950, and that the Respondent offered him reinstatement on July 25, 1950. Dorell did not testify at either the unfair labor practice hearing or the backpay hearing and no explanation was offered concerning the failure to call him.43 No interim earnings are shown for him on the social security report or in the specifications . No evidence was offered to show that he was in the labor market during the backpay period except what inference might be drawn from the fact that the Joint Council made application on his behalf . The total absence of any evidence of Dorell's whereabouts , of any earnings, and of any attempt to pro- cure interim employment , dissipate the inference that (although available for em- ployment on January 15, 1950 ) he continued in the labor market thereafter during the backpay period. I recommend that the claim on his behalf be disallowed. 16. William H . Drown, carpenter The Board found that the Joint Council made application for reinstatement on behalf of Drown on January 15 , 1950, and that the Respondent offered him rein- statement on March 6, 1950. Drown did not testify at either the unfair labor prac- tice hearing or the backpay hearing. The General Counsel apparently prorated Drown 's first quarter earnings, for the specifications show interim earnings of $297 .49, whereas the social security report discloses earnings by Drown for the first quarter of 1950 in the sum of $552.49 from Houston A. Jones of Mountain Home, Arkansas. Jones, a cabinetmaker and housebuilder, was called as witness by the Respondent, and confirmed the first quarter earnings . His testimony also made it apparent that Drown had worked for Jones steadily since early in 1949 and long after the end of the backpay period. This does not mean , however, that Drown was not available for employment by Respondent or that he had made a decision not to return to the Respondent even if offered reinstatement .44 Drown's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/6) -------------------- $397 $297 $100 17. R. V. Dunn , rigger The Board found that Dunn was discriminated against from January 15, 1950, when the Joint Council made application on his behalf, until July 25, 1950, when the Respondent offered him reinstatement . At about the beginning of this period, Dunn was unemployed .45 On February 1, 1950, he bought a farm in Henry County, Tennessee. From January to June, Dunn was engaged in getting the farm fixed 4s The General Counsel explained the failure to call some of the claimants ( not named) on the ground that the amount claimed was relatively small and that there would be too much expense incurred in bringing witnesses from great distances . The amount claimed for Dorell was not small . It totaled nearly $2,700. I notice that other electricians were able to get interim employment and I consider it peculiar that Dorell , an electrician, was shown to have had no interim employment. 44 East Texas Steel Castings Company, Inc , 116 NLRB 1336, at 1343; LB Hosiery Co.. Incorporated, 99 NLRB 630 , at 634. 45 At the unfair labor practice hearing, he testified that he had been laid off from his Oak Ridge job on about January 4, 1950. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up for cattle and in getting his ground prepared and his crops in. He testified, however, that he watched for another job to help him pay for his farm. In the latter part of June he learned of a TVA job at Camden, Tennessee, about 55 miles from his house. He obtained work and continued working there for about 2 years, commuting between Camden and his home. In October 1950, he sold cotton which he had raised but sold none of his other crops. The Respondent argues that Dunn was not available for employment during the. backpay period because he had left the State and because he had bought a farm, which it is contended, would have prevented his return to the Respondent's em- ploy. I have heretofore stated that absence from the State does not establish un- availability.46 At the unfair labor practice hearing, Dunn testified that the purchase of the farm would not have prevented his return to the Respondent, and at the backpay hearing he testified that he wanted work to help pay for the farm and that in June he took a job in Tennessee and kept it for about 2 years. It cannot be specu- lated on the basis of the purchase of the farm alone that, because Dunn did not re- turn to the Respondent after receiving its July 25 offer of reinstatement, he would not have done so before. He was not obliged to make a decision as to whether or ,not to return to the Respondent, following rejection of the Joint Council's letter of January 15, 1950, until the Respondent had offered him reinstatement.47 Although Dunn may have been theoretically available for employment by the Respondent', a' question is raised- as to whether or not Dunn really wanted work as a ngger.or incurred a willful loss by not making an active enough search for such work after he bought his farm. Of course, operating a farm may be said to consti- tute going into business for one's self and, if farming were undertaken as a means of support until work as a rigger became available, no problem would exist. Before Dunn bought his farm, he registered for unemployment benefits and "drew a couple of checks" before "some man stopped to check," i.e., investigate the fact that Dunn was working on a farm. As a result of his conversation with this man, Dunn's un- employment insurance was stopped. According to Dunn, "you are not supposed to draw social security working on the farm." From this, the Respondent deduces that Dunn must have withdrawn from the labor market. I do not agree. The fact that Duni3's unemployment insurance was terminated does not mean it was ter- minated because Dunn refused to look for work as a rigger. It is more likely that it was terminated because unemployment insurance is not paid to anyone who has a• job, and operating a farm is considered"ajob, even if the earnings therefrom are not realized for a considerable time. I find, therefore, that the purchase of the farm on which he lived and the termination of Dunn's unemployment insurance do not establish Dunn's unavailability nor constitute a willfully incurred loss.48 The Respondent contends that Dunn's net profits from his operation of his farm should be deducted from backpay. These profits were not realized, however, until after the end of the backpay period. Under the formula of the Woolworth case,49 earnings (and net profits from self-employment) are credited as interim earnings on a quarterly basis. Consequently they will not be taken into account here. Dunn's earnings on his TVA job will be prorated in the third quarter so that earnings following July 25 will not be included. Dunn's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/31) ------------------- $826 0 $826 II ------------------------------ 1,168 $86 1,082 III(7/1-25)---------------------- 281 258 23 Total backpay______________________ _____ _________ 1,931 18. Francis Flippin, carpenter The Board found discrimination for the period between January 15 and July 25, "1950. When offered reinstatement in July 1950, Flippin did not accept it. His -reason for not returning then was that the Respondent had not recognized the Union, and he testified that he would not have gone back earlier unless the job had gone union and he understood it had not done so. From this answer, I conclude 4s Southern Furniture Manufacturing Company, supra 47 East Texas Steel Castings Company, Inc., supra, at 1343-1344; Fox Midwest Amuse- ment Corporation, 98 NLRB 699, at 720, footnote 15. 48 Columbia Pictures Corporation and Association of Motion Picture Producers, Inc, et al, 82 NLRB 568, at 584-585 (White). 49 P. W Woolworth Company, 90 NLRB 289 BROWN AND ROOT, INC., ETC. 535 that Flippin's services were not available to the Respondent during the backpay period.50 Under the circumstances , the application of the Union for Flippin's re- instatement did not constitute a bona fide offer on Flippin's part to abandon the strike and make himself available for work.51 I recommend no backpay for Flippin. 19. Jason S. Ford, carpenter The Joint Council made application for reinstatement of Ford on January 3, 1950, and the Respondent, by registered letter dated March 6, 1950, offered him rein- statement. Ford testified at neither the unfair labor. practice hearing nor the back- pay hearing. The social security reports in evidence show no earnings for him during the backpay period, and there is no other evidence that he was in the labor market during the backpay period after January 3, 1950. I find the evidence insufficient to show Ford's availability to work for the Respondent at any time after January 3, 1950. I recommend no backpay. 20. A. D. Freeman, cement finisher Backpay is claimed for Freeman between January 15 and July 25, 1950. Free- man testified at neither the unfair labor practice hearing nor the backpay hearing. No social security report on Freeman was offered in evidence (not even a blank one) and the specifications show no earnings for Freeman during the backpay period. The Respondent's personnel files contain no information to show that he was in the labor market during the backpay period . On this state of the record, I find no evidence from which it may be inferred that Freeman was available to work for the Respondent after January 15 , 1950. I recommend no backpay. 21. W. A. Gardner, electrician At the end of the strike, Gardner was working in Oklahoma but returned to Arkansas when notified that the strike had ended and that he should return. The Board found that he made personal application for reinstatement on January 3, 1950, and that the period of discrimination lasted until July 25, 1950, when the Respondent sent Gardner a letter offering him reinstatement. Following his unsuccessful application for reinstatement , Gardner was unemployed until April 1, 1950. In the interim, he sought employment through his union and, to a limited extent, by himself. He lived in Booneville, Arkansas, and weekly he alter- nately telephoned or visited the union hall in Fort Smith, Arkansas, to inquire about work. A claim was made for his expenses of traveling between his home in Booneville and Fort Smith but, as Gardner had no earnings during that quarter , the claim must be disallowed. Gardner testified that he registered at the State employment service for unemploy- ment compensation in January 1950 and received checks throughout the first quarter of 1950 except for the initial waiting period . The Respondent's personnel records show that Gardner filed a claim in September 1949 . As this was during the strike, Gardner would not at that time have been entitled to receive unemployment insurance with the Respondent as his base period employer. It does not appear whether Gardner's claim in January 1950 was a renewal of'the September 1949 claim or a new one with a different base period employer. It makes little difference in any - event, because I find that Gardner's efforts to find work through his union showed that he was in the labor market and sustained no willful loss. From April 1 to May 4, 1950, Gardner worked at a job in Campbell, Missouri. His expenses of $44.80 in traveling to and from Campbell to take this job are allow- able. Claim was also made for room and board at Campbell . However, while working for the Respondent, Gardner, whose family continued to reside in Booneville, rented a room at Flippin , Arkansas, and, although figures were not available of the cost of room and board there, I infer that it was approximately the same as at Campbell. Hence, Gardner's room and board at Campbell was not an added expense caused by the discrimination and will be disallowed. Between May 4 and June 16, 1950, Gardner was again unemployed . He did not register at the State employment service during this period , but -he again kept. in contact with his union business agent and, through the latter „ got a lead which, in June, took Gardner to Knoxville, Tennessee, to look for employment. On June 16, he found 3 days' employment with Broadway Electric Service at Knoxville. Although the social security reports do not show Gardner's earnings there , the specifications 60 James Thompson d ('o , Inc, 100 NLRB 456, at 472-473 sl Bruns Coal Company, Inc., 106 NLRB 590, at 592-593. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credit Gardner with earnings of $129.38, much more than what he would have earned at straight-time rates at the Respondent in that time. On June 20, 1950, Gardner got a job in Knoxville that ran for about 2 months. Early in July, while on that job, he learned that a job was going to open up at Oak Ridge, Tennessee, and that he would be able to get a job there. He then notified his wife and decided to move his family to the Knoxville vicinity. Within a week his wife had stored their furniture at Boone- ville and moved the family to the Knoxville area. The furniture was not actually moved until September. It is contended by the Respondent that Gardner was unavailable for employment by the Respondent after July 3,1950. In support of this contention, the Respondent points to Gardner's testimony about deciding to move his family to the Knoxville area after finding prospects of fairly permanent employment there and to Gardner's testi- mony on cross-examination that, when he found conditions at Knoxville as he had described, he decided that he did not wish to return to the Ozark job. The Respond- ent also called attention to the fact that on the NLRB form 916, which Gardner filled out, he claimed backpay from January 3 to July 3, 1950. Gardner testified that he probably wrote July 3 in the erroneous belief that that was the date when he received the Respondent's offer of reinstatement. The actual date of receipt of the Respond- ent's letter of July 25 was not shown in this case. Why Gardner should have thought he received the letter on July 3 does not appear. Because July 3 was, as nearly as the evidence permits determination, the very day when Gardner notified his family to join him, I infer that he, himself, when filling out his NLRB form 916, stated that he did not claim backpay thereafter because that was the date when he decided that he had better employment and that he no longer wanted work with the Rspondent. This also comports with his testimony that when he found conditions as described at Knoxville he decided that he did not want to return to the Respondent. Under the circumstances, I conclude that Gardner was not available for employment by the Respondent after July 3, 1950, and that backpay should therefore terminate as of the date that he was no longer available. I also conclude and find that Gardner was entitled to his expenses of travel to Knoxville in June 1950, but that he was not en- titled to moving expenses of his family incurred after July 3, 1950. Gardner's room and board at Knoxville, like his expenses at Campbell, Missouri, were expenses such as he would have incurred if working for the Respondent and they are not deductible from interim earnings . Gardner's backpay, without shift differential, is as follows: Period Year Quarter Gross backpay Gross Interim earnings Deductible expenses Net Net backpay 1950 I(1/3-3/31)___ $1,255 0 0 0 $1,255 II ------------- 1, 303 $527 $91 $436 867 III (7/1-3)*----- 0 0 0 0 0 Total backpay_____ ______ _______ ______ 2,122 *The Respondent's payroll week ended on July 2, and the average hours to and in- cluding July 2 are included in the second quarter figures. 22. Ray L. Hale, dinkey operator The Board found that Hale made personal application for his former job in the second week of January 1950, and that he was not hired . The exact date was to be determined on compliance investigation. On the basis of the date shown in the specifications, and the admission thereof in the amended answer, I find the date to be January 11., Hale's testimony was so confused as to dates that I have found it of little assist- ance. As near as I can determine , before the end of the strike, Hale was working on the Avalon Dam near Wylie, Texas. This job was closed by seasonal rains and Hale returned to the Mountain Home, Arkansas , area in time to hear that the strike was over and that the men had been told to go back to get their jobs on the Ozark Dam. ' Social security reports on Hale's earnings show $36.87 received in the first quar- ter of 1950 from Moorman & Moorman . Hale identifies Moorman as his employer on the Avalon Dam in Texas. I find that this sum was earned before he returned to make application for his job at Ozark. The specifications claim expenses in the sum of $286.50 based on Hale's trip to Texas and return , during which period he worked for Moorman . As I find that these expenses were incurred before January 11, 1950, I find that the expenses are not deductible from interim earnings During the first quarter of 1950, Hale did some work for his brother-in-law at Mountain Home, Arkansas, and received $ 131.10. The specifications have appar- BROWN AND ROOT, INC., ETC. 537 ently prorated this amount because they show only $115.97' as earned in this em- ployment. The record does not show the date of this work, but on the entire record I would find this work as.following January 11, 1950. I shall, therefore, show the full sum as interim earnings. In the second quarter, before leaving the Mountain Home area again, Hale worked for a short time in Harrison, Arkansas, for a garment factory and earned $60. The social security record shows this as in the second quarter of 1950. While working at that place, Hale drove between his home in Mountain Home and Harrison in his car, a distance of about 50 miles each way. The specifications do not claim this transportation as an expense and I make no finding thereon. Following his employment at Harrison, Arkansas, Hale obtained employment in Nebraska and, later, in South Dakota where he received the Respondent's letter of July 25, 1-450, offering him reinstatement. The specifications claim expenses for travel and room and board while seeking employment in Nebraska and South Dakota in the second quarter of 1950. The amount claimed for this travel is rea- sonable and is allowed. The amount claimed for room and board appears to cover 30 days. Proof that Hale was away from home looking for work for that period of time was not attempted. When Hale got a job at Alma, Nebraska, he transferred his family there, so presumably he was not away from home after he transferred them. Because the evidence does not warrant a finding of more than 5 days away from home while in search of work, I allow $20 for board and lodging for that time. I find no evidence of willfully incurred loss. Hale testified that whenever he was out of work, he was looking for it. Although he did not seek employment through the State employment service, he did get work through his union and by application at construction projects. I find Hale's backpay to be as follows: earnin s Int Period Grose g erum Deductible Net Year Quarter backpay Gross expenses Net backpay 1950 I(1/11-3/13)__ $598 , $131 0 $131 $467 II------------- , 719 672 $83 589 130 Ill`------------- 155 346 0 346 0 Total backpay_____ ------ 597 23. E. E. Harris, carpenter When the strike was over, Harris, a carpenter, made no personal application for reinstatement, although his name was on the Union's list of January 15, 1950. He testified that he did not go back in person because every time he went on that job he had been called to it. Furthermore, he "didn't like to work for Brown and Root, if it was any other job I could do at all." However, he found no other work, and after receiving the Respondent's letter of July 25, 1950, offering him reinstatement, Hams returned to,the Respondent's employ. The Respondent, in its brief, argues that, because of the above-quoted statement of Harris, he could not apply for reinstatement in good faith and that he did not authorize the Union to make application for him. I excluded questioning about the latter because it was a matter already decided by the Board. Because Harris did accept the offer of reinstatement made by the Respondent in July 1950, I am unable to speculate as to what he would have done had the offer been made on January 15, 1950. I do not interpret his testimony as saying that he had at any time reached a decision not to return to the Respondent's employ 52 I find no merit in this argu- ment of the Respondent. The Respondent also contends that Harris- did not make an adequate search for interim employment. Harris-testified that between January 15 and July 25, 1950, he looked for employment in the area of Mountain Home about every 2 weeks, registered for employment with the unemployment service, but was referred to no jobs. As specific instances of his search for work, Harris testified that he applied to two carpenter contractors, to the foreman at the dam at Norfork, and to a wood- working shop in Mountain Home. On the record, I deem it more than likely that these applications were made in 1949 while Harris was drawing unemployment benefits. On cross-examination, Harris admitted that he made no application for unemploy- ment compensation in 1950, although it appears that he did do so shortly after the start of the strike and did again in 1951, and he testified that he remembered no contact with the employment office except on those two occasions. Later, however, 52 See Fox Midwest Amusement Corporateon , et al , 98 NLRB 699, at 720, footnote 15 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he testified that the first application was denied and he reapplied in 1950 after the end of the strike and drew unemployment payments until he returned to work for the Respondent in July 1950 . The General Counsel and the Respondent stipulated that certain claimants received unemployment compensation benefits in 1950 and that no others received benefits in 1950 based on their former employment with the Respondent before the strike. Harris' name was not included as one who had received such benefits in 1950. He did, however, according to another portion of this stipulation , receive benefits in 1949 based on work performed in the fourth quarter of 1948. This stipulation is difficult to reconcile with a document in Harris' personnel file showing that, "after information submitted" by the Respondent to the Employment Security Division of the State of Arkansas on December 28, 1948, Harris was declared ineligible to receive unemployment benefits until he was avail- able for work. There is no showing that he became available to work for the Respondent until after the end of the strike. Because Harris had a house with 30 acres of land , called a farm, and had small sources of income from insurance and service disability payment, the Respondent argues that Harris was not obliged to, and therefore did not, make a serious effort to procure interim employment . Harris testified that he did no farming but helped his 12-year-old son raise some cattle and rabbits which the boy owned, paid the feed bill for the boy, helped him trade cattle, and taught him what to do with a garden patch, the produce of which was eaten by the family. From the evidence , I received the impression that Harris' efforts to procure interim employment were not as strenuous as were those of needier backpay claimants. Since he accepted the Respondent's offer of reinstatement of July 25, 1950, it is apparent that he was not averse to working , but on the evidence, including that which was stipulated, 1 am convinced , and so find, that Harris was waiting for the job to come to him and was not, during the backpay period, actively seeking work. I recommend no backpay for Harris. 24. Herman E. Hayes, carpenter Hayes' claim was dismissed on motion of the General Counsel because it had been learned that Hayes was unable to work during the backpay period. 25. George W. Haynes , vibrator operator Before the strike, Haynes was a vibrator operator receiving 971/2 cents per hour. Because of the General Counsel's contention that the Board erroneously found him to be reinstated and because the Respondent contends that Haynes was not a striker, a brief recital of his employment history may be useful in the event that my recom- mendation as to backpay is not adopted by the Board. Haynes was first employed by the Respondent (so far as his personnel records in evidence show) on September 2, 1947, as a laborer at the rate of 80 cents4an•hour. He was terminated 10 days later because of sickness . On March 9, 1948, he was employed by Flippin in the same capacity (laborer) at the same rate of pay. Ef- fective on April 28, 1948 , he was made a jackhammer operator at the rate of 90 cents an hour. On May 13, 1948, he became a laborer again at the former rate of pay. On June 21, 1948, he was reclassified to apprentice carpenter at the rate of $1 an hour, and on August 23, 1948 , he was reclassified to machine repairman at the rate of $1.10 an hour. On October 6, 1948 , he was transferred to Ozark as a laborer at 85 cents an hour. However, he quit on October 20, 1948, for the stated reason that he did not want to work for laborer's wages . On November 17, 1948, he was reemployed by Ozark as a vibrator operator at the rate of 9716 cents an hour and he continued until the time of the strike . His termination slip, dated December 12, 1948, states as the reason: "Failed to report for work ." When he was rehired on March 25, 1950, he was classified as a laborer at 85 cents an hour. Ef- fective on May 28 , 1950, he was reclassified to vibrator operator at the rate of $1 an hour.53 The General Counsel contends that Haynes was not actually 'reinstated until he was employed in his former capacity at the going rate for that job on-May 28, 1950, $1 an hour, 15 cents an hour more than he received as a laborer between March 25 and May 28, 1950 . The Board, in fixing the date of Haynes' reinstatement as March 25, 1950 , stated (99 NLRB 1060, footnote 56): "Haynes was reinstated initially as laborer and reclassified as vibrator operator on May 27, 1950 . The Trial Examiner found discrimination until May 27, 1950 . However, as it appears that 53A number of discriminatory replacements were hired as vibrator operators between January 15 and May 28 , 1950. See Appendix A. BROWN AND ROOT, INC., ETC. 539 the classification of laborer paid about the same wage rate as vibrator operator, we find the two classifications to have been substantially equivalent." Although I might not have reached this conclusion, myself, it does not appear that the Board was not fully informed of the facts. Its finding that Haynes was reinstated on March 25, 1950, is, therefore, binding on me. The Respondent, in its amended answer, does not deny (and therefore it must be taken to admit)_ that Haynes was a striker. Nevertheless, an offer of proof by the Respondent on cross-examination of Haynes was taken in question and answer form. The offer was inconclusive. As previously stated, Haynes' termination slip was dated December 12, 1948. This is the date found on termination slips of most of the strikers. His slip gave the reason for his termination as "failure to report for work," the,same explanation that was used 4n the case of other strikers. The Respondent's personnel records show that Haynes applied for unemployment compensation in Arkansas on December 14, 1948, that the Respondent was notified thereof, and wrote a letter which had the effect of disqualifying Haynes from receiving unemployment insurance benefits indefinitely. The Respondent's letter is not in evidence, but be- cause the action taken on Haynes was identical with that taken in the case of strikers or strike sympathizers, I infer that the Respondent's letter informed the authorities that Haynes was disqualified as a result of the strike. Even if this is not the case, however, I find that the matter of strike status was open for determina- tion in the original hearing and that the Board's order of backpay for Haynes was based on its conclusion that he ceased working for the Respondent because he was a striker or strike sympathizer. Haynes was asked if he made any attempt to find employment between January 15, 1950, and the time he returned to the Respondent's employ. He answered that he had gone to Springfield, Missouri, and "checked in at the employment office up there." (At the time, he was living in Missouri.) Even if it be assumed that the "employment office" meant the "state employment service," I cannot find that "checking in" meant "registration." 54 If it was intended to mean "registration," there is no evidence to establish this registration other than the foregoing testimony or to show that Haynes kept-his registration alive. I would conclude that, if he registered, which I believe he did,not, he did not keep his registration alive by regularly reporting to the State ,employment office. The date of the visit to Spring- field, Missouri, is uncertain. From the questions asked of Haynes by the General Counsel, his answers might be interpreted to mean that he went there between January 15 and March 25, 1950. On cross-examination by the Respondent, he testified that his visit to Springfield was "sometime in 1950, I guess, early part of 1950." However, Haynes showed no clear memory of dates. If he had registered in 1950, presumably he would have been entitled to unemployment compensation, but he testified that he received none. While in Springfield, Haynes testified, he went to a foundry to look for work. After that, he did not look any more. This was, even by his own testimony, the extent of his efforts to find work until he at- tempted to get employment with the Respondent again. Then, he testified, he started going to the dam every week, then twice a week, and then "maybe every day." On cross-examination, he testified that it might have been in 1949 when he went back to ask for a job and it might have been spring, summer, or fall. On,the foregoing evidence, I am not convinced that Haynes made an adequate effort to find interim employment. Although, according to his testimony, he was persistent in returning again and again to the Respondent and although the Re- spondent had vacancies from time to time in the vibrator operator classification, or could have made a vacancy for Haynes by transferring, demoting, or discharging a discriminatory replacement, when it refused to do so, Haynes was not justified in abandoning all efforts to find employment elsewhere. I find that Haynes suffered a willful loss and I recommend no backpay for him. 26. John H. James, carpenter James did not testify in the backpay proceedings. As found by the Board, James turned down an offer of reinstatement made on March 8, 1950. His backpay was therefore limited to the period from January 3 to March 8, 1950. Although the Respondent claims that James made no reasonable search for interim employment, it offered no evidence thereof as is required under Board procedure.55 It is evident from the testimony at the original hearing as well as the interim earnings conceded 64 Nothing in Haynes' personnel file indicates any registration for unemployment com- pensation in Missouri 55 Ozark Hardwood Company, 119 NLRB 1130. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for him in the specifications that James was in the labor market in the first quarter of 1950. James' backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 I(1/3-3/8)--------------------- $529 $315 $214 27. Ray H. Jencks, jackhammer operator Jencks did not testify at either hearing. The -social security reports show that Jencks had earnings in each of the quarters in the backpay period, January 15 to July 25, 1950. There is no showing of willful loss. Jencks' backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 I(1/15-3/31)------------------- $441 $40 $401 II------------------------------ 541 654 0 III(7/1-25)---------------------- 125 236 0 Total backpay------------ ---------- ----- 401 28. W. A. Kent, carpenter During the backpay period, Kent was in partnership with his father-in-law build- ing houses. He did not seek other employment and testified that he would not have left the partnership to work elsewhere on construction work, including the Re- spondent's construction work. Under the circumstances, I find that Kent was un- available for employment by the Respondent and he'is entitled to no backpay.56 29. Jessie A. Kilfoy, pump operator . Because Kilfoy's testimony was introduced in the record at the unfair labor prac- tice hearing in the form of a stipulation,57 the Respondent at the backpay hearing sought to question Kilfoy, who testified in his hearing, about the facts stipulated to. It was permitted to do so as an offer of proof, which I rejected because I am bound by the original record and the Board's finding of discrimination.58 The Respondent also sought to discredit Kilfoy's testimony by evidence that in September 1943 Kilfoy was convicted of the crime of "carnal abuse" for which he was sentenced to 5 years' imprisonment. The exact nature of the crime committed by Kilfoy was not established. 'He testified that he was convicted for "getting a woman in a family way." It may be assumed that-the crime involved moral turpi- tude but was not a crimen falsi. In February 1947- he was paroled and, in the same year, at the expiration of his minimum sentence, was discharged . I am not per- 54 Alexander Manufacturing Company, 110 NLRB 1457; Deena Artware, Incorporated, 112 NLRB 371, at 378. 67 The Respondent , in its brief , accuses Trial Examiner Doyle of losing the pages of the transcript which contained this stipulation, because they were not in the transcript of the unfair labor practice hearing at the time of the backpay hearing, and the Respond- ent reasons that Trial Examiner Doyle must have relied on his notes in making findings of fact respecting Kilfoy. These surmises of the Respondent are unfounded . When the record was printed for use in the circuit court of appeals , the designated portions of the transcript to be printed were removed, at that time, from the transcript and were not replaced This was true of all other portions of the transcript designated for printing Those pages not found in the transcript will, therefore, be found in the printed record Because reference was made to the stipulation at the backpay hearing, I requested the official reporter to copy, from the carbon copy of the original transcript, the pages con- taining the stipulation and to include it, for convenience , in the transcript of the unfair labor practice case proceedings, which he did 51 Should the Board decide to take cognizance of this offer of proof, it should also examine Kilfoy's personnel file, which is in evidence on microfilm, for the purpose of fix- ing dates, which appear to conform to those in the original stipulation It should also take note of the point made in the General Counsel's brief to the Trial Examiner, which, because of my rejection of the offer of proof, I have not found it necessary to mention. and the payrolls , which indicate that not all the pump operators were on the type of split shift that was offered to Kilfoy. In fact, most of the replacements on the payroll on the dates concerned were on straight shifts. BROWN AND ROOT, INC., ETC. 541 suaded by this evidence that Kilfoy was not credible, although his memory at times appeared faulty, but if I were to discredit Kilfoy and if I excluded all his testimony, the exclusion would not redound to the benefit of the Respondent, for no contra- dictory evidence was offered by the Respondent and, in fact, no other evidence was adduced at all which would serve to show a willful loss incurred by Kilfoy. Kilfoy testified that between December 21, 1949, the date of discrimination found by the Board, and February 13, 1950, he drew unemployment compensation and kept in touch with the unemployment office. There is nothing in Kilfoy's per- sonnel file to show that he drew unemployment benefits during this period on the basis of former employment with the Respondent and it was stipulated that he did not. However, if he worked for other employers during the strike, he would have been eligible for unemployment benefits on the basis of that work. The stipulation does not, therefore, controvert Kilfoy's testimony. During this period of time Kilfoy also "kept in touch" with his union (Local 382 of the Operating Engineers) as an applicant for a job. He turned down no offers. On February 13, 1950, Kilfoy got a job with a steel company at the Norfork Dam not far from Mountain Home. There he operated a compressor, electric welders, and some gas machines. This job ran out on May 13, 1950. Soon after that date he was sent by his union to Newport, Arkansas, to run compressors for the Bechtel Corporation. Because of inclement weather, the compressors were not put into operation and Kilfoy was put to work on firing a tar pot and hauling around a 6-inch hose used for spraying hot tar on a pipeline. Kilfoy had suffered a wound in World War I which prevented him from performing heavy manual work and he worked only 1 day at this work before giving up. However, he remained in the work camp there with his wife because he was given to understand that he would soon be put to work on the compressors. Having waited for about 3 weeks without being put to work, Kilfoy ran out of funds and had to borrow money with which to get home For an entire year after his return to Mountain Home, Kilfoy was unemployed. During this time, he testified, he tried to find work through the employment service in Mountain Home, where he registered for work as a compressor and pump operator although he did not draw any unemployment compensation. Aside from this, he "tried to find work at some filling stations, something like that, some stuff that was light," and he sought work as a caretaker at a couple of resorts in the area. Kilfoy testified that that was about all he did to find work in that year. Kilfoy was not specifically asked if he had sought work through his union in this period and did not specifically say that he had not done so. His somewhat indefinite answer, "That is about all, I guess" to the question of what else he did to get work is not too satis- factory a basis for an inference that Kilfoy made no effort to get a job through local Operating Engineers. There is no evidence of the working of that union's job referral system. If Kilfoy's name was on their list once, that might have been sufficient for a full year without further contact so far as the record shows. On July 2, 1951, having received a letter from his son in Canon City, Colorado, telling Kilfoy that he had a job for him, Kilfoy set out with his wife for Canon City without attempting to learn the nature of the job or the compensation. The job was one of cleaning up around the grounds of the Royal Gorge Park. He-was paid $5 a day but quit the job after 4 days because he had to commute 21 or 22 miles (one way) from Canon City to work each day and, he testified, he could not make enough to pay his transportation, rent, and food He testified there was no place at the park where he could have resided. At 7 cents a mile, Kilfoy's expense of commuting would have been more than $3 a day, which would have left less than $2 for board and lodging for himself and his wife. After giving up the job at Royal Gorge Park he registered for work at the State employment service in Canon City and was referred to odd jobs which, in 3 months' time, paid him about $25. One expected job assured him by the State employment service failed to materialize. Kilfoy was in Canon City when he received a letter from the Respondent on September 17, 1951, offering him back his job. He returned to Arkansas and was reinstated by the Respondent on September 25, 1951. He continued to work there until he was laid off in a reduction in force in May 1952.• The Respondent claims that Kilfoy did not exercise reasonable diligence in an effort to get interim employment. Although there is a suggestion that Kilfoy's search for work between mid-June 1950 and July 1951 was desultory and unambitious, the record is in a less than satisfactory state to support a finding that the Respondent has sustained the burden of proof of willful loss. Kilfoy registered in Mountain Home with the employment service for work as a pump or compressor operator but may 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have tried to get work through his union . When he left Newport, Arkansas, Kilfoy was told he would be notified when there was work for him. For a time this might have deterred him from further efforts to get a job through his union. What about the remaining time? As Kilfoy was never specifically asked about his contact with the union office during this period of time, it is impossible to know whether or not during the whole period of his unemployment he remained a member in good standing with the union and could have obtained a job through it. Without a job, he may have been unable to pay dues and may have been dropped from membership, without which it is at least doubtful if he would have been given a referral by the union. In the absence of a showing of membership, I am of opinion that Kilfoy was not obliged to seek work through a union. The record does not show whether or not Kilfoykept his registration for a job with the employment service active by report- ing at least twice a month . As the burden is on the Respondent to prove willful loss, and as the Respondent did not show a failure on Kilfoy's part to keep his registration active, no willful loss is established in this respect. It is evident that whenever Kilfoy heard of a job that he was capable of doing, he proceeded to it at once. I am unable to find that Kilfoy's quitting at either Bechtel or Royal Gorge Park proved a willfully incurred loss since he appeared justified in each instance in quitting .59 The first job was more strenuous than his regular work and may well have aggravated Kilfoy's infirmity. Although Kilfoy earned less in Canon City than he would have at the Royal Gorge Park, it cannot be said that that was to be expected when he gave up his job there and registered for work at the unemployment office. The record shows that Kilfoy's wife, a nurse, obtained employment in a hospital in Canon City, and a suspicion arises that Kilfoy, because of that, was relieved of the pressure of finding a job, himself, and therefore did not exert due diligence to find a job which paid better than the part-time job he got at a service station . But this is no more than suspicion, and he did try to get employment through the unemployment office. In view of the fact that Kilfoy returned to the Respondent when offered reinstatement and worked there as long as there was work for him , it cannot be concluded that he was avoiding employmet t,of a type he could perform. The General Counsel claims as expenses, not only,Kilfoy's round trip transportation to Newport and to Canon City when going to those places for work, but also claims board and room at Newport and phone calls getting the Bechtel job and claims rent while at Canon City. The evidence is not altogether satisfactory on these claims. Kilfoy took his wife with him to each job . It does not appear that he had a per- manent place of abode in which he lived at Bull Shoals near Mountain Home. For all that appears, he gave up his domicile each time he moved. On this state of the record, he would not be entitled to subsistence but only to transportation .80 How- ever, on the basis of a complete move each time, he would be entitled to transportation for both himself and his wife . The cost of moving to Newport was not separated from total expenses, but, having examined maps of the area and discovered that the highway mileage between Mountain Home and Newport is 111 miles and that the railroad route does not appear to be any shorter, I estimate the cost of round trip transportation as approximately $ 16, and, as even this cost exceeds Kilfoy's earnings during the third quarter of 1950 of $13.75, I shall allow expenses in that quarter to the extent of earnings . The total cost of transportation for two people to and from Canon City was fixed at $176. As thiSLexpense likewise exceeds Kilfoy's earnings during the third quarter of 1951, even counting an extra $25 earned at odd jobs, which was not shown in the specifications , expenses of transportation will be allowed in this quarter to the extent of earnings. I note that, in computing average hours for pump operators, the General Counsel included the time of pumpers as well as of pump operators, the rates of pay of both being the same. No differences in function were shown. The Board appeared to group them together. Some claimants served in both capacities . I would assume that the jobs of pumper and pump operator were about the same. However, even if pumpers were not to be included in determining average hours, I note from my examination of the payrolls in evidence that their inclusion does not increase the over- all averages . In fact in many instances it tends to lower them. Kilfoy's backpay is as follows: w See Harvest Queen Mill & Elevator Company, 90 NLRB 320, at 338 ; L B. Hosiery CO, Incorporated, et at., 99 NLRB 630 ; Brotherhood of Painters , Decorators & Paper- hangers of America, Carpet, Linoleum & Resilient Tile Layers. Local No 419 (Lauren Burt, Inc, of Colorado ), 114 NLRB 295, at 299-300. 60 West Texas Utilities Company . Inc, 109 NLRB 936, at 938 BROWN AND ROOT, INC., ETC. 543 Interim earnings Period Gross Deductible Net Year Quarter backpay Gross expenses Net backpay 1949 IV (12/21-31)___ $111 0 0 0 $111 1950 I_____________ *659 $392 0 $392 267 II_____________ 734 451 0 451 283 III_____________ 758 14 $14 0 758 IV ------------- 727 0 0 0 727 1951 I_____________ 875 0 0 0 875 II_____________ 981 0 0 0 981 111(7/1-9/24) --- 876 45 45 0 876 Total backpay_____ ______ ______ ______ ______ 4,878 *The backpay was inaccurately computed by the General Counsel on the basis of 537 adjusted average hours. There were 527 such hours in the quarter. 30. Dave E. Killian, jackhammer operator The Board found discrimination against Killian from January 15, 1950. However, the specifications except from this period the time between February 12 and 26, 1950, during which time he was supposedly unavailable for employment. Killian did not testify at either hearing, but the social security information in evidence discloses earn- ings for each quarter of the year 1950 within the backpay period, and I take this as evidence that Killian was in the labor market. There is no evidence of, willfully incurred loss. The specifications claim certain expenses for Killian in his search for work and while engaged in interim employment. However, as no proof was offered concerning these expenses, they are disallowed. Killian's interim earnings exceed gross backpay in each quarter except the first, in which he earned $192. As the social security reports show all Killian's earnings as received from the same employer, I infer that the $192 was all earned after the excluded period and will deduct the entire amount from gross backpay. Killian's backpay is therefore: Period Gross Interim Net Year Quarter backpay earnings backpay 1950 I(1/15-2/12,2/26-3/31)_________ $383 $192 $191 31. Onimus Kyles, aggregate conveyor operator Kyles did not testify at the backpay hearing, but earnings are shown for each quarter of the backpay period. The Board found discrimination between January 3 and August 1, 1950, and again after October 10, 1950. From August 1 to September 30, 1950, Kyles was on the Flippin payroll and thereafter until October 10, 1950, he was on the Ozark payroll. In line with his theory that employment at Flippin was, in view of the court's decision, not reinstatement, the General Counsel has treated Kyles', employment at Flippin only as interim employment and has computed his backpay from January 3, 1950, to September 9, 1951, excepting the period from October 1 to 10, 1950. I have previously decided that it is not for me to modify the Board's Order. I shall, therefore, ascertain Kyles' backpay for the periods of January 3 to August 1, 1950, and that of October 10, 1950, to September 9, 1951, the cutoff date fixed in the specifications. Presumably this date was fixed as the time when there would have been no more work for Kyles as an aggregate conveyor operator on the Ozark payroll because he was not again reinstated at that time. Actually Kyles was rehired on the Flippin payroll on September 25, 1951, as an aggregate conveyor operator and worked until January 11, 1952. Kyles registered for unemployment benefits on January 30, 1950. There is no evidence of any willfully incurred loss. Kyles' backpay, without shift differential, is as follows: Period Gross Year Quarter backpay Net interim Net earnings backpay 1950 1(1/3-3/31) -------------------- $634 $100 $534 II ------------------------------ 739 100 639 111 (7/1-8/1) --------------------- 250 25 225 IV (10/10-12/31) ----------------- 730 40 690 1951 I______________________________ 1,110 65 1,045 II ------------------------------ 1,248 318 930 111(7/1-9/9) --------------------- 1,108 669 439 Total backpay______________________ _____ _________ 4,502 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 32. Willie W. Lackey, pump operator The Board found discrimination against Lackey from February 23, 1950, until offered reinstatement. The Board might, in the light of evidence available now, wish to review its findings, because it found a constructive discharge, presumably occurring on February 23, 1950, the record in the original hearing not being specific in dates of Lackey's transfer to the hole and of his leaving for that reason. A note in Lackey's personnel file shows that on January 7, 1950, Lackey was transferred to the hole (coffer dam). By examining the payroll, it may be seen that the last day worked by Lackey was Sunday, January 15, 1950. Thereafter, his name was carried on the payroll until February 23, 1950, at which time, according to evidence in Lackey's personnel file, a termination slip was made out showing his termination for failure to report for duty and his name did not show on payrolls after that. In finding the backpay due to Lackey, I shall use the date specified by the Board as the date for beginning of backpay. The General Counsel has excepted the week following February 23, presumably because of a period of illness which Lackey had. I am not at all satisfied that the date of the period of illness was correctly fixed. It is only through counsel's questions on cross-examinations at the backpay hearing that any date appears and I am not satisfied that Lackey had any clear recollection of dates at that time. Lackey's answer to the question, "Now, Mr. Lackey, I believe it is true, is it not, that on February 23 you quit your job out there?" was "Yes, I was sick. I got sick and had to quit. I just couldn't go any further out in the weather. That is how come me to take off." This answer implies that Lackey was working at the time he became ill and took off. Yet from January 15 to February 23, 1950, Lackey is not shown by the payroll to have worked at all. He testified that he had influenza or pneumonia and was in bed "for a week, anyhow" and that he went back to the dam after his illness, "I don't know, March, I guess, of 1950, February or March," and that he was told there were no openings for pump operators, that he asked for any other work that he could do but was told there were no openings. Following this testimony, counsel for the Respondent used March in his questions as the month when Lackey was back looking for work. Lackey testified that he went both to the employment office and to Balleau after his illness and asked about getting his job back "down in the hole," but Balleau said he did not need anyone then. When asked again whether this was in March, Lackey replied, "Something like that. It might have been a little earlier. That was in March I think." It is difficult to tell what dates Lackey might have given but for the suggestions made by counsel, but his memory of dates generally was not too accurate. The possibility that Lackey's illness occurred in mid-January and that he returned for his job about February 23, at which time he was told he was not needed is suggested by the foregoing evidence. It is further suggested by the fact that Lackey signed the back of the termination slip, which was dated February 23, although he was not asked when he signed it. It is not my function, however, to consider what effect the additional facts shown might have had upon the conclusion that a discrimination occurred had these addi- tional facts been known at the time of the original hearing. The fact of discrimina- tion and the date thereof are res judicata. Because the date of commencement of backpay is fixed as beginning on February 23, because the specifications are drawn on the basis of the assumption that Lackey was unavailable for work for a week after that date, presumably because of illness, and because counsel for both sides appear to have accepted this as fact, I shall make my findings of backpay accordingly. From the time of his recovery from his illness and his unsuccessful attempt at reemployment at Ozark, Lackey was unemployed until about June 1, 1950. During this time, Lackey reported to the State employment service every 2 weeks when it was in Mountain Home,61 he tried twice to get work at a service station in Flippin, Arkansas, and once at Cotter. These and a return to the dam once or twice were the only specific applications he recalled. Lackey testified that he could not do farmwork because he considered it too strenuous for him at his age and because the pay was only $1 a day. He had once had a job in Kansas City, Missouri, at a filling station and possibly might have got one there in March, April, or May, 1950, but, 01 This does not mean he registered for unemployment compensation but only for work. A stipulation of the parties as to the strikers who received unemployment compensation payments in 1949 and 1950 did not include Lackey's name, and he was, therefore, excluded as one who had received such payments. Lackey registered for such benefits in March 1949 and might have been entitled to them after the end of the strike. The fact that he was reemployed at the end of the strike may, in part, account for his failure to apply for payments at that time, and his signing of a termination slip for failure to report for work may have stood in the way of his receiving benefits later that year. BROWN AND ROOT, INC., ETC. 545 he testified, he did not try there then because he was trying to sell a place he owned near Norfork and buy a filling station of his own . He apparently succeeded in doing this because he began operating his own station on June 1, 1950 , and con- tinued to operate it for a little over a year. He testified that he had gross sales of $1,800 but no profit. The Respondent offered no evidence to refute this. I note, however, that the specifications show interim earnings during this period and I accept them. as an admission of net profit. During the time he ran his own business , he did not try to find other work, but there is no evidence that he , had unequivocally indicated a decision not to return to his former employment at Ozark and he was never offered reinstatement .62 I find no willfully incurred loss. In May 1951 63 Lackey closed his gas station and took his wife to Kansas City, Missouri, for an operation. He never returned to Mountain Home from Kansas City, and he testified that he never wanted to return once he got there . He devoted his first 3 weeks after he arrived there to staying with his wife at the hospital she was in. Then, around June 10,64 he got a job at the filling station where he had once before been employed , and continued to work there for 4 years thereafter, long after the end of the backpay period shown in the specifications. When Lackey was rehired in December 1949, he was given a split shift , working some days on the swing shift and some days on the graveyard shift. On the latter, he received a premium of 5 cents an hour. I find that he would have received this premium but for the discrimination found by the Board . I shall, therefore, in com- puting backpay for Lackey from February 23, 1950 , to the end of the Respondent's payroll of May 20 , 1951 (the latter date being the one after which he no longer desired to return to Mountain Home), less the week between February 23 and March 2, 1950, add premium pay on one-half of Lackey 's hours. Lackey's backpay is as follows: Period Gross Year Quarter backpay Net interim earnings Net backpay 1950 I(3/1-31 )---------------------- $264 0 $264 II------------------------------ 748 $212 536 III------------------------------ 773 688 85 IV ------------------------------ 741 688 53 1951 I ------------------------------ 889 169 720 II------------------------------ . 998 257 741 III(4/ 1-5/20 )-------------------- 526 370 156 Total backpay---------------------- ----- 2, 560 33. C.• C. Landry, carpenter Landry did not testify at either hearing. The General Counsel stated that he was ill at the time of the backpay hearing and was not available to testify. The Board found Landry to have been discriminated against from. January 15 to July 25, 1950. Although no earnings- for Landry were shown in the social security reports, the specifications show interim earnings in each of the quarters of the backpay period. Thus Landry is shown to have been in the labor market. The specifications claim expenses of travel 'from Missouri to Denver, Colorado, and for room and board in the first and second quarters of 1950: No evidence was offered that these expenses were incurred in seeking or in the course of interim employment, much less that the amounts were correct . I shall not, therefore, allow them as a deduction from gross interim earnings . The Respondent offered .no evidence of willful loss or any evidence to show that Landry was not at all times available to return to work for the Respondent during the backpay period. Landry's backpay is as follows: earnin s i I t I t i Period Gross - g n er m n er Deductible m Net Year Quarter backpay Gross expenses Net backpay 1950 I ------------- $663 $31 0 .$31 $632 ------------- 840 453 0 453 387 ------------- ------------- 186'. 112 0 112 74 Total backpay----- ------ 1,093 r es See L. B. Hosiery Co ., Incorporated, et al., 99 NLRB 630, 631, 634. 63This 'date is fixed in part by Lackey's . testimony and in part on the social security reports. 64 Computed from earnings at Walt's Service Station at $45 a week, his starting rate 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 34. Archie Lazenby, pump operator The Board found Lazenby's discrimination to run from January 15 to July 25, 1950. Lazenby did not testify at either hearing. The social security reports show no earnings reported in the backpay period, but the specifications state that Lazenby was self-employed during the backpay period, operating a retail variety store but without profit. This was not specifically denied by the Respondent's amended answer. The Respondent offered no evidence respecting Lazenby. As no willful loss is shown I find Lazenby's backpay to be as follows: Interim earnings Perio d Quarter backpay Gross ea;pensese Net Year Net backpay 1950 I_____________ $560 0 0 0 $560 II_____________ 734 0 0 0 734 III ------------- 172 0 0 0 172 Total backpay ----- ------ ------ ------ ------ 1,466 35. Frank J. Lippe, mechanic working foreman The Board found that Lippe was discriminated against from January 3 to July 25, 1950. The Respondent argues that Lippe was a supervisor and not entitled to the protection of the Act and that he was in the IAM unit, was an economic striker, and as such should be dealt with as were the other IAM strikers. Both the issues raised by the Respondent are matters that should have been raised at the original hearing. If any modification of findings is to be made, it is up to the Board and not the Trial Examiner to make them. Lippe was patently confused about dates in his testimony. He testified that he got a registered letter from the Respondent offering him his job and that this was in 1948. As he received only one registered letter and the only one shown to have been sent was sent on July 25, 1950, I conclude that this was the one which Lippe thought he had received in 1948. Lippe testified that after the Union told the boys they could go back to work, he went to the dam and asked for his job and was told they could use him as a helper but that he was not interested in that job. He tried to get work at several little garages in Harrison, Arkansas, and Branson, Missouri, 15 to 20 miles from his home in Omaha, Arkansas. There is, no evidence that Lippe registered with the State employment agency in 1950.65 Before Lippe received the Respondent's letter of July 25, 1950, offering reinstate- ment, he had applied for work with another employer and, after receiving the Re- spondent's letter, he went to work for the other employer instead of returning to the Respondent's employ. Lippe had a farm of 160 acres on which he raised enough hay for his own use, he had a few milk cows which his wife milked, and some chickens which his wife raised, but the only thing he sold from the farm was a little milk and some stay bows which he cut. The Respondent claims that Lippe's earnings from his farm should be credited as interim earnings. However, there is no evidence that he did not have the same small source of income from his farm while working for the Re- spondent and I would infer that he did have some of it at least. That portion is, therefore, not to be treated as interim earnings.66 However, because Lippe had no other employment during the backpay period, the General Counsel has, in the specifications, charged Lippe with interim earnings to the extent of the wages of farm labor in Arkansas. This concession appears to be fair and equitable and it will stand. Although Lippe apparently did not register with the employment agency, he is shown to have made some search for work and, when he did find it, he was con- tinuously employed until 1958. I find, therefore, that Lippe did not withdraw from the labor market. There is no evidence that he rejected any offers for work or suffered any willful loss. Determination of average hours for Lippe is complicated by the fact that, although the Board found a promotional replacement in the job formerly held by Lippe, it did not identify such replacement nor indicate whether he was on the Ozark or the es It was stipulated that, after the hearing, Lippe had produced records which showed that he had drawn unemployment compensation for a number of weeks in 1949, but pro- duced no record that he had registered with the State employment agency in 1950 or that he had any earnings that year. 66 Acme Mattress Company, Inc, 97 NLRB 1439, at 1442-144a. and cases there cited BROWN AND ROOT, INC., ETC. 547 Flippin payroll. There were replacements of mechanic working foremen on the Ozark payroll during the strike but in the week ending January 8, 1950, the week of Lippe's application, there is no one described as a mechanic working foreman on the payroll of hourly paid employees 67 There was in that week one mechanic foreman, J. H. McCracken, badge No. 3824,68 but although the rate of pay for mechanic foreman is the same as for mechanic working foreman there is no evidence of similarity or difference in the jobs. Before the strike, I note, there were several mechanic working foremen as well as mechanic foremen. The distinction is not shown except in the job title. In February 1950 there appears on the payroll a me- chanic working foreman-George Whitman-who split his time between that job and the job of ironworker. From the average hours used by the General Counsel to compute Lippe's backpay, I surmise that he used the hours of McCracken, averag- ing in those of Whitman for the period between February 26 and April 9, 1950.69 Because that method appears to produce the figures used by the General Counsel, I have used these figures in computing Lippe's backpay. It will be for the Board to determine if McCracken was the replacement it had in mind. Lippe's backpay is computed at $1.621/2, his base rate, as follows: • Period Year Quarter Backpay 1950 I_____________ $850 II_____________ 980 III ------------- 283 Interim earnings Deductible Net Gross expenses Net backpay $246 0 $246 $604 243 0 243 737 79 0 79 204 Total backpay_____ ______ ______ ______ ______ 1,545 36. S. L. Lynch, carpenter Lynch testified at neither hearing. The General Counsel produced no evidence, not even social security data. The Joint Council made application for reinstatement on behalf of Lynch on January 15, 1950. From this it might be inferred that Lynch was available for employment on that day, but because of the total absence of any- thing thereafter to show that Lynch was ready, able, and willing to work, I cannot infer that• he was in the labor market after that day and I recommend no backpay for him. 37. Frederick P. Marberry, carpenter The backpay period is January 3 to March 8, 1950. The Respondent claims that, Marberry is entitled to no backpay because he did not exercise due diligence in searching for other employment, but that if backpay is due at all it should be less than claimed for the reason, among others, that Marberry had interim earnings from self-employment in 1950. With respect to the latter assertion, I find that no earnings from self-employment during the backpay period were shown even in an undisclosed amount. The Respondent took the position that Marberry, who was in the grocery business at the time of the backpay hearing, had gone into this busi- ness in 1950 during the backpay period. Marberry denied that he had started in the grocery business that early. Counsel for the Respondent stated on the record that he had an informant who informed him differently, but he did not produce any witness to testify to that fact. Regarding search for interim employment, I find that Marberry was employed for a portion of the first quarter, and because Marberry testified that he had gotten this job in 1949, I infer that it continued into 1950 and ran for a little less than 3 weeks in January 1950. This does not conflict with the Board's finding that he applied for reinstatement on January 3, 1950, because Marberry testified that he was employed by Gable Electric Company at Norfork Dam at the time he applied to the Respondent for reinstatement. Evidence of what Marberry did after his job at Gable Electric ended is vague. Marberry did not have a good memory for dates or for his activities 8 years earlier, a fact that is not surprising. He testified that he registered for unemployment compensation at Yellville (his county seat) and that he may have drawn a few checks. Although on cross-examination, the Respond- 57 Emil Stimac, badge No 135, appears on the payroll of January 15. 1950, as a mechanic working foreman receiving a salary instead of an hourly rate. He was on the hourly paid payroll before the strike and continued to work after the beginning of the strike, so he is not a replacement. 11 There is a machinist working foreman , which may or may not be a substantially equivalent position. 09 On the latter date Whitman became a shovel operator. 614913-62-vol 132-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent succeeded in confusing Marberry and in casting doubt upon his testimony of having registered for unemployment benefits, his personnel file shows that he regis- tered in February 1949 and again on January 30, 1950. But Marberry's memory of what he did to find work was almost a blank. When asked what he did while unemployed in 1950, Marberry at one point on cross-examination, guessed he hunted for work; at another point he agreed with counsel for the Respondent that he was either working for Gable Electric or was out looking for a job. The only specific applications for work that Marberry remembered were those made to the Re- spondent. Although Marberry's testimony was vague, he did not testify to anything that would indicate a willfully incurred loss, and he was unemployed for no more than 6 weeks up to the date of the Respondent's offer to reinstatement. The Respond- ent offered no independent evidence of willful loss. On all the evidence, I conclude and find that Marberry is entitled to backpay. • A claim was made for Marberry's expenses of traveling from his home in Flippin, Arkansas, to his job at Norfork Dam. He testified that he was in a car pool and drove every third day. There is no evidence of the cost of his transportation from Flippin to Bull Shoals when he was working for the Respondent. Although the distance from Flippin to Bull Shoals Dam is 12 miles, whereas the distance from Flippin to Norfork is 26 miles, Marberry might have driven his car to Bull Shoals every day when working for the Respondent whereas he drove only once or twice a week while working at Gable Electric. For insufficient evidence of extra cost of transportation, I shall exclude his claimed expenses as a deduction from interim earnings. The General Counsel did not explain the difference between its figure of $112 shown as interim earnings in the specifications and the figure of $154 which was shown in the exhibit on the social security information. I shall, therefore, use the latter figure. Marberry's backpay is as follows: Year Quarter Gross Net interim Net Q1carter backpay earnings backpay 1950 I(1/3-3/8)--------------------- $529 $154 $375 38. Harvey E. Marchant, crane operator As stated in the opinion of the Board, Marchant was rehired by the Respondent on July 12, 1950, as an aggregate conveyor operator at $1.25 an hour. At this time the rate for the job of crane operator, without the 5-cent premium for work on the graveyard shift, was $1.75 an hour. The Board apparently considered that this was not reinstatement for it left the time of reinstatement of Marchant to a substantially equivalent position for determination in the compliance proceedings. It is well- established Board law that if the discriminatee's former position is available he is to be reinstated to that position, and he is to be reinstated to a substantially equivalent position only if his former position is not available to him.70 Not only was Marchant's former position available on January 4, 1950, the initial date of discrimi- nation, but it was also available on July 12, 19510. Promotional replacements could have been demoted or transferred to provide Marchant with his former position on January 4, and on July 12 both promotional and discriminatory replacements held jobs as crane operators. Following July 12 other promotions were made to the job of crane operator ahead of Marchant. Before Marchant was actually promoted to that position on September 11, 1951, he could at any time have been reinstated to that position had the Respondent complied with its legal obligation. The Respondent has raised the argument that Marchant by accepting checks under the unemployment provisions of the GI bill, acted in a way which it contends is incompatible with his status as a striking employee. If the Board had not considered Marchant as a returning unfair-labor-practice striker, it could have found no dis- crimination. The Respondent's contention (whether valid or not need not be deter- mined) should have been raised at the unfair labor practice hearing, and it should not be raised here. It is also contended by the Respondent that Marchant was rehired under an agree- ment which was satisfactory to him and which he accepted. This contention could likewise have been raised at the unfair labor practice hearing along with other evi- dence of reinstatement or offers thereof. However, it may be pointed out that an attempt by the discriminatee to dispose of his rights by private agreement or act to which the Board is not a party does not dispose of the unfair labor practice.71 If the Respondent had offered Marchant reinstatement to his former position and if 70 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 71 J. B Wood, an individual, d/b/a Wood Manufacturing Company, 95 NLRB 633, 642; Newspaper and Mail Deliverers' Union of New York and Vicinity, 93 NLRB 237. BROWN; AND ROOT, INC., ETC. 549 Marchant had then turned it down in favor of another job, the Respondent would have discharged its duty under the Act. But it does not appear that Marchant was offered his former position until September 11, 1951, and, therefore, he had no oppor- tunity to reject it. His acceptance of another position when his own was not offered was no more than a Hobson's choice and does not rectify the unfair labor practice. Although Marchant was given periodic promotions by the Respondent first to heavy duty truck-dozer operator at $1.45 an hour, then to heavy duty truck-tractor operator at $1.8125 an hour, and, on April 2, 1951, to structural ironworker at $2.125 an hour, and later a transfer to rigger at the same rate, there is no evidence from which it can be found that the jobs of structural ironworker and rigger were no more arduous or were otherwise more desirable than that of crane operator, the rate for which, after November 1950, was $2.25 an hour base rate, 12th cents an hour more than the pay for structural ironworker at that time. Furthermore, as pointed out, the job of crane operator existed throughout the backpay period and was available to Marchant. There was no justification for substitution. I find, therefore, that Marchant was not reinstated to his former or a substantially equivalent position until September 11, 1951, when he was promoted to his former job as crane operator. His backpay period is, therefore, January 4, 1950, to September 11, 1951. In ascertaining gross backpay, I have found a few errors in the General Counsel's computation of average hours, occasioned by a miscount of the number of operators in certain weeks in the second quarter of 1951: I have adjusted these.72 Marchant was employed in each quarter of the backpay period and, I find, suffered no willful loss . There is a discrepancy between the amount of interim earnings at the Respondent as shown in the specifications for the fourth quarter of 1950 and that shown in the social security report, which shows about $65 more than do the specifica- tions. I shall take the higher figure. Marchant's backpay without shift differential is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 I------------------------------ $998 $917 $81 II ------------------------------ 1,136 1,135. 1 III ------------------------------ 1 ,094 736 358 IV ------------------------------ 1,034 999 35 Total 1950------------------------- ----- --------- 475 1951 I------------------------------ 1,404 922 482 II------------------------------ 1,636 1,523 113 III ------------------------------ 1, 244 1,043 201 Total 1951------------------------- ----- --------- 796 Total backpay---------------------- ----- --------- 1,271 39. John W. Marchant, ironworker The backpay period is January 3, 1950, to September 10, 1951. The Respondent's principal contention is that the Board made an error in finding that the Respondent discriminated against Marchant by refusing him employment as an ironworker when he had been doing work as a mechanic and, on application for reinstatement, requested work as a mechanic. This contention is outside the scope of these pro- ceedings 73 The Respondent's answer admitted that Marchant was employed as an ironworker at $1.70 74 an hour (base rate) before the strike. At the time of his first 72 For the week ending April 8, 1951, the averages were not affected by the omission of one operator and his hours . For the week ending April 15, the average was increased from 50 to 54 hours, but for the week ending April 22, the averages were reduced from 62 to 56. For the entire quarter, there were 727 instead of 729 hours. 73 Additional evidence taken on offer of proof in the backpay hearing may be useful to the Board if it desires to review the effect of misclassification under the Davis Bacon Act (as in the case of the thin wall tubing installers who were misclassified under that Act as mechanic repairmen and, because of the misclassification , were included by the Board as economic striking mechanics ). The evidence here also more specifically fixes the date of Marchant's first personal application. 74 There were two types of ironworkers . Marchant was receiving the pay of structural ironworker as distinguished from reinforcing ironworker . In spite of his classification, Marchant had been, before the strike , a trestle mechanic, repairing cranes and had never done structural ironwork unless installation of compressor machinery could be so classified. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application for reinstatement, the Respondent denied him reinstatement as an iron- worker even though there were then replacements who could have been shifted or released to make room for him. When Marchant informed the Respondent 's person- nel man that he had done heavy -duty mechanic work, the personnel man denied his application for such work on the ground that Marchant had not been so classified at the time of the strike. The Respondent in its brief states that it does not contest the sufficiency of Mar- chant's search for interim employment between January 3, the date of application for reinstatement, and 25, 1950, the date of his hire by Flippin. Although Marchant's Flippin hiring slip in January 1950 (to be found in his personnel file) showed his classification as mechanic repairman, he was given a pay rate, not of $ 1.10, the going rate for most mechanic repairmen, 75 but $ 1.45, the then current rate for maintenance mechanics , heavy-duty mechanics, and machinists . On June 18, 1950, he was re- classified to a working foreman at $ 1.625 an hour. This promotion did not bring him up to his former rate . The Respondent contends that this promotion made Marchant a supervisor and took him out of the protection of the Act. Marchant testified that after this promotion he did the same kind of work as before although he had an assistant, but that he did not direct the work of others. I find he was not a super- visor within the meaning of Section 2(11) of the Act. I find no merit in the Respondent 's contention that, as an ironworker, Marchant would have been entitled only to 44 hours' work between January 3 and 25, 1950, in determining gross backpay. Marchant's backpay is computed at $1.75 to November 27, 1950, when the rate was raised to $2.125, plus shift differential. In this case, since Marchant was actually rehired at Flippin on the graveyard shift, the shift differential will be added in com- puting his backpay, which is as follows: Period Gross Year Quarter backpay 1950 I _____________ $1, 132 II ------------- 1, 186 III ------------- 1, 187 IV ------------- 990 Interim earnings Gross Deductible Net Net ea,pepaae backpay $688 0 $688 $444 973 0 973 213 1,392 0 1,392 0 1,333 0 1,333 0 'Total 1950________ ------ ------ ------ ------ 657 1951 I ------------- 1,248 1, 300 0 1, 300 0 II ------------- 1,442 1, 300 0 1, 300 142 III ------------- 1,064 1,000 0 1,000 64 Total 1951________ Total backpay due__ 206 863 40. James R. Marler, batch and mix operator The Board found discrimination between January 3 and July 27, 1950. Between these dates, Marler had no employment for which earnings were reported for social security purposes. Since 1944 Marler and his father had operated a grocery store near Gassville, on the premises where he lived. When not otherwise occupied during the backpay period Marler helped his father in this store. When he was out doing work elsewhere, Marler's wife assisted in the store. Marler testified that in looking for work he "went all over the country where they were working any men at all" ("country " not being understood to mean the United States nor even the whole of Arkansas, but probably an area of 50-mile radius from Gassville) to look for work. He testified that he reported to the unemployment office and offered to take an out-of-State job but received no referrals. On cross- examination, Marler testified that he drew unemployment compensation in 1949 during the strike but did not draw any in 1950. In explanation, Marler testified that he did not do so in 1950 because he did not think he had any coming to him in that year. The Respondent assumes that, because he testified that he drew unemploy- ment compensation in 1949, he must have had other employment on the basis of The reclassification was apparently intended to be a promotion , carrying a higher rate of pay, because after the change, Marchant was removed from the supervision of the shop foreman and was made answerable directly to the superintendent. '5 Mechanic repairmen got varying rates : $1.10 , $1.325, $1 .25, and $1.45, but the majority got $1.10. BROWN AND ROOT, INC., ETC. 551 which he drew compensation that year. The accuracy of Marler's memory of the time when he,drew unemployment compensation could just as readily be questioned. In Marler's personnel folder is a document showing that he was disqualified on Febru- ary 15, 1949, from receiving unemployment benefits. There is nothing to show a reapplication in 1950 on the basis of his employment at the Respondent before the strike. The Respondent sought to create a doubt as to Marler's availability for work in 1950 because of the 1949 disqualification. The personnel file does not contain the Respondent's response to the customary notice sent to it by the Employment Security Division of the State of Arkansas. However, it is more reasonable to infer that he was disqualified because of his strike status than because of other reasons for unavail- ability. Marler is not shown to have done such work as would have given him unemployment compensation rights in 1949. It seems probable that Marler, drew no unemployment compensation until after the end of the strike in December 1949, if at all. Marler did not testify that he had registered in 1950 for unemployment benefits. He testified that, in 1950, he kept " in contact" with the unemployment office "but it was more or less looking for work." 76 Before he was offered reinstatement by the Respondent, Marler found no consistent employment. About all he found to do was a little work haying for farmers at about 50 to 75 cents an hour and a job cutting timber for a man near Gassville, for which he received about $50. The Respondent claims that Marler. like certain others, was not diligent in his search for work because he did not undertake to work as a fishing guide. There is no evidence that he ever had acted as a guide or would have been hired as such had he chosen to act as one. I find no willful loss on Marler' s part on account of his failure to earn anything acting as a guide. From the fact that Marler accepted any employment offers that came to him, including the offer of reinstatement by the Respondent, I find that he did not with- draw from the labor market to work in his grocery store but find that whatever he did in the store was only such as he could spare time for from. other work, as would have been the case when he was working for the Respondent. Further, taking into account the relative scarcity of job opportunities in Gassville and environs,%and from all the evidence, I find that Marler suffered no willful loss. The specifications show earnings by Marler of $100 during the backpay period. There is no evidence that it was divided between quarters as is shown in the speci- fications, but the amount is so small that this division does not alter the total amount due as backpay. I show the $100 split into segments, but I round the figures off to whole dollars, showing the last segment as $14 to bring the sum to an even $100. Marler was reinstated on the graveyard shift in July 1950. I find that he would probably have been put on that shift in January 1950 when he applied for reinstate- ment because at that time there was only one replacement of any kind in the batch and mix classification on the payroll (C. G. Pangle, badge No. 4131) and that one was on the graveyard shift. 'I shall, therefore, include shift differential in comput- ing Marler's backpay, which is as follows: Period Gro8s Year Quarter backpay Net interim earnings Net backpay 1950 I------------------------------ $919 $43 $876 II------------------------------ 1,029- 43 986- III ------------------------------ 307 14 293 Total backpay---------------------- ----- --------- 2,155 41. J. W. Mashaw, sandblaster-nozzleman Mashaw did not testify at either hearing. The Board found discrimination be- tween January 15 and July 25, 1950. At the backpay hearing, counsel for the General Counsel moved to amend the specifications to exclude the period between "the middle of April" and July 25, 1950, because later investigation showed that Mashaw had suffered an injury which kept him out of the labor market for that period. In the General Counsel's brief, backpay is computed only to the end of the first quarter, omitting all time in the second quarter before the middle of April. I accept this as a further correction. Earnings are shown in the social security' 76 The Respondent erroneously assumes in its 'brief that failure to register with the employment agency is fatal to a claim for backpay. It has already been decided to the contrary. See R. K Baking Corp., 120 NLRB 772 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information for Mashaw in the first quarter of 1950. He obviously was in the labor market then . There is no proof of any willful loss sustained by him. Mashaw's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/13) ------------------- $482 $416 $66 42. Roy Mashaw, carpenter The Board found discrimination against Roy Mashaw from January 15, 1950, the date on which the Joint Council made application on his behalf, until March 8, 1950, the date the Respondent's letter dated March 6 , 1950, offering reinstatement, was mailed. Mashaw testified at neither hearing. The social security records disclose no earnings for him during the backpay period. There is no evidence that he replied to the Respondent's offer. In fact there is no evidence that he existed or was in the labor market after January 15 , 1950. I recommend no backpay for Roy Mashaw. 43. A. J. McFarland,77 ironworker The Board found McFarland's period of discrimination to be January 15 to July 25, 1950. During this time McFarland was unemployed . He could not remember if he had registered at the State employment agency during this time , although he had registered following the beginning of the strike more than once . Based on 'a stipula- tion of the parties, I find that he did register in 1950.78 During the period in ques- tion, McFarland kept himself enrolled on the out-of-work list of his union and kept in touch with the business agent in Baton Rouge and Monroe , Louisiana. (He lived in the southern part of Arkansas.) Aside from this, he checked with acquaintances to learn if there were any ,openings at places where they were working. In at least March, April, May, and June, 1950 , he admittedly took on-the-job training as a self-employed farmer under the GI bill and received "about 5 checks." 79 However, there is no evidence that McFarland would not have accepted work as a structural ironworker during this period and I find no basis for saying that he withdrew from the labor market during that period .80 Considering the total period of McFarland's unemployment, I consider it fair in this case to count his benefits under the on-the- job training program as the equivalent of interim earnings deductible from gross backpay 81 McFarland was not asked the amount of the benefits so received The personnel records show that he was married but had no children . ' I shall take official note, therefore , that under the training program he would have been entitled to benefits in the amount of $110 a month, and I shall accordingly deduct such sum for March in the first quarter of 1950 , for each month in the second quarter of 1950, and for July 1950 in the third quarter during which time he was receiving such payments.82 As in like cases , I shall compute his backpay without shift differential . The ar- guments of the Respondent in its brief relative to McFarland are without merit *+ The Respondent's brief erroneously states that McFarland quit his job 38 days after the strike began, presumably because the figures 12 /9/48 (when he was shown by the Respondent's records as terminated ) were indistinct. An examination of the payroll rec- ords show that McFarland did not work after December 2, 1948, and that his name was removed from the payroll after that of December 12, 1948. The claimant's name was misspelled "Mac" In the Board's Decision and Order The variance is an immaterial one, the sound is the same, and there is in the record other evidence of identity of the claimant as the one referred to in the Board's Decision and Order .8 It was stipulated that McFarland received unemployment compensation during 1950 based on employment in the third quarter of 1949 e This would mean that a payment was made for 1 additional month, either February or July 80 Ozark Hardwood Company, 119 NLRB 1130, 1133. 81 Ibid. The General Counsel did not except to the Trial Examiner's recommendation of such a deduction in that case There is, therefore, no Board precedent that makes such deduction a rule in computation of backpay , and I am not relying on one See also Somer- ville Cream Company, Inc, 100 NLRB 1155. 82 At about the time of the Respondent 's offer of reinstatement , McFarland took a job (obtained through his union ) near his home Presumably this ended his training under the GI Bill. BROWN AND ROOT, INC., ETC. 553 and have, for the most part, been answered hereinbefore. McFarland's backpay, without shift differential, is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1115-3131) ------------------- $944 $110 $834 II ------------------------------ 1,153 330 823 III ------------------------------ 269 110 159 Total backpay______________________ ----- 44. Carl Mooney, electrician 1, 816 Mooney's backpay period is from January 15 to July 25, 1950. He did not testify, but he had earnings in each of the three quarters of the backpay period. There is no showing that he suffered a willful loss. I find his backpay to be as follows: Period Gross Year Quarter backpay 1950 1(1/15-3/31) ------------------- $1, 095 II------------------------------ 1,303 111(7/1-7/22) -------------------- 296 Total backpay______________________ _____ Net interim Net earnings backpay $893 $202 1, 150 153 183 113 468 45. Calvin C. Mynatt, pump operator For a time during the strike until some months after its termination (specifically until June 16, 1950), Mynatt was working for Cook's Garage and Service Station in Melbourne, Arkansas,83 under GI on-the-job training in automotive mechanics, receiving $90 a month from his employer and a like amount from the Government. On June 16, 1950, Cook's went out of business. While working at Cook's Mynatt did not seek other work. After June 16, 1950, he made applications for work at the Ford and Chevrolet garages in Melbourne in an effort to get a job in which he could continue his training in automotive mechanics, but he was offered no work. He also applied without avail for work at a building material company (the name of which appears to have been erroneously spelled by the reporter as Ban Hill Gin Company but which I heard as Band Mill Gin Company, possibly after the name of the town of Band Mill, 11 miles from Melbourne), as a truckdriver or any other job they had. He could remember no other places where he had applied and he could not remember if, during the period between June 16 and July 25, 1950, when the Respondent sent its offer of reinstatement, he had registered at the State em- ployment agency. If he did, there is nothing in his personnel file or elsewhere to show that he gave the Respondent's name as a base period employer. When Mynatt received the Respondent's offer of reinstatement he accepted it. On all the evidence, I am of the opinion that Mynatt did not incur a willful loss in failing to seek work outside of the vicinity of Melbourne or Izard County. He was under no obligation to leave the general vicinity of his home in order to seek work,84 especially since he was not shown to have had information leading him to believe that a more distant search would have resulted in success. Although there is evidence in the record concerning wage rates paid for farm labor in Arkansas, there is no evidence that Izard County contained workable farms or farms where help was needed. Mynatt's failure to seek farmwork does not appear, under the circumstances, to constitute a willful disregard for available work. The Respondent argues that Mynatt was not in the labor market during the time that he was working at Cook's under the GI training program. This argument has already been ruled on adversely to the Respondent's contention 85 The Respondent claims as interim earnings not only the amount received by Mynatt from Cook's, but also the amount paid by the Government under the GI training program. It has never been decided by the Board that the amounts so received from the Government under such training program are necessarily to be included as interim earnings. However, as it appears that Mynatt did not actively ss A map examined by the Trial Examiner shows Melbourne as the county seat of Izard County. Mynatt estimated its population as about 800 In 1950 it was about 562. 84 American Bottling Company, 116 NLRB 1303; Ozark Hardwood Company, 119 NLRB 1180. s5 Ozark Hardwood Company, supra, at 1133; Somerville Cream Company, Inc, 106 NLRB 1155. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seek more remunerative employment during the time that he worked at Cook's, I shall include, as the equivalent of interim earnings, the amount received by Mynatt not only from Cooks' but also the supplemental payments he received under the GI training program. Mynatt's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/31) ------------------- $560 $450 $110 II ------------------------------ 734 450 284 III ------------------------------ 229 0 229 Total backpay______________________ ----- 623 '46. T. H. Parris, wagon drill operator The Board found discrimination against Parris from January 3, 1950, to April 10, 1951. Because no work was performed by wagon drill operators during the first 8 weeks following January 3, 1950, the General Counsel computed Parris' back- pay on the basis of the average hours and rate of pay of air tool operators for that period and on the basis of the average hours and rate of pay of wagon drill op- erators during the weeks when there was work for the latter. As there was no job as wagon drill operator available for Parris on January 3, 1950, he was entitled to a substantially equivalent position. The question raised is whether or not the job of air tool operator was substantially equivalent. The Respondent denies that in the absence of discrimination Parris would have been employed as air tool operator. It will be remembered that the Order of the Board recognized that Parris was given a substantially equivalent position when he was reinstated on April 10, 1951, to the position of air tool operator. This vir- tually disposes of the problem. The rate of pay for the job of air tool operator is, of course, much less, but it was not shown that there was any job vacancy for Parris in other classifications in which he was also qualified. Hence, in determining what would be a substantially equivalent position, the Board would have to decide on known facts. The Respondent had, on January 9, 1950, many positions available for air tool operators by transferring, demoting, or dismissing replacements of one of the three kinds described in the Board's Decision and Order, so obviously a posi- tion in this classification was available to Parris. By trade, -Parris was a Euclid driver and, although his classification of wagon drill operator was not changed, he was used by the Respondent as a Euclid driver for a period of several weeks before the beginning of the strike. Had the Respondent properly reclassified Parris, the Board might have ordered him reinstated as a Euclid driver,86 or, in the absence of discrimination, the Respondent might have reinstated Parris as a Euclid driver, if such a job was available, in which case Parris would have earned more than he would have as an air tool operator. But it was not shown that a job as Euclid driver was available. Of 11 wagon drill operators on the payroll in early December 1949, 7 were shifted to other jobs during the week of December 11, 1949; 3 of these were shifted to the job of carpenter apprentice; and 1 was shifted to the job of dinkey operator. Thus, four of those who had been wagon drill operators continued to work in jobs paying more than the job of air tool operator. The last man to work as a wagon drill operator in the last of December 1949 was transferred to the job of sandblaster nozzleman at a rate higher than that of air tool operator. Three of the eleven wagon drill operators in the week of December 11, 1949, became laborers at a rate lower than that of air tool operator, but one of these was transferred to an undisclosed job at Flippin within a week's time. Two of the wagon drill operators in December dropped off the payroll for undisclosed reasons and a third was absent during most of December and January, but his name was not dropped from the payroll until January 23, 1950. As most of the wagon drill operators were retained in other classifications, it is reason- able to infer that, absent discrimination, Parris would have been given an equal opportunity to work in another classification. Testimony of witnesses for the Respondent compared the work of wagon drill operators, jackhammer operators, and air tool operators and testified that men in either of the first two classifications could perform work as air tool operators because of the similarity of the work. Because Parris was ultimately reinstated as air tool operator, the inference is that the Respondent considered him, by previous experience, to be qualified to do the work of air tool operator. 85 This is another instance of misclassification by the Respondent. Perhaps no claim under the Davis Bacon Act could have arisen in this case because the rate Parris was paid as wagon drill operator and as Euclid operator was the same. BROWN AND ROOT, INC., ETC. 555 The Respondent sought to justify the delay in reinstating Parris by attempting to portray him as an unsatisfactory worker. Three months after he was reinstated, Parris was terminated with the notation on his termination slip, "unsatisfactory." If this notation was put on the slip at the time of the termination, it may be questioned why he was retained for 3 months before he was terminated. An examination of the pay- rolls for June and July 1951 discloses that work for air tool operators was falling off and that five air tool operators in addition to Parris went off the payroll at the same time. I also note that, whereas during the period between the week ending April 15, 1951, when Parris was reinstated and the week ending July 15, 1951, when Parris was terminated, the number of air tool operators dropped from 119 to 84, and not all of the 84 were working. Thus, it may be inferred that Parris was not among the first to be terminated. On this evidence, it is difficult to picture him as unsatisfactory. On June 30, 1947, Parris was given a job as a laborer although he had applied for work as a truckdriver, Euclid driver, or wagon drill operator. From this job he was, it is true, discharged on July 8, 1947, with the notation "work unsatisfactory." However, on February 2, 1948, Parris was rehired, this time as a wagon drill operator and he continued in uninterrupted employment until the strike began in December 1948. I cannot give weight to the Respondent's contention that Parris was denied reinstate- ment throughout the backpay period because of any fault with his work as a wagon drill operator. The Respondent at the hearing also sought to justify its failure to re- instate Parris because of what were alleged to be falsifications. However, if any material errors appeared on documents in Parris' personnel record, they were there before Parris was hired as a wagon drill operator in 1948. He was never discharged on account of them. I foreclosed the Respondent from examining Parris about such matters.87 To the extent that both such contentions were made in an attempt to justify non- reinstatement earlier than April 10, 1951, the evidence supporting them should have been adduced at the unfair labor practice hearing. It was not contended that Parris became unfit for employment after January 3, 1950, at least before the date of his discharge in July 1951. Parris was unemployed during the first three quarters of 1950. During that time he was actively in search of employment. He traveled to Little Rock to talk to the Teamsters representative about a job, to Poplar Bluff, Missouri, to inquire about work with a contractor, went to Paducah, Kentucky, where a big construction job was going on and inquired about work at Marion and Herrin, Illinois, went to the union representative at Fort Smith, Arkansas, tried to get a job at Blue Mountain Dam below Hot Springs, Arkansas, kept in touch with the State employment office at Mountain Home and through it got a few little jobs cleaning up yards, and finally was referred by that office to a place where men were being sent to pick cotton near Poplar Bluff It was while inquiring about this job near Poplar Bluff that Parris saw some con- struction work in the vicinity and made application for, and got, a job there with an employer named Cone.88 This job lasted only a short time and then Parris got a job with the -Bechtel Construction Company laying a pipeline and continued there until work ran out. Following this last job, Parris returned to Mountain Home and looked for work there. When he received a notification of a job with the Respondent he returned there in April 1951. There is no evidence that Parris suffered a willful loss. In his search for work, Parris incurred some expenses, but most of it came in quarters when he was unemployed and is therefore not allowable. In the last quarter of 1950, he presumably incurred expense of traveling to Missouri where he found employment. The precise amount of his expense on this trip is not in evidence, nor is any expense claimed therefore in that quarter. There is, however, a claim for ex- pense of traveling to Fort Smith, Arkansas, and expense of unsuccessfully seeking work at Ozark in November and December of 1950. The evidence concerning the latter is too vague to establish the claim. The round trip expense from Mountain Home to Fort Smith was not precisely shown. However, the round trip distance is easily determined to be 418 miles. By 1950 standards, $29 should cover the cost of travel, and $6 for room and board for the 2 days he was on the trip is certainly reason- able. I shall, therefore, charge $35 against Parris' interim earnings in that quarter. The'specifications state (page 60) that as no work was available as wagon drill oper- 87 One alleged error was the purported age of Parris as shown on the medical examina- tion slip prepared when Parris was hired in 1947. Typed on this slip was the age 49. Actually, Parris was then 55 years old It does not appear that Parris typed his age on the medical examination slip, he did not sign it, and his correct age was given on his application for employment which he filled out before his medical examination. ss So spelled in the social security report In the transcript of the hearing in this case, the reporter spelled it Combs 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ator for the weeks ending October 22 and December 10, 1950, no gross backpay has been credited for these weeks and, therefore, $85.26 is deducted from interim earnings for those periods. However, I note that the specifications include those weeks in gross backpay computing such backpay at the rate of air tool operator. Therefore, the full amount of interim earnings should be shown. I do so below. For reasons previously stated in this report, I compute gross backpay without the night-shift differential. Otherwise, I have used the hours and rates shown in the specifications. Parris' backpay is as follows: Interim earnings Period Gross Deductible Net Gross Net Year Quarter backpay expense backpay 1950 I_____________ $656 0 0 0 $656 II_____________ 594 0 0 0 594 III ------------- 572 0 0 0 572 IV ------------- 688 $555 $35 $520 168 Total 1950________ 1,990 1951 I* ------------ 756 0 0 0 756 II_____________ 60 0 0 0 60 Total 1951-------- 816 Total backpay_____ ______ ______ ______ ______ 2,806 4 The specifications for this quarter compute gross backpay on the basis of 277 hours of work at wagon drill operator's rate and 272 hours at air tool operator' s rates . The air tool operator's hours were designated by an asterisk through the full backpay period. By error an asterisk was placed after the 277 hours for wagon drill operators in the specifica- tions for the first quarter of 1951 47. H. C. Patton, carpenter Patton did not testify at either hearing. The Board found that Patton was dis- criminated against for the period between January 15, 1950, when the Joint Council requested his reinstatement, and March 8, 1950, when the Respondent offered him reinstatement. It does not appear that Patton replied to the offer. In fact, there is no indication that after January 15, 1950, he was in the labor market or was ready, able, and willing to work. No earnings are shown for him during that period in social security records. I recommend no backpay. 48. Hubert L. Petty, millwright The Board found that Petty was discriminated against beginning on the date that a new employee was hired in that job between February 4 and July 25, 1950 (the date to be ascertained upon compliance investigation).89 The General Counsel in the specifications has computed Petty's backpay on the basis of millwright work performed in two widely separated weeks. In each of these weeks the millwright work was done not by a newly employed millwright but by employees already on the payroll in other classifications, who were used temporarily on millwright work. An oiler was used for 17 hours as a millwright on February 16 and 17, 1950, and on June 16 or 17 eight men worked 2 hours each as a millwright. One of these was a crane opera- tor, two were truck (tractor) operators, and the others were structural ironworkers and an apprentice structural ironworker. Apparently the Board did not find Petty en- titled to any other job as substantially equivalent, and the General Counsel makes no contention that he should have received backpay in any classification other than that of millwright. Even if Petty were awarded backpay for the number of hours shown in the speci- fications, his net backpay would be between $4 and $5. However, because I can find no new employee hired as a millwright by Ozark,90 I conclude that Petty is entitled to no backpay. One promotional replacement was on the payroll in January. This man, J. B Daven- port, was a management trainee. The Board apparently did not consider his position as a vacancy. Davenport was a millwright until the week of January 29, 1950, when he became a mechanic repairman (maintenance ). Petty had been a mechanic repairman before he became a millwright. 90 Whether or not the one who was the subject of the stipulation in the oiiginal hearing was someone hired by Flippin cannot be ascertained since no Flippin records were put in evidence in this case. BROWN AND ROOT, INC., ETC. 557 49. Jake C. Pfingston, carpenter The Board found discrimination against Pfingston from December 23, 1949, when he made personal application for reinstatement, to March 8, 1950, when the Re- spondent offered him reinstatement. In the fourth quarter of 1949, according to social security information, Pfingston was employed by a contractor having a Nebraska office (it does not appear where Pfingston's actual employment was). The exact date of neither beginning nor ending of this employment is in evidence. Never- theless, the specifications prorate his interim earnings for the last quarter of 1949 as a deduction from gross backpay from December 23 to 31, 1949, as though he had had interim employment for the entire quarter to the end of December. Pfingston was employed by two employers in the first quarter of 1950, although from the amount of earnings shown, it would appear that he was not employed throughout the quarter Part of the interim earnings may or may not have been received after March 8, but there is no evidence furnishing a basis for assuming, as the General Counsel appears to do, that Pfingston's earnings with his second employer were all received after March 8. Pfingston did not testify. If the General Counsel had information concerning more specific dates of employment, it should have put it in evidence. In the absence of such evidence, I will prorate Pfingston' s earnings in 1950 just as the General Counsel did for his 1949 earnings. As no evidence was offered to show that Pfingston suffered any willful loss,91 I find his backpay to be as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1949 IV ------------------------------ $58 $51 $7 1950 I------------------------------- 529 '229 300 Total backpay---------------------- ----- --------- 307 *Nine-thirteenths of $331, the net interim earnings for the full quarter. 50. Donald'C. Plymate, carpenter Plymate testified that he would not have worked for the Respondent after the strike because it was open shop and he would not have worked on any job that was open shop. Under the circumstances, Plymate was, in effect, still on strike and was not available for employment 92 I find that no backpay is due to him. 51. Clyde S. Putney, carpenter During the period of discrimination, Putney was employed, when work was avail- able, by a local contractor, Houston Jones. Putney's testimony concerning efforts to find work in Springfield, Missouri, appeared to relate to December 1948 and January 1949 rather than to the backpay period, for he started working for Jones in January 1949 and continued to work for him through the second quarter of 1950. Putney testified that his next trip to Springfield was "probably along up in the sum- mer," the year not being given. He explained that Springfield was his hometown, that his sister was there, and that he did not stay away for more'than a year at a time. Although Putney was not employed in the third quarter of 1950, according to earnings records, and may have gone to Springfield, Missouri, at that time, he was unable to remember what he did on that trip. The specifications show expenses for a trip to Springfield in the third quarter of 1950, but, since Putney had no earnings in that quarter, the expenses are not allowable in any event. Houston Jones, a witness for the Respondent, testified that as far as he knew Putney worked in the third quarter of 1950, although his own records showed no payments for Putney in that quarter. Jones' records showed earnings for Putney in the fourth quarter of 1950 in the amount of $911.12, more than Putney had made in any other quarter, and Jones speculated that his bookkeeper might have reported some of Putney's third quarter earnings in the fourth quarter. The Re- spondent claims in its brief that Putney had $455 in interim earnings in the third 91 It was stipulated that Pfingston drew $45 38 in unemployment compensation during 1950 based on earnings in the first quarter of that year He must, therefore , have regis- tered with the State employment agency for work 91 Bruns Coal Company, Inc , 106 NLRB 590 ; James Thompson' J.Co , Inc , 100 NLRB 456,472-473 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarter of 1950. I find the evidence inadequate to support this claim. Putney's backpay is as follows: Period Gross Year Quarter backpay Net interim earnings Net backpay 1950 I(1/15-3 /31)------------------- $663 $416 $247 II ------------------------------ 840 719 121 III ------------------------------ 866 0 866 IV (10/ 1-10/26 ) ------------------ 274 280 0 Total backpay ---------------------- ----- 52. Willis Raines, carpenter --------- 1,234 Raines testified at neither hearing. He had not made personal application for reinstatement. There is no evidence that he replied to the Respondent's offer of reinstatement. No earnings are shown for him by social security. No evidence was offered to show that, after January 15, 1956, Raines was in the labor market. I recommend no backpay for him. 53. T. R. Roberts, ironworker The Board found discrimination from January 15 to July 25, 1950. Roberts was working in Childersburg, Alabama, on January 15, 1950, and continued there until January 28, when he heard that there would be only a few more days' work where he was and he had heard that work was available at Oak Ridge, Tennessee. Al- though the Oak Ridge job was scheduled to start early in February, it did not, be- ^cause of inclement, weather, actually start until mid-February 1950. That job lasted until March 10, 1950, and then Roberts was unemployed until April 13, 1950. In that period of unemployment, Roberts returned to his home at Childersburg, Ala- bam,a, registered at the unemployment office, and contacted union business agents in Atlanta and Savannah, Georgia; Birmingham, Alabama; and Knoxville, Tennessee. Through one of the agents, Roberts got a job at Somerset, Kentucky, which lasted about 3 or 4 weeks. At the end of that job he obtained another in the same vicinity without loss of time. When schools closed in June, he returned to Childersburg, Alabama, and brought his family to Kentucky. He was still working there when he got the Respondent's letter offering him reinstatement . He made a trip back to the Bull Shoals Dam, but after speaking with a superintendent of the Respondent he decided not to take the offer because (according to his explanation) of the uncer- tainty of the rate of pay he would get. The Respondent sought to elicit answers from Roberts in an attempt to show that Roberts had a fixed determination not to work on a nonunion job and for that reason would not at any time have accepted the job at the Respondent. However, Roberts testified that he could work on non- union jobs in so-called right-to-work States (of which Arkansas is one ) without getting in bad with his union . If he would not, under any circumstances, have worked for the', Respondent, he would not be likely to have returned there to speak with the superintendent. I find that he had not decided before July 25, 1950, that he would not return to work for the Respondent. The Respondent in its brief makes certain contentions which I consider without merit and which I have disposed of generally heretofore. It is not necessary to repeat them here. Roberts' interim earnings as shown in the specifications will be corrected to agree with his testimony. This will mean adding earnings at Daniel Construction Com- pany in Childersburg, Alabama, between January 15 and 28, 1950, and his full earnings (without proration) on his job for Maxon Construction, Inc., at Oak Ridge, Tennessee. From interim earnings , certain expenses are deductible under the Board's estab- lished practice. Although the expenses were not proved exactly, the nature of some of these expenses were proved and they are reasonably ascertainable. Mileage is calculated at 7 cents a mile 93 for travel (1) for 275 miles from his home in Ala- bama to the job, at Oak Ridge in order to lake that job and (2) in moving his family ,,from their=home in Alabama 375 miles to the location of his job in or,.near Somerset, Kentucky, in June 1950. Judging by the amount of expenses claimed in the specifica- tions, I assume that no claim is made for Roberts for travel to and from work be- tween Knoxville and Oak Ridge, Tennessee, while on the Maxon job but is made for board and lodging while on that job. If I misconstrue the claim and if it was °See Katarik, Inc, 1]1 NLRB 630, 635, footnote 7; East Texas Steel Castnngs Com- pany, Inc, 116 NLRB 1336. BROWN AND ROOT, INC., ETC. 559 intended to include mileage for commuting to and from work, a serious obstacle to allowing such daily commuting expense is the failure of the General Counsel to show where Roberts resided during the time on the job. If he resided in Knoxville while on that job (as might be suggested by a question put to Roberts by the Gen- eral Counsel on the distance between Knoxville and Oak Ridge), there is no evidence to show that Roberts was obliged to live that far from the job-18 or 20 miles. Furthermore, while working for the Respondent, Roberts had to travel 4 miles to work from his home, so even if Roberts were entitled to some mileage, there should be deducted from expense the cost of traveling 8 miles a day (round trip) which Roberts would have incurred in the absence of discrimination. However, for want of adequate proof, I do not allow daily commuting expense. Roberts is entitled to a reasonable amount for board and lodging while living away from home since this is an expense he did not have while working for the Respondent. The specifications claim $110 for room and board while on the Oak Ridge job and $220 for room and board while on the jobs at Somerset before he moved his family there. From Roberts' earnings from Maxon I estimate that he had approximately 21 working days at Oak Ridge. At the rate of 5 working days a week, this would mean about 29 days of residence there. Roberts did not remember the cost of his room and board. Room may conservatively be computed at $2 per day 94 and restaurant fare might conservatively be estimated at $2.50 per day. The claim of $110 for room and board shown in the specifications is some $20 less than this. This may ^ be accounted for-by the fact that he would have had to pay something for-his food at. home, although it would be much less than eating out. I shall, therefore, allow the amount claimed for room and board in the first quarter of 1950. The expense claimed for room and board while in Somerset from mid-April to mid-June is for more than twice the length of time of his stay in Oak Ridge. Hence, the claim of $220 appears reasonable and is allowed. In addition to the amount for board and lodging, I shall allow the round trip mileage at 7 cents a mile between Childersburg and Somerset as claimed. Roberts' backpay is as follows: Period Gross Year Quarter backpay 1950 1 ( 1/15-3/31)__ $944 II ------------- 1, 153 111(7/1-7/25) --- 269 Total backpay_____ ______ Interim earnings Deductible Net Gross expenses Net baokpay $539 $185 $354 $590 854 320 534 619 271 0 271 0 1,209 54. Robert M. Rutledge, carpenter The Board found discrimination asto Rutledge 'between January 15 and July 25, 1950. The specifications claim backpay to July 30, 1950. This date is fixed as 5 days after the date of the offer of reinstatement because the Board, in modifying the finding and recommendation of Trial Examiner Doyle that the discrimination continued, and that backpay should extend to the date of reinstatement, stated that "the Respondents cannot be held obligated for bockpay after their offer or reem- ployment beyond a reasonable time for the striker to receive and personally accept the offer," and the Board thereupon found that 5 days was a reasonable time in the instant case.95 The Respondent, in its answer, denies that Rutledge made a reasonable search for employment during the backpay period. However, in its brief to the Trial Examiner the Respondent concedes that Rutledge made a reasonable effort to find employ- ment. I shall not, therefore, detail Rutledge's efforts to find interim employment. The Respondent, although conceding the reasonableness of Rutledge's efforts to find employment, expresses incredulity with respect to the low earnings shown by the evidence. Any objection that the Respondent has on this score is apparently based on the false premise that the General Counsel has the burden of proof as to all interim earnings and that, if the amount of earnings conceded by the General Counsel is very low, the General Counsel has not sustained its burden of proof without showing books, records, tax returns, and other documentary evi- 04 West Texas Utilities Company, Inc., 109 NLRB 936. 95 99 NLRB at p. 1047. The Board, in its section on "The Remedy" (p. 1063) and in its Order (p. 1065), makes no reference to this 5-day period. Technically, therefore, back- pay should be limited to the period of the discrimination found. However, I take the opinion of the Board to express its intent, and I therefore compute backpay in Rutledge's case to July 30, 1950. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dence to establish negatively that there were no other earnings than those conceded. Although I disagree that the General Counsel has such a burden of proof, I should have welcomed any evidence that would have fixed precise dates of employment and amounts of earnings. Rutledge's testimony demonstrated a hopeless confusion as to dates. I suspect that some of the employment to which he testified may have occurred at times outside the backpay period and that this may explain the failure of the social security records to show such earnings. On the other hand, social se- curity records show only the earnings reported to that administration by the em- ployer, and some employers may not make the required report. Hence, the social security reports have little or no value as evidence of nonearnings in the backpay period 96 Rutledge's testimony as to dates and earnings varied from his affidavit (made in 1955) and even varied some in separate parts of his testimony. I do not attribute this to any intention on the part of Rutledge to deceive. Rather, I attribute it to the vagaries of memory and confusion of incidents. Confronted with such conflicts, I have shown Rutledge's interim earnings as in the largest amount conceded in either his testimony or his affidavit. This appears to be the method adopted by the General Counsel97 Certain amounts were claimed on behalf of Rutledge as expenses incurred in seeking employment and while working on interim employment. The Respondent contests all expenses incurred while Rutledge was unemployed. That expenses incurred in seeking interim employment is a proper deduction from interim earn- ings is long established.98 However, this is to reimburse the claimant only for such expenses as he would not normally have incurred. The specifications claim $21 for room-rent in Houston in the second quarter and $45 for room rent for Rutledge and his wife in Dallas in the third quarter of 1950. The evidence does not disclose that, at the times mentioned, Rutledge was maintaining any other residence. I shall, therefore, exclude these amounts.99 The other expenses shown in the specifications are established and are allowed. Rutledge's backpay is as follows: i Period Gross Interam earn ngs Deductible Net Year Quarter backpay Gross expenses Net backpay 1950 1(1/15-3/31)-- $663 $160 $77 $83 $580 11 ------------- 840 350 8 342 498 111(7/1-7/30)___ 253 50 3 47 206 Total backpay_____ 1,284 55. Hoy Shaw, carpenter During 1949 and the first part of 1950 Shaw was self-employed, cutting timber. He testified that he grossed $800 but paid for help at $1 an hour, which left him about $200 and that he paid $75 out of that for the timber rights. During 1949 he started to build a tavern for himself. He finished cutting timber in the middle of February 1950, and did not thereafter look for work because he was getting his tavern ready to open. The exact date of its opening is not fixed, but Shaw testified that things were slow and that it was about May 1950 when it began to go well.'00 Shaw received an offer of reinstatement from the Respondent about March 8, 1950. He did not return, he testified, because a neighbor of his had been discharged 2 hours after going back. Whether or not Shaw would have returned otherwise, I find is immaterial because he was not in the labor market after February 15, 1950. The General Counsel has allocated $167, received from cutting timber, to the backpay period. As this was all received by February 15, when I find he withdrew from the labor market, it should be included as a credit against backpay. The in- terim earnings shown in the specifications are more than are shown in the testimony. 90 The General Counsel does not ask for social security information either before or after the backpay period. Because such reports before and after the backpay period might show that the claimant is a year off in his memory of dates of certain employment and thus rectify errors of memory , some benefit might result from requesting social security infor- mation for more than just the backpay period. 97 The specifications were amended at the hearing to show an additional $50 earned in July 1950, just before Rutledge's return to the Respondent. 99 Crossett Lumber Company, 8 NLRB 440. 19 See West Texas Utilities Company, Inc., 109 NLRB 930. 100 The Respondent contends that Shaw's tavern opened in 1949. If it did, it did not occupy his full time, as he was engaged in cutting timber until February 1950. % BROWN AND ROOT, INC., ETC. 561 If Shaw's testimony could be relied on, he made only $125 net for the whole time he was cutting wood in 1949 and 1950. However, the General Counsel did not move to amend the specifications, so I accept the figure there shown as interim earnings. However, because he withdrew from the labor market after February 15, 1950, Shaw's gross backpay is reduced to 176 adjusted average hours, and his rate, with- out night-shift premium pay, is $1.375. Shaw's backpay is, therefore: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 I(1/15-2/15)------------------- $242 $167 $75 56. Elbert C. Smith, carpenter Smith testified at the unfair labor practice hearing but did not testify at the back- pay hearing. His backpay period is from January 3 to February 16, 1950, when he was rehired by the Respondent. During that period, Smith was making an effort to be rehired. The record is barren of other evidence of his activities during the backpay period. No interim earnings were shown for him. There is no evidence of willful loss. Smith's backpay is as follows: Period Gross Net inter im Net Year Quarter backpay earnings backpay 1950 I(1/3-2/16)-------------------- $345 0 $345 57. C. D. Stamps, form setter and stripper The Board stated, "There is no showing that there was in this classification a vacancy or replacement on the Respondent's payrolls at the time of application." It had been stipulated at the unfair labor practice hearing that a new employee was hired in this classification between February 1 and July 25, 1950. The Board there- fore found discrimination against Stamps "from the date that the new employee was hired in this classification, to be ascertained upon compliance investigation, until July 1, 1950." My scrutiny of the record led me to the conclusion that there were replacements in each of the three categories of replacements in the classification of laborer-form stripper and setter on January 15, 1950, the date of the application on behalf of Stamps for reinstatement, as may be seen from Appendix A hereto attached. The General Counsel appears to concur in my conclusions, judging by the list of replacements contained in his brief to the Trial Examiner. In addition to such replacements, I find from the payroll records that there were promotions and transfers made into this category between January 15 and February 1. Never- theless, in accordance with the Board's Decision, the General Counsel has com- puted Stamps' backpay from the date of the first new hire in this classification after February 1, 1950, and I agree that it is not for either the General Counsel or me to modify the Board's findings. In the week ending February 5, 1950, an H. F. Elliott, badge No. 519, was added to the payroll as a form setter and stripper. His first day worked was February 3, 1950.101 Although the General Counsel does not identify Elliott as the man hired on February 3 (thereby fixing the date for the commencement of backpay), he was the only one actually hired in that classifi- cation in the first week of February 1950, and I find that he is the new man referred to in the Board's Decision (at 99 NLRB 1054). In computing Stamps' backpay, however, the General Counsel excluded the week ending February 5, and the week ending July 29, 1950.102 However, as the specifications were not amended to in- clude one of the weeks I shall follow the specifications. Stamps did not testify at either hearing and the only evidence offered about him by either side was the social security information on Stamps' interim earnings. These earnings, however, demonstrate that Stamps was in the labor market through- out the backpay period. His backpay is as follows: Period Year Quarter Gross backpay Net interim earnings Net backpay 1950 I(2/3-3/31)-------------------- $377 $280 $97 II ------------------------------ 654 420 234 III(7/1-7/25)-------------------- 149 113 36 Total backpay---------------------- --------- 367 301 In this same week, Muett Copeland, badge No 3291, was transferred or promoted 'from apprentice carpenter ( rate $1 ) to form setter and stripper (rate $1.05). 102 Average hours for the week ending February 5 were 31. Elliott worked 24. There were 2 work days in the final week, July 24 and 25. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 58. C. L. Stone, jackhammer operator Stone testified at the original -hearing but not in the backpay hearing. His testi- mony at the original hearing related his numerous applications for reinstatement. It is evident that he was in the labor market throughout the backpay period of January 3 to April 4, 1950. No evidence was offered at the backpay hearing con- cerning Stone except a social security form showing no interim employment earn- ings. This does not indicate ,that Stone was not looking for work. The Respondent has shown no willful loss. In computing the average hours for jackhammer operators, the General Counsel has, in the week ending January 8, 1950, eliminated the hours worked by two of the four operators because they worked less than 24 hours. Because these two were not in their first week of employment and because I noticed that the first week in January 1950 was a period of less work than usual (presumably because of weather conditions), I shall count all hours worked in computing the average hours.103 The result is that four operators worked 102 adjusted hours, making the average for that week 25 instead of 38. I compute Stone's gross backpay, therefore, on the basis of 522 hours rather than 535 hours. Stone's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 I______________________________ $509 0 $509 50. George Tulipana, carpenter The Board found Tuhpana's period of discrimination to be January 10 to October 23, 1950. The Respondent takes issue with this finding on the evidence How- ever, it is not my function here to review such evidence for the purpose of deviating from the Board's findings. The Respondent claims that Tulipana did not make a reasonable search for in- terim employment. In 1949, during the strike, according to a notice shown in his personnel file, Tulipana applied for unemployment compensation, and he testified that in 1950 he applied for work at the State employment agency. He testified that he did not receive unemployment compensation because "they wanted to send me away from here to work." 104 He was not asked where he was offered work, but he testified that he would have accepted work in an area to which he could have driven to work daily. Inferentially, therefore, he was offered work somewhere where he would have been kept away from home. Except for the State employment agency, Tulipana applied at only one other employer than the Respondent in 1950. Before the strike, Tulipana had started to build an automobile service station. He began to operate the service station in April 1949. His wife operated the station whenever he was away. Later (date not shown) he added a fishing tackle store to his service station. His sole occupation during the backpay period was operating this business. For the full year of 1950 his gross receipts from this business amounted to $9,000, and his net income was in the neighborhood of $1,700. In its brief, the Re- spondent states that Tulipana's "interim earnings are incompletely developed" and complains that Tulipana's "records are not in evidence to show the computation." The Respondent had full opportunity to examine Tulipana on the witness stand and, at the request of the Respondent, Tulipana signed an authorization for the Respond- ent to get a copy of his income tax return showing his income during the backpay period, but the Respondent has not offered it or any part of it in evidence. During the backpay hearing, arrangements were made by counsel to inspect Tulipana's books. The Respondent did not claim that it was later denied the privilege of inspecting Tulipana's books and records and it did not request a subpoena duces tecum. The Re- spondent argues that Tulipana did not account for the value of his labor in improving the property used by him in business and states in its brief, "This enhanced value would be shown by a comparison of the investment before and after the backpay period if accurate books had been kept." I fail to see how a possible underevaluation of Tulipana's capital improvements would adversely affect the Respondent. With a higher evaluation, Tulipana would have been enabled to take a greater depreciation, with the result that his net income would have been lower rather than higher. Since Tulipana spent the greater part of his time operating his business during the backpay period and made no great effort to find other work, I find he was self- 108 In certain other classifications the General Counsel did, in computing average hours in the week ending January 8, 1950, include the time of men who worked less than 24 hours, because a majority of them did. 104 The Respondent received no notice of claim filed in 1950. BROWN AND ROOT, INC., ETC. 563 employed and will show his net profit for the backpay period as interim earnings, as the General Counsel has done in specifications . The interim earnings shown in the specifications indicate a proration of net income from Tulipana 's business on the basis of an annual figure somewhat in excess of $1,700. I shall, therefore, use the interim earnings figures shown in the specifications. Tulipana's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings back pay 1950 I(1/10-3/31)------------------- $715 $400 $315 II------------------------------ 840 433 407 III ------------------------------ 866 433 433 IV (10/1-22) --------------------- 208 100 108 Total backpay---------------------- ----- --------- 1,263 60. V. B. Walker, reinforcing ironworker The Board found Walker's period of discrimination to be from January 15 to July 25, 1950. The Respondent's answer admits that Walker made a reasonable search for interim employment, but denies that Walker would have worked as many hours or been paid at as high an hourly rate as the figures used in the specification. I find the facts to be as shown in the specifications . The Respondent also pleaded that Walker had found substantially equivalent employment and had voluntarily aban- doned his right to reinstatement . This was pleaded in negative form as though denying an allegation in the specifications. This form of pleading did not relieve the Respond- ent from the obligation to prove its allegations , and no such proof was offered. Walker died on January 3, 1953, and the only evidence adduced was the information furnished by social security. As Walker had earnings in each of the quarters of the backpay period, I find that he was in the labor market and available for work. Walker's backpay is as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/15-3/31) ------------------- $805 $860 0 II______________________________ 983 826 $157 I11(7/1-7/25)-------------------- 229 262 0 Total backpay due__________________ ----- 157 61. John D. Wells, air tool operator Wells did not testify at either hearing. He did not make personal application for reinstatement. The initial date of the period of discrimination, January 15, was the date on which the Joint Council made application on behalf of most of the strikers who had not been reinstated. Neither the General Counsel nor the Respondent offered any evidence with respect to Wells' availability for work or interim earnings. The General Counsel did not even offer the social security information introduced as to other claimants. I find no basis for inferring that Wells was, after January 15, 1950, available for employment by the Respondent or that he was even in the labor market. I recommend no backpay for Wells. 62. Russell T. Wood, carpenter Wood's backpay period is January 3 to February 24, 1950. Wood did not testify, but the evidence shows that on January 16, 1950, he registered for unemployment benefits and, perforce, then applied for work through the State employment agency. A stipulation regarding the identity of claimants who received unemployment benefits in 1950 failed to list Wood. This may be explained on the ground that' he got interim employment before he was reinstated on February 25, 1950. Although the only evidence of interim employment comes from the social security information furnished and this does not show the employment date, it may be inferred that Wood's employ- ment in the first quarter of 1950 preceded his return to the Respondent's employ, be- cause he continued in the Respondent's employ from February 25, 1950, to well after the end of the first quarter. There is no evidence that he suffered a willful loss. I find Wood's backpay as follows: Period Gross Net interim Net Year Quarter backpay earnings backpay 1950 1(1/3-2/24) -------------------- $407 $42 $365 614913-62-vol. 132-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The specifications concede that no backpay is due to the following discriminatees: William I. Curtis, ironworker; Lester M. Holden, signalman ; W. E. Morgan, crane operator; Raymond Hudson, carpenter; Billy B. Redus, carpenter; Walton Ford, car- penter; Royal E. Losch, carpenter; and Kern K. Russell, carpenter. I find that no backpay is due to the foregoing discriminatees. The specifications included, with the foregoing list of men for whom no backpay is due, the name of Troy Engles. How- ever, under the Board's Decision, Engles was not a discriminatee. The Board' dis- missed the complaint as to laborers, including Troy Engles (99 NLRB at p. 1056, footnote 52). As previously found, there is no backpay due for any of the men named in Schedule C, attached to the Board's Decision and Order, including those added by subsequent amendment. APPENDIX A Names of Various Types of Replacements of Strikers at Ozark Dam Constructors [Figures in parentheses following classifications refer to number of claimants for reinstate- ment as of date of application , to the extent now entitled to backpay] CARPENTERS (30) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Badge Name number Date of hire of dnscriininatory replacements Avey, Henry E----------------------- 2586 Beach,Jeff --------------------------- 1122 Benton, James W--------------------- 742 Gentry, J. J------------------------- 1272 Hicks, Earl S-------------------------- 921 Hurst, Thurman W------------------- 1948 Marchant, Henry C------------------- 2312 Myers, James L---------------------- 569 Nowlin, Errett B--------------------- 1716 Pittaway, Walter H------------------- 555 Schenck, Lee H---------------------- II 2208 Replacements Bozone, Roy F----------------------- 1906 ------------------ Covington , A. S---------------------- 907 ------------------ Criner, G. S------------------------- 1904 ------------------ Denton , C. A------------------------ 570 ------------------ Eby, C. W-------------------------- 1879 ------------------ Farris, W. C------------------------- 4355 ------------------ Gass, R. M-------------------------- 898 ------------------ Hankins, T. M----------------------- 977 ------------------ Horton, Carthel E-------------------- 1740 ------------------ Huett, Charles R--------------------- 512 ------------------ Hurst, Francis M--------------------- 983 ------------------ Johnson , Arnold R-------------------- 726' ------------------ Killian, Willie E---------------------- 980 ------------------ Kinard , Henry W--------------------- 1377 ------------------ Milum , Frank D---------------------- 1607 ------------------ Rice, Truman A---------------------- 2426 ------------------ Russell, Darrell W-------------------- 1279 ------------------ Sanford, Gilbert A-------------------- 1479 ------------------ Skiver, Robert L--------------------- 3425 ------------------ Tucker, James L--------------------- 573 ------------------ Watson, Thermal J.------------------- 981 ------------------ 'BROWN AND ROOT, INC., ETC. III Discriminatory Replacements 565 Badge Date of hire of discriminatory Name number replacements Allen, E. G-------------------------- 3836 2/18/51 Bass, C. W-------------------------- 4326 5/29/50 Campbell, H. 0---------------------- 4393 2/ 3/50 Cherry E. E------------------------- 4325 4/17/50 Chesney, E. A----------------------- 4386 1/30/50 Dry, Doda--------------------------- 615 2/ 3/50 Duke, J. E-------------------------- 2976 1/12/50 Elliott, Roy-------------------------- 2990 1/13/50 Hall, Lester-------------------------- 2971 1/12/50 Haughn , T. V------------------------ 590 2/ 3/50 Hightower, Eugene-------------------- 2968 1/11/50 Payne,Elwood------------------------ 4398 1/30/50 Pitts, L. V--------------------------- 4366 1/24/50 Smith, I. E-------------------------- 4399 2/ 2/50 Smith , L. F-------------------------- 634 2/ 5/50 Stevens, L. C------------------------ 2975 1/12/50 Wyatt, E. C------------------------- 2993 1/13/50 AGGREGATE CONVEYOR OPERATORS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Badge Name number Date of hire of discriminatory replacements Hawkins, James M.------------------- 1829 Hurst, Carlis------------------------- 2201 Nanney, Claude---------------------- 3801 ------------------ Thomas, Harry M-------------------- 1637 ------------------ Wallace, Homer J--------------------- 529 ------------------ II Replacements Hutchins, Eugene B------------------- 3920 ------------------ III Discriminatory Replacements Ellison, Everett E-------------------- 2322 ------------------ AIR TOOL OPERATORS (5) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Name Badge number Date of hire of discriminatory replacements Browning, V. E---------------------- 1088 ------------------ Clark, E. E-------------------------- 1875 ------------------ Gray, R. C-------------------------- 2151 ------------------ Hanby, Phillip------------------------ 1759 ------------------ Hendrix, Wilburn B------------------- 1877 ------------------ Hickey, Arthur D--------------------- 1005 ------------------ High, Palmer D---------------------- 882 ------------------ Johnson , Oliver----------------------- 2139 ------------------ Keener, Jessie W--------------------- 1257 ------------------ Miller, Walter------------------------ 834 ------------------ Sisk, J. T---------------------------- 940 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name Badge number Date of hire of discriminatory replacements Sisney, Homer------------------------ 690 Terry, Alba A----------------------- 1684 Weaver, William B------------------- 2109 II Replacements Blackwell, J. M---------------------- 1703 ------------------ Clark, J. B-------------------------- 2142 ------------------ Gray, P. E--------------------------- 903 ------------------ Lonon, Jack L----------------------- 1114 ------------------ Sloan , Luther M---------------------- 2148 ------------------ Uchtman, William L------------------ 765 ------------------ Wiggins, Joe 0----------------------- 661 ------------------ III Discriminatory Replacements Bums, H. H------------------------- 4313 ------------------ Campbell, H. 0---------------------- 4393 ------------------ McGinnis , A. V---------------------- 1191 ------------------ Reed, J. C--------------------------- 4346 ------------------ Roberts, E. R------------------------ 4394 ------------------ Satterfield, C. R---------------------- 4358 ------------------ Stone, R. L-------------------------- 4372 ------------------ BATCH AND MIX OPERATORS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Pangle, Curtis G---------------------- 4131 None. None. II Replacements III Discriminatory Replacements CEMENT FINISHER (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Corder, T. A------------------------- 3951 ------------------ II Replacements Davis, C. H-------------------------- 3955 Tyler, Theo A------------------------ 1919 None III Discriminatory Replacements BROWN AND ROOT, INC., ETC. 56Z CRANE OPERATORS (2) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Doshier, R. R------------------------ Freeman, D. E----------------------- Miser, Gene G----------------------- Reeves, Arlis D---------------------- Wade, Martin------------------------ 1809 1121 3208 862 2601 ----------------- II Replace None. III Discriminatory Alexander, O. R---------------------- ments Replacements 2978 /12/50- 1/29/50 Hickman, B. M---------------------- 2428 3/15/50-11/ 6/50 Strickland, J. R---------------------- 1779 4/19/50- 9/20/50 DINKEY OPERATORS (2) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Davis, F. C., Jr---------------------- 1883 ------------------ Garrigus, W. J----------------------- 859 Gilley, C. D------------------------- 1410 Griffith, R. D------------------------ 1843 Harris, L. H------------------------- 1918 Ramey, James W--------------------- 2418 Schneider, Andries P------------------ II 721 Replacements Dobbins, J. E------------------------ 789 ------------------ Tolliver, James E--------------------- 3991 ------------------ Warburton, William J----------------- 713 ------------------ III Discriminatory Replacements Bell, T. V--------------------------- 4043 ------------------ Ricketts, R. L------------------------ 1580 ------------------ Rosson, R. F------------------------ 598 ------------------ Tolliver, E. E------------------------ 2926 ------------------ ELECTRICIANS (4) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Browning , J. E----------------------- 1187 ------------------ Parsley, George C-------------------- 2694 .568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II Replacements Badge Date of hire of discriminatory Name number replacements Burnett , Louis ----------------------- 4156 ------------------ Cornelius, Paul J--------------------- 3917 ------------------ Farrar, E. B------------------------- 1768 ------------------ Manes,Julias J----------------------- 3854 ------------------ Sand, Joe H------------------------- 1436 ------------------ Word, T. G-------------------------- 3855 ------------------ Discriminatory Replacements Connaughton, E. C------------------- 1965 4/27/50 Oglesby, Setas R--------------------- 2161 3/16/50 Person, B. R------------------------- 2004 (2826) 5/ 2/50 Sand, B. S--------------------------- 1461 4/ 5/50 Young, E. M------------------------ 4392 1/30/50 FORM SETTERS AND STRIPPERS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Name Badge number Date of hire of discriminatory replacements Kellem, Elzie L---------------------- 915 ------------------ Phillips, Claude N-------------------- 2213 ------------------ Pemberton, Raymond------------------ 627 ------------------ Pine, Roy A------------------------- 685 ------------------ Welch, James A---------------------- 588 ------------------ Whitley, Leonard G------------------- 931 ------------------ Whittaker, James H------------------- 586 ------------------ II Replacements Griffith, R. L------------------------ 2226 ------------------ Nethery, Nathan T------------------- 972 ------------------ Phillips, Milburn---------------------- 1136 ------------------ Reven, Thomas N-------------------- 1398 Reynolds, Harley E------------------- 4082 ------------------ Stafford, James A-------------------- 689 ------------------ Winfree, Claude W------------------- 2411 ------------------ III Discriminatory Replacements Parnell , C. C------------------------ 2967 (See Stipulation 99 NLRB 1054, Ct. Record 139) 1/12/50 IRONWORKERS (8) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Name Badge number Date of hire of discriminatory replacements Beard, T. H------------------------- 1696 ------------------ Brazzell , John------------------------ 948 ------------------ McMillin, Robert E------------------- 1864 ------------------ Milligan, James P-------------------- 3131 ------------------ Narramore, Charles A----------------- 1727 ------------------ Nettles, Henry M--------------------- 3815 ------------------ BROWN AND ROOT, INC., ETC. ' 569 II Replacements Date of hire of Badge discriminatory Name number replacements Brown, C. S------------------------- 1011 Parnell, George E-------------------- 1336 III Discriminatory Replacements Sherrell, Marvin---------------------- 1284 JACKHAMMER OPERATORS (4) I ------------------ 3/17/50 Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held None. Name II Replacements Date of hire of Badge discriminatory number replacements Vanderventer, E. G------------------- 1802 III Discriminatory Replacements Girtman, W. R----------------------- 927 12/19/49 Dry, Elmer-------------------------- 3225 2/15/50 MILLWRIGHTS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Name Classification Not Formerly Held Date of hire of Badge discriminatory number replacements Davenport, J. B---------------------- 3807 II Replacements None. in Discriminatory Replacements (See Stipulation 99 NLRB 1057, Ct. Record, p. 142, 1 between 2/1 and 7/25/50) PUMP OPERATORS (4) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Badge Name number Date of hire of discriminatory replacements Dearmore, R. L----------------------- 2796* ------------------ Johnson, Jesse W--------------------- 1920 ------------------ McKinney, Harold D----------------- 3070 ------------------ Thomas, Omer V--------------------- 2145 ------------------ Webber, Leroy ------------------------ 605 ------------------ *Reappears on payroll ending 1/1/50. II Replacements Keeter, Aubrey----------------------- 792 ------------------ Pangle, James------------------------ 885 ------------------ Smith, George E--------------------- 1120 ------------------ 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III Discriminatory Replacements Date of hire of Badge discriminatory Name number replacements Turner, Loy-------------------------- 620 2/ 8/50 RIGGERS (1) I 'Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Jones, Joseph F---------------------- 1882 ------------------ Perry, Clifford------------------------ 1702 II Replacements Clark, L. H------------------------- 4108 Warren, Briney----------------------- 4102 None. III Discriminatory Replacements SANDBLASTERS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Badge Date of hire of discriminatory Name number replacements Hamm, John H----------------------- 944 ------------------ Hamm , H. D------------------------ 549 ------------------ Sisk, Olgie--------------------------- 2481 ------------------ Vandeventer, Howard E--------------- 3502 ------------------ Whitfield, Allen E-------------------- 653 ------------------ II Replacements Mahan , Leonard---------------------- 648 Stewart , Lewnye D------------------- 2467 None. III Discriminatory Replacements SANDBLAST-NOZZLEMEN I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Name Badge number Date of hire of discriminatory replacements Buchanan , Billie J-------------------- 650 Daniel, A. B------------------------- 2209 ------------------ Friend, J. A------------------------- 2143 ------------------ Funkhouser, T. R--------------------- 941 ------------------ II Replacements Dickerson, P. T---------------------- 969 Gossage, A. G----------------------- 1633 BROWN AND ROOT, INC., ETC. None. III Discriminatory Replacements SIGNALMEN (2) 571 I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Badge Name number Date of hire of discrzrnana tort' replacements Byrd, Grover C---------------------- 1810 ------------------ Griffin (Griffith), Joseph-------------- 759 ------------------ King, Neal Louis--------------------- 1166 ------------------ Lewis, Eugene------------------------ 2115 ------------------ Smith, Charlie L--------------------- 2140 ------------------ Walker, Harold----------------------- II 1025 ------------------ None. None. Replacements III Discriminatory Replacements VIBRATOR OPERATORS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Badge Name number Date of hire of discriminatory replacements Beard, Claborn----------------------- 1459 ------------------ Crawford, Junior ---------------------- 2316 ------------------ Hare, Charles------------------------ 962 ------------------ Hathcock, Charles B------------------ 947 ------------------ Kindle, Walter E--------------------- 1954 ------------------ Koontz, James B--------------------- 1951 ------------------ Muier, Oliver R---------------------- 1338 ------------------ Parton, Raymond H------------------ 1934 ------------------ Perry, Hershel------------------------ 565 ------------------ Sanders, Lewis H---------------- ---- 1061 ------------------ Todd, Homer------------------------- 838 ------------------ Wheeler, F. W----------------------- 4158 ------------------ II Replacements Boatright, Harlan B------------------- 2210 ------------------ Cantrell, Jerry------------------------ 1935 ------------------ Cockrum, W. S---------------------- 1930 ----------------- Copeland, J. W----------------------- 2103 ------------------ Duggins, E. J------------------------ 1807 ------------------ Glendenning, Quinton----------------- 1214 ------------------ Harness, Alvin C--------------------- 1889 ------------------ Kieff, Robert H---------------------- 538 ------------------ Lance, Gerald------------------------ 1939 ------------------ Martin, Joe-------------------------- 1923 ------------------ Moss, Boyd-------------------------- 791 ------------------ Oels, John D------------------------ 1006 ------------------ Oels, Robert G----------------------- 1756 ------------------ Parker, James------------------------ 679 ------------------ Sisney, Archie------------------------ 1804 ------------------ Sites, Nathan C---------------------- 2237 ------------------ Taylor, Johnnie L-------------------- 1885 ------------------ 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name Badge number Date of hire of discriminatory replacements Stone, Leffel C----------------------- 1921 ------------------ Todd, Bud H------------------------ 835 ------------------ Trivitt, Oliver E---------------------- 1340 ------------------ Young, Alonzo----------------------- 696 ------------------ III Discriminatory Replacements Adams, G. D------------------------ 4306 1/19/50 Blair, D. W-------------------------- 2944 3/20/50 Burns, H. H------------------------- 4313 4/24/50 Cockrum, C. B----------------------- 2984 1/13/50 Denny, Bill-------------------------- 4308 1/13/50 Denton, C. E------------------------ 2916 7/ 3/50 Fletcher, Vernon---------------------- 2915 1/ 3/50 Hughes, L. W------------------------ 4301 5/ 6/50 Kelley, Woodie----------------------- 1492 12/19/50 Lantz, C. V-------------------------- 4318 1/16/50 McGinnis, A. V---------------------- 1191 1/25/50 Morton, T. N------------------------ 4302 1/13/50 Smith, R. Q------------------------- 3888 8/21/50 WAGON DRILL OPERATORS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge discriminatory Name number replacements Cranfill, Richard L------------------- 1264 ------------------ None. None. H Replacements III Discriminatory Replacements Unanue & Sons, Inc. and Manuel Alvarez, Eugenio Garcia, Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo. Cases Nos. 2-CA-7340-2, 2-CA- 7340-3, 2-CA-7340-4, 2-CA-7340-5, 2-CA-7340-6, 2-CA-7340-7, 2-CA-7340-8, and 9-CA-7340-9. July 31, 1961 DECISION AND ORDER On February 13, 1961, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. He further found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. 132 NLRB No. 33.