The Buncher Co.

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jack G. Buncher, d/b/a The Buncher Company and United Steelworkers of America, AFL-CIO. Case 6-CA-1917. May 4,1967 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 30, 1961, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding,' finding that Jack G. Buncher, d/b/a The Buncher Company, herein called the Respondent, had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and directing inter alia, that Respondent offer immediate and full reinstatement to certain employees, dismissing, if necessary, all employees hired after March 4, 1960, and further directing Respondent to make whole the reinstated employees for any loss of pay they may have suffered as a result of the discrimination. Thereafter, the Board's Order was enforced by the United States Court of Appeals for the Third Circuit.2 On August 31, 1964, the Regional Director for Region 6 issued a backpay specification and notice of hearing. Pursuant to notice, a hearing was held before Trial Examiner Max Rosenberg to determine the amount of backpay due. On August 6, 1965, the Trial Examiner issued his Supplemental Decision, attached hereto, in which he awarded specific amounts of backpay to the 13 discriminatees, and recommended the dismissal of the backpay specification insofar as it relied exclusively upon seniority to support the backpay periods and computations on and after May 12, 1960. On January 13, 1966, the Board issued an Order reversing the Trial Examiner's findings and conclusions with respect to that portion of the backpay specification relating to periods subsequent to May 12, 1960, and remanded the proceeding to the Trial Examiner for further findings and the issuance of a Second Supplemental Decision. On May 23, 1966, the Trial Examiner issued his Second Supplemental Decision, attached hereto, in which he awarded specific amounts of backpay to the 13 discriminatees for periods subsequent to May 12, 1960. Thereafter, the Respondent filed 1 131 NLRB 1444, as clarified by the Board's Order of September 22, 1961 2 N L.R B v Jack G. Buncher, d/b/a The Buncher Company, 316 F 2d 928 (C A 3) 3 At the hearing the Respondent moved to amend or clarify its answer to assert that the discrimmatees would have been laid off due to lack of work on March 10, 1960, although it admitted that the first reduction in force took place on May 12, 1960 The Trial Examiner denied the motion as untimely, and noted the Respondent's original answer had admitted that May 12, 1960, was the date of the first economic reduction in force subsequent to the last discriminatory layoff The Trial Examiner further exceptions to the Trial Examiner's Second Supplemental Decision, and a brief in support thereof, and the General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.3 The Board has considered the Trial Examiner's Supplemental Decision, the Second Supplemental Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified by his Second Supplemental Decision, with the comments noted hereafter. In its initial Decision in this case, the Board recognized the possibilities of a subsequent economic reduction in force which might have resulted in the layoff of some of the discriminatees even absent the Respondent's unfair labor practices. As a result, in fashioning a remedy for the unfair labor practices, the Board stated: If there is not then sufficient work available for the remaining employees and those offered reinstatement, all available positions shall be distributed among them without discrimination against any employee because of concerted activities, in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of his business. The Respondent shall place those employees, if any, for whom no employment is available after such distribution on a preferential list, with priority in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of his business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work.4 Generally, the burden of alleging and proving that jobs were not available for all the discriminatees during the backpay period is placed on thel commented on his ruling in his Supplemental Decision, characterizing the motion to amend the answer as an attempt to relitigate an issue decided in the unfair labor practice proceeding We agree with the Trial Examiner's ruling. Respondent's assertion that the discnmmatees would have been laid off on March 10, or at any time before the date of the first economic reduction in force, is merely an attempt to relitigate the asserted justification for the selection of the employees for the initial layoffs, a selection which the Board and the court have already found to be discriminatory 4 The BuncherCompany,131 NLRB 1444, 1445 164 NLRB No. 31 THE BUNCHER COMPANY respondent.5 The backpay specification subsequently issued by the General Counsel alleged that the utilization of a system of seniority was an appropriate method to determine the availability of work for the discriminatees on and after May 12, 1960, the date of the first economic reduction in force subsequent to the last discriminatory layoff. The Respondent contends that it did not have a seniority system and would not have used such a system to select employees for the retention, layoff, or recall. The Respondent's alternative theory of the basis for such layoffs is, in fact, an affirmative defense in which it contends that all of the discriminatees would have been laid off on May 12, 1960, and not recalled. In solving many of the problems which arise in backpay cases, the Board occasionally is required to adopt formulas which result in backpay determinations that are close approximations because no better basis exists for determining the exact amounts due. However, the fact that the exact amount due is incalculable is no justification for permitting the Respondent to escape completely his legal obligation to compensate the victims of his discriminatory actions for the loss of earnings which they suffered. In general , courts have acknowledged that in solving such backpay problems, the Board is vested with wide discretion in devising procedures and methods which will effectuate the purposes of the Act and has generally limited its review to whether a method selected was "arbitrary or unreasonable in the circumstances involved,"6 or whether in determining the amount , a "rational basis" was utilized.7 Before the backpay specification was issued herein, the Respondent maintained that personal judgment or personal evaluation of each employee's capabilities was the method used in selecting employees for retention, layoff, or recall. As the Respondent maintained no written records which would support such contentions, General Counsel's complete acceptance of Respondent's position at this point would have in effect amounted to a substantial abandonment of backpay claims even prior to a hearing on the extent of Respondent's backpay liability. As an alternative , the General Counsel reverted to an objective standard of determining backpay, namely, the use of seniority to determine the availability of employment for the discriminatees on and after May 12, 1960, and utilized such standard in, the backpay specification. 5 Mastro Plastic Corp, 136 NLRB 1342, enfd 354 F 2d 170 (C A 2) s N L R B v Brown & Root, Inc, 311 F 2d 447,452 (C A 8) ' N L R B v Kartarik, Inc , 227 F 2d 190, 193 (C.A 8). 8 The Respondent's employment criteria chart was prepared specifically for these proceedings and in response to the Trial Examiner's show cause order , and purported to show the manner in which all of Respondent 's employees met certain criteria for retention or recall The chart was constructed in November 1964 341 However, Respondent was not thereby precluded from adducing evidence in support of its position at a subsequent hearing and, in fact, it was not until the Trial Examiner issued a show cause order that the Respondent set forth the specific criteria it allegedly used in making selections of individuals for retention, layoff, or recall.8 Respondent's objection to the use of seniority as a basis for determining the amounts of backpay due in individual cases is that it is arbitrary because it is directly contrary to Respondent's asserted system of selection of its individual employees for layoff and recall. The Respondent's system has been discredited . Because it is thus impossible to determine with precision the amount of lost pay in any individual instance , the result of Respondent's argument would apparently be that it should be excused from reimbursing its employees for any lost pay, or, possibly, that in no individual case should the reimbursement exceed the least amount of pay lost by any employee as determined by application of the seniority rule. Such a result would permit Respondent to profit by its own wrong, at the expense of the employees whom it injured. The finding that the discharges were discriminatory necessarily establishes a pay loss by the employees for, without the discrimination, the selection would not have been made until some point later in time . Some measure of backpay is therefore required in order to effectuate the purposes of the Act. As the Supreme Court has held in Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-266, where a precise computation is impossible , it is appropriate to make a just and reasonable estimate of the damage based on relevant data .... Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.... That principle is an ancient one .... on the basis of personal recollections of Respondent's several supervisors and covered approximately 225 employees over a span of more than 4-1/2 years The testimony of the supervisors themselves was based on their recollection as refreshed by the chart which they helped to create Like the Trial Examiner, we conclude the probative value of the chart and testimony relating thereto must be assessed accordingly See, International Trailer Company, Inc , 150 NLRB 1205, 1209 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery" for a proven invasion of the plaintiff's rights. Story Parchment Co. v. Paterson Co., [282 U.S. 555 at] 565. Admittedly, the utilization of seniority here results in an inexact measure of backpay liability. However, it is no more inexact than would be the use of Respondent's "personal judgment" in determining layoffs and recall, a method the Trial Examiner rejected, because he found it was contrived to avoid reemploying the discriminatees. In these circumstances, any measure used to determine backpay will be inexact and arguably arbitrary. It is Respondent's violation of the Act which requires the Board to apply a remedy that in its judgment offers a reasonable basis for remedying the violations found. The extensive use of seniority by other employers in determining layoff and recall, the objective nature of the seniority system, and the complete absence of an alternative offered by the Respondent other than personal judgment, made the General Counsel's utilization of seniority in framing the backpay specification not unreasonable. The backpay specification, in any event, did not foreclose the Respondent from establishing a more reasonable alternative theory on which backpay could be calculated. The Respondent, through testimony of its witnesses and an employment criteria chart, sought to establish that the failure to retain or recall any of the discriminatees in the period from May 12, 1960, until January 1962, was based on nondiscriminatory considerations. The Trial Examiner rejected Respondent's defense that all of the discriminatees would have been laid off for nondiscriminatory reasons on May 12, 1960, and not recalled because the record, including, inter alia, the employment criteria chart and the testimony of Respondent's witnesses, contained inconsistencies and implausibilities which led the Trial Examiner to conclude that "the charted information was contrived for the purpose of denying backpay" to the discriminatees. We agree with the Trial Examiner that the Respondent's failure to retain or recall any of the discriminatees was not because of the asserted inability of all the discriminatees to satisfy the employment criteria. We note that Respondent's owner, Jack Buncher, testified in the original unfair labor practice proceeding that there was nothing seriously wrong with the work of the discriminatees, that he never had any serious complaints concerning their work, and that he would rehire them if needed. Yet Respondent's employment criteria chart indicates that approximately 17 new employees9 were hired from May 12, 1960, through January 12, 1962, the date the discriminatees were offered reinstatement, and that, in addition, several former employees were recalled to work during that period of time. Moreover, the Respondent admittedly trained employees in new skills without offering such training to the discriminatees, although some of them were rated "superior" in ability to learn by the Respondent's own standards. Additionally, the employment criteria chart indicates that at least three employees (not discriminatees) were accorded "superior" ratings for attitude although one of Respondent's supervisors testified that "those boys were fired so many times for absenteeism" that he was unable to give an accurate account of the firings. The record also discloses incidents of exaggeration of skill requirements for jobs by the Respondent in an apparent effort to upgrade the skills of employees who were retained in preference to the discriminatees. Further, Respondent's employment criteria chart, by a unique coincidence, disqualifies all of the discriminatees for backpay subsequent to May 12, 1960. In sum , we conclude that Respondent's affirmative defense did not rebut the prima facie case established by the General Counsel and that, under all the circumstances, seniority was a reasonable method of establishing the Respondent's backpay liability. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner as set forth in his Second Supplemental Decision, and orders that Respondent, Jack G. Buncher, d/b/a The Buncher Company, Pittsburgh, Pennsylvania, his officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. N Not including 11 men employed for a special project for a brief period during the summer of 1960. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: This supplemental proceeding was instituted by the Regional Director for Region 6 for the purpose of determining the amount of backpay, if any, due to certain employees whom the National Labor Relations Board had found in an earlier case to have been discriminatorily laid off by Respondent in violation of Section 8(a)(3) and (1) of the Act. As hereinafter set forth, the order of the Board, directing the Respondent to make the employees whole for any loss of pay they may have sustained as a result of the discrimination practiced against them, was enforced by the United States Court of Appeals for the Third Circuit. Pursuant to appropriate notice, a hearing was held before me in Pittsburgh, Pennsylvania, on various dates between December 16, 1964, and January 7, 1965, upon the limited THE BUNCHER COMPANY issues raised by the pleadings. All parties were represented by counsel and were afforded full opportunity to examine and cross-examine witnesses and to introduce pertinent evidence. At the conclusion of the hearing, the parties waived oral argument. Excellent briefs have been filed by the General Counsel and the Respondent, which have been duly considered. Upon the entire record made in this proceeding,' I hereby make the following: FINDINGS 1. BACKGROUND On September 20, 1960, Trial Examiner George J. Bott issued his Decision in the unfair labor practice proceeding herein, finding, inter alia, that the Respondent had violated Section 8(a)(3) and (1) of the Act by laying off 13 employees between January 15, 1960, and March 4, 1960, at its Nine Mile Run facility in Pittsburgh, Pennsylvania, because they had joined or assisted the Charging Union. Although the Trial Examiner acknowledged that there existed at the time of these layoffs economic justification for a reduction in force under normal business practices, he nevertheless concluded that "The decision to make a staff reduction at the time, therefore, despite the economic factors which have justified it, was not only triggered by the advent of the Union, but the selection of the employees to be laid off or transferred was also motivated by antiunion considerations in substantial part." In considering the reasons advanced by Respondent for selecting the discriminatees for layoff, the Trial Examiner accepted Respondent 's testimonial assertion that it had never maintained an agreement , policy, practice or system, pursuant to which seniority was exclusively or primarily utilized in determining whether employees were to be laid off, recalled, or rehired, and made a specific finding in this respect. On June 30, 1961, the Board issued a Decision and Order in which it adopted the foregoing findings of the Trial Examiner.2 In fashioning a remedy for these unfair labor practices , the Board stated: It appears that following the layoffs occurring on January 15, 1960, through March 4, 1960, which have been found herein to have been discriminatory, the Respondent's business operations were more efficient and the workload could be accomplished with a reduced work force. It is therefore possible that some of the employees discriminated against on January 15 through March 4, 1960, might have been laid off in a subsequent reduction in force even absent the Respondent's unfair labor practices. Under these circumstances, we shall order the Respondent to offer those employees listed on Appendix A, attached hereto [the 13 discriminatees], immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing, if necessary, all employees since then hired. If there is not then sufficient work available for the remaining ' I have taken official notice of the record in the original unfair labor practice proceeding ' Jack G. Buncher, d/b/a The Buncher Company, 131 NLRB 1444, as clarified by the Board's Order of September 22, 1961 S N.L.R.B. v Jack G Buncher, d/b/a The Buncher Company, 316 F 2d 928 (C A 3) The Court' s decree is dated June 14, 1963 " The discmmmatees and the dates on which their discrimination occurred are as follows. 343 employees and those to be offered reinstatement, all available positions shall be distributed among them without discrimination against any employee because of concerted activities, in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of his business. The Respondent shall place those employees, if any, for whom no employment is available after such distribution on a preferential list, with priority in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of his business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. In considering the issue of backpay, the Board notes: As some of the employees discriminated against on January 15 through March 4, 1960, might have been laid off in a subsequent reduction in force, even absent unfair labor practices, such possible termination of employment shall be taken into consideration in computing the backpay due these employees under the terms of this Order. In a per curiam opinion filed on May 20, 1963, the United States Court of Appeals for the Third Circuit enforced in full the Board's Order, including the provision for backpay.3 II. THE PLEADINGS The present proceeding was instituted on August 31, 1964, when the Regional Director for Region 6 issued his backpay specification, as amended at the hearing. Because of the various pretrial motions which were made, and my rulings thereon, it might help to illuminate the issues as they were ultimately refined by setting forth the pertinent allegations in the backpay specification. In paragraph 1 thereof, the Regional Director set forth the alleged backpay periods for the discriminatees.4 Paragraph 2 alleged in substance that, absent unfair labor practices, the first reduction in force at Respondent's Nine Mile Run facility (where the discriminatees had been employed) would have occurred and did occur on May 12, 1960. Paragraph 3 averred that the discriminatees were entitled to backpay in accordance with the weekly average hours worked by employees at that facility until May 12, 1960. In paragraph 4, the Regional Director set forth his bases fQr determining each discriminatee's entitlement to backpay after May 12, 1960, by allocating work at the Nine Mile Run facility if available, or if none was available, by allocating work at Respondent's other installations at Leetsdale and the Yard, among the discriminatees and the other employees "in accordance with their seniority," which, in paragraph 5, is based on an employee's most recent hiring date with Respondent. Paragraph 6 of the specification alleged that each discriminatee was entitled to backpay at each of the respective installations computed on the basis of the weekly average hours worked John A. Cmdrick, 1-16-60 Ronald Loughner, 1-20-60 James H. Roth , 1-16-60 Samuel Rutherford, 1-30-60 Milton Ashford , 1-16-60 Archie Jackson , 2-13-60 Henry Ivy, 1-16-60 John West, 2-13-60 Joseph Wytiaz , 1-16-60 William Greene , 2-20-60 George Collier , 1-19-60 James Cmdnck, 3-5-60 Robert Vinsick , 1-20-60 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by employees at these installations after May 12, 1960, and paragraph 7 set forth in appendixes to the specification the weekly average hours throughout the pertinent backpay period. Paragraphs 8 and 9 alleged that general wage increases and a bonus were given to employees in December of each year in the backpay period which were due and owing to the discriminatees. The remaining paragraphs of the specification described the mechanics for the computation of net backpay due the discriminatees and specifically treated with the alleged backpay entitlement of each. Following issuance of the backpay specification, the Respondent filed its answer on October 14, 1964. For the most part, the answer sought to relitigate issues concerning the economic justification for the severance of the discriminatees which had already been determined in the prior unfair labor practice proceeding. However, in answer to paragraph 4 of the backpay specification, Respondent denied that seniority, as therein alleged, would have been the criterion for selecting employees for retention or recall and asserted that other, nondiscriminatory reasons, would have disentitled the discriminatees to employment by Respondent on and after May 12, 1960. On October 19, 1964, the General Counsel filed a motion to strike portions of Respondent's answer and motion for judgment on the pleadings, which motions were referred to me for ruling. By order dated October 23, 1964, I denied the General Counsel's motion to strike paragraph 7 of the answer inasmuch as it placed in issue the number of employees on Respondent's weekly payroll during the pertinent backpay period and hence controverted the General Counsel's backpay computations.5 Concurrently, I issued an order upon Respondent to show cause why the motion to strike should not be granted as to such other paragraphs in its answer wherein it denied that it ever maintained or utilized a system of seniority pursuant to which employees were selected for retention or layoff, and which averred that the discriminatees were not retained in Respondent's employ after May 12, 1960, because they failed to satisfy Respondent's criteria for retention of employment which were unrelated to seniority. In that order, I directed the Respondent to set forth in its response the precise criteria utilized by Respondent to determine whether to lay off, retain, or rehire employees, and, further, to set forth the names of the employees retained on and after May 12, 1960, or subsequently employed or recalled on and after 5 Paragraph 7 of Respondent's answer was directed toward the parallel advocative paragraph in the General Counsel's specification. The answer controverted , in certain respects, the number of employees who were employed during the various weeks of the backpay period and thus put in issue the average weekly hours worked by Respondent's employees during that period, as set forth in Appendixes A and B of the backpay specification At the hearing , and again in its brief, the Respondent conceded the accuracy of the computations set out in those Appendixes and this matter was removed as an issue in the case 6 See N.L.R.B v Biscayne Television Corporation, 337 F.2d 267, 268 (C.A. 5) ' Section 102.54(b) prescribes the contents of an answer to a backpay specification and provides, in pertinent part "As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross backpay, a general dental shall not suffice As to such matters, if the respondent disputes either the accuracy of the that date, in preference to the discriminatees, together with their job classifications and/or work assignments; the manner and degree in which said employees satisfied the criteria utilized by Respondent; and, the manner and degree in which the discriminatees failed to satisfy those criteria as contrasted with each and every employee who was retained, employed, or recalled since May 12, 1960, in preference to the named discriminatees. I further granted the General Counsel's motion to strike all averments in Respondent's answer, except those which were specifically saved in my order, on the ground that those averments sought to relitigate matters laid to rest in the unfair labor practice proceeding6 and/or failed to satisfy the requirements of specificity set forth in Section 102.54(b) of the Board's Rules and Regulations.' Finally, I denied the General Counsel's motion for judgment on the pleadings. On November 30, 1964, the Respondent filed its response to the order to show cause in which it set forth the criteria which it asserted were utilized in selecting employees for layoff, retention, or recall, on and after May 12, 1960, together with a chart purporting to show the manner in which each employee, including the discriminatees, did or did not satisfy Respondent's criteria. Thereafter, the General Counsel moved to strike the response on various grounds, which motion I denied. III. THE ISSUES On the basis of the pleadings, as well as my rulings on the various motions filed, the issues which remained outstanding as the hearing got under way related to (1) whether it was legally permissible for the General Counsel to utilize seniority alone to support his contention that the discriminatees would have worked for Respondent after May 12, 1960, in preference to other employees, and were entitled to backpay in the amounts and for the periods outlined in his specification, and, if so, (2) whether the Respondent had used nondiscriminatory criteria, other than seniority, in selecting employees for layoff, recall, or employment after that date which, when applied to the discriminatees, disqualified them for employment and hence disentitled them to backpay for any period following May 12. However, at the hearing, Respondent moved to amend its answer to aver that all of the discriminatees would have been laid off for economic reasons on March 10, 1960, rather than May 12, 1960.8 figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting figures." ' Respondent also urged, by motion at the hearing to amend its answer, that it did not grant general wage increases to all employees in December of each year of the backpay period and hence all of the discrimmatees would not have been entitled to such increases for the various reasons which it advanced. Prior to the hearing, I granted the General Counsel's motion to strike Respondent's answer in which the discriminatees entitlement to these increases was denied, on the ground that the answer failed to satisfy the requirements of specificity outlined in Section 102.54(b) of the Board's Rules and Regulations I adhere to my previous ruling and deny Respondent's motion to amend In any event, I have hereinafter found that Respondent's backpay liability to the discriminatees terminated on May 12, 1960, prior to the date on which the first wage increase (December 1960) was granted. This issue, placed in this posture, is accordingly mooted THE BUNCHER COMPANY This latter issue was again pressed in Respondent's brief and will be disposed on hereinafter.9 At the hearing, the Respondent moved to dismiss the backpay specification on the ground that, as a pleading, it was legally defective because the backpay periods and the computations contained therein rested solely on the premise that Respondent utilized seniority in determining who should be retained, laid off, or rehired, after May 12, 1960. In support of this assertion, the Respondent pointed out that the Trial Examiner in the original unfair labor practice proceeding had found as a fact, and the Board and the United States Court of Appeals for the Third Circuit affirmed the finding, that the Respondent did not use seniority either solely or primarily in enlarging or curtailing its work force in the course of its business operations. In essence, the Respondent argued that it was improper for the General Counsel to select seniority as the formula for computing backpay because this criterion was neither reasonable nor appropriate in light of the antecedent finding of fact that seniority was not utilized by Respondent to effect a reduction in staff. In opposition to the motion to dismiss, the General Counsel contended that, despite the foregoing findings of fact concerning the absence of an established seniority system, seniority was nevertheless a reasonable and objective criterion upon which to predicate the backpay claims. Because of the apparent novelty of the question posed, I reserved ruling on the motion and put the Respondent to its proof as to the criteria which it employed in separating the discriminatees . After long and thoughtful study of this issue, I am persuaded that the backpay specification should be dismissed insofar as it utilizes seniority to support the backpay periods and computations after May 12, 1960. I am not unmindful, as the United States Court of Appeals for the Eighth Circuit observed in N.L.R.B. v. Brown & Root, Inc.,10 that "In solving the problems which arise in backpay cases the Board is vested with a wide discretion in devising procedures and methods which will effectuate the purposes of the Act." I am also aware that this Court noted that "in many cases it is difficult for the Board to determine precisely the amount of backpay which should be awarded to an employee. In such circumstances the Board may use as close approximations as possible, and may adopt formulas reasonably designed to produce such approximations."11 However, that tribunal expressed the caution that the method of backpay computations which the Board selects must not be "arbitrary or unreasonable in the circumstances involved," 12 and that the computations must be made "upon any range of facts, circumstances or reasonable inferences , which afford a rational basis for a conclusion." 13 0 The Respondent takes no issue with, and concedes the accuracy of, the following matters as they appear in the backpay specification (a) The calculation of average hours, i.e , the use of average hours and the use of numbers of employees to determine average hours worked during the backpay period, (b) the payment of bonuses and the entitlement of the discnminatees to such bonuses if any backpay is deemed due at all to them; and, (c) discnmmatees ' interim earnings and the diligence of their search for employment during the backpay period 10 311 F.2d 447, 452 (C A 8) And see Phelps Dodge Corp v N.L.R.B , 313 U.S. 177, 199 " N.L.R.B. v Brown & Root, Inc, supra, p. 452 N.L.R.B v Ozark Hardware Company, 282 F.2d 1, 7 (C.A 8) 13 N L R.B. v Kartarik, Inc., 227 F.2d 190, 193 (C A 8) 345 In view of the Board's decision and the Court's enforcement decree, both of which adopted Trial Examiner Bott's finding that Respondent did not maintain an established seniority system for reducing its work complement,14 it seems to me that this finding became the law of the case on remand which I, as well as the General Counsel, must accept as datum. If I am correct in this judgment, I fail to perceive how the General Counsel can urge that his selection of seniority as the predicate for his backpay specification was a reasonable one which afforded "a rational basis for a conclusion" inasmuch as that matter had already been decided adversely to him in the prior Board and Court proceedings.15 It would seem only fair and just that, if Respondents in backpay proceedings may not relitigate issues which have been laid at rest in unfair labor practice proceedings,16 neither may the General Counsel.17 Moreover, I am not persuaded either by the case precedent or the other circumstances advanced by the General Counsel that a contrary conclusion is dictated. I recognize that both the Board and the Courts in Ozark Hardware and Kartarik have approved the use of seniority as a reasonable basis for the computation of backpay where there was no demonstrated, established system of seniority at an employer's plant, because "on the basis of normal industrial practice generally," the employer might in reasonable probability have made layoffs in relation to an employee's length of service. But where it has been determined that utilization of seniority was not the "normal" business practice, as in the instant case, I am hard pressed to understand how this determination fits into those decisional molds. Nor do I deem it significant that the Board, in its remedy, referred to seniority when it directed that jobs be allocated at Respondent's installations "in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by Respondent in the conduct of his business." Although the General Counsel argues that the Board thereby acknowledged that Respondent utilized seniority in dealing with its employees' employment relationship, I am not convinced that the Board intentionally indulged in the inconsistency of finding in the substantive aspect of the case that seniority was not used in effecting reductions in force, while finding in its remedial section just the opposite. In view of the foregoing findings , I deem it unnecessary to consider whether the Respondent's asserted reasons for its failure to retain , transfer, or recall the discriminatees on and after May 12, 1960, possess or lack validity. In the posture of this case, nothing would be gained by such consideration unless I were to decide that, even though the General Counsel has chosen an unreasonable or arbitrary basis to support his backpay computations, or no basis at 14 In his brief, the General Counsel seemingly concedes that the Board, in its original decision, found that Respondent did not have such a seniority system 15 Cf Peerless Distributing Company, 149 NLRB 1062. 11 See N L.R.B. v Biscayne Television Corporation, 337 F.2d 267,268(C A.5) 1' The General Counsel introduced into evidence, G C Exh 3 in an attempt to demonstrate that, during a reduction in force in 1957, Respondent "basically" utilized seniority in effecting the reduction at the Nine Mile Run location This attempt proved abortive The exhibit shows that 34 employees were employed on the date of the layoff, and 16 or them were separated Nine of these employees, including a discnmmatee, were laid off out of context with their seniority. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all, the Respondent must nevertheless come forward and meet a phantom . If this is the state of Board law in this area, as the General Counsel seemingly suggests , I believe it should be set forth with a greater degree of clarity than now exists . Accordingly, I shall recommend that the backpay specification be dismissed insofar as it relies exclusively upon seniority to support the backpay periods and computations on and after May 12, 1960. I turn next to Respondent's assertion that the cutoff date for backpay should be March 10, 1960, rather than May 12 of that year. Paragraph 2 of the specification alleged that, on the latter date , the first economic reduction in force following the discriminatory severance of the 13 employees would have, and did, occur. Respondent's answer to this allegation was as follows: 2. The averment of Paragraph Two of the specification is admitted; by way of further Answer, it is averred that the employer's reduction in force subsequent to March 4, 1960, other than prior reductions as alleged in certain preceding paragraphs, was in direct response to the cut-back in orders from the [Jones & Laughlin] Steel Company as referred to at Paragraph 1(d) above. [Emphasis supplied.] Paragraph 1(d) of the answer avers that this curtailment of orders first occurred on May 12, 1960. The "certain preceding paragraphs" referred to in the answer sought to justify the denial of backpay on the ground that economic considerations would have warranted the layoff of the discriminatees on the dates of their discrimination. With respect to those "certain preceding paragraphs," namely, paragraphs 1(a) and (b), I granted the General Counsel's motion to strike those averments on the ground that Respondent was thereby attempting to relitigate issues which had already been adjudicated in the unfair labor practice proceeding. 18 As thus shorn, Respondent's answer to Paragraph 2 of the specification contained an admission that the first reduction in staff at the Nine Mile Run installation occurred on May 12, 1960. At the hearing, the Respondent moved to amend or clarify its answer to assert that the discriminatees would have been laid off due to lack of work on March 10, 1960, although it again admitted that the first reduction in force would have taken place on May 12, 1960. In support of this motion , Respondent contended that the original paragraph 1(b) of its answer properly put this assertion in issue. That paragraph recites 111 also struck Paragraph 1(c) of Respondent's answer which averred that backpay should be abated on and after March 18, 1960, because Respondent "accepted the offer of settlement" of (b) That not later than March 4 , 1960, the date John Cindrick, last of the discriminatees , was laid off, and prior thereto but subsequent to January 15, 1960, the employer had economic, reason and justification for reducing the work force at the Nine Mile Run facility as further evidenced by the finding of the Trial Examiner and as adopted by the Board , referred to above at paragraph 1(a) of the Answer; March 4,1960, or prior thereto but subsequent to January 15, 1960, should thus be determined as the cutoff date of the employer's back pay liability ; in the alternative. It takes no more than a casual reading of this paragraph to convince even the kindest antagonist of semantics that this defensive pleading does nothing more than reecho a refrain which has already been found by the Board to be statutorily discordant. I denied Respondent's motion for the reasons set forth in my ruling on the General Counsel's original motion to strike this portion of Respondent's answer. I perceive no reason for departing from that ruling now. Accordingly, I find that the 13 discriminatees are entitled to backpay from the dates of their discrimination to may 12, 1960. CONCLUSIONS I have heretofore found that the discriminatees are entitled to backpay from the dates of their discrimination to May 12, 1960. I approve and adopt the computations contained in the specification relating to the first quarter of 1960, and ending on March 31 of that year, with respect to each discriminatee . Because I have altered the backpay cutoff date, I shall correct the computations for the second quarter of 1960 to reflect the correct amounts which I find to be due to the individual discriminatees until May 12, 1960. In doing so, I have utilized the "Adjusted Average Hours" contained in Appendix A of the backpay specification, the accuracy of which Respondent concedes, for the pay weeks of April 7, 1960, through May 12, 1960. Thus calculated, each discriminatee would have worked 389.8 hours during the second quarter of 1960, and would have received wages at the rate listed in the specification. Net interim earnings for the second calendar quarter, where applicable, have been adjusted at 6/13ths, or 46 percent, of the earnings for that quarter to accommodate the May 12, 1960, cutoff date . The corrected gross and net backpay for the pertinent calendar quarters for each discriminatee is as follows: the backpay proceeding "advanced" by the Regional Director for Region 6 on that date The Respondent did not challenge this ruling either at the hearing or in its brief herein. THE BUNCHER COMPANY 347 Calender Quarter Hours & Rate of Pay Gross Backpay Net Interim Earnings Net Backpay James Cindrick 1960-1 (Beginning 3/5) 259.6 @ $2.10 $ 545.16 None $ 545.16 1960-2 (Ending 5/12) 389.8 @ $2.10 818.58 None 818.58 $1,363.74 John A. Cindrick 1960-1 (Beginning 1/16) 691.7 @ $2.15 $1,487.15 None $1,487.15 1960-2 (Ending 5/12) 389.8 @ $2.15 830.07 $156.76'9 681.31 $2,168.46 William Greene 1960-1 (Beginning 2/20) 393.0 @ $2.25 $ 884.25 None $ 884L25 1960-2 20 (Ending 5/12) 389.8 @ $2.25 877.05 $225.88 651.17 $1,535.42 George Collier 1960-1 (Beginning 1/19) 682.7 @ $1.65 $1,126.45 None $1,126.45 1960-2 (Ending 5/12) 389.8 @ $1.65 643.17 None 643.17 $1,769.62 Henry Ivy 1960-1 (Beginning 1/16) 427.7 @ $1.85 $ 791.24 None $ 791 24 1960-2 21 (Ending 5/12) 389.8 @ $1.85 721.13 $36.80 684.33 $1,475.57 Ronald Lou finer 1960-1 (Beginning 1/20) 673.7 @ $1.75 $1,178.97 None $1,178.97 1960-2 22 (Ending 5/12) 389.8 @ $1.75 582.15 $65.03 517.12 $1,696.09 Sammie Rutherford 1960-1 (Beginning 1/30) 581.5 @ $1.60 $ 930.40 None $ 930.40 1960-2 23 (Ending 5/12) 389.8 @ $1.60 623.68 $245.19 378.49 $1,308.89 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calender Quarter Hours & Rate of Pay Gross Backpay Net Interim Earnin s Net Back g pay Robert Vinsick 1960-1 (Beginning 1/20) 679.0 @ $1.75 $1,188.25 $159.00 $1,029.25 1960-2 (Ending 5/12) 389.8 @ $1.75 582.62 573.62 24 8.53 $1,037.78 Joseph Wytiaz 1960-1 (Beginning 1/16) 691.7 @ $1.75 $1,210.47 None $1,210.47 1960-2 (Ending 5/12) 389.8 @ $1.75 582.15 None 582.15 $1,792.62 John West 1960-1 (Beginning 2/13) 456.4 @ $1.60 $730.24 None $ 730.24 1960-2 (Ending 5/12) 389.8 @ $1.60 623.68 None 623.68 $1,353.92 Archie Jackson 160-1 eginning 2/13) 456.4 @ $1.50 $684.60 None $ 684.60 1960-2 (Ending 5/12) 389.8 @ $1.50 584.70 None 584.70 $1,269.30 James Roth 1960-1 (Beginning 1/16) 691.7 @ $1.40 $968.38 $53.00 $ 905.38 1960-2 (Ending 5/12) 389.8 @ $1.40 545.72 64.34 481.38 $1,386.76 Milton Ashford 1960-1 (Beginning 1/16) 691.7 @ $1.40 $968.38 $116.00 $ 852.38 1960-2 (Ending 5/12) 389.8 @ $1.40 545.72 36.80 508.92 $1,361.30 14 John A Cmdrick's net interim earnings as originally set forth in the specification were $337 85 By the General Counsel's amendment at the hearing, this figure was escalated to $340 79 The adjusted intenm earnings represent 6/13ths, or 46 percent, of the latter figure 20 William Greene's net interim earnings as originally set forth in the specification were $488.10. By amendment at the hearing, this figure was changed by the General Counsel to $491 04 The adjusted intenm earnings represent 6/13ths or 46 percent of the latter figure. 21 As adjusted at the rate of 6/13ths or 46 percent of the original sum of $80 22 As adjusted at the rate of 6/13ths or 46 percent of the original sum of $14136 29 As adjusted at the rate of 6/13ths or 46 percent of the original sum of $533.03. 24 As adjusted at the rate of 6/13ths or 46 percent of the original sum of $1,247 THE BUNCHER COMPANY 349 Summarizing the calculations hereinabove made, I conclude and find that Respondent's obligation to make whole the discriminatees shall be satisfied by payment to them of the respective sums set forth below, together with interest thereon at the rate of 6 percent per annum, commencing with the last day of each calendar quarter, measured from the date of this Supplemental Decision.25 James Cindrick $1,363.74 John A. Cindrick $2,168.46 William Greene $1,535.42 George Collier $1,769.62 Henry Ivy $1,475.57 Ronald Loughner $1,696.09 Sammie Rutherford $1,308.89 Robert Vinsick $1,037.78 Joseph Wytiaz $1,792.62 John West $1,353.92 Archie Jackson $1,269.30 James Roth $1,386.76 Milton Ashford $1,361.30 I recommend that the Board adopt the foregoing Findings and Conclusions. 15 By letter dated April 1, 1965, the General Counsel requested that I impose interest on Respondent's net backpay obligation in accordance with the formula set forth in Isis Plumbing & Heating Company, 138 NLRB 716, despite the fact that the Board's original order did not provide for the allowance of interest. In support of this request, the General Counsel relies upon the Board's decision in Local 138 , International Union of Operating Engineers, AFL-CIO (Nassau and Suffolk Contractors' Association, Inc), 151 NLRB 972 The Respondent opposes this request In Local 138, the Board announced that , henceforth, interest would be added to net backpay in backpay proceedings even though no provision for its allowance was made in the original unfair labor practice proceeding That decision is binding upon me and I hereby grant the General Counsel's request. TRIAL EXAMINER'S SECOND SUPPLEMENTAL DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: On August 6, 1965, I issued a Supplemental Decision in the above-styled proceeding in which I found that the named discriminatees were entitled to specific amounts of backpay from the dates of their discrimination to May 12, 1960, with interest thereon at the rate of 6 percent per annum. I also found that the first economically motivated reduction in force following the discrimination occurred at Respondent's installations on May 12, 1960. In his backpay specification, as amended at the hearing,' the General Counsel alleged that most of the discriminatees were entitled to further amounts of backpay for varying periods following May 12, 1960, because, through the utilization of the standard of seniority, as therein defined, they would have continued in Respondent's employ during said periods in preference to other employees who possessed less seniority than the discriminatees.2 At the hearing, the Respondent moved to dismiss the backpay specification on the ground that it was legally defective inasmuch as the backpay periods and computations contained therein rested solely on the premise that Respondent would have utilized seniority in effecting the reduction in force on May 12, 1960. In support of this motion, the Respondent asserted that, in the original unfair labor practice proceeding, the Board and the United States Court of Appeals for the Third Circuit affirmed the Trial Examiner's findings of fact that the Respondent did not solely utilize seniority in enlarging or curtailing its work force in the course of its business operations . Because of the apparent novelty of the question posed, I reserved ruling on the motion and put Respondent to its proof as to the criteria which it employed in determining whether employees were to be laid off, retained, or recalled, and the manner and degree in which the discriminatees failed to satisfy those criteria as contrasted with each and every employee who was retained, employed, or recalled since May 12, 1960, in preference to the discriminatees . However, in the Supplemental Decision, I dismissed the backpay specification insofar as it alleged that the discriminatees were entitled to backpay on and after May 12, 1960, because, in my view, it was unreasonable and arbitrary for the General Counsel to rely on seniority as the sole predicate for his computations in light of the previous findings of fact by the Trial Examiner, the Board, and the Court, that Respondent did not utilize that standard in the operation of its business facilities . Because of the dismissal of this aspect of the specification on this ground, I deemed it unnecessary to consider whether the discriminatees would have lost their jobs in the reduction in force of May 12, 1960, or failed to regain them because they would not have satisfied the nondiscriminatory criteria which Respondent advanced. By order dated January 13, 1966, the Board remanded this proceeding to the Trial Examiner. In doing so, it can be concluded that "an absence of the use of seniority by the Respondent does not render the General Counsel's utilization of seniority in this proceeding arbitrary or unreasonable. . ." and directed that I prepare and issue a Second Supplemental Decision setting forth "the findings , conclusions , and recommendations with regard to backpay, if any, to which the discriminatees are entitled for the period or periods subsequent to May 12, 1960." As I construe the order of remand, the Board has determined that the General Counsel's reliance upon seniority to support his backpay periods and computations, as defined in the backpay specification, was legally appropriate , and that the specification made out a prima facie case of Respondent's monetary indebtedness to the discriminatees in the amounts set forth therein. Accordingly, in view of my prior rulings upon the General Counsel's motion to strike portions of Respondent's answer to backpay specification and motion for judgment on the pleadings; on the basis of the initial Supplemental Decision herein ; and, in light of the Board's remand as thus construed , the only issue before me in this litigation is whether the Respondent has sustained its burden of showing by preponderant proof that all the discriminatees would necessarily have been laid off in the economic reduction in force on May 12, 1960, and would not have been reemployed thereafter, for reasons wholly unrelated to their union activities, because they failed to satisfy Respondent's asserted qualifications for the retention or recapture of employment. i The amendment , which is G C Exh 2, operates to reduce the Respondent's backpay liability in certain respects i The specification does not claim backpay for disenmmatee Milton Ashford after May 12, 1960, because , based upon his seniority , the General Counsel conceded that there was no work available for him at any of Respondent's facilities thereafter 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record made in this proceeding and my observation of the witnesses, including their demeanor while on the stand, I hereby make the following supplemental findings, conclusions, and recommendations. I. SUPPLEMENTAL FINDINGS AND CONCLUSIONS A. Respondent's Business Operations Respondent is engaged in the business of scrap breaking, scrap reclamation, and the construction and leasing of industrial buildings in and around Pittsburgh, Pennsylvania. In addition, Respondent also engages in the business of demolition and salvage of buildings, bridges, and industrial plants; operates and maintains a river port at which it receives and ships various materials; and, operates facilities for the storage and transfer of various commodities. During the times material to this proceeding, Respondent conducted its operations principally at three locations.3 The oldest facility is situated at Shore Avenue, North Side, Pittsburgh, and is commonly referred to as the "Yard." The principal activity at the Yard involves the receipt, storage, processing, and shipment of ferrous and nonferrous scrap materials obtained from the salvage and demolition of structures, and the fabrication of metal members which are utilized in the erection of buildings. The Yard also houses the principal offices of Respondent, and serves as the headquarters for the so-called "outside" operations which include the demolition and salvage of structures. Located at the Yard are such pieces of equipment as a large gantry crane, car moving winches, a scrap cutting shear, magnets, drop balls, handtools, a lead melting oven, a small lead pigging machine, and two heavy-duty trucks equipped with power winches which transport heavy steel members and other heavy equipment to various project sites. Another facility is maintained by Respondent at Nine Mile Run in Pittsburgh, Pennsylvania, which is normally referred to as "Nine Mile." This installation is basically a slag processing operation and consists of two plants located on a slag dump owned by the Duquesne Slag Company." The function of these plants is to reclaim and separate iron from a waste material known as "slag," which is obtained from the Duquesne dump and a nearby Jones and Laughlin mill. To extract the ferrous material from the raw material, the slag is dug from the dump 3 In 1963, the Respondent undertook the construction of a fourth facility at Glenwood, Pennsylvania, which consisted of a coal dock ' On May 12, 1960, one of these plants was closed down 5 The dates of discrimination for the various discriminatees are as follows John A Cmdrick, 1-16-60 James H. Roth, 1-16-60 Milton Ashford, 1-16-60 Henry Ivy, 1-16-60 Joseph Wytiaz, 1-16-60 George Collier, 1-19-60 Robert Vinsick, 1-20-60 Ronald Loughner, 1-20-60 Samuel Rutherford, 1-30-60 Archie Jackson, 2-13-60 John West, 2-13-60 William Greene, 2-20-60 James Cmdrick, 3-5-60 6 On January 12, 1962, discnmmatees Greene, James Cindrick, John A Cindrick, Collier, West, Jackson, Roth, and Ashford declined Respondent's offer of reinstatement to jobs at Leetsdale through the use of power shovels or high lifts and loaded onto trucks which are owned and operated by an independent contractor. The trucks transport the slag to the plants where it is deposited into two chutes or hoppers for processing. Once in the plants, the slag is placed on conveyor belts and, through the employment of shakers, magnetic separators, and a kiln, the "fines" or reclaimed ferrous metal is extracted and loaded into railroad cars by the hi-lifts, while the residue or "spoil" is diverted by a conveyor to a spoil gate where it is placed into trucks and transported away for disposal. To maintain the plants and the heavy equipment located at Nine Mile, Respondent operates a repair shop which contains machine tools and welding devices; operates a lubrication truck and a mobile welding unit; and utilizes a "water wagon" to sprinkle the dust in the area. In 1961 Respondent began operating a "fines" plant. The third facility which Respondent maintains is located at Leetsdale, Pennsylvania. Leetsdale is an industrial complex consisting of buildings, warehouses, and plants which Respondent constructs and leases to industrial tenants. Employees of the Respondent are designated to perform the carpentry work, install foundations, and do the brick, concrete, and block work, as well as the sheet roofing work. Other phases of construction are accomplished by subcontractors. Respondent also constructed and operates a large river dock equipped with gantry cranes and other hoisting equipment where industrial machinery and other materials of various dimensions are loaded or unloaded from river barges. In addition, Leetsdale contains a structural steel warehouse, a steel fabricating shop, and a scrap yard and storage yard. In its operations , Leetsdale uses such equipment as four gantry cranes, crawler type cranes, dragline cranes, steel erection cranes, overhead cranes, hi-lifts, forklift trucks, road rollers, graders, and a variety of tools. B. The Contentions I have heretofore found in the initial Supplemental Decision that all the discriminatees were entitled to backpay in the specified amounts there set forth from the dates of their discrimination until May 12, 1960, the date on which an economic reduction in force occurred at Respondent's installations.5 The General Counsel contends that most of the discriminatees are entitled to backpay for various periods after May 12,1960 .6 Thus, the The backpay period for these individuals concededly terminates on that date Discriminatee Vinsick accepted Respondent's offer on that date but quit his employment on September 1, 1962, which constitutes his backpay terminal date Discrimmatees Ivy, Rutherford, Loughner, and Wytiaz also accepted Respondent's reinstatement offer at Leetsdale where they manually broke slabs of manganese ore into smaller pieces with the use of a sledge hammer. The General Counsel asserts that their backpay continues to run from January 12, 1962, because substantially equivalent employment and hours of work, which existed at the time of their discrimination, were available for them at Nine Mile after that date and no offer of reinstatement at said location has been made to them However, the wages received by these individuals at Leetsdale have been treated as interim earnings in the backpay computations The specification, as noted hereinabove, does not claim backpay for Ashford for any period following May 12, 1960 Accordingly, while the backpay period for this discriminatee technically runs to January 12, 1962, the date of Respondent's reinstatement offer, Ashford's entitlement to backpay from May 12, 1960, will be dropped from consideration in this Decision THE BUNCHER COMPANY 351 backpay specification alleges that, when sufficient work was not available at Nine Mile (where the discriminatees normally worked) after May 12, 1960, for all the discriminatees and all other employees who were employed at Nine Mile at the time of the discrimination, each discriminatee's entitlement to backpay after that date should be determined by allocating the available jobs at Nine Mile among the discriminatees and other employees in accordance with their seniority as therein defined. If sufficient work was not available to a discriminatee after such allocation, then his entitlement should be assessed by allocating all available jobs at Nine Mile, Leetsdale, and the Yard, among the discriminatees and other employees at all locations in accordance with their seniority. Based upon the utilization of this seniority standard, which the Board approved in its remand, the General Counsel urges that jobs were available for discriminatees Greene, James Cindrick, John A. Cindrick, Collier, and Ivy at Nine Mile throughout their backpay periods; that jobs were available on and after that date for discriminatees Loughner, Rutherford, Vinsick, and Wytiaz either at Nine Mile, Leetsdale, or the Yard throughout their backpay periods; and, that jobs were available on and after that date for discriminatees West, Jackson, and Roth either at Leetsdale or the Yard throughout their backpay periods. In response to my order to show cause dated October 23, 1964, and again at the hearing and in its brief, the Respondent challenged the General Counsel's assertion that the discriminatees' seniority alone would have entitled them to employment after May 12, 1960, in preference to other individuals. In this connection, Respondent asserted that the following criteria were utilized to determine whether to retain or reemploy employees: (1) ability to perform available work; (2) rate of pay; (3) productivity; (4) application to work; (5) attitude toward work and willingness to learn; (6) ability to learn new skills; (7) limitation on availability; (8) experience with the Respondent; (9) experience with other employers; and (10) relative length of service with Respondent. Accordingly, Respondent contends that all the discriminatees would necessarily have been laid off on May 12, 1960, and none would have been recalled thereafter, because they failed to meet these criteria to the same degree as the employees who were retained, recalled, or were newly hired. C. Legal Precepts Before considering the evidence adduced in this proceeding, I deem it important to set forth in brief the ' See W C Nabors Co, 134 NLRB 1078, 1085, enfd as modified 323 F 2d 686 (C A 5), cert denied 376 U S 911 8 354 F 2d 170,175-176 Ibid. at p 176 358F2d94(CA 5) See W C Nabors Co , 134 NLRB 1078, 1088. " See Ozark Hardware Company, 119 NLRB 1130, 1133, enfd 282 F 2d 1 (C A. 1) 13 See Underwood Machinery Company, 95 NLRB 1386, 1392, enfd 179 F.2d 118 (C A 1) 14 As the Board observed in Interurban Gas Corporation, 149 NLRB 576, 578, "We consider it quite irrelevant whether Allen [a replacement] is more competent than either of Respondent's former servicemen If [discmmnatee] Gillingham's reinstatement means that Allen is a superfluous employee, this is a hazard that Respondent should have foreseen." And see Flora and Argus Construction Company, 149 NLRB 583, 585, where, in answer to the employer's assertion that the discrimmatees would not have been retained, absent discrimination, because they were legal principles which govern the nature and quantum of proof which Respondent must here advance. It is now established doctrine that an employer who has discriminated against employees in violation of Section 8(a)(3) of the Act assumes the same position as a conventional tort-feasor. Damages by his wrongful acts having been established in prior unfair labor practice proceedings, the burden of proof in diminution of such damages rests upon the wrongdoer.' This is particularly true in situations where the issue concerns job availability at an employer's plant for discriminatees during the period following their discrimination. In Mastro Plastics Corp., the United States Court of Appeals for the Second Circuit characterized this burden as "an affirmative defense in the traditional sense of that term and a part of the employer-respondent's case."8 As that tribunal explained, "To establish that an employer has reduced or adjusted his business to an extent eliminating the job of a discriminatee requires careful analysis of the books and records of the employer during the backpay period.... it is the employer who kept the records and who therefore is able to explain them and to interpret any ambiguities they may contain."9 These observations were echoed by the United States Court of Appeals for the Fifth Circuit in N.L.R.B. v. Charley Toppino & Sons, Inc." To sustain an affirmative defense that discriminatees would not have been retained in its employ because of an economic reduction in force following the date of discrimination, an employer must come forth with clear and convincing evidence to support its contentions. "[M]ere self-serving and conclusionary statements" that an employer would have laid off or refused to recall backpay claimants for nondiscriminatory reasons cannot operate to deprive them of their remedial rights." And, if any uncertainty exists concerning the availability of work for discriminatees, this flows from the employer's illegal actions and is to be resolved against him rather than the victims of those actions.12 Moreover, a discriminatee's right to continuing employment, uninterrupted by discrimination, encompasses "the right to compete on a nondiscriminatory basis for continuing employment in identical or substantially equivalent work, with those of his fellow employees who had held positions identical to his own at the time of his discharge."13 Hence, an employer may not defend the denial of continued employment to discriminatees on the ground that their replacements or incumbent employees were more desirable or more competent workers. 14 Furthermore, it is no defense to a backpay claim that an employer's business operations were carried on more successfully with a reduced work incapable of performing the jobs which had to be filled at the employers' projects, the Board noted "The answer to this argument is simply that there is now no way to verify its truth or accuracy The seven discriminatees were hired and were paid to carry out the duties assigned to them, and were terminated, not for failure to perform satisfactorily, but for discriminatory reasons . Respondent made no attempt to test its asserted reason that the discnmmatees did not have the capability for working out satisfactorily on the remaining work at the project It is true that the Act imposes no obligation on an employer to retain an inefficient employee or one who is incapable of carrying out assigned duties But where, as here, an employer has unlawfully discharged employees, foreclosing the opportunity its discharged employees would otherwise have had to demonstrate their fitness for future tasks and thereby precluding a reliable determination of their future suitability, the employer is scarcely in a position to assert that it would not have continued to utilize such employees on jobs within their classification even in the absence of discrimination " 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complement after his discrimination. 15 With these teachings in mind, I now turn to the evidence which Respondent adduced in defense of this action. D. The Evidence In proof of its affirmative defense, Respondent prepared a chart purporting to show the manner in which each employee, including the discriminatees , but excluding watchmen, guards, and office clericals, did or did not satisfy Respondent's criteria for the retention of or recall to employment.16 This chart, which was amplified primarily through the testimony of Herbert Green, Respondent's general manager, as well as Jack G. Buncher, Respondent's sole proprietor, Superintendents Moses Pasquarelli, and Albert Kohan, contains the names of employees who appeared on the payrolls beginning on January 14, 1960 (immediately preceding the first instance of discrimination), until November 30, 1964." Each employee is listed in order of his original hiring date. Adjacent to the name of each such employee appears a qualitative , numerical rating ranging from 1 (superior) to 5 (not acceptable) for any of the detailed 52 job titles which the employee had performed.'s Similar ratings are recorded for the other criteria Respondent advanced, such as ability to learn , attitude, application, production, etc. Finally, the chart lists the hourly wage rate paid to each employee, and contains a record of each employee's history of employment indicating layoffs and discharges. According to Green, the Respondent never maintained any written records over the years to memorialize the work abilities and attitudes of employees until the instant chart was prepared specifically for this proceeding, and hence the information and ratings contained therein are based exclusively upon the personal observation and knowledge of supervisors, and, primarily, Supervisor Green. Inasmuch as the Respondent neither produced nor had available any written records to support the accuracy of the chart, and called no employee witnesses in support of its asserted defenses, the probity of Respondent's testimony as well as the chart itself must be tested against the backdrop of consistency, subjectivity, and plausibility, keeping in mind that Respondent 's evaluation of its employees represented a judgment expressed in November 1964, covering a range of several years.19 On January 14, 1960, immediately prior to the illegal discrimination , the Respondent had a complement of 34 employees at Nine Mile, and an overall work force of approximately 73 at the three locations, namely, Nine Mile, Leetsdale, and the Yard. On May 12, 1960, the date of the economic reduction in force, the number of employees at Nine Mile decreased to 22, while the number at all three installations totaled 49. Between May 12,1960, and January 12, 1962 (the date on which Respondent offered the discriminatees employment at Leetsdale), employment at Nine Mile averaged approximately 19 individuals per week. Between May 12, 1960, and March 26, 1964,20 overall employment fluctuated between 41 and 54. During this latter period , 34 employees were either transferred to Nine Mile from other facilities, were rehired for work at Nine Mile, or were newly hired employees. On and after May 12, 1960, Respondent had jobs available at Nine Mile for two hi-lift operators, a dragline operator, two shovel operators, two to three welders, a truck expeditor, and a fines plant operator, in addition to work for general maintenance men, oilers, painters, track workers, and laborers. During the same period, Leetsdale and the Yard utilized hi-lifts, dozers, draglines, shovels, and a variety of cranes, and employed welders, mechanic and mechanics' helpers, truckdrivers , bargemen, laborers, painters and helpers on construction, shearmen, scrap burners, and scrap sorters. Despite the constriction of Respondent's work force after the dates of discrimination, it is clear on this record that work existed at Nine Mile, Leetsdale, and the Yard after May 12, 1960, which the discriminatees could have performed. Thus, Herbert Green testified that William Greene and the Cindricks were "excellent" dragline , dozer, hi-lift, and shovel operators and that this equipment was operated at Nine Mile during their backpay periods. Collier was represented by Green as being capable of working as a truck expeditor as well as operating the shaker , kiln feed conveyor, and performing car loading and laboring work; Ivy and West were welders who also performed laborer's work; Rutherford had been employed as a car loader, shaker operator, spoil gate operator , scrap burner, and shearman, and had also operated a hi-lift and dozer; Loughner, in addition to having worked as a laborer, general maintenance man, and mechanic's helper, also operated the hi-lift and the dozer; Vinsick, who was an equipment operator , was also utilized as a laborer, oiler, and maintenance man; Wytiaz had been a truck expeditor, oiler, spray painter, mechanic 's helper, general maintenance man, and laborer , and additionally operated the hi-lift and dozer; and, Archie Jackson and Roth had performed work as laborers. Moreover , it is undisputed that, over the years, Respondent freely transferred employees between its three facilities , including discriminatees Ivy, Rutherford, Wytiaz, and West,21 into various jobs. In their testimony, Herbert Green, Buncher, Pasquarelli, and Cohen essayed to evaluate negatively the job capabilities and attitudes of the discriminatees in contrast to the employees who were retained on May 12, 1960, or recalled or hired thereafter, through utilization of the chart. This testimony was so fraught with inconsistencies , internal contradictions, exaggerations, and implausibilities that I am convinced the charted information was contrived for the purpose of denying backpay to the claimants on and after the above date. Thus, one of Respondent's asserted criteria for the 15 See N.L R.B. v Biscayne Television Corporation, 337 F 2d 267, 268 (C A 5) 's See G C Exh 1(y) 17 The chart was prepared by Respondent in November 1964, in response to my order to show cause why the answer to backpay specification should not be dismissed , and was filed with me on November 30, 1964. 18 These ratings run as follows (1) superior , (2) above average, (3) average , (4) acceptable , and (5) not acceptable 14 See e g , International Trailer Company, Inc , 150 NLRB 1205, 1210: "Subjective testimony by management representatives in 1963 concerning the ability and skill of employees discharged in 1960 for union activity is not very reliable though it may be that the witnesses believe that they are expressing their honest opinions . In addition, the employer has an interest in reducing his liability as much as possible Moreover, the claimants had aroused management's antagonism sufficiently to cause it to discharge them and such hostility does not necessarily disappear with the passage of time " 20 Respondent's payroll and related records were not available for periods after this date. See G C Exh.10 THE BUNCHER COMPANY 353 retention of employment during an economic reduction in force was the wage rate paid to employees . As explained by Green, if a choice were to be made between employees of equal ability , the employee receiving the lower rate of pay would be preferred over the one receiving the higher. Prior to the reduction in employment on May 12, 1960, the Respondent experienced only one other such employment curtailment which occurred on November 15, 1957, and which also was occasioned by a desire to reduce costs, so that this is the only episode by which to measure Respondent's assertion in this connection. Despite Respondent's contention that relative wage rates were one of the criteria utilized in determining which employees were to be retained in an economic reduction in force, Green conceded, and the record shows, that during the 1957 layoffs , Respondent retained discriminatees William Greene, James and John Cindrick, George Collier, and Henry Ivy, although they received relatively higher wage rates than such individuals as Thomas Frazier , Gambino Lopez, Gerald Hinger, Charles Epps , John Edditor, and Harland Shearer, who were terminated. Respondent then attempted to explain this dichotomy by asserting that, since the layoffs in 1957, employees Hinger, Edditor, and Lopez had acquired greater skills and had demonstrated more exemplary work attitudes than the discriminatees , and that this was the reason why they were retained during the backpay periods herein . However, the record conspires against these assertions . Respondent's chart assigns Hinger a 1 or "superior" rating as a hi-lift, dozer, dragline and shovel operator , and it indicates that he was discharged on February 27, 1961 , without explanation . Nonetheless, Hinger's supervisor, Pasquarelli, testified that Hinger actually was discharged for having been negligent in servicing shovels. In Pasquarelli's words, Hinger "ran the shovel out of fuel, not only once, but three times. On the third time that is when I got rid of him. The other two times I swallowed my tongue, because I had to argue with Mr. [Herbert] Green about him all the time. But this time it was either he or I.1122 It should be noted that Hinger was chosen to replace James Cindrick when the latter was discriminatorily terminated on March 5, 1960, although James Cindrick was also rated 1 or "superior" as an equipment operator, and was testimonially described by Herbert Green as an "excellent" shovel and equipment operator . Moreover, Respondent's records are singularly silent as to any critical reference to his work abilities or attitudes . 23 John Edditor is rated on the chart as a "superior" truck expeditor, as was George Collier. Following Collier's unlawful discharge , Edditor was selected to replace him on that job . Despite the facts that the task of a truck expeditor concededly became vastly more simplified after Collier's separation , and the "superior" rating which Respondent's chart assigns to Edditor, the latter was discharged on July 24 , 1961 , because of unsatisfactory work. Gambino Lopez is accorded a "superior " rating on the chart for production , application , and attitude, and is rated as having unlimited job availability. Albeit these ratings, Herbert Green testimonially admitted that excessive absenteeism "was historically the case" with Lopez, and that he had been discharged in 1958 , and again on January 13, 1961 , when he "was gone for a couple of weeks on a drunk," although the chart merely recites that Lopez "quit" on the latter date. Collier, who concededly could perform jobs which were assigned to Lopez, was given a lower rating for production , application, and attitude , notwithstanding his employment record was uninterrupted from the date of his hire in June 1955 until his discriminatory discharge on January 18, 1960. Respondent assigns an "average" attitude rating for Collier. According to Green , this rating was prompted by the fact that Collier was observed perusing baseball books while at work and Green scolded him for it. However, this incident, which occurred sometime before Collier's discharge , and which Green attempted to magnify , did not result in any disciplinary action being taken against Collier. Other inconsistencies, implausibilities, and exaggerations appear on this record which further serve to undermine Respondent's affirmative defense . Clarence Ardrey, who received a "superior" rating on the chart as a hi-lift and dozer operator , but was unqualified as a dragline or shovel operator, was retained by Respondent in preference to William Greene and the Cindricks who were characterized by Herbert Green as "excellent" operators on all these pieces of equipment. Yet, Respondent's records show that Ardrey was discharged on September 15, 1960, because he was negligent in the operation of this equipment . Jonathan Favor, who was generally rated as equal in ability with George Collier, was awarded a "superior" rating on attitude while the latter was characterized as "average," despite the fact that Favor was discharged by Respondent in June 1960, because he had been found stealing. Again, Anthony Robinson, Jr., who did "odd end jobs " at Nine Mile, and Robert and Gordon Taylor , who either had little seniority; or were newly hired following the dates of discrimination herein, were accorded "superior" ratings for attitude although Herbert Green testified that "Those boys were fired so many times" for absenteeism that he was unable to give an accurate account of the firings. Nevertheless, discriminatees Ivy, Greene, and John Cindrick were rated merely as "acceptable," and Vinsick, Rutherford, and Collier as "average" in attitude, although the chart in no way indicates that any of the discriminatees had ever been charged with absenteeism during the entire course of their employment. That Respondent testimonially engaged in job skill "puffing" to glamorize the skills of employees who were retained in preference to the discriminatees in order to deny backpay to the claimants is further pointed up by the testimony of Herbert Green. Thus, Green waxed ecstatic about the capabilities of Gambino Lopez who, as previously chronicled, was discharged on several occasions for absenteeism . Listening to Green testify as to Lopez' skills as a shaker operator in the plant at Nine Mile, one would gather that Lopez was a veritable giant in the field of metallurgical science , despite the fact that he was 22 Green stated that he hired and retained Hinger because Green was a friend of Hinger's father, and Pasquarelli testified that attempts to rid himself of Hinger were thwarted because of this friendship Curiously, Respondent neither lists in its chart nor asserts in its testimony that "friendship " was a criterion for obtaining or retaining employment. 29 Green exclaimed that James' attitude changed in some undefined way after his brother John had been discriminatorily discharged by Respondent on January 16, 1960 This change in attitude, if in fact it occurred, may be understandable James was also singled out by Respondent for the identical discrimination visited upon his brother. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD characterized on Respondent's records as a laborer. In his testimony in this proceeding, Green described the duties of a shaker as follows: He operates the controls of this machine, but in addition to operating the controls of this machine, he too must be constantly alert for a jam or a choking up of this screen. In other words , very often large pieces of material will embed themselves in the openings of the screen .... In the operation of this machine, the overloading of this machine could literally destroy it. It knocks the machines out of balance . This is a sensitive machine. It is delicately balanced. Overloading will cause destruction of the machine . [The shaker] has, as an aid to this operation, a long-handled hook . Now, when the odd-shaped pieces of iron will lodge themselves in one of the openings of the shaker, he had a long-handled hook to dislodge this. When questioned as to whether laborers could perform the work of a shaker, Green replied: No, I am afraid that I can't accept that because we have on many occasions tried laborers on this job and we found that they do not have the necessary skill to keep the machine clear. However, Green 's description of these duties in the original unfair labor practice proceeding runs as follows: His job [the shaker's] is to do nothing more than push a button and start the shaker, and then survey it and watch and see that no pieces lodge in the opening of the shaker screen, and if such pieces did lodge, his job would be to kind of kick them loose with a little hook he caries in his hand. Yet, Lopez is the man who Green conceded had received a substantially lower bonus in 1959 and 1960 than the discriminatees as "punishment," and who nevertheless was retained in preference to discriminatee George Collier who was a capable shaker operator, as well as a "superior" truck expeditor, and an average kiln feed conveyor operator, laborer, and car loader, and in preference to discriminatee Samuel Rutherford, who had been employed as a shaker operator , car loader, spoil gate operator, scrap burner and shearman, and who also operated the hi-lift and dozer.24 Moreover, I find it implausible that all 13 discriminatees would have been selected for layoff on May 12, 1960. Jack Buncher, Respondent's sole proprietor, testified in the original unfair labor practice proceeding that there was nothing seriously wrong with the work of the discriminatees prior to their discrimination, that he never had any serious complaints concerning their work, and that he would rehire them if needed . This sentiment was reiterated in the instant proceeding. Moreover, Buncher declared in the original proceeding that Henry Ivy would not have been terminated on January 16, 1960 had 'Buncher been forewarned of Ivy's selection for separation on that date . This testimony is hardly supportive of Respondent 's unswerving assertion that none of the discriminatees would have been retained on and after May 12, 1960.25 In sum, Respondent would lead me to believe that the Cindricks and Greene, who had extended and uninterrupted service with Respondent ; who were con- cededly excellent heavy equipment operators ; who were retained in a prior reduction in force in preference to employees who were kept in Respondent's employ after the critical date of May 12, 1960 ; who received larger bonuses and wages than their counterparts prior to their discrimination ; and, who, in most cases, had greater seniority than those retained , would nevertheless not have remained on its payroll after the critical date because of their failure to satisfy Respondent's criteria for retention or recapture of employment . I find it not only implausible but incredible that Gerald Hinger , or Clarence Ardrey, both of whom displayed an admitted lack of proficiency in the jobs in which the Cindricks and Green concededly excelled, would have debarred the latter from employment during the backpay period. Respondent would also have me believe that George Collier would not have been employed after May 12, 1960, either as a truck expeditor, a car loader, or shaker or kiln feed conveyor operator at Nine Mile , despite the fact that Collier's replacements -John Edditor and Gambino Lopez, were proven to be inadequate because of lack of ability or poor attitude following that date.26 Moreover, it strains credulity to believe , as Respondent urges, that discriminatee Ivy would have had no job in Respondent's industrial structure after May 12, 1960, in view of Buncher's insistence that Ivy would not have been terminated on January 16, 1960 , had the former been apprised of the impending discharge , and in light of the fact that Ivy had greater seniority than his replacement, Aaron Scott, and had been favored with substantially larger bonuses than Scott prior to Ivy's discharge. After a careful consideration of the entire record made in this and the original proceeding, I am convinced that Respondent's failure to retain or recall the discriminatees during the pertinent backpay periods was occasioned, not by their inability to satisfy Respondent's employment criteria, but by a continued manifestation of Respondent's discriminatory attitude toward these individuals. I am fortified in this conclusion by Respondent's flagrant disregard of the Board's original Order, as enforced by the United States Court of Appeals . That mandate directed Respondent, in order to purge itself of its unfair labor practices , to offer to the discriminatees: immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing, if necessary, all employees since then hired. If there is not then sufficient work available for the remaining employees and those to be offered reinstatement, all available positions shall be 2' It is notable that Respondent 's chart does not qualify Rutherford as a shaker , or spoil gate operator, and merely accords him as "average" score as a car loader . Nevertheless, Superintendent Pasquarelli candidly admitted that Rutherford was "very good" at these jobs, and there is no record notation that Rutherford's work attendance was anything but good '' Despite Respondent's contention to the contrary , none of the employees employed at Nine Mile Run on May 12, 1960, were laid off. Rather, four such employees were simply transferred to other facilities on that date. zs Respondent' s assertion that comparative wage rates were a determinant in retaining or recalling employees, and thereby foreclosed employment to some or all of the discriminatees during the backpay period, is belied by its action in transferring Willie Hams, allegedly a multiskilled employee, from Leetsdale to Nine Mile to perform the simplified duties of truck expeditor Hams' wage rate is listed on Respondent's chart as $1 95 per hour, while Collier's rate is $1.65. THE BUNCHER COMPANY distributed among them without discrimination against any employee because of concerted activities, in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of his business. The Respondent shall place those employees, if any, for whom no employment is available after such distribution on a preferential list, with priority in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of his business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired. [Emphasis supplied.] 27 So far as this record stands, the Respondent not only failed to consider the discriminatees for reemployment until approximately 2 years following their discriminatory discharges, and approximately 15 months subsequent to the initial Trial Examiner's Decision, a consideration which was judicially imposed upon it,28 but indeed flouted its legal obligations by hiring new employees or rehiring former employees for work which the discriminatees could have performed, and undertook to train workers without affording such training to the discriminatees who were all classified on Respondent's chart as possessing above average or superior ability to learn new tasks. Thus, during the summer months of 1960 and 1961, Respondent provided employment as laborers to Jay Cohen, Arthur and Myron Rubinoff, and Thomas Johnson, although discriminatees Jackson and Roth had labored for Respondent for years, and Ivy, West, Loughner, and Wytiaz were not only "average" to "superior" laborers but could also perform other jobs as well.29 Moreover, Respondent admittedly trained employees, such as James Russell, to perform work tasks which, but for their discrimination, the discriminatees could have undergone. Accordingly, upon a consideration of the foregoing facts and the entire record, I find and conclude that the Respondent has failed to sustain the burden of its affirmative defense that the discriminatees would not have retained on, or recalled after, May 12, 1960, at Respondent's various installations during the respective backpay periods, because they did not satisfy Respondent's criteria for the retention of or recall to employment in the same degree and in the same manner as incumbent employees or those who were recalled or newly hired. I therefore find and conclude that the General Counsel's prima facie case, as contained in the backpay specification and amplified by the testimony of Elmer Hope, compliance officer, has not been overcome by Respondent. I shall therefore make appropriate recommendations concerning the discharge of Respondent's monetary indebtedness to the discriminatees. 17 Jack C Buncher, d/bla The Buncher Company, 131 NLRB 1444, as clarified by the Board's Order of September 22, 1961 21 See Underwood Machinery Corporation, 95 NLRB 1386, 1392, enfd 179 F 2d 118 (C.A. 1) "if. . the instant case presents a situation in which, at most, there was a reduction in the amount of available work for men in Donnelly's former position or substantially equivalent positions, the release of the Respondent from its obligations to reinstate and indemnify Donnelly under the Board's order and the Court's decree, depends upon a showing by the Respondent that it actually considered him for the remaining work of this type, but that, for nondiscriminatory reasons, decided not to reinstate him but to use other employees instead. Only thus II. RECOMMENDATIONS 355 I have heretofore found and concluded that, but for Respondent's illegal discrimination, the discriminatees (with the exception of Milton Ashford) would have continued to be employed by Respondent during the periods and at the locations set forth in the backpay specification after the economic reduction in force which occurred at Nine Mile on May 12, 1960. Accordingly, I approve and adopt the computations contained in the specification, as amended at the hearing, with respect to Respondent's backpay liability to each discriminatee on and after that date. Inasmuch as I have previously found in the initial Supplemental Decision that the discriminatees were entitled to specified amounts of backpay from the dates of their discrimination to May 12, 1960, which amounts parallel those contained in the specification for that period, I shall recommend that the consolidated amounts as set forth in the specification be paid to them. I have also heretofore concluded and found that Ivy, Rutherford, Loughner, and Wytiaz were rehired by Respondent on January 12, 1962, for work at Leetsdale, although work was available for these individuals at Nine Mile where they had previously been employed. The backpay specification treats the earnings of these individuals at Leetsdale for the period from January 12, 1962, to March 26, 1964, as interim earnings, and I approve and adopt such treatment. The specification utilizes the March 26, 1964, date because Respondent's payroll and related records for subsequent periods were unavailable. As I am unable to ascertain on this record whether these discriminatees would have been eligible for employment at Nine Mile after March 26, 1964, or the amount of additional backpay, if any, to which they might be entitled after that date, I shall refer the matter for further compliance proceedings. Summarizing the calculations made in the backpay specification which I approve and adopt, I recommend that Respondent's obligation to make whole the discriminatees shall be satisfied by payment to them of the respective sums set forth below, together with interest thereon at the rate of 6 percent per annum, calculated in the manner set forth in Local 138, International Union of Operating Engineers, AFL-CIO (Nassau and Suffolk Contractors' Association, Inc.), 151 NLRB 972, less any lawfully required tax withholding. James Cindrick John H. Cindrick William Greene George Collier Robert Vinsick John West Archie Jackson $7,683.04 $8,253.16 $6,019.88 $8,415.35 $3,802.51 $3,887.55 $6,369.82 could the Respondent show, as the Board's order and the Court's decree required , that even if Donnely had continued in Respondent's employ, he would not have been retained for this work but would have been laid off " 29 The fact that Cohen and the Rubinoffs were relatives of Jack Buncher and were employed solely to enhance their financial ability to complete their college education is of no avail to Respondent. Inasmuch as the issue here involved concerns the availability of work for the discnminatees during the backpay periods, familial paternity is irrelevant . See Charley Toppino and Sores, Inc., 151 NLRB 1638, 1647, fn 34, enfd. 358 F 2d 94 (C.A 5). 298-668 0-69-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Roth $1,457.56 Sammie Rutherford $11,142.33 Milton Ashford $1,361.30 Joseph Wytiaz $12,070.58 Henr Iv $14 335 25 y y Ronald Loughner , . $14,438.49 I recommend that the Board adopt the foregoing Findings, Conclusions, and Recommendations.