The Rogers Mfg. Co.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Rogers Mfg. Co . and International net backpay the amount set forth in the attached Chemical Workers Union, AFL-CIO. Case Trial Examiner's Supplemental Decision. 8-CA-3767. May 2,1967 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS '155 NLRB 117. 2 After the Board filed a petition seeking enforcement of its Order, Respondent consented to the entry of a decree enforcing the Board's Order S We deny the Respondent' s request for oral argument, because the record, the exceptions, and the brief adequately present the issues and the positions of the parties SUPPLEMENTAL TRIAL EXAMINER'S DECISION On October 11, 1965, the National Labor Relations Board issued its Decision and Order in the above-entitled case,' finding, inter alia, that the Respondent had discriminated against employee Sarah LaRue in violation of 8(a)(3) of the National Labor Relations Act, as amended, and directing the Respondent to offer this employee immediate and full reinstatement and to make her whole for any loss of pay caused by its discrimination against her. Thereafter, on June 2, 1966, the Board's Order was enforced by the United States Court of Appeals for the Sixth Circuit.2 On September 30, 1966, the Regional Director for Region 8 issued and served on the parties a backpay specification and notice of hearing, and Respondent filed an answer to the backpay specification. Pursuant to notice, a hearing was held before Trial Examiner Thomas A. Ricci on November 29, 1966, for the purpose of determining Respondent's backpay obligation to LaRue, who had been reinstated by that time. On January 11, 1967, the Trial Examiner issued the attached Supplemental Decision, in which he found LaRue to be entitled to backpay in the amount specified. Thereafter, the Respondent filed exceptions to the Trial Examiner's Supplemental Decision, together with a brief. 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 made by the Trial Examiner at the supplemental hearing and finds no prejudicial error was committed. The Board has considered the Supplemental Decision, Respondent's exceptions 3 and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER On the basis of the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, The Rogers Manufacturing Company, Akron, Ohio, its officers, agents, successors, and assigns, shall pay to Sarah LaRue as THOMAS A. Ricci, Trial Examiner: On October 11, 1965, the National Labor Relations Board issued its Decision and Order in this case in which, among other things, it ordered The Rogers Mfg. Co., herein called the Respondent, to offer reinstatement to Sarah LaRue and to make her whole for any loss of earnings she may have suffered by reason of the Respondent' s illegal discrimination against her for the period starting February 2, 1965, and ending with proper reinstatement.' Following a petition by the Board for enforcement of its Order in the United States Court of Appeals for the Sixth Circuit, the Respondent consented to the entry of a decree enforcing the Order in full; the court decision was entered on June 2, 1966. Pursuant to Section 102.52, et seq., of the Board's Rules and Regulations, Series 8, as amended, the Regional Director for Region 8 issued a backpay specification and notice of hearing and caused it to be served on the Respondent. The Respondent filed an answer to the specifications, in which it admitted the truth of certain specifications, denied others, and affirmatively stated grounds assertedly sufficient to relieve it of the financial liability claimed in the specifications. Pursuant to notice a hearing upon the specifications was held before me in Akron, Ohio, on November 29, 1966, in which the Respondent, the Charging Party, and the General Counsel on behalf of the Regional Director participated. All parties were afforded full opportunity to examine and to cross-examine witnesses and to introduce evidence pertinent to the issues. A brief was filed after the close of the hearing by the General Counsel. Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT2 Sarah La Rue was unlawfully discharged on February 2, 1965; at that time she was working as a punch press operator on the first shift at a rate of $1.95 per hour. The Company recalled her to work on December 16, 1965, at loading and unloading a brazing furnace on the third shift, at a rate of $1.87 per hour. She continued on this job until April 7, 1966, when she began a leave oT absence because of illness. She had not yet returned to work at the time of ' The Rogers Mfg Co , 155 NLRB 117 2 On December 14, 1966, all parties stipulated, and jointly moved, that the Informational Booklet and Reporting Record, issued by the State of Ohio Bureau of Unemployment Compensation, and used by Sarah LaRue during the period between her discharge and reinstatement, be received in evidence The motion is granted and both the signed stipulation and the booklet are received in evidence, marked G C. Exh 3-A and 3-B. 164 NLRB No. 46 ROGERS MFG. CO. 285 hearing. The backpay period, as set out in the specifications, is therefore February 4, 1965 (apparently the first workday after her discharge), to April 7, 1966. The principal issue raised by the Respondent in defense against the specifications is whether, as it asserts, the backpay period should not instead be cut off at April 6, 1965, when the Union called a strike at the plant. There was picketing of the premises for the next 3 months; it was then discontinued permanently. LaRue picketed for unspecified periods, every other day; she also continued, after the discharge, to sit with the union committee in bargaining negotiations which went on after the strike started. She was also a trustee of the Union throughout this time. The Respondent argues that by joining the pickets from time to time, and by participating in union affairs as negotiator and officer, LaRue precluded herself from working for this Company, and is therefore not entitled to backpay after April 6. The theory here seems to be that had she not been discharged, she would have had a job; if she had had a choice in the matter she would have voluntarily left work to join the strike; and finally, although she had been sent away by the Company in February, she would not have crossed the picket line if the Company had recalled her during the strike. From all this, according to the Respondent, it follows that LaRue must be considered as one who chose not to work from April 6 and thereafter, instead of as an employee who was not wanted at the plant. The fatal weakness in this reasoning is the fact that all LaRue knew of her status as a worker in the Respondent Company is that the Respondent had sent her away unequivocally, and that the Company never said to her, before December 16, 1965, that she could return to work if she wished. The Board has considered and rejected this same argument in earlier cases, and I find it equally unpersuasive here.3 LaRue's activities as union officer and in contract negotiations, both before and after her discharge, are irrelevant to the issue here. As a punch press operator on the first shift at the time of her discharge LaRue was paid $1.95 per hour. This rate held on that job until April 6, 1965, when all classifications of employees in the plant received a 7-cent-per-hour raise. Six punch press operators worked on the first shift during the full backpay period, April through December 1965, all junior to Sarah LaRue in service with the Company. One of these, Angie Locicero, worked throughout the period; the other five were hired in mid- April and their first full week of employment was April 25. Rose Bye, one of this group, lost 7 consecutive full weeks between October and December 5 because of illness. The Company's records show that the average number of hours of work performed by these six in the course of their continuous employment throughout 1965 is 43. Accordingly, the General Counsel on behalf of the Regional Director claims gross backpay for Sarah LaRue on the basis of 43 hours of work weekly that she would have performed had she not been discharged. The Respondent does not take issue with this assertion that a normal, average employee occupied as a punch press operator on the first shift throughout the year 1965 would have worked an average of 43 hours weekly.' It disputes the assertion with respect to LaRue on two grounds, the first being the disqualification allegedly flowing from the fact she picketed the plant after her discharge. That matter has been disposed of above. The second ground for contending that LaRue would have performed less work is the claim that she would have been absent a great deal. The only evidence to prove this assertion is the testimony of Donald DeHaven, the plant manager: Q. (By Mr. Rector) Now, let us say, during the last 2 or 3 years, that Mrs. LaRue was there, that is prior to 1965, was there anyone in the employ of that company during that time that you could actually, with any reason at all, compare their absenteeism to that of Sarah LaRue? A. No, sir. Q. Is it your testimony that she is the worst you ever had? A. Yes, sir. I do not deem such conclusionary expression of opinion, offered in monosyllabic response to purely leading questions, of sufficiently probative value to offset the normal presumption that LaRue, who had for 16 years been an acceptable employee, would have worked as a normal employee throughout her backpay period. Neither the extent of her absentee record, its nature, or any possible explanation were offered in evidence. In his brief, the General Counsel correctly states the applicable rule of law. "When an employer's unlawful discrimination makes it impossible to determine whether a discharged employee would have earned backpay in the absence of discrimination, the uncertainty should be resolved against the employer." See Mastro Plastics Corporation v. N.L.R.B., 354 F.2d 170 (C.A. 2). LaRue also said at the hearing, on questioning by Respondent's representative, that she had been sick for an unspecified time in May, a "couple of days" in June, and perhaps a week and a half in October. There is nothing to show whether this illness occurred on workdays or weekends, what the nature of the illness was, or whether it would have incapacitated the discriminatee so as to make her unavailable for work. In these circumstances, again, the Respondent has failed in its burden of proving that LaRue was unavailable for work for even those brief periods. LaRue's gross backpay is therefore calculated as follows for the period February 4, 1965, to December 16, 1965: Period Ending Computed Average Hrs. 2-7 17.2 2-14 43 2-21 43 2-28 43 3-7 43 3-14 43 3-21 43 3-28 43 4-4 8.6 4-4 34.4 S East Texas Steel Castings Company, Inc , 116 NLRB 1336 ' In his specifications served on the Respondent the Regional Director stated that "La Rue would have worked 40 hours per week during the period February 4, 1965, to December 16, 1965 " It seems that this document was prepared before examination of the company records, which were placed in evidence, by agreed. upon excerpts, as set out above As the uncontrovertible records thus show the exact figure to be 43 hours per week, the General Counsel moved, in his brief filed after the close of the hearing, to conform the specifications to such proof The motion is hereby granted. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Period Ending Computed Average Hrs. 4-11 43 4-18 43 4-25 43 5-2 43 5-9 43 5-16 43 5-23 43 5-30 43 6-6 43 6-13 43 6-20 43 6-27 43 7-4 43 7-11 43 7-18 43 7-25 43 8-1 43 8-8 43 8-15 43 8-22 43 8-29 43 9-5 43 9-12 43 9-19 43 9-26 43 10-3 43 10-10 43 10-17 43 10-24 43 10-31 43 11-7 43 11-14 43 11-21 43 11-28 43 12-5 43 12-12 43 12-19 25.8 TOTAL-1,935.0 For the period up to and including 8.6 hours the week of April 4 (326.8 hours), at the rate of $1 .95 per hour, the amount is $637.26. For the remaining period (1,608.2 hours), at the rate of $2.02 per hour, the amount is $3,248.56. When LaRue was recalled to work on December 16, 1965, she was given work on the third shift loading and unloading a brazing furnace at the rate of $1.87 per hour. Her pay was later raised , retroactively , to $1.95 per hour, and she continued at this rate until she went on sick leave on April 7, 1966. In this period-December 16, 1965, to April 7, 1966-she worked 497 hours ; as her rate would have been $2.02 per hour had she been fully reinstated, she was underpaid $34.79 for such time at work, an amount which is due her now. A final amount due LaRue is the cash vacation payment she would have received during 1965 measured against work performed and money earned during 1964 . As stated in the specifications , and as conceded by the Respondent at the hearing, in her case the sum would have been $204.78, which is now due. There is no evidence of any willful refusal to accept or seek work ; indeed the record shows LaRue regularly registered for work at the State of Ohio Bureau of Unemployment Compensation, and sought work at a number of places during the backpay period. On cross-examination by the Respondent's representative, LaRue stated that on occasion she gave home permanents to friends and sometimes performed home work for her sister and a friend . For all of this work she said she received a total of about $40 in payment. Accordingly I shall deduct such interim earnings from her backpay award. LaRue also received about $100 from the Union during the backpay period. She testified , without contradiction, that she was not obligated to perform picketing duties to receive this money, that "it was just to help anybody that needed any extra money," and that it was paid to her even while she was not picketing . In the circumstances, there is no reason to charge this benefit received from the Union from her backpay award.-5 Concluding Findings Upon the basis of the foregoing, and upon the record as a whole, I find that Sarah LaRue is entitled to backpay as follows: Gross Backpay Due Complete layoff period $3,885.82 Under payment Dec. 16 to Apr. 7 34.79 Vacation payment 204.78 Total $4,125.39 Interim earnings 40.00 Net Amount Due $4,085.39 RECOMMENDED ORDER It is hereby recommended that the Board adopt these findings and conclusions. 5 Standard Prtnteng Company of Canton , 151 NLRB 963, 967