Weinacker Brothers, Inc.

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weinacker Brothers , Inc., and Lorenzo Matthews, Harry W. Wright, Local 458, Retail Clerks Inter- national Association, AFL-CIO, and Elizabeth Ann Boyette, Donald Harris, Jack Willis Smith and Local 458, Retail Clerks International As- sociation, AFL-CIO, Charging Parties. Cases 15-CA-2486-1, et al., 15-CA-2486-15, et al., and 15-CA-2501 June 28, 1967 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On June 25 , 1965, the National Labor Relations Board issued a Decision and Order in the above-en- titled proceeding,' finding, inter alia, that the Respondent had unlawfully discharged certain named employees and directing the Respondent to make these employees whole for any loss of earnings resulting from the discrimination against them. On June 28 , 1966, the United States Court of Appeals for the Fifth Circuit entered its decree granting the Board's petition for summary enforce- ment of its Order.2 On December 2, 1966 , the Regional Director for Region 15 issued a backpay specification and notice of hearing , and on January 10, 1967, the Respondent filed an answer. On January 31, 1967, pursuant to notice, a hearing was held before Trial Examiner John P . von Rohr. Briefs were filed with the Trial Examiner by the General Counsel and the Respondent. In his brief, the General Counsel moved to amend the backpay specification by withdrawing his admission that employee Boyette had been physically incapacitated for a portion of the backpay period , thereby increasing her backpay claim. Thereafter, the Respondent filed a motion to strike the proposed amendment. On April 17, 1967, the Trial Examiner issued his Decision on Supplemental Backpay Proceeding, at- tached hereto , in which he (a) denied the General Counsel's motion to amend the backpay specifica- tion; (b) found without merit Respondent's conten- tions regarding elimination or reduction of the backpay of Burgess, Dortch , Etheredge, and Turner on the ground that they did not make reasonable efforts to find employment and/or in- curred willful losses of earnings ; and (c) recom- mended that the Respondent be required to pay specified amounts of backpay to these and other discriminatees in accordance with the backpay specification and the parties ' stipulations at the hearing. Thereafter , the General Counsel filed ex- ceptions to the Trial Examiner 's Decision and a supporting brief, and the Respondent filed cross-ex- ceptions and an answering brief. 166 NLRB No. 4 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, and briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Exam- iner.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, Weinacker Brothers, Inc., Mobile, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 153 NLRB 459. 2 N.L R B. v. We,nackerBrothers, Inc, No. 23510 3 We hereby correct the Trial Examiner's inadvertent reference to em- ployee Burgess as "Boyette," in the third paragraph under the section entitled "Sadie Burgess " TRIAL EXAMINER'S DECISION ON SUPPLE- MENTAL BACKPAY PROCEEDING JOHN P. VON ROHR, Trial Examiner: On June 25, 1965, the Board issued its Decision and Order in the above-entitled proceeding (153 NLRB 459) finding that the Respondent had, inter alia, unlawfully discriminated against 11 employees. The Order of the Board was en- forced by the United States Court of Appeals for the Fifth Circuit on June 28, 1966. Thereafter, a controversy having arisen over the amount of backpay due the dis- criminatees, the Regional Director for Region 15, pursuant to authority conferred upon him by the Board, on December 2, 1966, issued a backpay specification. No backpay is alleged to be due W. J. Williams, one of the discriminatees. On January 10, 1967, the Respondent filed an answer in which it admitted the amounts alleged to be due employees Burl Dock, Donald Harris, Lorenzo Matthews, Jack Smith, and Harry Wright. Accordingly, it is found that the amount of backpay owing each of these employees is as specified in the backpay specification. The amounts due each of these employees are set forth in the Recommended Order herein. As to the other em- ployees, these being Elizabeth Boyette, Sadie Burgess, Cleveland Dortch, Marguerite Etheredge (Oswald), and Mildred Turner (Leigh), the Respondent's answer disputes the Board's determination of gross backpay and interim earnings and further alleges that these claimants have incurred willful losses of interim earnings. Pursuant to notice, a hearing was held before me on January 31, 1967. Briefs have subsequently been received from the General Counsel and the Respondent WEINACKER BROTHERS , INC. 15 and they have been carefully considered.' Upon the en- tire record in this proceeding and from my observation of the witnesses, I hereby make the following: I. FINDINGS OF FACT AND CONCLUSIONS Unless otherwise noted, the facts and compilations hereinafter set forth are predicated upon agreement reached by the parties during the course of the hearing with respect to the gross backpay and interim earnings of the various discriminatees whose cases are discussed below. All issues raised by the parties at the hearing or in their briefs concerning the amount of backpay due any of these employees is appropriately noted and resolved in my discussion below. In view of the Respondent's contention that the in- dividuals discussed below have incurred willful losses of interim earnings, I permitted the Respondent to examine each of them in furtherance of such assertion. Although I overruled the General Counsel's objection to this procedure, he cooperated in this matter by making each of these employees available as witnesses at the hearing.2 Elizabeth Boyette Boyette's backpay period runs from March 16, 1964, to December 15, 1964.3 It is undisputed that Boyette is entitled to new backpay in the sum of $15 for the first quarter and that no backpay is due her for the third and fourth quarters. With respect to the second quarter, the backpay specification issued by the General Counsel states: "Boyette was physically incapacitated for work from 5/11/64 through remainder of this quarter. No claim for backpay is made for this period." In accordance with this statement, the form "Computation of Backpay" reflects that the total gross backpay due Boyette for the second quarter is $253.4 Taking into account the undisputed in- terim earnings of Boyette during this period, the net backpay thus due Boyette for the second quarter is reflected as follows: Gross backpay $253.00 Interim earnings 137.34 Quarterly net backpay $115.66 The dispute as to the amount of backpay due Boyette for the second quarter arises from the General Counsel's posthearing attempt to amend the backpay specification for this particular period. In this regard, it is preliminarily noted that Boyette was put on the stand and questioned by the Respondent concerning the matter of her interim earnings. During the course of this testimony, Boyette testified that she took certain steps to obtain employment immediately after her discharge by the Respondent on April 29, 1964. Based upon this testimony, the General Counsel asserts in his brief: "It is contended that she [Boyette] was in the labor market during the second quarter of 1964 and is entitled to $408.66 in backpay for that quarter." In furtherance of this contention, the General Counsel attached to his brief an amended com- putation of backpay for the second quarter. The sum of $408.66 alleged as the net backpay due Boyette was ar- rived at by amending the quarterly total of gross backpay from $253 to $546. In other words, the General Counsel now seeks to abandon the allegation on the original backpay specification that Boyette was physically in- capacitated from May 11, 1964, through the remainder of the second quarter, and instead seeks to amend the specification so as to claim full backpay, less interim earnings, for the entire second quarter. Following receipt of the General Counsel's brief, the Respondent filed a motion to strike in which it opposes the General Counsel's attempt to amend the backpay specification in the manner indicated above. Under all the circumstances of this case, I find merit to Respondent's opposition to the General Counsel's proposed amend- ment. As previously indicated, the backpay specification specifically puts Respondent on notice that no backpay was being claimed from May 11, 1964, to the end of the second quarter by reason of the admitted fact that Boyette was physically incapacitated during this period. If the General Counsel was taken by surprise with Boyette's testimony during this hearing to the effect that she was not incapacitated during this period, the door was still open for him to modify or amend the backpay specifi- cation by giving appropriate notice to the Respondent. This he failed to do. In fact, when the General Counsel undertook to question Boyette further concerning this aspect of her testimony, the Respondent interrupted and raised a question as to whether he was attempting to alter the allegation that Boyette was incapacitated as of May 11. To this the General Counsel's representative responded, "No, we are not going to proceed any further than that." Under the circumstances, this statement clearly was tantamount of a disclaimer by the General Counsel of any intention to amend the backpay specifica- tion. I have no reason to doubt Respondent's assertion that it relied on this representation.5 Moreover, and upon the entire record in this case, I am satisfied and find that the alleged factual basis upon which the General Counsel now seeks to amend the backpay specification was not I On March 8, 1967, the Respondent filed a motion to strike certain averments in the General Counsel's brief. Since there is no provision in the Board's Rules and Regulations providing for a motion of this nature, the said motion is hereby denied. However, I have considered the conten- tions and arguments of the Respondent as set forth therein and have disposed of them in the substantive findings in this Decision I also hereby grant the General Counsel's unopposed motion to correct the record transcript herein. Said motion is dated February 28, 1967, and has been made part of the formal file in this proceeding 2 It was Respondent's assertion, as raised in its answer, that these em- ployees incurred willful loss of interim earnings by failing to make a diligent search for interim employment, and/or by failing to accept offers of suitable employment, and/or by failing to register with the appropriate Government employment agency. As to Respondent's right to examine the discnminatees under these circumstances, see N.L.R.B. v. Mastro Plastice Corp, 354 F.2d 170 (C A 2) 1 The Board found that Boyette was discriminatorily discharged on April 29, 1964. However, the Board also found that Respondent dis- criminatorily reduced Boyette's working hours during the period beginning with the week after the election (the election was held on March 9, 1964), until the date of her discharge. 4 Although the backpay specification initially reflected this amount to be $259 50, the figure $253 was arrived at by stipulation of the parties at the hearing 5 Thus, Respondent states in its brief, "Had we been aware that General Counsel would change his position with regard to the commence- ment of Boyette's disability, we surely would have explored the matter further." 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fully litigated at the hearing.6 In voew of all the foregoing, I shall therefore deny what I construe as a motion by the General Counsel to amend the backpay specification in the manner heretofore indicated. In view of all the foregoing, I find and conclude that Elizabeth Boyette is entitled to total backpay in the sum of $130.66.7 Sadie Burgess It is undisputed that the backpay period for Burgess begins on January 19, 1964, and ends on December 16, 1964.8 Burgess had been employed as a cashier in Respond- ent's drug department prior to her discharge. Aside from interim earnings of $55.00 while employed with Respond- ent during the first quarter, the sole other interim earnings of Burgess was obtained while employed with Solmica of the Gulf Coast for approximately 9 weeks dur- ing weeks during the period September through November 1964.9 The uncontroverted and credited testimony of Burgess reflects that she made a diligent search for employment throughout the backpay period. Following her discharge she registered with the State empolyment office and thereafter was in weekly contact with this agency. The only referral made by this agency was to the Mobile Cigar and Tobacco Company. However, this employer did not hire her upon her application. Boyette registered with two private employment agencies-Long's and Snelling & Snelling. She credibly testified that on several occasions representatives of these agencies were about to refer her to job vacancies, but retracted from doing so upon ascer- taining that her age disqualified her for employment with the prospective employers involved. Indeed, Boyette, whose age was 42 at the time of this hearing, found her age to be a serious handicap in obtaining employment. On one occasion she answered a help wanted ad at National Food Stores but was rejected because she was over the age of 35. Boyette testified that on other occasions she lowered her age when applying for jobs, but that this was to no avail. That Boyette made an earnest effort to obtain employment is evidenced by her controverted and credited testimony that she applied at the following drug and/or department stores; Nixon's Drug Store, Browns Drugs, Walgreens, Hammel's, Nisner's, Frickes Drugs, Albright and Woods, Atlantic Mills, John' s Bargain Stores, Foodtown, and National. She was unsuccessful 6 Although Boyette admittedly was incapacitated during the third quarter, it appears that the commencement of Boyette's disability hinges upon the date when she entered the hospital Assuming that she entered the hospital on only one occasion, Boyette herself was not certain of the exact date when this occurred. Moreover, absent any notice of General Counsel's intention to amend the specification, it cannot be said that Respondent was afforded due opportunity to test Boyette's credibility as to this aspect of her testimony. It may be noted also that the General Counsel's belated attempt to amend the specification does not afford the Respondent opportunity to file an answer admitting or denying the amount of gross backpay now alleged by the General Counsel to be due Boyette for the entire second quarter. This much is required under Sections 102 53 and 102 54 of the Board's Rules and Regulations As the matter now stands, there is no proof as to the wages Boyette would have earned had she remained in Respondent's employ during this period. 9 Respondent's brief reflects that it has abandoned any claim that Boyette incurred any willful loss of interim earnings . In any event, the record establishes that Boyette took diligent steps to seek employment at all times that she was available for work, and I so find. in obtaining employment with any of these employers. In view of the foregoing extensive efforts of Boyette to ob- tain employment, I reject Respondent's contention, as stated in its brief, that "Mrs. Burgess could have obtained employment during this period of high employment when all employers were looking for experienced help." Ac- cordingly, I conclude that Respondent has failed to carry the burden of establishing that Boyette failed to make reasonable efforts to obtain suitable employment or that she incurred any willful loss of earnings. 10 Based upon the stipulation of the parties at the hear- ing." 11 The following are the pertinent computations with respect to Burgess: 12 1st Quarter Gross backpay Interim earnings Quarterly net backpay $400.00 55.00 $344.50 2d Quarter - Gross backpay $520.00 Interim backpay none Quarterly net backpay $520.00 3d Quarter Gross backpay $533.35 Interim earnings 73.12 Quarterly net backpay $460.23 4th Quarter Gross backpay $512.67 Interim earnings 195.00 Quarterly net backpay $317.67 Cleveland Dortch The backpay period for Cleveland Dortch, who worked for the Respondent for 7 years as a service sta- tion employee, runs from April 24, 1964, to September 30, 1964. Although the record reflects that Dortch had no interim earnings, the uncontroverted testimony of this employee reflects that he made a diligent search for employment throughout his backpay period. He registered with the State employment agency immediately after his dis- charge and thereafter checked back with it at least once a week. He filed an application with the International Paper Company, which was the only job referred to him by this agency, but failed to pass an aptitude test and therefore was not hired. The record reflects that Dortch also personally filed applications with the following com- panies: Alabama Drug Dock, Scott Paper Co., Sears & 9 Although Burgess was not discharged until February 3, 1964, the above backpay period also takes into account the finding of the Board that Respondent discriminatonly reduced her hours of work about 2 months prior to her discharge. 9 The interim earnings of Solmica totaled $323 62 She was terminated from this job in November '° It is well settled that the such burden of proof must rest with the Respondent See New England Tank Industries, Inc., 147 NLRB 598, and cases cited in fn 1 1 therein. 11 The Respondent entered into this stipulation, as it did with respect to the other employees whose cases are discussed herein , subject to its right to prove a willful loss of interim earnings 12 The computations in General Counsel's brief reflect that he now seeks a sum of $9 58 net backpay in addition to the net sum which he stipulated to at the hearing Since this is not in accord with the stipulation reached at the hearing, his unfounded claim for this additional amount is rejected. WEINACKER BROTHERS , INC. 17 Roebuck, Courtlands , Lord's Tire and Supply, and several warehouses in Mobile. In addition, Dortch testified that he sought work at 15 or more service sta- tions in Mobile and Pritchard , Alabama. In contending that Dortch should be awarded no backpay because he did not make a diligent search for employment , Respondent asserts in its brief that "it is im- possible that a filling station employee who wanted work in Mobile during the summer of 1964 could have obtained it." However, the Respondent has not shown the ex- istence in the vicinity of any sources of actual or potential employment for one in Dortch's position which he should have explored but did not . Neither is there any evidence that Dortch ever rejected any suitable offer of employ- ment. Accordingly, and in view of Dortch's testimony aforesaid, I find that Respondent has not shown that Dortch incurred any willful losses of earnings. Upon the stipulation of the parties at the hearing, the following reflects the backpay due Dortch: 13 2d Quarter Gross backpay $504.17 Interim earnings none Quarterly net backpay $504.17 3d Quarter Gross backpay $284.17 Interim earnings none Quarterly net backpay $284.17 Marguerite Etheredge (Oswald) Etheredge was discharged from her position as cashier in Respondent's grocery department on January 13, 1964. Her backpay period runs from the latter date until April 19, 1964. Her interim earnings consist of $20 which she earned while employed at Long's Grocery for 2 days during the second quarter, and of $205.34 while em- ployed at the Shamrock Laundry & Cleaners during the third quarter. Based upon the credited and uncontroverted testimony of Etheredge, I am persuaded and find that she made an earnest and diligent effort to seek employment throughout her backpay period. This employee, who was 43 years old at the time of her discharge, registered with the State employment service in latter January 1964 and thereafter returned to this agency once or twice each week. 14 She also filed an application with Long's, a private employment. agency, but was never given a refer- ral since she was not qualified to fill the secretarial and bookkeeping type positions which were the principal source of job openings handled by this agency. More im- portantly, the credited testimony of Etheredge reveals that during the entire backpay period she engaged in an extensive effort to obtain work by personally making nu- merous applications with employers who employed per- sonnel with her job qualifications . The various companies with whom she made such application included the fol- lowing: The Fair Store , Eddie's Pawn Shop , B. & H., Al- bright and Wood, Creighten Towers, Namis Packing Company, Whitehurst, Merchant's Supply, S. H. Kress, the Regan Company, the Record Shop, Food Town, John's Bargain Store , and Kwick Check. 13 I will deny the General Counsel 's unsupported claim in his brief that Dortch is entitled to more backpay than that reflected in the stipulation reached at the hearing. The General Counsel seeks a net total of $792, whereas the agreement of the parties shows this amount to be $788.34. 14 As to her efforts to seek employment immediately after her discharge, Etheredge credibly testified , "I first went around to different The Respondent has offered no evidence whatsoever to indicate the availability of any suitable job openings for which Etheredge should have made application but did not. In view of this and the foregoing testimony of Etheredge concerning her diligent efforts to obtain em- ployment, I reject Respondent's contention that Etheredge "did not make a sincere effort to get work." I further reject the suggestion made in Respondent's brief that any failure of Etheredge to obtain work was "because she did not feel well enough to work." Etheredge credibly testified that she was in good health at all times during the backpay period except for a 6-day period in March 1964, at which time she was in- capacitated due to a back ailment . The General Counsel has excepted this period in the backpay specification and makes no claim for backpay for these 6 days. Upon the stipulation of the parties at the hearing, the following reflects the backpay due Etheredge: 1st Quarter Gross backpay $403.80 Interim earnings none Quarterly net backpay $403.80 2d Quarter Gross backpay $524.94 Interim earnings 20.00 Quarterly net backpay $504.94 3d Quarter Gross backpay $546.92 Interim earnings 205.34 Quarterly net backpay $341.56 4th Quarter Gross backpay $18.74 Interim earnings none Quarterly net backpay $18.74 Mildred Turner (Leigh) Mildred Turner was employed by the Respondent as head cashier in the grocery department. Her backpay period begins on February 10, 1964, the date of her discharge , and ends August 4, 1964. Notwithstanding that Turner did not have any interim earnings, the record establishes that this employee did not incur any loss of willful earnings during her backpay period. Thus, the credible and uncontroverted testimony of this employee reveals that during this period she at- tempted to obtain work, albeit unsuccessfully , with the following employers : Greers, the Springhill Laundry, Na- tional Food, Food Town, Delchamp, A & P, Constan- tine's Restaurant, Kwick Check, and the Five and Ten Cent Store. After her discharge , Turner also registered with the State employment service but was not referred to any jobs by this agency. As in the cases of the other employees heretofore discussed , Respondent has not shown the existence of any actual or potential employment which Turner should have explored but did not. Accordingly , and in view of the extensive efforts made by Turner to obtain employ- ment during her backpay period, I find no merit in Respondent's contention that she incurred a willful loss of interim earnings. places asking for a job I couldn't get it so I decided I would go to the unemployment place." In view of this credited testimony, I do not believe that Etheredge should be penalized for not registering with the State em- ployment service until 2 weeks or so after her discharge 18 DECISIONS OF NATIONAL Upon the stipulation of the parties at the hearing, the following reflects the backpay due Mildred Turner: 15 1 st Quarter Interim earnings $190.67 Quarterly net backpay none Total $190.67 2d Quarter Interim earnings $572.0016 Quarterly net backpay none Total $572.00 3d Quarter Interim earnings $227.33 Quarterly net backpay none Total $227.33 RECOMMENDED ORDER Upon the basis of the foregoing findings of facts and pursuant to Section 10(c) of the Act, I shall recommend 15 Turner admittedly was incapacitated from February 10 to 28, 1964 This period has been excepted from the computations set forth below. LABOR RELATIONS BOARD that Respondent Weinacker Brothers, Inc., its officers, agents, successors, and assigns, shall pay to the em- ployees named below the amounts set forth opposite their names with interest at 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716, less the tax withholdings required by Federal and State laws. Elizabeth Boyette $ 130.66 Sadie Burgess 1,642.40 Burl Dock 370.00 Cleveland Dortch 788.34 Marguerite Etheredge (Oswald) 1,269.04 Donald Harris 446.85 Lorenzo Matthews 145.98 Jack Smith 743.48 Mildred Turner (Leigh) 990.00 Harry Wright 144.52 16 The $572 shown here is in accordance with the parties' stipulation. Respondent's brief erroneously reflects this figure to read $500 72.