Western Wirebound Box Co.

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Wirebound Box Co. and International Wood- workers of America, Local Union 3-3, AFL-CIO. Case 36-CA-1206 January 27, 1971 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 6, 1964, the National Labor Relations Board issued a Decision and Order in the above-enti- tled case' finding that the Respondent violated the National Labor Relations Act, as amended, and or- dering the Respondent , inter alia, to, "upon applica- tion, offer the employees who went on strike June 11, 1962, immediate and full reinstatement to their for- mer or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges ... and make them whole for any loss of pay they may have suffered by reason of Respondent's dis- crimination against them."2 Thereafter, on January 19, 1966, the United States Court of Appeals for the Ninth Circuit entered its decree enforcing the afore- said Board Order' On March 31, 1970, the Regional Director for the Board for Region 19 issued a backpay specification and notice of hearing, for the purpose of determining the amounts of backpay, if any, due and owing, to make whole seven employees; namely, Zenas Meyer, Alphie Olen, Ben Randen, Eura Reynolds, Vena Thompson, Henrietta Johnson, and Cloid Flatter. They were returned to work by the Respondent on November 18, 1963, upon the termination of an unfair labor practice strike but the General Counsel now claims that they were not reinstated in accordance with the Board's Order and the court decree. Upon appropriate notice issued by the Regional Director, a hearing was held on May 5, 6, 7, and 8, 1970, before Trial Examiner Herman Corenman for determination of the amounts of backpay due the claimants. On August 28, 1970, the Trial Examiner issued the attached Supplemental Decision, in which he found that the claimants were entitled to the amounts of backpay therein set forth. Thereafter, the Respondent and the General Counsel filed exceptions to the Sup- plemental Decision and supporting briefs. The Charg- ing Party adopted and incorporated as its own the General Counsel's exceptions and supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in the case, and here- by adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER On the basis of the Trial Examiner's Supplemental Decision and the entire record in this case, the Na- tional Labor Relations Board hereby orders that the Respondent, Western Wirebound Box Co., Portland, Oregon, its officers, agents, successors, and assigns, shall pay to the employees involved in this proceeding as net backpay the amount determined to be due by the Trial Examiner in the attached Supplemental De- cision. '145 NLRB 1539. 2 The Trial Examiner's remedy required, inter aba, that "upon uncondi- tional application, the Respondent reinstate the strikers or any of them, each to his former or substantially equivalent position, discharging, if necessary, an' replacement." 356 F.2d 88. SUPPLEMENTAL TRIAL EXAMINER'S DECISION HERMAN CORENMAN, Trial Examiner: This is a proceeding in a backpay specification issued March 31, 1970, by the Regional DDirector for Reg ion 19 of the Board pursuant to Section 102.52, et seq., of the Board's Rules and Regula- tions, Series 8, as amended, for the purpose of determining the amounts of backpay ; if any due and owing, which will make whole seven employees, namely. Zenas Meyer, Al hie Olen, Ben Randen, Eura Reynolds, Vena Thompson, Hen- rietta Johnson, and Cloid Flatter, who were returned to work by the Respondent on November 18, 1963 , upon the termination of an unfair labor practice strike , but whom, the General Counsel of the Board claims were not reinstated in accordance with the Board's Order 1 and court decree.2 The Board's Order, as enforced by the decision of the Court of Appeals for the Ninth Circuit requires the Respon- dent, inter aka to "upon application, offer the employees who went on former or substantially equivalent positions, without prejudice to their seniority or other ri ghts and privi- leges ... and make them whole for any loss o ay they may have suffered by reason of Res ondent's discrimination against them, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy" as mod- ified herein' The Respondent filed its answer with Region 19 of the Board on April 20, 1970, and a supplemental answer on April 24, 1970. The answer and supplemental answer of the Respondent admit various allegations and deny others and pleads various circumstances in defense .4 On the issues thus ' 145 NLRB 1539. 2 356 F.2d 88. 3 The Trial Examiner's remedy required, inter aliq that "upon uncondi- tional application, the Respondent reinstate the strikers or any of them, each to his former or substantially equivalent position , discharging, if necessary, an' replacement." General Counsel's motion that certain allegations of the backpay specifi- cations be deemed to be admitted as true and General Counsel's motion to strike the Respondent's answer and supplemental answer were denied at the outset of the hearing. 188 NLRB No. 28 WESTERN WIREBOUND BOX CO. 165 joined, a hearing was conducted before me on May 5, 6, 7, and 8, 1970, at Portland, Oregon. The General Counsel, the Charging Party and the Respondent appeared by counsel, and all parties were afforded full opportunity to call and examine or cross-examine witnesses, to introduce evidence, and to argue orally. Briefs have been filed on behalf of the General Counsel and the Respondent, and they have been carefully considered. Upon the entire record in this proceeding, including the record in the original proceeding, I make the following: replacements in writing on November 15, 1963, of its inten- tion to honor requests for work from strikers, although it intended to appeal the Trial Examiner's Decision. This no- tice informed the employees that it would be forced to lay off most of the crew Friday, November 15, "until we see where we are." Approximately 82 strikers returned to work on November 18, 1963, or within a few days later. By the end of December 1963, there were about 150 employees at work, consisting of about 80 returned strikers and 70 re- placements.' FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Issues It is undisputed that each of the seven employees was returned to work upon their applications on November 18, 1963. Issues are raised, however, whether this return to work constituted "reinstatement" within the meaning of the Board Order and court decree and, if not, whether it has resulted in loss of earnings to the seven individual employ- ees involved.5 2. Background During contract negotiations the Union struck on June 11, 1962, resulting in a plant shutdown. The plant resumed operation in October 1962 with striker replacements while the strike and picketing continued. The Union filed unfair labor practice charges with Region 19 of the Board on Octo- ber 8, 1962, and May 1, 1963, alleging that by refusal to supply certain requested economic data to the Union, the Respondent had refused to bargain in good faith, thereby precipitating the June 11, 1962, strike. Complaint issued on the charges, and the Trial Examiner issued his Decision on October 23, 1963, sustaining the complaint and recom- mending, inter alia, an order that, upon unconditional appli- cation, the Respondent reinstate the strikers to their former or substantially equivalent positions, discharging, if neces- sary, any replacement. On November 13, 1963, Harvey R. Nelson, then president of the Western States Regional Counsel, International Woodworkers of America, who had been assisting the Un- ion in negotiations with the Respondent, met with Respondent s representatives, including its counsel, Mr. Lu- berslcy, relative to contract negotiations and the return of the strikers to their jobs. Nelson requested that the men be returned to their former jobs. According to Nelson's cred- ited and undisputed testimony, Lubersky stated that "they felt the Trial Examiner's findings were in error; they intend- ed to file an appeal, but they were going to comply with that part of the findings by offering employment to the striking employees-they could not at that time determine who would be placed on what job, that it would depend upon how many would return, and they were not in a position to say as to whether they would be returned to their former jobs or not, but they would do their best to place them in suitable employment." In accordance with prearrangements between the Union and the Respondent, the striking employees applied for work on November 18, 1963. Anticipating this return to work, the Respondent notified about 80 of the 130 striker 3. Zenas Meyer In the employ of the Respondent since 1955, Zenas Mey- er immediately before the strike had been employed as a fireman-watchman on the graveyard shift from 12 midnight to 8 a.m. His wage rate was $1.95 per hour. By agreement between the Union and the Respondent, Meyer continued to work at his job while the plant was shut down after the strike began. But when the Respondent resumed operations in October 1962 with strike replacements, Meyer quit work and joined the strikers on the picket line. Meyer was in the large group of strikers who applied for reinstatement on November 18, 1963. Meyer was not returned to his old job of fireman-watchman on the graveyard shift, but was as- signed to a day job on the log pond of pushing logs with a pole to a lift. This job paid $1.93 per hour. Meyer, on one hand, and the Respondent's superintendent, Oliver, and Foreman Oliphant, on the other hand, are in sharp disagree- ment as to the reasons for Meyer' s assignment to the job on the log pond rather than to his old job as fireman-watchman on the graveyard shift. Meyer testified that when he "signed in" on November 18, 1963, he talked to "Blue" Oliphant, foreman of the Green End Department. According to Meyer, both Oli- phant and Superintendent Oliver told him that first day `that the onlyJob available was down on the pond, and they took me down and started me in on it." Meyer further testified that at that time "Mr. Oliver told me it was going to be a very short while and they would have something else for me." Meyer worked on the log pond job until January 1965 when he quit. He testified as the reason for his quitting "it was sickness-a cold-a miserable wet job." Testifying further, Meyer related that "I fell in the river twice-which I laid somewhat to being sick-It was wet, cold and misera- ble-They wanted me to get down and walk on the logs and help move them around-line them up and get them to the saw-I never did learn to walk on logs." In contrast to the job on the pond which Meyer described as wet and misera- ble, he testified the fireman-watchman's job was a warm job where he would clean the grates, clean the flue, keep the boiler going. Meyer testified that upon quitting his job with the Respondent he looked for work in the Portland area and that he left the Portland area around the middle of July 1965.1 Meyer testified that he would like to have his fire- man-watchman's job back and if he had kept his fireman- watchman's job, he believed he would still be working there. Oliver and Oliphant testified that Meyer did not talk to Oliphant on November 18, 1963, the first day the strikers returned, as Oliphant was hospitalized that day and did not 6 The Respondent refused to reinstate five strikers because of their alleged strike misconduct. The Respondent's refusal to return these five strikers to work is not in issue in this proceeding, and no administrative action has been taken in that connection. 5 The Board ordered that backpay should be computed on the formula set 7 The General Counsel's backpay specification claims backpay for Meyer forth in F W. Woolworth Company, 90 NLRB 289, i.e., on a quarterly basis during the period beginning November 18, 1963 , and ending July 15, 1%5, and bear interest as proscribed in Isis Plumbing & Heating Co., 138 NLRB the General Counsel conceding that on the latter date his backpay terminated 216. because at that time Meyer "left the Portland Oregon area market." 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come in to work until the next day, November 19. Oliver testified that on November 18, preparatory to having Meyer sipn up with the timekeeper, he asked Meyer if he wanted his ob back as fireman-watchman, and that Meyer replied as follows : "Well, I'll tell you the truth, I'm afraid to be down there at night alone because of the activity on the picket fine."8 Oliver testified that Meyer "would have been ven his fireman-watchman job back if he had wanted it." g liver testified credibly without dispute,9 and I find that neither Meyer nor anyone else ever complained to him or notified him that Meyer was unhappy with his job on the pond or wanted the fireman-watchman job back. Contrary to Meyer's testimony, Oliver testified, and I find, that he was not required to stand or walk on logs floating in the river to perform his job on the log pond. Instead, he stood on a large float while performing his duties of pushing the logs with a pole to the lift. Foreman Oliphant testified credibly, and I find, that when the night fireman-watchman's job opened about 3 weeks to 2 months after the strike ended, because Jacobs, the night fireman-watchman had quit, Oliphant asked Mey- er if he would take the job back again. According to Oliphant's credible testimony, Meyer told him "No-that he didn't want the job-that he didn't want to work nights."10 Oliphant testified credibly and without contra- diction that Meyer never complained to him concerning his job on the pond. He further testified credibly that other persons who held the same job on the log pond had never complained-that most of them wanted the job as it afford- ed them the privilege of smoking which was forbidden in the mill.11 Meyer having refused the night fireman-watchman job, the Respondent was well within its rights in placing Meyer on the log pond which paid $1.93 per hour. Moreover, a few weeks later, this night fireman-watchman's job was offered to Meyer a second time by Foreman Oliphant and again was refused by him. I find that insofar as Zenas Meyer is concerned the Respondent has complied with the Board's Order and court decree and that there is no backpay owing by the Respondent to Zenas Meyer. Brookville Glove Com- pany, 116 NLRB 1282, 1291. I am impelled to this conclu- sion, among other considerations, by the fact that in the 14 months intervening from the strike's end to Meyer's quitting his job, neither he nor any union representative complained to management about Meyer's treatment. In fact, according to the uncontradicted evidence, the first knowledge that the B Meyer concedes that while on the picket line he called the employees who were going through the picket line "scabs." He denies that he engaged in any violence. That violence occurred during the strike is disclosed by the Board's decision in Woodworker's Union, 144 NLRB 913. 9 Meyer admits that he never complained to management that he was dissatisfied with his job on the log pond or that he brought this complaint up several times before Business Agents Pool and Coulter and the plant committee before monthly union meetings . In view of the fact that Meyer's testimony concerning his alleged complaints to the Union is uncorroborated by any witness, and in view of the uncontradicted evidence in the record that no one, including Meyer or any union representative or the plant committee, had ever made a complaint to the Respondent on behalf of Meyer, I have concluded that Meyer in fact never made a complaint during his employment to the Union after the strike about the log pond job or the Respondent's failure to give him the fireman-watchmanjob. Additionally, Meyer, a former member of the executive board of the Union , was obviously acquainted with his rights to take up grievances and, in view of his failure to assert a grievance, it is reasonable to conclude that he had none. 10 I do not credit Meyer's denial of this conversation. 11 After he quit his job, Meyer applied for unemployment compensation to the State of Oregon, Department of Employment. After a hearing, the referee's decision held that Meyer left his job without good cause and subject- ed him to the statutory disqualification. Respondent had that a claim was being made that Meyer had not been reinstated in accordance with the Trial Examiner's Decision was in December 1968, a date more than 5 years after the Respondent had returned him to work on November 18, 1963.4 am persuaded, and I find that Meyer grossly exaggerated the rigors of his job on the log pond, and I am persuaded that he refused the night fireman- watchman job because of fear of night-time reprisals grow- ing out of his picket line activity, where he reviled the strike replacements with the epithet scab." 4. Alphie Olen Olen had been employed by the Respondent since 1950. He had been employed as a hog operator 12 for 5 years immediately before the strike. The hog operator rate at the time of the strike was $1.83 per hour. Olen joined the strike and picketed during the strike. He appliedfor work at the strike's termination on November 18, [963. Instead of being returned to work on his old job as hog operator, he was assigned to the banding machine, but at the same rate of $1.83. Olen continued on the banding machine until his layoff in October 1965 with the elimination of the Green End Department. During the strike, his job was taken over by a strike-replacement employee named Charles Templin who, in addition to operating the hog, did some work as a millwright helper. With the termination of the strike on November 18, 1963, the Respondent assigned a returning striker named Cliff Rollins to work with Templin on the hog. During the strike, Rollins had lost an arm in an indus- trial accident with another firm, and Rollins was assigned to work with Templin on the job as the Respondent wanted to give Rollins work, and they felt that the hog operator's job was the most suitable for operation with Rollins' handi- cap.13 Olen testified that he preferred the hog operator's job as he "knew it so well," and he expressed his opinion that the banding machine is more dangerous to operate than the hog, but acknowledged that operation of the hog too had "some danger." Oliver, on the other hand, testified that the banding machine was less hazardous to operate than the hog. No complaint had ever been made by Olen, or anyone else, to the Respondent concerning his assignment to the banding machine rather than the hog. Although Templin's foreman, Oliphant, testified that Templin did occasionally help the millwrights, he was unable to estimate the time so spent and no records were produced by the Respondent to show this division of work between hog operator and mill- wright helper. Nevertheless, both Oliver and Oliphant testi- fied, without contradiction, and I find, that Templin did in fact spend a number of hours from time to time as needed to help the,millwrights, usually overtime and on Saturdayys as some of the millwright work had to be done when the machinery was shut down. I also find, as testified to by Superintendent Oliver, that the banding job on which Olen had been placed offered as many hours of work to Olen as he would have had if he had been placed on the hog because of the fact that the two machines run together; tied into the production of the lathe; if one is operating, so is the other. A comparison of the earnings of Templin and Olen in the period November 18, 1963, through the first calendar quar- ter of 1965 shows that in that overall period of time, Olen earned $127 more than Templin, but computing the back- 12 The hog is a machine to which conveyor belts bring wood scraps from other machines. The hog cuts and grinds these scraps into smaller pieces which are then used for fuel in the boilers. 13 The Respondent's payroll records after the strike classified Templin as hog operator and Rollins as cleanup man. WESTERN WIREBOUND BOX CO. 167 pay on a quarterly basis in keeping with the F. W. Wool- worth formula, there would be a net backpay due Olen in the amount of $164. The computation which I have set forth hereunder is pursuant to stipulation of the parties: Because of the millwright-helper work performed by Templin, as testified to by Oliphant and Oliver, the Respon- dent contends that Templin's earnings are not fairly repre- sentative of what Olen would have earned on the hog: But the Respondent has not offered any alternative employee Olen's Earnings Tenuplin' s Earnings Net Backpay Due Olen 4th Quarter 1963 -$423 $375 0 1st Quarter 1964 809 794 0 2nd Quarter 1964 '747 765- 18 3rd Quarter 1964 945 913 0 4th Quarter 1964 964 768 0 1st Quarter 1965 942 1.088. 146" Totals $4,830 $4,703 $164 for comparison, but takes the position that Olen was not deprived of any earnings by his assignment to the bander rather than the hog, as the two machines operate simulta- neously. I agree with the contention of the Respondent that the Respondent's failure to reinstate Al hie Olen to his former job as hog operator has not resultedpin any loss of earnings to Olen. 1 am satisfied from the record that the Respondent's action in placing Olen on the bander rather than the hog was not discriminatonly motivated; his hourly rate remained the same; his hours of work remained the same ; and the switch was made to afford a job for another returning striker, Cliff Rollins, who had been handicapped by the loss of an arm. I find that although Alphie Olen was not reinstated to his job on the hog, he was nevertheless reinstated to substantial- ly equivalent employment, and he suffered no loss of earn- ings by reason of that fact. 5. Eura Reynolds Eura Reynolds had been in the Respondent's employ since 1956 as cleanup man on the swing shift, 4 p in. to midnight. His wage rate was $1.81-1/2 per hour. He had held this job in the Green End Department from the begin- ning of his employment. His job consisted of sweeping the floors and shoveling fuel. Hejoined the strike and picketed. When he applied for work on November 18, 1963, with the other strikers, he was assigned to cleanup on the day shift instead of the swing shift. The day shift rate was $1.78 per hour because it lacked the night shift differential of 4-1/2 cents per hour. Reynolds testified credibly that he preferred his old job on the swing shift because it permitted him to farm in the daylight hours his 16 acres of land on which he grew principally strawberries. Reynolds credibly testified, and I find, that after he'd been back on the job about I week he asked Foreman Oliphant if he could be returned to the swing shift. Oliphant, according to Reynolds' credible testi- mony, "said no he wouldn't lay a man off who'd been there 17 months" and he refused to reassign Reynolds to the swing shift. Upon the basis of the undisputed fact that Eura Reynolds period November 18, 1963, to September 30, 1965.14 This difference totals $150, as stipulated by the parties. I, there- fore, find that there is due and owing by the Respondent to Eura Reynolds the sum of $150, with interest at 6 percent for loss of earnings resulting from the Respondent's failure to properly reinstate him in accordance with the Board's Order and the court decree. 6. Ben Randen Ben Randen had beeri in the employ of the Respondent since 1950. He had been employed as the barker opera- tor' 5 in the 2 years preceding the June 11, 1962, strike. He joined the strike and picketed. He applied for work when the strike terminated. Randen _credibly testified that when he applied for work, he asked Superintendent Oliver for his barker operator job, and Oliver `said, no, the other guys16 were on there and it was too fast for me." Randen accepted Oliver's decision, testifying as follows : "So I didn't argue about it. It was a job to me." Randen for a short time was assigned miscellaneous jobs, and in December 1963 was made dragsaw operator and also operated the barker for I week. Randen's rate as barker operator had been $2.03 per hour. He returned at the same rate of $2.03. Oliver denied that he told Randen the barker was too fast for him. Oliver's testimonial reason for not placing Randen on the barker operator's job was his testimony as follows: Well, the only thing I can say and tell the truth is that Ben Randen was a good worker all over the plant. We used him in different spots all over the plant for years. For that reason, trying to get started that day was probably the reason he wasn't put back on it." Randen was offered the job as boom man on the river at a rate of $2 . 15 in June 1964 and accepted it, and continued on that job until the Green End Department closed down in October 1965. Notwithstanding the fact that the jobs to which Randen was assigned on his return from the strike equaled or ex- ceeded the $2.03 rate of pay for barker operator, the Gener- al Counsel contends nevertheless that because Randen was not reinstated to his old prestrike job as barker operator, his earnings on other jobs with the Respondent since the was returned to the day shift at a rate of $1.78 per hour whereas, to comply with the Board's Order and the court 14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, decree, he should have been returned to his old job on the Branch, 65 NLRB 827, 829. swing shift at a rate of $1.82-1/2, he is entitled to the differ- 'S The barker removes the bark from the cut logs. encehe would have received at the $1.82-1/2 rate during the 16 Gonzales, who was a strike replacement, was then the barker operator. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike's termination should be compared on a quarterly ba- sis with employees Gonzales and Apple who operated the barker during the backpay period in accordance with the F. W. Woolworth formula. The stipulated earnings of Randen, Gonzales, and Apple during the backpay period are as shown below: Year Quarter Randen's Pay 1963 4th $ 485.37 1964 1st 928.00 1964 2nd 890.00 1964 3rd 1,106.00 1964 4th 954.00 1965 1st 1 ,235.00 1965 2nd 1,020.00 1965 3rd 1,022.00 1965 4th 270.00 Totals $7,910.37 placed back on the barker operator job, he would have had no more work than he had as dragsaw operator or in his other jobs after the strike, as these obs were all part of one continuous production line, one job operating just as much as the other.17 The Respondent, therefore, argues that since Randen received at least the same rate of pay as that of barker operator, any lesser earnings than that of a barker operator were because of Randen's own voluntary absence from work and not because of the job. There is no evidence in the record, however, that Randen was unavailable for work, so as to decrease his earnings, a burden of proof which the Respondent is required to bear. Mastro Plastics Corporation, etc., 136 NLRB 1342, 1347. I must presume, therefore, that Randen was at all times available Tor work during the backpay period. Moreover, the Respondent points out in its bnef that in June 1964 Randen accepted promotion to the higher rated job of boom man which paid $2.15 per hour, an increase over the $2.03 rate of the barker operator. Althou it is clear, and I find, that Randen was not reinstated to his barker operator job upon application, as required by the Board Order and court decree, I have con- cluded that Randen's acceptance of the promotion to boom man in June 1964 at a rate of $2.15 per hour constituted a conscious waiver of his further right to reinstatement to the barker operator job. Therefore, I have concluded that com- putation of backpay should end with the second quarter of 1964. Therefore, I find that there is due and owing from the Respondent to Randen net backpay in the amounts of $86 for the first quarter of 1964 and $78 for the second quarter of 1964, or a total net backpay of $164 with interest at 6 percent from the date such payments were due. 7. Vena Thompson, Henrietta Johnson, and Cloid Flatter The General Counsel's backpay specification recites that Thompson's, Johnson's, and Platter's back ay periods be- gan November 18, 1963, and ended March 31, 1966. These 17 This was the substance of the testimony of Superintendent Oliver and Foreman Oliphant. On the basis of the foregoing figures, the General Counsel contends that there is net backpay due Randen of $351, and this notwithstanding the fact that Randen's overall earnings in the backpay period exceeded the earnings of his replace- ments, Gonzales and Apple, by $156.43. The Respondent contends that even if Randen had been Gonzales' of Apple's Pay (G) (A) Net Backpay Due Randen $ 463.94 (G) 0 1,014.00 (G) $ 86.00 968.00 (G) & (A) 78.00 1,017.00 (A) 0 1,017.00 (A) 63.00 1,097.00 (A) 0 1,109.00 (A) 89.00 1,057.00 (A) 35.00 11.00 (A) 0 $7,753.94 351.00 three employees joined the strike and applied for work at the strike s end on November 18, 1963. The backpay specifi- cation alleges that on November 18, 1963 , Respondent re- fused to reinstate Thompson , Johnson, and Flatter to their former positions of regular fill-in box machine operator. During the hearing, the General Counsel produced evidence that Vena Thompson had been permanently promoted to the position of machine operator classification at $1.98 per hour 2 weeks preceeding the June 11, 1962 strike. Because of that, the General Counsel contends it became the legal duty of the Respondent, in compliance with the Board Or- der and court decree, to reinstate Vena Thompson to the job of machine operator at the $1 .98-per-hour rate. Vena Thompson had been in the Respondent 's employ since June 1946 . In the period before the strike, she was employed as a liner layer at $1.68 per hour, a cleat layer at $1.70-1 /2 per hour and as an edger at $ 1.78 per hour. Since 1961, she also filled in as a machine operator at $1.98 per hour. According to the credible testimony of Thompson, Johnson, and Flatter, corroborated by plant committee- woman June Simpson, it had been the practice of the Re- spondent to promote to permanent positions of machine operator employees with the greatest experience or seniority as fill-in machine operators. According to their testimony, which I credit and which is not denied, Thompson, Johnson, and Flatter at the time of the ' strike's commencement had the most fill-in time or experience as machine operator. Moreover, Thompson testified credibly with corroboration by plant committeewoman June Sim son and Henrietta Johnson, that 2 weeks before the start o the strike Foreman Willie Odemts had promoted her to a full -time machine operator. Thompson testified that the promotion was occa- sioned when Johnny Kristen was transferred from the ma- chine operator job to hister operator . According to the credible testimony of Thompson, on that occasion Foreman Odem came to her and told her that "as of now" she "would be a steady machine operator." In this connection, plant committeewoman June Simpson testified , and I find, that on this occasion Foreman Odem came to her machine and 18 Odem died before the hearing in this case WESTERN WIREBOUND BOX CO. 169 told her that John'Kristen was going to drive the hister,ithat one of the,bdys•was quitting•and+he needed asteady box machine operator: Simpson told Odem that she thought Vena-Thompson was the next in line for-the job; and Odem, agreed, with her.19 , r . ' ,The Respondent denies -that Vena Thompson was made, a'full-time machine -operator at $1.98. per- 'hour before the strike and points to the payrolllrecords to support its, con- tention..:I have: examined the`timecards in 'evidence with respect to Vena Thompson, an&I note that-they are ambig- uous.;They show for example that in-the semi-monthly-.pay- roll periods'' ending June 15, .1962, Thompson was continually ; employed at- the `$1.9,8 rate and that ''for • the payroll period ending May 31,,1962, she was paid every dal except one at the $1.98 rate. Because Vena, Thompson is timecards show different rates inthe upper. left-hand corner of the i timecards, and, because there is, an absence of any change of ratemotice iii Vena Thompson's personnel file; the Respondent contends that, the testimony,of Thompson, Simpson; and Johnson is clearly -refuted and'should.not be credited. It is established, by; other 'evidence, however, that changes in payroll classification are not always promptly recorded and, moreover, other evidence in the record re- veals other payroll inaccuracies conceded by the Respon- dent. For example, Superintendent Oliver conceded on the record that the December 15, 1963, payroll record showed Zenas Meyer'. classified as a fireman when in fact he no longer'had'thatj'ob;•the,December 15 and 3,1, 1963, payroll records, show Aiphie` Olen classified as•,hog,operator.when in fact he- was not returned to, the hog ,operator's job after the strike ended; Cliff Rollins was shown,, on the Respondent's payroll records as "clean up" although, the Respondent conceded, he was reemployed after the strike as the ling operator. The payroll records of Chas. Templin show'him-as a hog operator, although the Respondent con- tended he did considerable- work as a millwright's helper. Superintendent Oliver 1 testified that promotions were based on'capability but he'conceded that at the start of the strike in June 11, 1962, Vena Thompson and Henrietta Johnson were his best.machine.o erators,,and he conceded that when the Respondent' needed' a temporary operator, the job as a rule would be given to the "girl who had been on ,that machine the, longest." Similarly, Thompson, John- son, and Flatter credibly, testified • that, the three of them were the regular extra or fill-in machine operator work, dur- ing the 6-month period immediately preceding -the strike. According to the cumulative testimony of Thompson, Johnson, and Flatter, which stands uncontradicted in the record, the following employees, hired as replacements dur- ing the strike, were machine operators after the strike: Lee Struzan, Don Felstrip, David Sawyers, Mike Blum, George Rindflesch, and William O. Everton. Vena Thompson credibly testified that she complained to Foreman Willie Odem many times about not being made a machine operator, but he would give her no answer. On one occasion within a few days after the strike ended, when she remarked to Odem, "Willie, what's the matter-won't Oli- ver let you put me operating." Odem, according to Thompson's credible testimony, replied, "I only work here," and he walked off. Upon the basis of the record evidence, as well as testimo- ny of witnesses, it appears that before the strike the full-time machine operators were Waldo Baldridge, Wesley Batchel- lor, Lillian Boomhower, Wanda Cbppinger, Alex•Jobanek, and Virginia Shadley: Four of these operators did not return after the. strike, namely Waldo Baldridge, Wesley. Batchel- lor, Wanda Coppinger, and Alex Jobanek. Notwithstanding this depletion in the roster of, prestrike machine operators, the Respondent, after the, strike's end, retained ;replace- ments as machine operators to 'he detriment of.returning strikers Thompson, Johnson, and Flatter, who, for an period' in,excess of 1. year after the strike's end were not afforded any extra or fill-in time as machine operators.-. Thus; the payroll records of Thompson disclose that, whereas she re- ceived continuous employment as a machine operatorat the $1.98 rate in the payroll periods April 30;!1%2, to the date of strike on June 11, 1962, upon,her return from the strike she received no machine operator work for more than a year between the dates of- November, 18, 1963, through the pay. roll period ending. December 15, 1964.20. . Henrietta Johnson's timecards show, that she received some machineioperating at-the $1 .98 rate in each of•the pay periods from April 15, 1962, to the strike,on•June 11, 1962;, but after- her return from the strike, she was. given no ma- chine operation from the time of her return on November 18, 1963, through December' 15, 1964, a period of time ex- reeding 1 year. Cloid , J. Flatter's , timecard shows-that in the 6-month period.-preceding the.June.,11,,+1962, strike, he received a substantial amount of machine 'o erating at the $1.98 rate from January 1 to February 15, 1962, and 2 days in the pay period ending May 31, 1962, but on his return from the strike on November 18, 1963, he received no machine oper- ating work until January 1, 1965, except for 1 day in the pay period- ending June 15, 1964,'and 1 day in the pay period ending December 15,' 1964. ' 'Summarizing the foregoing, it'is fair to conclude that the Respondent, for more than 'a' year 'after the strike, denied machine 'operating work at'the $1.98 rate to the three em= ployees who, it was conceded before the strike,''were consid- ered the most eligible for machine operating.'Instead, such work, was assigned to strike're lacements to the detriment of Thompson, Johnson, and Flatter.21 'it is clear, and I find; that Thompson; Johnson; and Flat- ter"were denied'"their seniority or other'rights and'privi-' leges" which should have accompanied 'their reinstatement, and.they.are entitled to be made "whole for any loss of pay they may have suffered bar reason of the Respondent's dis- crimination against them. '22 I find, in accordance with the testimony of Thompson, Johnson, and Flatter that machine operator s work was available to them after the strike, espe- cially when it is noted that four full-time machine operators; namely, Baldridge, Batchellor, Coppinger, and Jobanek, did not return after the strike. It is clear, and I find, that in a period exceeding 1 year following the strike's end, the Re- spondent refused to accord to Thompson, Johnson, and Flatter their "seniority and other rights and privileges." Ab- sent such discrimination against these three employees, they would have received full time machine operators work. Ac- cordingly, in compliance with the Board Order and court decree, they are entitled to be made whole. Compare Moo- ney Aircraft Inc., 164 NLRB 1102; Mooney Aircraft Inc., 156 20 Thompson testified that she was made an operator in January 25, 1965. On that occasion, according to Thompson, "Oliver called me into his office one day and asked me if I wanted to operate . I said, 'Walt, you know I want to operate; and he said, `Well, then we'll fix up a machine to operate because I don't want you to feel bad. I have no bad feelings toward you and I don't want you to have any toward me'." 19 Simpson testified that, as between temporary operators Thompson and 21 The Board Order and court decree required the Respondent to dis- Johnson they both started operating the machines the same days one on days , charge, if necessary , any replacement in order to effectuate full reinstatement the other on nights, "but Vena (Thompson) had the most plant seniority and to returning strikers. she got the job." 22 The quote is from the court's decree. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 326, enfd. 375 F.2d 402; Stanley Building Specialties Co., 166 NLRB 984, 986 ; Ripley Manu ac w in Company, 144 NLRB 1132, 1147 ; Lamb-Weston, 170 NLRB No. 186. The preference granted strike replacements over returning strikers to machine operator's work not only violated the Board Order and court decree, but was also inherently de- structive of employee rights under the Act, irrespective of the Respondent's motives. N.L.R.B. v.,Erie Resistor Corpo- ration, 373 U.S. 221. See also N.L.R.B. v. Great Dane Trail- ers, Inc., 388 U.S. 26. The parties have stipulated that, assuming the claims of the General Counsel are meritorious concerning the im- proper reinstatement of Vena Thompson , Henrietta John- son, and Cloid Flatter, the computations pertaining to those three employees in the General Counsels backpay specifi- cations are accurate. As I have found the General Counsel's claim to be meritorious with respect to these three employ- ees, I therefore find that there is due and owing to these three employees the net backpay as computed in the back- pay specification and which appears attached to this Deci- sion as Appendices A, B, and C . Thus, as shown by Appendices A, B, and C, I find that the net backpay due these three employees is as follows: Vena Thompson -$858 Henrietta Johnson -$662 Cloid Flatter -$310 8. Laches The Respondent complain that its defense of the case has been prejudiced by the Board's delay in bringing to its attention the claim that it had not properly' reinstated the employees in question. The Respondent points out that the Boards office at Portland raised no question about its compliance until December 1968. Aside from the fact that laches does not run against the Government, we e.g. N.LR.B. v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, the delay by the government was in fact caused by the Respondent's appeals first to the Board from the Trial Examiner's Decision and then in connection with the en- forcement procedures before the court of appeals.13 As a 23 The trial Examiner's Decision issued October 23, 1%3; the Board's Decision on February 6, 1964; the decree of the court of appeals on January 19, 1966 co uence of these delays caused by the Respondent's refusal to accept the validity of the Trial Examiner's or Board's Decision, the Regional Office was without legal authority to do more than await the finality of a court decree. It is clear that the Respondent did hot whole- heartedly accept the Trial Examiner's Decision or the Board Decision, and there is noevidencno evidence that the Re- spondent solicited the assidtance of Board personnel to as- sure that there was full and proper compliance with the Trial Examiner's or the Boards Decision, On the contrary, the testimony of Union Representative Harvey Nelson dis- closes that he questioned the validity of the Respondent's reinstatement procedures in his meeting with the Respon- dent in December 1%3. Moreover, counsel for the General Counsel's statements on the record indicate the obstacles that were presented to the Board's investigators in procuring access to Respondent's records. While it is regrettable tha the force of circumstances caused delays , I am of the opin- ion that the employees for whom a remedy is herein recot, mended share no responsibility in that delay and should not be denied any Warrfinted legal remedy. Summary Conclusions Summarizing the above findings, I find that the employ- ees named below are due from the Respondent the amount set opposite their names as listed below with interest at 6 percent per annum as provided in the Board 's Decision at 145 NLRB 1539: Eura Reynolds -$150 Ben Randen -$164 Vena Thompson _$858 Henrietta Johnson -$662 Cloid Flatter -$310 RECOMMENDED ORDER On the basis of the foregoing findings and conclusions, it is ordered that the Respondent, its officers, agents, succes- sors, and assigns, pay to the employees above the amounts set opposite their names, plus interest as prescribed. WESTERN WIREBOUND BOX CO. APPENDIX A VENA THOMPSON 4th Q, 1963 Actual hours worked-347.2 X 1.98 - 687.46 (Includes 120 hours vacation at 1.98 hr.) Actual earnings--587.54 (Includes 120 hours vacation at 1.68 hr.) 687.46 Gross -587.54 Less actual earnings 99.92 Net Backpay 1st Q, 1964 Actual hours worked-289.70 X 1.98 - 573.61 573.61 Gross -489,10 Less actual earnings 84.51 Net Backpay 2nd Q, 1964 Actual hours worked-477.60 X 1.98 - 945.65 945.65 Gross -811.07 Less actual earnings 134.58 Net Backpay 3rd Q. 1964 Actual hours worked-426.60 X 1.98 • 844.67 844.67 Gross -720.24 Less actual earnings 124.43 Net Backpay 4th Q, 1964 Actual hours worked-580.50 X 1.98 - 1,149.39 (Includes 120 hours vacation at 1.98) 1149.39 Gross - 979.24 Less actual earnings (includes vacation) 170.15 Net Backpay. 171 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1st Q, 1965 Actual hours worked-479.00 X 1,98 - 948.42 948w42, Gross -901.62 Less actual earnings 46.80 Net backpay•. 2nd Q, 1965 Actual hours worked--411,0A .X 1.98 - 813.78 813.78 Gross -812.35 Less actual earnings 1.43 Net backpay 3rd Q, 1965 Actual hours worked--547.40 X 1.98 - 1083.85 1083 .85 Gross -1088 . 93 Less actual-earnings, 0000000 4th Q, 1965 Actual. hours worked--397.50 X 1.98 - 787.05 (Includes 120 hours vacation at 1.98) 787.05 Gross -682.84 Less actual earnings (includes vacation) 104.21 1st Q, 1966 Actual hours worked-456.00 X 1.98 - 902.88 902.88 Gross -810.88, Less actu& earrings, .92.00 Net backpay A (No claim after 1st.Quarter . of 1966 because claimant was substantially reinstated to machine operator.) TOTAL BACKPAY $858.00 WESTERN WIREBOUND BOX,CO. 173 APPENDIX B HENRIETTA JOHNSON 4th Q, - 1963 ; Actual hours worked--:^226.70 X •1.98 = 448.87 448.87 Gross -387.12 Less actual earnings 61.75 Net backpay 1st Q , 1964 Actual hours worked--43'3.70.% 1:98 = 858.73 (Includes 120'^hours "vacation 'pay) 858.73 Gross -739.76 Less actual earnings (includes vacation) 118.97 Net backpay 2nd Q; 1964 Actual hours worked-229.50 X 1.98 = 454.41 454.41 Gross 397.61 Less actual earnings 56.80 Net backpay 3rd Q;- 1964 C. , Z, Actual hours worked-288 . 80 X 1.98 - 571.82 571.82 Gross -493.54• Less ' actual earnings 78.28 ' Net backpay' 4th Q, 1964 - Actual hours worked--444.50,X 1. 98 - 880.11 880.11 Gross -778.87 Less actual earnings 101.24 Net*backpay 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1st Q, 1965 Actual hours worked--416.00 X 1.98 - 823.68 (Includes 120 hours vacation at 1.98) 823.68 Gross -785.42 Less actual earnings (includes vacation) 38.26 Net backpay 2nd Q, 1965 Actual hours worked-64.00 X 1.98 - 126.72 126.72 Gross -126.72 Less actual earnings 000000 Net backpay 3rd Q, 1965 Actual hours worked-356.70 X 1.98 - 706.27 706.27 Gross -68 0 39 Less actual earnings 25.88 Net backpay 4th Q, 1965 Actual hours worked--392.00 X 1.98 - 776.16 776.16 Gross -687.60 Less actual earnings 88.56 Net backpay 1st Q, 1966 Actual hours worked-476.50 X 1.98 - 943.47 (Includes 120 hours vacation at 1.98) 943.47 Gross -850.83 Less actual earnings (includes vacation) 92.64 Net Backpay (No further claim after 1st quarter of 1966 for reason there was insufficient machine operation available for all claimants after this quarter.) TOTAL BACKPAY $662.00 WESTERN WIREBOUND BOX CO. APPENDIX C CLOID FLATTER 4th Q, 1963 Actual hours worked-227.3Q X 1,98 • 450.05 450. 05 Gross -427 2 Loss actual earnings '22.73 Net backpay lot Q, 1964 Actual hours worked--353.70 X 1,98 r 700.33 700.33 Gross -664.96 Less actual earnings 35.67 Net backpay 2nd Q. 1964 Actual hours worked-•482.40 X 1 . 98 - 955.15 955.15 Gross -915.23 Less actual earnings 39.92 Net backpay 3rd Q, 1964 Actual hours worked!--434.10 X 1.98 • 859.52 859.52 Gross -802.57 Less actual earnings 56.95 Net backpay 4th q0 1964 Actual hours worked--530.50 X 1.98 - 1050.39 (Includes 80 hours vacation pay) 1050 . 39 Gross -998.14 Less actual earnings (includes vacation),, 175 52.25 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1st Q, 1965 Actual hours worked-501.40 X 1.98,1',992.77 992.77 Gross -988.29 Less actual earnings 4.48 Net backpay•• 2nd Q, 1965 Actual hours-worked-494.00 X.1.98 - 978.12 978.12 Gross `'' 2. -945.69 Less actual earnings '32.43 Net •backpay °` 3rd Q, 1965 Actual hours worked=-483.80 X1.98 - 957.92 957.92 Gross -940.42 Less actual earnings C_', '17.50 Net backpay' ' ' '0 4th Q, 1965 Actual hours worked-527.00 X 1.98 a 1043.46 (Includes 80 hours vacation pay) 1043.46 Gross -1020.79 . Less 'actual earnings (includes vacation) .22'.67 Net backpay 1st Q, 1966 Actual hours worked-504.00 X 1.98 - 997.92 997'.92 Gross ' " . " 972.72'. Less actual earnings 25.20 Net backpay (No further claim after 1st quarter of 1966 for reason that there ' was: insufficient machine operation available for all claimants after this quarter.) TOTAL BACKPAY $310.00