The Rogers Mfg. Co.

THE RODGERS MFG. CO. 429 The Rogers Mfg. Co. and International Chemical Workers Union, AFL-CIO. Case 8-CA-3767 September 16, 1969 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 11, 1965, the National Labor Relations Board issued a Decision and Order in the above-entitled case,' finding, inter alia, that the Respondent had discriminatorily discharged employees Sarah LaRue in violation of Section 8(a)(3) and (1) of the Act, and directing that the Respondent offer her immediate and full reinstatement and make her whole for any loss of pay caused by its discrimination against her. On June 2. 1966, the Board's Order was enforced by a consent decree of the United States Court of Appeals for the Sixth Circuit. On September 30, 1966, the Regional Director for Region 8 issued and served on the parties a backpay specification and notice of hearing. Pursuant thereto, a hearing was held before Trial Examiner Thomas A. Ricci on November 29, 1966. On January 11, 1967, the Trial Examiner issued his 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. On May 2. 1967, the Board issued a Supplemental Decision and Order,' in which it adopted the findings, conclusions, and recommendations of the Trial Examiner, and ordered the Respondent to pav LaRue the specified amount. On February 10. 1969, the United States Court of Appeals for the Sixth Circuit issued a decision," enforcing the Board's Supplemental Order in part, but denying enforcement and remanding as to the balance. The court enforced the portion of the backpay award attributable to the period from LaRue's discharge until the beginning of the strike on April 6, 1965. But the court rejected the Board's holding that LaRue's strike activity was irrelevant as a matter of law with respect to the Respondent's burden of proving mitigation of its backpay liability after the beginning of the strike, and remanded the case for a factual determination on the issue of mitigation. On May 19, 1969, the Board issued and served on the parties a Notice, inviting the filing of a statement of position with respect to .the issue remanded by the Court. The Respondent and the '155 NLRB 117. '164 NLRB No 46 '406 F.2d 1106. General Counsel filed statements pursuant thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. In accordance with the court's remand. we have reexamined the record of the supplemental hearing before Trial Examiner Ricci, the Trial Examiner's Supplemental Decision , and the Respondent's exceptions thereto and the accompanying brief. We reaffirm our finding that the Trial Examiner's rulings at the supplemental hearing were free from prejudicial error." Our reexamination of the record shows that LaRue was an active protagonist, advocate, and supporter in the Union's organizational campaign. and was an elected trustee and a member of the negotiating committee. On February 2, 1965, she was discriminatorily discharged. On April 6. 1965, the Union launched an economic strike; and it also maintained pickets for about 3 months, until removed by a State court. LaRue joined the picketing every other day and also continued as a member of the negotiating committee. Respondent did not offer LaRue reemployment of any sort until December 16, 1965, when LaRue promptly accepted an offer of reemployment at a lower paying job. The strike has never been formally terminated, and the strike call remained in effect at the time of the offer of reemployment, as the Court found.' As the court in its decision properly noted, under the basic substantive and procedural principles applicable to backpay following an unfair labor practice discharge, "the employer has the burden of proving facts that show no liability or that mitigate the extent of the damage." In computing backpay for employees who have been wrongfully discharged before an economic strike is called, the Board normally refuses to exclude the period of a subsequent economic strike. In the Board's view, the employer's burden of proof is not met merely by establishing the fact of the strike, for it remains a matter of speculation and conjecture whether the employees would have gone out on strike if still in the employer's employ and, as the Board sees it, that uncertainty must be resolved against the 'Although the court at one point in its decision referred to "rejected (excluded) relevant evidence' tending to prove mitigation of the backpay period, we respectfully state that we have been unable to find any such ruling in the record It is true that the Respondent attacked the Trial Examiner's refusal to permit it to offer evidence of harassment by the Regional Office. In its remand, however, the court did not indicate that its reference was to this ruling, or indeed that the conduct of the Regional Office in pressing for backpay could properly be characterized as harassment mitigating the backpay liability. `The Respondent alleged , in its brief after the Trial Examiner's Supplemental Decision, that the strikers were offered reinstatement and had been replaced. However, there is no evidence that the strikers, or the Union on their behalf, ever applied for reinstatement or otherwise called off the strike, even though the evidence shows that the pickets had been involuntarily removed by the State court. Moreover, the brief, filed long after LaRue accepted reemployment by the Respondent, concedes that the strike had not yet been officially terminated 178 NLRB No. 69 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrongdoing employer who made it impossible to ascertain what they would have done had they not been unlawfully discharged. See, e.g., East Texas Steel Castings Companzy. 116 NLRB 1336, cnfd. 255 F.2d 284 (C.A. 5). We recognize that the instant case may have a somewhat different dimension from the usual one because the facts here show that the discharged employee, LaRue. occupied more than a simple membership relationship to the Union, and during the strike not only engaged in picketing, but also served the Union in an official capacity as an elected trustee and member of the negotiating committee. For purposes of decision in this case, we accept the Court's holding that these added considerations are "relevant to the determination of the appropriate backpay period," and must be weighed in the balance in determining whether the Respondent satisfied its burden of proving facts to show mitigation of its backpay liability. We also grant that, in the absence of other countervailing evidence, these considerations might have supported an inference that would satisfy the burden of proof. But we are of the opinion that such an inference is not warranted on the facts in this case, for the facts show that LaRue did accept the Respondent's December 1965 offer while the strike was still in effect, et en though the offer was of a lower paying iob and not full reinstatement. Since LaRue thus demonstrated her availability for work when first put to the test, by the Respondent and this despite her close involvement with the Union, we are not pursuaded that on this record a finding is justified that the Respondent has, met its burden of proof that she would have withheld her services if offered full reinstatement sooner. Though we acknowledge that this remains a matter of uncertainty, we believe it only reasonable to resolve that uncertainty against the Respondent This is so, not only because the Respondent alone had the capacity of removing that uncertainty by offering LaRue the reinstatement to which she was entitled, but also because the burden of proving LaRue's earlier unavailability for work lay with it. We conclude , in sum , after consideration of all the relevant facts disclosed in the record, that the Respondent has not sustained its contention that LaRue was not available for work after April 6, 1965. Accordingly, we find that LaRue is entitled to the, amount of backpay specified in our Supplemental Decision and Order.` The award of interest on the backpay due LaRue , although includedlin our original Decision and Order, was inadvertently omitted in the Supplemental Decision and Order We hereby ask leave of the Court to modify the Supplemental Decision and Order so as to include the customary provision for the addition of interest at the rate of 6 percent per annum in accordance with the formula set forth in F W Woolworth Company. 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716