Saginaw Aggregates, Inc.

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Saginaw Aggregates, Inc. and Local 324, International Union of Operating Engineers , AFL-CIO. Case 7-CA-8246 July 31, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 28 , 1972, Trial Examiner William J. Brown issued the attached Supplemental Decision in this proceeding . Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, conclusions, and recommendations with the modifications set forth herein. In his Decision the Trial Examiner rejected the Respondent's contention that the discriminatees were not entitled to backpay because they had orally been placed on a preferential hiring list at the time they were discnminatorily laid off. He did so on the grounds that this was an attempt to relitigate the Board's findings and order in the unfair labor practice proceeding ) that the layoffs had been discriminatory, a matter not open to litigation in a backpay proceeding. In affirming the finding we also note that the Respondent's oral representation to the employees at the time of the layoff, that they would be rehired at the first opportunity, being incidental to the Respon- dent's discriminatory and unlawful conduct , does not satisfy the requirements of the Board 's Order in the unfair labor practice proceeding . That Order, in pertinent part, required that Respondent "(a) Create a preferential hiring list containing the names James Sykes, Merl Wark, and Stephen Vatt, and furnish a copy ofsaid list to the aforementioned Local 324, and to each of the persons named on said list." (Emphasis supplied.) This requirement necessarily could be complied with only if in writing , so as to eliminate the possibility that rights of great importance to the discriminatees shall not be subject to the vagaries of I Saginaw Aggregates, Inc, 191 NLRB No. 104 2 The Trial Examiner found that Vatt had not sought work for the 2- week period from September 12 to 26, 1970 The record is not clear that Vatt was, in fact, idle for this entire period The parties stipulated at the hearing that Vatt worked for Williams Brothers, another employer in the area, " from the week ending September 26, 1970. " which can fairly be interpreted as meaning that Vatt went to work prior to the date of oral testimony in a backpay proceeding which may be held long after the alleged oral offer to place the discriminatee on a preferential hiring list. Further- more the preferential hiring contemplated by our Order was not intended as a means of perpetuating the adverse economic consequences of the unlawful layoffs. Rather, it represents a remedial measure fashioned out of concern for both the redress of any loss of earnings sustained by the discriminatees and the fact that an indefinite reinstatement order may be rendered inappropriate where circumstances reveal a strong possibility that, following issuance of our Order, substantially equivalent positions may not be available. For these reasons, and as the preferen- tial hiring requirement was not intended as a means of eliminating backpay due and owing the discrimi- natees for periods they would have worked were it not for the Employer's unlawful conduct, we find that said provision is only operative to toll backpay upon a subsequent placement on a formal list, with copies forwarded to the discriminatees, so as to assure them a preference in employment determined by the availability of work and not their union or protected activities. The Trial Examiner found that Stephen Vatt did not exercise due diligence in seeking new work during the 2-week period immediately following his discriminatory layoff.2 He therefore concluded that Vatt should be denied backpay for the 2-week period. We do not agree. It is now well settled that an employee discriminatorily laid off or discharged need not instantly seek new work; rather the test is whether, on the record as a whole, the employee has diligently sought other employment during the entire backpay period.3 There is no evidence, nor is there any contention, that Vatt failed otherwise to exercise due diligence in seeking alternate employment during the entire backpay period. We therefore conclude that Vatt is entitled to backpay for the 2- week period immediately following his discriminato- ry layoff. Vatt's backpay for the third quarter of 1970 should therefore be $462.70 and his total backpay $967.72 as stated in the backpay specification. SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Saginaw Aggregates, Inc., its officers, agents, succes- September 26, 1970. The size of Vatt's interim earnings set forth in the backpay specification would also indicate that he returned to work prior to that date 3 Nickey Chevrolet Sales, Inc, 195 NLRB No. 76, Keller Aluminum Chairs Southern, Inc, 171 NLRB 1252, 1257, Monroe Feed Store, 122 NLRB 1479,1481-82 198 NLRB No. 78 SAGINAW AGGREGATES, INC. 599 sors, and assigns, shall make the employees involved in this proceeding whole by payment to them of the amounts set forth in the Supplemental Order in the Trial Examiner's Supplemental Decision attached hereto, as modified hereinabove. TRIAL EXAMINER'S SUPPLEMENTAL DECISION WILLIAM J. BROWN, Trial Examiner: This supplemental proceeding to determine amounts of backpay due in accordance with the Board's Decision and Order, 191 NLRB No. 104, the validity of said Order being conceded by Respondent, Saginaw Aggregates, Inc., hereinafter sometimes referred to as the "Company," came on to be heard at Saginaw, Michigan, on February 10, 1972, before me. The parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing a brief was received from the Company and has been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the following findings and conclusions: 1. INTRODUCTION TO THE ISSUES In the initial Decision and Order entered by the Board in this proceeding, it was specifically found that employees Sykes, Wark, and Vat were discriminatorily laid off by the Company on September 12, 1970. The Company was ordered to place them on a preferential hiring list for rehire on reopening of the plant. It is now the contention of the Company that no backpay is due the claimants herein because, it is contended, in the very act of discriminatorily laying the claimants off the Company informed them that they would be rehired at the first opportunity. This contention must fail because it plainly amounts to an attack on the initial findings and order of the Board in the unfair labor practice case and, in effect, to a denial of the discriminatory character of the layoffs, a contention which is not open for litigation in the instant supplementary proceeding. H. THE INDIVIDUAL CLAIMS A. Stephen Vati Vat's backpay period begins on September 12, 1970. The specification alleges that it ends on March 31, 1971, when he was rehired by the Company. The Company's conten- tions relating to the termination of Vat's backpay period appear to relate rather to the issue of his efforts to find alternate employment, and I conclude that his backpay period terminates, as alleged in the specification, on March 31, 1971. Vat's testimony reveals that immediately after his layoff by the Company on September 12, he "laid around" not looking for work until about September 26 and I conclude that his projected gross backpay figure as set forth in the specification for the third quarter of 1970 should be reduced by two-thirteenths to a figure of $616.71. This would result in a total net backpay for Vat of $351.58 for that quarter. Since Respondent's only conten- tion respecting Vat is that his backpay should be reduced for lack of efforts to find work in the third quarter of 1970, it is concluded that his net backpay, adjusted for lack of diligence in that quarter, amounts to $351.48 and his total net backpay to $856.56. B. James Sykes Sykes backpay period commences on September 12, 1970; it ends on December 30, 1970, when he moved from the Company's area to Iowa to continue his education on a full-time basis. The Company contends that James Sykes' hospital expenses in December 1970, which would have been covered under the Company's hospitalization insur- ance plan had his employment with the Company continued, are not allowable because Sykes could have secured alternate coverage, the Company's liability thus being, at most, the amount of the premiums. This contention ignores the fact that virtually universally hospitalization insurance, especially in cases of pregnan- cies does not cover preexisting situations . I conclude that the Company's contentions respecting this item must be rejected and the hospital expense of $400 charged against the Company to the credit of Sykes, and that the specifications of a total net backpay of $ 1,178.80 are correct. C. Merl Wark Wark's backpay period commences on September 12, 1970. The specification alleges that it terminates on July 11, 1971, when he failed to reply to a company letter inquiring as to whether or not he wished to be continued on a preferential hiring list. The Company's answer to the backpay specification asserts that no backpay is due Wark because of his failure diligently to seek other employment. I found Wark a credible witness and conclude that General Counsel's Exhibit 3 is an accurate record of dates and places of his applications for work at employers in the area. The exhibit furnishes abundant evidence of Wark's diligence in seeking employment and I conclude that Wark is clearly shown to have fulfilled his obligation in this regard. I do not credit Sykes' testimony to the effect that no equipment repair work would have been available for Wark in the first quarter of 1971 and conclude that the specifications accurately set forth Wark's projected gross backpay. I conclude that the evidence sustains the allegations of the specifications with respect to Wark and that he is entitled to total net backpay in the amount of $7,308.83. Conclusions and Recommendations On the basis of the foregoing findings I conclude that the claimants listed herein are entitled to payment by the Company of the respective amounts set forth herein. Interest is to be added at the rate of 6 percent per annum on the basis of the quarterly amounts of net backpay due in accordance with the formula set forth in Isis Plumbing & I Sometimes referred to herein as Stephen Vatt 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heating Co., 138 NLRB 716, less any tax withholding receipt of this Supplemental Decision the Company has required by law. made payments in accordance therewith, the Board issue It is recommended that unless, within 20 days from an order requiring the Company to take such action.