Marine Welding and Repair Works, Inc.

MARINE WELDING AND REPAIR WORKS 553 Marine Welding and Repair Works, Inc.; Williamson Engine and Supply, Inc.; Greenville Manufacturing and Machine Works, Inc.; Greenville Propeller Works, Inc. and Industrial, Technical and Profes- sional Employees Division of National Maritime Union of America, AFL-CIO. Cases 26-CA-2756, 26-CA-2843, 26-CA-286 1, and 26-CA-2875 March 20, 1973 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 20, 1969, the National Labor Rela- tions Board issued an Order in the above -entitled proceeding, finding, inter alia, that the Respondent had discriminatorily discharged Freddie Lee Walker, Dewitt B. Harrison, and Isiah Layton in violation of Section 8(a)(3) and (1) of the Art and directing that Respondent make whole the above-mentioned em- ployees for any loss of earnings resulting from the discrimination. Thereafter, on March 1, 1971, the United States Court of Appeals for the Eighth Circuit entered its decree enforcing the Board's Order.' On January 26, 1972, the Regional Director for Region 26 issued a backpay specification and, on February 16, 1972, the Respondent filed an answer thereto. On February 24, 1972, the Regional Director issued an amended backpay specification, and on March 2, 1972, the Respondent filed an answer thereto. Upon appropriate notice issued by the Regional Director, a hearing was held before Administrative Law Judge Max Rosenberg on March 15 and 16, 1972, for the purpose of determin- ing the amounts of backpay due the three claimants. On October 19, 1972, the Administrative Law Judge issued his Supplemental Decision, attached hereto, in which he found that the discriminatees were entitled to the following payments together with interest at 6 percent per annum less any lawfully required tax withholding: Dewitt B. Harrison, $6,507, Isiah Layton, $4,180.88, and Freddie Lee Walker, $10,- 819.62.2 Thereafter, the Respondent and the General Counsel filed exceptions to the Administrative Law Judge's Supplemental Decision and supporting briefs. The General Counsel also filed an answering brief to the Respondent's exceptions.3 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 attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge except as modified below. We affirm the Administrative Law Judge's conclu- sion that the backpay for Layton and Walker should be abated by 2 percent and 7 percent, respectively. However, we agree with Respondent that such abatement should be based on the gross backpay for each calendar quarter in the backpay period, rather than on the total net backpay as calculated by the Administrative Law Judge. Also with regard to Layton, we find merit in Respondent's contention that Layton's interim earn- ings for the third quarter of 1968 were understated by $500.85 in the amended backpay specification. The record shows that Layton earned $1,353.46 for that quarter whereas the corresponding figure in the amended backpay specification is erroneously set at $852.61. We therefore will adjust Layton's interim earnings, and net backpay, accordingly. With regard to Walker, the amended backpay specification sets forth a period of February 14-17, 1969, for which no backpay is due as Walker was in jail during this time and thus unavailable for employment. However, Respondent contends that this period be expanded by 3 days, pointing out that Walker entered confinement on February I I rather than February 14. As the record supports Respon- dent's contention, we will adjust Walker's gross and net backpay for the first quarter of 1969 accordingly. Finally, the Administrative Law Judge found that Walker had been disabled by an automobile accident for a period of time beginning April 8, 1970, and ending July 3, 1970, and for that period no backpay was due because Walker was unavailable for employ- ment. He therefore recommended that Walker's net backpay be abated accordingly. The General Coun- sel excepted arguing that the record supported a finding that this period terminated on May 6, 1970. We find merit in the General Counsel's exceptions. Walker testified that the accident kept him from working for 3 or 4 weeks. The Administrative Law Judge relies chiefly on a letter to Respondent from Walker's doctor which said that Walker "was later released on the 3rd of July as having no permanent impairment of physical function." However, this language is not at all dispositive as to whether 1 Marine Welding and Repair Works, Inc. v. N.L.R.B., 439 F.2d 395 (C.A. 3 Attached to the General Counsel's answering brief were certain pages 8, 1971) of the amended backpay specification updated to reflect new data on gross 2 Subject to possible abatement as a result of future compliance backpay and interim earnings brought to the General Counsel 's attention at proceedings . the hearing. 202 NLRB No. 85 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walker was unable to work or did indeed refrain from working through July 3, 1970.4 Therefore, we see no reason to abate Walker's net backpay as recommended by the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Marine Welding and Repair Works, Inc.; William- son Engine and Supply, Inc.; Greenville Manufac- turing and Machine Works, Inc.; and Greenville Propeller Works, Inc., Greenville, Mississippi, its officers, agents, successors, and assigns, shall pay to Dewitt B. Harrison, Isiah Layton, and Freddie Lee Walker as net backpay the sums of $6,507, $3,456, and $10,312, respectively, less any tax withholding required by the laws of the United States and the State of Mississippi, plus interest thereon at the rate of 6 percent per annum in accordance with the formula prescribed in Isis Plumbing and Heating Co., 138 NLRB 716. 4 Walker's doctor was never called as a witness to explain or clarify the language in his letter. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MAx ROSENBERG, Administrative Law Judge: This backpay proceeding came on to be heard before me in Greenville, Mississippi, on March 15 and 16, 1972, pursuant to an amended backpay specification filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by Marine Welding and Repair Workers, Inc.; Williamson Engine and Supply, Inc.; Greenville Manufacturing and Machine Works, Inc.; and Greenville Propeller Works, Inc., herein called the Respon- dent. This backpay litigation finds its origin in a Board Decision and Order, rendered on February 20, 1969,1 which ordered Respondent to compensate Freddie Lee Walker, Dewitt B. Harrison, and Isiah Layton for any loss of pay which they may have suffered as a result of Respondent's discrimination practiced against them in violation of 'Section 8(a)(3) of the National Labor Rela- tions Act, as amended. Thereafter, on March 1, 1971, the United States Court of Appeals for the Eighth Circuit entered a decree enforcing the backpay provision of the Board's Order.2 Following the court's decree, a controversy arose over the amount of backpay owed to the discriminatees. In consequence of the dispute, the Regional Director for Region 26 issued his amended backpay specification and 1 174NLRB661. 2 439 F.2d 395. 3 Respondent's request that I reverse my ruling, made at the hearing, and deny the Intervenor's motion invoking a privilege relating to the production of certain records of the Mississippi Employment Security Commission, and its further request that the hearing be reopened to afford time to the notice of hearing on February 24,1972. On March 2, 1972, Respondent interposed its answer to the foregoing affirma- tive pleadings.3 Respondent contests the backpay assessments for the three discriminatees, as set forth in the amended backpay specification, on various grounds. I turn to a consideration of the issues raised by Respondent to abate its financial liability to them. A. Dewitt B. Harrison Harrison's backpay period commenced on August 26, 1967, and ended on August 13, 1971, when Respondent offered to reinstate him to his former position. In his amended backpay specification, the General Counsel, utilizing the weekly average of hours worked by employees Dennis Ross and James Stevenson to compute Respon- dent's ultimate liability to Harrison during this period, asserted that Harrison was entitled to the sum of $6,507, plus the allowable accrued interest. The sole challenge raised by Respondent to the backpay claimed for Harrison relates to the use of Ross' average weekly hours of work in making the computations, with Respondent contending that the latter's weekly hours were not representative of those worked by Harrison. Harrison, Stevenson, and Ross were employed as field mechanics for Respondent with Ross serving as foreman of the gang. During the investigation of this backpay proceeding, an agent of the Board visited Respondent's offices to ascertain from Respondent's records the amount of money, if any, which was due and owing to Harrison. The agent was referred to W. R. Burchfield, Respondent's office manager. In the course of their conversation, the agent inquired whether Burchfield could produce the records of employees whose weekly hours of work approximated those of Harrison. Burchfield thereupon presented to the agent the timesheets of Ross and Stevenson, together with the assurance that they reason- ably contained the approximate and representative weekly hours which Harrison would have toiled had he been retained in Respondent's employ. Respondent argues that it was error for the General Counsel to utilize Ross' hours of work because he was a highly skilled mechanic whose services were employed on an overtime basis in excess of those of Harrison. Instead, Respondent urges that the average weekly hours worked by Stevenson should have been used in calculating the backpay. While it is true that Ross was assigned more overtime work than Harrison, it is also established on this record that Harrison worked considerably more hours per week than Stevenson.4 Thus, on the basis of Respondent's own records, Harrison is shown to have averaged 113.5 percent of Stevenson's weekly hours. In short, I find and conclude that, under the circumstances here presented, it was just and equitable for the General Counsel to have relied on the averaged weekly hours of both Ross and Stevenson in determining the General Counsel, on Respondent's urging, to initiate proceedings in the District Court for enforcement of the subpena which it served on the Intervenor, are hereby denied. 4 Although readily available, Respondent did not see fit to introduce into evidence Ross' payroll records in order to establish in what amount his average weekly hours exceeded those of Harrison. MARINE WELDING AND REPAIR WORKS 555 amount of backpay to which Harrison was entitled, and I accept and adopt the computations set forth in the amended backpay specifications regarding the net backpay due to Harrison. B. Isiah Layton The backpay period for Layton extends from September 6, 1967, to August 13, 1971. Respondent asserts that the computations contained in the specification respecting Layton's backpay are in error for the reasons that they are not based upon hours representative of what he would have worked, that there were periods in which he removed himself from the labor market, that he incurred willful losses of work, and that he failed to make reasonable efforts to seek interim employment. In computing Layton 's backpay entitlement , the General Counsel compared the hours worked by employees Hilbert People and Albert Macon with those worked by Layton for a period of five calendar quarters immediately preceding the latter's discharge . Based thereon, he calculated that Layton would have toiled the same number of hours as People and Macon during the backpay period had he not been unlawfully discharged. Accordingly, the General Counsel concluded that Respondent's backpay liability to Layton amounted to $4,266. The evidence shows that, for the five calendar quarters prior to Layton's discharge, People averaged 57.23 hours per week and Macon worked an average of 56. 11 hours per week, thus making their cumulative weekly average a total of 56.67 hours. During the same period , Layton worked an average of 55 .48 hours, or approximately 98 percent of the average of Macon and People. In light of this uncontroverted evidence , I find and conclude that Layton's backpay entitlement should be abated by 2 percent, leaving a net backpay amount of $4,180.68. Respondent claims that no backpay is due Layton for the period of September 6, 1967, the date of his discharge by Respondent, to October 3, 1967, when he commenced working for the Houston Contracting Company, because he had taken time off during this period due to an eye injury and/or did not undertake an adequate search for work . I find these claims patently lacking in merit for the record is clear that Layton suffered the injury prior to his unlawful separation from Respondent's employ, and that he sought employment at the Freeman junkyard and at the Houston Contracting Company during the above-men- tioned period. Respondent also claims that Layton should be denied backpay for the period from December 25, 1967, to February 1, 1968, because he removed himself from the labor market. Respondent further asserts that Layton received interim earnings during this period which should be considered as an offset to any backpay due. Layton obtained a job with the Houston Contracting Company on October 3, 1967, and worked for that entity until Christmas of that year when , for seasonal reasons, the project was closed down. Shortly thereafter, Layton received a telephone call from a foreman of the Columbus & Greenville Railway Co. who inquired into Layton's employment status. Upon learning that Layton was out of work, the foreman stated that he would provide Layton with a job when the railway resumed operations after its normal seasonal hiatus. Layton began to work for the railway in February 1968 and continued in its employ thereafter, except for seasonal furloughs . Layton's testimo- ny is undenied and I find that he sought employment with other companies from December 25, 1967, to February 1, 1968, without success, and never rejected any proffer of employment during that period. While on the stand, Layton testified that he "thought" he worked for a company in Greenville known as Jennings & Jennings on two occasions, and vaguely placed one such instance in the period of December 25, 1967, to February 1, 1968, with which we are here concerned. The General Counsel's specification lists an incidence of employment with that firm as falling in the first calendar quarter of 1969 rather than 1968 . Although Respondent was on notice at the outset of the hearing as to the name of this company, it made no effort to confirm testimonially its assertion that Layton had additional interim earnings derived from employment with Jennings & Jennings in the first quarter of 1968 which should be offset against any backpay due. I therefore find no merit in Respondent's assertions regard- ing the backpay abatement for the period from December 25, 1967, to February 1, 1968. Next, Respondent argues that any monetary award to Layton should be limited to a cutoff date of February 1, 1968, because, at the time he then acquired employment with the Columbus & Greenville Railway Co ., he "did not want to return to his position with Respondent ." Respon- dent's argument does not comport with the recorded evidence for, when Layton was asked whether he would have gone to work for Respondent during the periods of his furlough from the railway, Layton affirmatively replied, "Yes sir, I imagine so, I would." I therefore reject this contention for denying Layton backpay after February 1, 1968. Respondent further asserts that Layton should not be entitled to backpay for various periods between January 1, 1969, and August 13, 1971, when he was unemployed because his quest for work was less than diligent . Again, I find no merit in this assertion, for the record is replete with evidence that Layton regularly searched for a job , accepted employment when offered , did not reject work, and registered for employment in a diligent manner with the Mississippi Security Commission. Finally, Respondent contends that Layton should be deprived of any backpay liability for an 8-day period between December 16 and 31, 1968, when he absented himself from his employment with Columbus & Greenville Railway Co . It also complains that Respondent should not be assessed for backpay liability for the dates of April 23, 1968, August 22 and 23, 1968, January 2, 1969, and September 18 and 19, 1969, inasmuch as Layton was absent from work with the railway company on those days. C. A. Arnett, the general manager of Columbus & Greenville Railway Co., testified that Layton suffered an industrial injury which caused his absences for the 8-day period in December 1968, and that Layton was not compensated for his losses of work under application statutes . Arnett further averred that he was unable to determine from his records whether Layton's absences 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the job on the other dates were due to injuries or other causes. Under the circumstances, and particularly in view of the fact that Respondent failed to demonstrate that Layton would not have been compensated for similar absences had he remained in Respondent's employ during the backpay period, I find no persuasive reason for reducing Layton's net backpay award for the dates in question. Accordingly, I find and conclude that Layton is entitled to the adjusted backpay sum of $4,180.68 in order to make him whole for the illegal discrimination practiced against him by Respondent during the period from September 6, 1967, to August 13, 1971. C. Freddie Lee Walker Walker's backpay period runs from May 6, 1967, to August 2, 1971.5 As in the case of Layton, Respondent challenges the net backpay figure computed for Walker in the amended backpay specification. In sum, Respondent contends that a comparison of the average weekly hours worked by Walker during the five calendar quarters immediately preceding his discharge by"Respondent were substantially less than the allegedly representative weekly average hours worked in that period by Hilbert People and Albert Macon. The record shows that, in the five calendar quarter period, People and Macon worked 57.16 and 57.15 hours, respectively, while Walker logged 53.15. Translated percentagewise, Walker would have worked only 93 percent of the average weekly hours of People and Macon during the backpay period. I therefore find and conclude that Respondent's net backpay bill to Walker should be decreased by 7 percent, leaving an adjusted net liability of $10,819.62, rather than $11,634. Respondent's next attack upon the propriety of the General Counsel's backpay computations for Walker is embodied in its claim that his backpay period should be terminated on March 16, 1968, and/or, on February 11, 1969, because his employment with Respondent would have ceased on those dates due to the interplay of Walker's misconduct and Respondent's personnel policies. During the times material herein, Respondent operated on a 6-day work schedule, and programmed Saturday as a workday. Under the current work rules, as explicated by Walker on the stand, "If you didn't go [to work] on Saturday, you didn't go back on Monday, you were fired." By this he meant that, normally, an employee must report for duty on Saturday if he expected to retain his employment on the succeeding week. Prior to his unlawful discharge in May 1967, Walker was picked up by the local police on an intoxication charge and was lodged in jail. He was released at approximately 1 p.m. on a Saturday afternoon by a Bill Williamson, an officer of Respondent, who had performed similar services for at least four other employees. Although his absence from work on this occasion took place on a Saturday, no disciplinary action was taken against him by Respondent. According to Walker's undisputed testimony, Williamson never threat- ened to discharge Walker for failing to report to the job on Saturday, and Respondent had never discharged an employee for being jailed. On the evening of March 16, 1968, Walker served as a ticket-taker at a record hop sponsored by a local radio station in Greenville. During the evening, a male visitor insisted on entering the premises without paying the requisite fee. When Walker objected, a heated discussion ensued, after which the interloper repaired outside the hall and returned with a friend. Together, they proceeded to assault Walker, in consequence of which he drew a pistol and shot one of his assailants. He was arrested by the local police that evening and was held in custody until 7 p.m. on March 18, 1968. So far as appears on this record, Walker's arrest and incarceration did not occur on a Saturday. Earl J. McClendon, a captain of the Greenville, Mississippi, police department, who was called as a witness on behalf of Respondent, testified that he could not be certain as to the ultimate disposition of the charges against Walker except that some were dismissed and others were reduced to misdemeanors which were appealed after conviction. He further testified that, according to his records, Walker was ordered held in custody for 6 days, from 7 p.m. on February 11, 1969, to February 17, 1969, as a result of the shooting incident in 1968, until he could satisfy certain fines. This span of custodial containment covered a Saturday. McClendon also testimonially report- ed that it was common practice for Respondent's officials to obtain the release of its employees on a personal recognizance of the officials, and he recounted that such an instance had occurred about a month before the trial herein. Respondent elicited no evidence in this hearing which would even remotely suggest that it had ever terminated any employee who had been jailed on a weekend and had failed to report for work on the following Monday. Viewing Respondent's contention that Walker's backpay should be cut off on March 16, 1968, and/or on February 11, 1969, against the backdrop of the evidence which it has adduced, I am not convinced that Respondent would have severed Walker from its employment rolls on either date under its work rule that employees must report for duty on a Saturday or suffer discharge on the following Monday because of the absence. It is undenied and I find that Respondent did not visit upon Walker the discipline of discharge, prior to his termination on May 6, 1967, when he was jailed for insobriety on a Saturday which would have debarred him from returning to work on the succeeding Monday. Furthermore, in the absence of any probative evidence that Respondent studiously enforced its absenteeism rule against employees who were jailed on Saturdays, I am not convinced that Walker would have been discharged by Respondent on February 11, 1969, when he began serving a 6-day sentence for his failure to satisfy a court-imposed fine, a period which included a Saturday. Respondent argues that Walker should be disqualified for backpay for certain calendar quarters in 1969, 1970, and 1971, because he incurred a willful loss of employment with the Thompson Hayward Chemical Company. It is 5 The period was tolled on this latter date, rather than on August 13, three discriminatees, because Walker voluntarily quit his interim employ- 1971, when Respondent made its unconditional offer of reinstatement to the ment with Benton Bagging Co . on August 2, 1971. MARINE WELDING AND REPAIR WORKS 557 undisputed and I find that, during the backpay period for Walker, he sought and obtained employment with Thomp- son in early 1968. Thompson engages in the sale and transportation of chemical fertilizers and its operations are seasonal in nature. Walker was laid off on September 14, 1968, when the season ended, and was recalled to work on January 25, 1969. On June 26, 1969, while on duty, Walker accidentally dropped a 55-gallon drum of fertilizer on his foot which caused a fracture. This happenstance immedi- ately came to the attention of Robert Maddox, Thomp- son's plant manager. It is undenied and I find that, as a result of the accident, Walker was incapacitated for a period of 6 weeks, during which period he was not compensated by Thompson. On July 5, 1969, Walker was discharged by Thompson. Respondent claims that Walker's loss of interim work with Thompson was deliberate and willful because "he failed to return to work when he had been instructed to do so." Plant Manager Maddox testimonially assigned the reason for Walker's separation as "was not dependable." Howev- er, Maddox's testimony then took a curious turn. He related that, on a Friday after the accident, Walker did not report for work, in consequence of which Maddox visited Walker's home and instructed the latter to visit a physician. Not hearing from Walker on the following Tuesday, Maddox again called upon Walker and learned that the employee had another doctor's visit scheduled for that day. Maddox agreed that Walker should seek additional medical treatment and instructed Walker to return to work that very day. When Walker failed to report for duty, he was terminated. A few days following the discharge, Walker went to the Thompson plant to obtain his paycheck and he engaged in a conversation with Maddox. During the dialogue, Maddox informed Walker that the latter had been terminated because Thompson needed the services of a regular driver. In light of Walker's uncontradicted testimony that his injury forced his idleness for 6 weeks, as well as the testimony of Maddox that he was aware of the nature and extent of Walker's infirmity, I am not persuaded by Respondent's argument that Walker incurred a willful loss of interim earnings with Thompson which should warrant the deprivation of backpay.6 Respondent also contends that a period of disability which Walker experienced commencing on April 8, 1970, should be deducted from any backpay claimed for him. During the backpay period, Walker worked as a part-time taxicab driver. On April 8, 1970, while seated in a cab at a curb in Greenville, Walker's vehicle was struck by another automobile causing a whiplash injury to his neck. Walker sought treatment from a local doctor and was required to wear a "collar." According to, Walker, he was cautioned not to work for a period of approximately 4 weeks . Walker turned his accident claim over to an attorney who obtained a settlement from the tortfeasor's insurance carrier and remitted the sum of $800 to Walker . It is Walker's testimony that he did not provide the attorney with any figures relating to his interim loss of earnings and afforded no other information to his legal representative prior to the settlement. At the hearing, Respondent submitted into evidence a letter from Walker's physician which indicates that the period of Walker's disability extended from April 8, 1970, to July 3, 1970, a period of approximately 8 weeks. As the General Counsel was unaware until the conduct of the hearing that Walker had sustained this injury, he there- upon amended the specification so as not to demand any gross backpay for a 4-week period following April 8, 1970. In light of the revelations contained in the doctor'ss letter, I deem it just and equitable that the General Counsel, in subsequent compliance proceedings, recompute the gross backpay for Walker for the period from May 13, 1970, through July 3, 1970. Respondent finally contends that Walker had additional earnings as a result of driving a taxicab which were not reflected in the amended backpay specification, and that Walker failed reasonably and continuously to seek other interim employment . With respect to the first contention, Respondent was unable to come up with any cogent or persuasive evidence that Walker's income while driving a taxicab were greater than that set forth in the specification. Regarding the second contention, the record amply demonstrates that Walker, on his own initiative , visited several potential employers in the Greenville area, visited and registered with the Mississippi Unemployment Com- mission and, on occasion, was successful in obtaining interim employment . I therefore find these contentions lacking in merit. Accordingly, summarizing the calculations made in the amended backpay specification , as adjusted herein, I recommend that Respondent's obligation to make whole the discriminatees shall be satisfied by payment to them of the respective sums set forth below, together with interest thereon at the rate of 6 percent per annum , calculated in the manner set forth in Local 138, International Union of Operating Engineers, AFL-CIO, 151 NLRB 972, less any lawfully required tax withholding. Dewitt B. Harrison $ 6,507.00 Isiah Layton $ 4,180.88 Freddie Lee Walker $10,819.627 6 It should be noted that the General Counsel makes no claim for backpay during the time Walker was incapacitated due to his injury at Thompson's. 7 Subject to possible abatement as a result of future compliance proceedings.