Fort Lock Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fort Lock Corporation and Local 44A, Service Employees International Union, AFL-CIO-CLC. Cases 13-CA-13034 and 13-RC-13232 October 20, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 21, 1977, Administrative Law Judge Thomas D. Johnston issued the attached Supplemen- tal Decision in this proceeding.' Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Fort Lock Corporation, River Grove, Illinois, its officers, agents, successors, and assigns, pay the amount set forth in the said recommended Order. I The Board's original Decision and Order is reported at 216 NLRB 160 (1975). 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. SUPPLEMENTAL DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Chicago, Illinois, on March 7, 1977, based on a backpay specification issued on November 26, 1976, for purposes of resolving a controversy arising over I Unless otherwise indicated, the findings are based on the pleadings, admissions, stipulations, and undisputed evidence contained in the record which I credit. 233 NLRB No. 17 the amounts of backpay due Juanita Diaz, Rosario Padilla, and Ismael Diaz under the terms of the Decision and Order of the National Labor Relations Board in Fort Lock Corporation, 216 NLRB 160 (1975), enfd. November 7, 1975 (unpublished). See 525 F.2d 696 (C.A. 7). The backpay specification, which was amended at the hearing, alleges that the amounts of backpay due are: Juanita Diaz, $690, Rosario Padilla, $1,865.42, and Ismael Diaz, $3,052, for a total of $5,607.42 plus interest, less the amounts of taxes required to be withheld under Federal and state laws. The Respondent in its amended answer filed on January 17, 1977, as amplified by a motion filed simultaneously, and further amended at the hearing, denies owing the amounts of backpay allegedly due these individuals and asserts no backpay was owed to Juanita Diaz after November 8, 1974, because she was discharged for cause by her interim employer. The issues involved are what amounts of backpay, if any, are due Juanita Diaz, Rosario Padilla, and Ismael Diaz. Upon the entire record in this case and from my observation of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I hereby make the following: FINDINGS OF FACT Juanita Diaz, Rosario Padilla, and Ismael Diaz, as found in the initial Decision, were discriminatorily discharged by the Respondent on February 18, 1974. Their backpay periods, with the exception of Ismael Diaz' which began on March 5, 1974, extended from those dates until January 24, 1976. The appropriate measure of gross backpay for Juanita Diaz establishes that had she continued to work for the Respondent during the backpay period, she would have earned $100 a week. This amount, computed on a quarterly basis, shows her gross earnings would have been $600 for the first quarter of 1974; $1,300 for each quarter beginning with the second quarter of 1974 through the fourth quarter of 1975; and $350 for the first quarter of 1976. Following her discharge by the Respondent, Juanita Diaz was employed on March 11, 1974, by Nu-Way Speaker Products, Incorporated (herein referred to as Nu- Way), operating a punch press machine at the rate of $2.40 an hour. She continued this same work except for operating different machines, but at the same rate of pay, until her discharge on November 8, 1974, for having excessive absences. Juanita Diaz, while working at Nu-Way, which was located further from her home than the Respondent's facility, depended upon her husband's cousin for a ride to work. Her absences 2 resulting in her discharge were caused by the failure of the driver to pick her up to take her to work. Juanita Diaz worked Mondays through Fridays at Nu-Way. Although the plant was open a half day on Saturdays and some employees in her classification worked 2 Juanita Diaz missed work on approximately five or six occasions. 78 FORT LOCK CORP. on Saturdays, while some men in her classification also worked more than 8 hours a day, she did not know whether overtime was available to her.3 While the record does not set forth the actual interim earnings of Juanita Diaz while employed at Nu-Way, those interim earnings conceded in the backpay specification are $288 for the first quarter of 1974; $1,248 for each quarter beginning with the second quarter of 1974 through the last quarter of 1975, and $336 for the first quarter of 1976. The amounts of these interim earnings are based on informa- tion furnished by Nu-Way to the Board that Diaz could have earned $96 a week at a rate of $2.40 an hour and that, although 40 hours' work a week were available to her, she worked fewer hours. Further, the same amount of interim earnings for the period after her discharge from Nu-Way on November 8, 1974, are included by the General Counsel who contends that the Respondent was liable for the difference between the pay she would have earned had she not been discriminatorily discharged by the Respondent and what she would have earned had she not been terminated by Nu-Way for excessive absences. Deducting these interim earnings of Juanita Diaz from her gross earnings, computed on a quarterly basis, establishes her net backpay for the first quarter of 1974 would have been $312; for each of the quarters beginning with the second quarter of 1974 through the fourth quarter of 1975 would have been $52; and for the first quarter of 1976 would have been $14, for a total net backpay due of $690. After being discriminatorily discharged by the Respon- dent on February 18, 1974, Juanita Diaz did not apply for employment with other employees prior to being employed by Nu-Way. 4 During the period between Juanita Diaz' discharge by Nu-Way on November 8, 1974, and her reinstatement by the Respondent in January 1976, Diaz applied for employment with Federal Pacific in December 1974. Although she filed an application and Federal Pacific indicated they were going to call her, they never did. She also applied at two other plants in January 1975, including Chicago Lock and in addition applied for work at a perfume firm located across from her home, but was not hired. The appropriate measure of gross backpay for Rosario Padilla establishes that, had he continued to work for the Respondent during the backpay period, he would have earned an average of $125.41 per week for the first quarter of 1974; $180.32 per week for the second quarter; and $143.52 per week for the third quarter.5 This amount, computed on a quarterly basis, establishes his gross earnings for the first quarter of 1974 would have been $752.46; for the second quarter, would have been $2,344.16; and for the third quarter, would have been $1,865.76. 3 Respondent's payroll records for 1973 and 1974 reflect that out of approximately 58 weeks, Diaz only worked over 40 hours on approximately siX occasions and, on 28 other weeks, she worked less than 40 hours. 4 The date Juanita Diaz first contacted Nu-Way concerning employment was not established by the record. 5 No backpay was claimed for subsequent quarters on the grounds his earnings exceeded his gross backpay or because he could have earned more if he had worked the hours available to him from his interim employer. Padilla had no interim earnings during the first quarter of 1974 while his interim earnings for the second quarter were $1,473.09 and for the third quarter were $1,623.87. Deducting Padilla's interim earnings from his gross earnings, computed on a quarterly basis, establishes his net backpay for the first quarter of 1974 was $752.46; for the second quarter, was $871.07; and for the third quarter, was $241.89 for a total net backpay of $1,865.42. Following his discharge, Padilla immediately began looking for work by applying for employment with approximately five to seven different employers a day. On April 3, 1974, he began work for Newly Weds Foods, loading trailers at approximately $3 an hour, which was his only source of income during the quarters claimed. Padilla, prior to his discharge by the Respondent, had been employed as a die-cast operator where, on more than one occasion, he worked as many as 50 hours a week although, on other occasions, he worked as few as 14-1/2 hours a week. While employed by Newly Weds Foods there were opportunities to work overtime and Padilla credibly denied ever turning down overtime work. The appropriate measure of gross backpay for Ismael Diaz establishes that, had he continued working for the Respondent during the backpay period, he would have had average earnings of $118.24 per week for the first quarter of 1974; $170.02 per week for the second quarter; and $135.42 per week for the third quarter.s This amount, computed on a quarterly basis, establishes his gross earnings for the first quarter of 1974 would have been $472.96; for the second quarter would have been $2,210.26; and for the third quarter would have been $1,756.16. Ismael Diaz had no interim earnings during the first and second quarters of 1974 and had interim earnings of $1,390.38 during the third quarter of 1974. Deducting Ismael Diaz' interim earnings from his gross earnings, computed on a quarterly basis, establishes that his net backpay for the first quarter of 1974 was $472.96; for the second quarter was $2,210.26; and for the third quarter was $368.78 for a total net backpay of $3,052. Following his discharge, Ismael Diaz credibly testified that he looked for work in Chicago and Skokie. Initially someone from the Union took him around in an automo- bile to look for work. He applied at approximately 200 different factories, sometimes applying at 10 to 12 places a day. Except for stating one of the factories where he applied was located at Irving Park, Diaz could not further identify them. He also applied for work at the State Employment Office located on California Avenue at Irving Park but could not recall the number of occasions. About August 1974, Ismael Diaz began work at Federal Pacific as an ironworker earning $4.40 an hour which was his only source of income during the backpay period.? Ismael Diaz' workweek at Federal Pacific varied from 48 to 6 No backpay was claimed for subsequent quarters on the grounds that his intenm earnings exceeded his gross earnings for those quarters. I Diaz was uncertain whether he started in August or October 1974. However, his interim earnings dunng the third quarter of 1974 indicate it was prior to October. 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 60 hours per week and, although it was not required, he also worked overtime. ANALYSIS AND CONCLUSIONS The General Counsel contends that the amounts of backpay due are: Juanita Diaz, $690, Rosario Padilla, $1,865.42, and Ismael Diaz, $3,052, plus interest, less the amounts of taxes required to be withheld under Federal and state laws. The Respondent denies owing the amounts of backpay allegedly due and contends that Juanita Diaz, Ismael Diaz, and Rosario Padilla were not entitled to backpay because they failed to make diligent searches for work and that Juanita Diaz and Rosario Padilla had refused overtime work with their interim employers.8 While the General Counsel has the burden of proof to establish the gross backpay over the backpay period, a respondent has the burden of proof to show diminution of that amount whether such diminution results from the willful loss of earnings by :he failure to either look for or keep a substantially equivalent job or from unavailability of jobs at a respondent's plant for reasons unconnected with discrimination. Cornwell Company, Inc., 171 NLRB 342, 343 (1968); New England Tank Industries, Inc., Reeds Manufacturing Co., Inc., 136 NLRB 1342, 1346 (1962), enfd. 345 F.2d 170 (C.A. 2, 1956), cert. denied 384 U.S. 972 (1966). An employee in seeking work is held only to "reasonable exertion" and not to the "highest standard of diligence." N.LR.B. v. Arduini Manufacturing Corporation, 394 F.2d 420 (C.A. 1, 1968). Applying these principles, the findings, supra, establish Juanita Diaz was terminated by her interim employer, Nu- Way, for absences caused by the lack of transportation to work through no fault of her own. Therefore the evidence was insufficient to establish a willful loss of earnings depriving her of any loss of backpay. However, following her termination from Nu-Way on November 8, 1974, with the exceptions of the last quarter of 1974 and the first quarter of 1975, during which she attempted to find employment elsewhere, Diaz made no attempts to fmd other employment during the remainder of her backpay period, and based upon her previous efforts to find work as enumerated, there was no showing that she had exhausted the labor market. Under these circumstances, I find that Juanita Diaz had removed herself from the labor market by failing to look for work and, therefore, was not entitled to backpay after the first quarter of 1975. Contrary to the Respondent's assertions, I do not find the evidence s The litigation of these defenses was properly within the scope of the issues framed by the pleadings. 9 The amounts of net backpay for the fourth quarter of 1974 and for the first quarter of 1975 are the only amounts of backpay claimed for those quarters. 'o In the event no exceptions are filed as provided by Sec. 102.46 of the sufficient to establish Juanita Diaz refused to work overtime work at Nu-Way or that she did not make a reasonable search to obtain work following her discrimina- tory discharge and her employment at Nu-Way. Accord- ingly, I find the net backpay due Juanita Diaz is $312 for the first quarter of 1974; $52 for the second quarter; $52 for the third quarter; $52 for the fourth quarter; and $52 for the first quarter of 1975,9 for a total net backpay due of $520. 147 NLRB 598, 601 (1964); and Mastro Plastics Corporation and French-American The evidence, supra, with respect to Rosario Padilla, establishes, contrary to the Respondent's position, that he made reasonable efforts during the backpay period to obtain employment and did not refuse to work overtime at Newly Weds Foods. Accordingly, I find the net backpay due Rosario Padilla is $752.46 for the first quarter of 1974; $871.07 for the second quarter; and $241.89 for the third quarter, for a total net backpay due of $1,865.42. With respect to Ismael Diaz, the evidence, supra, establishes, contrary to the Respondent's position, that he made reasonable efforts during the backpay period to obtain employment. Therefore, I find the net backpay due Ismael Diaz is $472.96 for the first quarter of 1974; $2,210.20 for the second quarter; and $368.78 for the third quarter, for a total net backpay of $3,052. the backpay period to obtain employment and did not refuse to work overtime at Newly Weds Foods. Accordingly, I find the net backpay due Rosario Padilla is $752.46 for the first quarter of 1974; $871.07 for the second quarter; and $241.89 for the third quarter, for a total net backpay due of $1,865.42. In making the above findings, except to the extent previously indicated, I find that the Respondent has failed to establish, as its burden, diminution of those amounts of net backpay herein found for each of the three individuals. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 10 The Respondent, Fort Lock Corporation, River Grove, Illinois, its officers, agents, successors, and assigns, shall pay to Juanita Diaz the sum of $520, shall pay to Rosario Padilla the sum of $1,865.42, and shall pay to Ismael Diaz the sum of $3,052, plus interest at 6-percent per annum computed in the manner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), less the tax withholdings required by Federal and state laws. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 80