Gary Aircraft Corp.

GARY AIRCRAFT CORP. 555 Gary Aircraft Corporation and International Brother- hood of Operative Potters, AFL-CIO-CLC. Cases 23-CA-3591, 23-CA-3660, and 23-CA-3671 May 10, 1974 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On May 12, 1971, the National Labor Relations Board issued its Decision and Order' in the above- entitled proceeding finding that Respondent had discharged Guadalupe R. Canales in violation of Section 8(a)(3) and (1) of the Act. The Board's Order directed, among other things, that Respondent offer reinstatement to Guadalupe R. Canales and make him whole for losses suffered as a result of this discrimination. On November 2, 1972, the United States Court of Appeals for the Fifth Circuit enforced the Board's Order.2 Thereafter, a backpay specification and notice of hearing was issued by the Acting Regional Director for Region 23 and a hearing was held on September 18, 1973, before Administrative Law Judge David S. Davidson to determine the amount of backpay due the discriminatee. On November 29, 1973, the Administrative Law Judge issued his Supplemental Decision finding that Canales was due backpay from the date of his unlawful discharge on March 3, 1970, until he was reinstated on May 14, 1973, less interim earnings. Thereafter, the General Counsel and Respondent filed exceptions to the Administrative Law Judge's Supplemental Decision.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, conclusions, and recommendations of the Administrative Law Judge. SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Gary Aircraft Corporation, Hondo, Texas, its officers, agents, successors, and assigns, shall pay to Guadalupe R. Canales as net backpay the amount awarded to him as set forth in section IV of the Administrative Law Judge's Supplemental Decision, which amount shall 210 NLRB No. 88 accrue interest at the rate of 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. There shall be deducted therefrom social security taxes, income tax withhold- ing, and such other deductions as may be required,'by the laws of the United States or State of texas. Respondent shall also reinstate Guadalupe R. Canales to full status in the pension fund, as if he had not been discharged, and pay into such pension fund Respondent's share of the contributions called for under the pension plan based on the gross annual earnings that Canales would have earned during the backpay period, as set forth in section IV of the Administrative Law Judge's Supplemental Decision. 1190 NLRB 306. 2 468 F.2d 562 (C.A. 5, 1972). s The Administrative Law Judge inadvertently failed to include in his recommended Order an amendment to the backpay specification, made pursuant to an agreement of the parties at the hearing , that Respondent is obligated to reinstate Canales to its pension fund. We shall amend the Order to correct this omission. SUPPLEMENTAL DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: On May 12, 1971, the Board issued its Decision and Order in this case 1 directing Respondent, inter alia, to make whole Guadalupe R. Canales for loss of earnings as a result of his discharge on March 13, 1970, which the Board found violated Section 8(a)(3) and (1) of the Act. Thereafter the United States Court of Appeals for the Fifth Circuit enforced the backpay provisions of the Board's Order.2 A controversy having arisen over the amount of backpay due under the terms of the order, on July 31, 1973, the Acting Regional Director issued a backpay specification and notice of hearing. On August 15, 1973, Respondent filed its answer. On September 18, 1973, a hearing was held before me at San Antonio, Texas. At the conclusion of the hearing counsel for the General Counsel argued orally on the record, and the parties were given leave to file briefs which have been received from the General Counsel and Respondent. The issues are whether Canales made a reasonable effort to secure interim employment during the backpay period; whether he voluntarily removed himself from the labor market for a portion of the backpay period; and whether certain travel expenses should be deducted from his interim earnings.3 Upon the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: i 190 NLRB 306 2 468 F.2d 562. 3 At the hearing Respondent amended its answer to eliminate other issues initially raised therein. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS each, while the four larger employers which he did not visit employed from 25 to 100 employees. Canales testified that in mid-April, 1970, he spoke to his brother-in-law, who was a supervisor at Universal Rundle about finding a job there. His brother-in-law told him that there were then "so many" applications that Canales would have to put in an application. His brother-in-law said he would see if he could get Canales an application but never brought one to him. During the period between Canales' discharge on March 13, 1970, and the time he started work for South Texas Tire Fleet on August 7, 1970, Universal Rundle hired at least two employees in the labor pool.5 From 1970 through the first part of 1972, the city of Hondo hired from 20 to 25 employees for various jobs including heavy equipment operators, policemen, office clericals, and laborers. About eight laborers were hired during that period, but there is no evidence to show whether any of them were hired before August 7, 1970. There are no hiring requirements for office clerical or labor jobs although no man has ever been hired as an office clerical. There is no evidence as to hiring or the availability of employment elsewhere in Hondo while Canales was unemployed. However, there is evidence that unemployment was substantial in the area. Respondent concedes that it has the burden to show that Canales did not make a reasonable effort to obtain interim employment after his discharge by Respondent .6 It contends that it has met this burden because Canales did not apply for work with any of the four largest employers other than Respondent in Hondo, because he named only small employers with few jobs as places where he applied, because his registration with the Texas Employment Commission did not constitute evidence of an effort to obtain interim employment, and because he found employ- ment only as his unemployment compensation was about to expire. There is some reason to wonder why Canales failed to visit any of the larger employers in Hondo if he was diligently seeking employment. Yet apart from the size of these employers, there is no evidence to show that Canales had any reason to believe that any of them had work available. There is no showing that any of them were advertising for help or even seeking or accepting applica- tions at the time Canales needed work. Apart from the testimony that the city of Hondo hired laborers and clerical employees without any qualifications, there is no evidence as to what qualifications, if any, were required by other employers and whether Canales met them.? Although Universal Rundle may have hired a few employees before Canales found work, in April his brother-in-law told him there were many applications on file, and never brought him one thereafter as he indicated he would try to do. To be sure Canales could have pursued the matter independ- ently, but from his brother-in-law's response and inaction before the date of an employee roster on which his testimony was based. 6 See Mastro Plastics Corporation, 136 NLRB 1342, 134647, enfd. as modified 354 F.2d 170 (C.A 2, 1965), cert. denied 384 U.S. 972 (1966). r Although the record does not show Canales ' exact age, it shows that IK was marred in 1940 and was in all likelihood close to 50 at the time of lie discharge 1. CANALES' EFFORTS TO FIND INTERIM EMPLOYMENT Guadalupe Canales was discharged from his job as a supply warehouseman4 by Respondent on Friday, March 13, 1970. He remained unemployed until August 7, 1970, when he started to work for South Texas Tire Fleet. He remained there until reinstated by Respondent on May 14, 1973. Canales testified that the week after his discharge he started to look for work and went to several places in Hondo, Texas, where Respondent's plant is located and where he then was living. Canales named as places that he visited "Western Auto Store, White's Store, Mummie's Hatchery, Ranch Store, G & M Store, and others." He did not apply for any particular job, but applied for whatever might be open. All but one of the places named by Canales was a retail establishment ; the other was wholesale. Canales testified that during that week or the next week he also went to San Antonio to check the Civil Service register for a civilian position. He visited San Antonio monthly thereafter for that purpose as new lists came out. Canales also registered with the Texas Employment Commission and applied for unemployment compensation. As the TEC has no permanent office or representative in Hondo, Canales waited until a TEC representative came to Hondo about 2 weeks after his discharge, and registered at that time, signing a single application which stated, "I hereby register for work and file notice of my unemploy- ment and request a determination of my benefit rights under the Texas Unemployment Compensation Act." Thereafter Canales reported approximately every 2 weeks when the TEC representative was in Hondo. Canales was advised by the TEC representative that he had to go out and seek work affirmatively, and each time that he reported he was required to fill out a form showing the places he had visited seeking work as a condition of receiving unemployment compensation. Canales denied that the TEC representative ever told him that the TEC would be unable to seek work for him because of the location of Hondo. However, the TEC never referred him to a job, and Canales ultimately found his job with South Texas Tire Fleet through friends. Canales testified that he was ready and willing to look for work and did look for work during the time between his jobs. He testified that at the places he named he looked for any type of work they would give him. Canales conceded that he never applied for employment at Universal Rundle, Chapman Gram, the city of Hondo, or the Medina Utility District, which with Respondent are the five largest employers in Hondo, a city with a population of 5,487 at the last census. Canales conceded that the places where he applied for work only employed from 2 to 4 employees 4 The initial Decision in this case states that Canales had worked at six different jobs while employed by Respondent, but describes only one of them 5 The employees at Universal Rundle were represented by the Union which sought to represent Respondent's employees Its representative, Fidel Sanchez, testified that two employees were hired in June 1970, one in Anput, and that others might have been hired during that period who quit GARY AIRCRAFT CORP. it was not unreasonable to conclude that further efforts would be futile. Of course, Canales' failure to visit the larger employers does not stand alone. He visited five named employers and "others" during the week after his discharge and made efforts to seek employment thereafter. He also went to San Antonio soon after his discharge and monthly thereafter to check Civil Service lists for employment opportunities. While Respondent denigrates these efforts, it did not cross- examine Canales as to the identity of the "others" he visited or his efforts to find employment following the week after his discharge. Its contention must be rejected that the trips to San Antonio reflect no effort to find work because Canales testified merely that he looked at the list and never filed an application. Absent some showing that there were jobs listed for which Canales was qualified and should have applied, the presumption is that Canales did not read the lists out of idle curiosity. Moreover, despite Respondent's contrary contention, Canales' registration with the TEC is also evidence of effort to seek interim employment. While Respondent avers that the TEC provided no employment service for registrants at Hondo, there is no evidence in the record to establish that fact, and the mere fact that the TEC representative visited Hondo every 2 weeks does not warrant the inference that TEC did nothing to refer applicants to jobs at Hondo. Mail and other means permit communication in the absence of a representative in Hondo, and face-to-face communication even every other week is not inconsistent with job referral. Indeed, the card which Canales was given on which to record his visits to the TEC office had printed on it "Any Texas Employment Commission office can help you find a suitable job." Moreover, Canales' application specifically stated that he applied for work, and each time he reported he was required to show where he had sought work in the interim. On the record evidence there is no basis to conclude that Canales' visits to the TEC related only to collection of unemployment compensation and prove nothing as to his efforts to seek employment. Finally, there is no record evidence to support Respon- dent's assertion that one must judge the sincerity of Canales' efforts in light of the fact that his unemployment compensation ran out concurrent with his finding a job. Respondent concedes that the record shows only that Canales applied for and received unemployment compen- sation. Respondent asserts in its brief that the maximum period of benefits in Texas is 26 weeks, that Canales was disqualified from receiving benefits for 6 weeks, and that he received them for 20 weeks dating from his discharge, so that they ran out shortly before he started to work at South Texas Tire Fleets Even if notice is taken of the maximum period of benefits in Texas, there is simply no record support for the remaining assertions, and they cannot be relied on as a basis for decision. On the light of the above I conclude that Respondent has failed to sustain its burden of proving that Canales did not 8 The card kept by Canales on which his visits to the TEC representative were recorded shows that he last reported on August 6, 1970, but it does not show when his payments started or stopped. s Apart from the fact that the specification and record do not show how make a reasonable effort to find intenm employment. Although Canales did not visit the larger employers in Hondo, there is no evidence apart from their size to show that he had reason to do so, and the evidence shows otherwise that he made regular efforts through visits to other employers, through monthly trips to San Antonio, and through registration with the TEC to seek employ- ment. Accordingly, I find that Canales was not disqualified from receiving backpay between March 13 and August 7, 1970, because of any deficiency in his efforts to seek interim employment. II. CANALES' ALLEGED UNAVAILABILITY FOR EMPLOYMENT Shortly after Canales was discharged he left Hondo and visited his sister for 2 weeks at Dilley, Texas. Dilley is about 70 miles from Hondo. There is no evidence that Canales made any effort to secure employment in the Dilley area while he was there. Although the exact time of this visit is not established in the record, Canales was discharged on a Friday and his testimony as to his efforts to find work, his visit to San Antonio, and his registration with the TEC indicates that he did not go to Dilley until at least 2 weeks after his discharge. While employees are not obligated to begin their search for employment immediate- ly upon discharge, Canales did start to seek employment in the Hondo area and looked for at least 2 weeks before leaving to visit his sister in Dilley. In the absence of contrary evidence, Canales' testimony that he went to visit his sister in Dilley warrants the inference that the purpose of the trip was not to seek employment. I find therefore that while in Dilley he temporarily removed himself from the labor market and lost his eligibility to receive backpay for that period of time. As it appears that Canales went to Dilley shortly after his first visit to the Texas Employment Commission representative on April 2, 1970, I find that a deduction for 2 weeks pay should be made from the gross backpay for the second quarter of 1970. For this purpose, it will be assumed that gross backpay was evenly distributed over that quarter, and the gross backpay for the quarter will be reduced by two-thirteenths. During the period that Canales worked for South Texas Tire Fleet, company records show that he missed work on May 18, September 23, and December 17, 1972, and March 15, 1973. Although Canales testified that he believed he only missed work once or twice, I rely on the records as more accurate than his memory m this regard. The General Counsel appears to concede that gross backpay should be reduced for these absences and I so find to the extent that Canales would have been working for Respondent on these dates if he had not been discharged. However, the backpay specification does not afford sufficient basis for determining the amount of backpay attributable to those days when Canales was not available for employment.9 Accordingly, it will be left to the Regional Director to calculate the precise amount, if any, to be deducted from Canales' gross backpay for the day many days a week Canales' replacement worked, two of the dates on which he was absent from South Texas Tire Fleet were a Saturday and a Sunday, and it is not clear whether he would have worked for Respondsat an &a days he was absent from his interim job. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missed in each of the quarters in which these dates fall consistent with the above. III. TRAVEL EXPENSES The job obtained by Canales in August 1970 was located in Devine, Texas, some 21 to 22 miles from where Canales lived. Before his discharge by Respondent Canales drove I^ 1/2 to 2 miles each way to work each day. Except for the last 3 months of 1970, when Canales' car did not operate, he drove his car back and forth to work each day. During the last quarter of 1970, he paid various people $2 a day to drive him to and from work. On February 7, 1972, Canales moved from Hondo to Pearsall, Texas. Pearsall was also about 21 to 22 miles from his job at Devine, but was considerably further from Hondo. Immediately before the move Canales had been sharing a small house with a friend. At the time of the move Canales remarried, and it became necessary for him to find a new place to live. Canales sought housing in Hondo, Devine, and Pearsall but was unable to find anything he could afford closer to his work. After moving to Pearsall, Canales sought to find housing closer to his work but he was unsuccessful. In the backpay specification the Regional Director deducted from Canales' interim earnings as expenses 10 cents a mile for the difference between the distance traveled by Canales to reach his work at his place of interim employment and the distance he had traveled to reach work from his home before his discharge. Respon- dent contends that this figure should be reduced because his actual expenses were not 10 cents a mile and because after February 7, 1972, Canales' actual expenses were less than what they would have been if he had still been working for Respondent. With respect to the proper rate for reimbursement, for the period that Canales drove his own car 10 cents a mile is a reasonable figure to use as a basis for determining his commuting expenses. It has been commonly used in backpay proceedings to reflect car operating expenses as well as for other purposes. However, as during the last quarter of 1970 Canales paid others $2 a day for commuting expense, the deduction for that quarter should be based on his actual expense, or $120 rather $228 as claimed in the specification. 10 With respect to the deduction for travel expense after February 7, 1972, there is no question that if Canales had been working for Respondent and had moved to Pearsall he would have traveled substantially further each day to reach Respondent's plant than he traveled to reach his job at Devine. The evidence also shows that the occasion for his move was unrelated to his employment. Rather because he remarried, he would have found it necessary to move at that time wherever he was working. In these circumstances, it cannot be said that after February 7, 1972, Canales would have continued to travel only 1-1 /2 to 2 miles a day to work if he had not been discharged. As Canales would have moved in any event, I find that after February 7, 1972, Canales did not travel any additional distance to to The specification is based on the assumption that Canales worked 5 days a week for 12 weeks dunng this quarter As Respondent does not dispute these assumptions and it appears that Canales paid $2 a day for reach his interim employment above that which he would have traveled to reach Respondent's plant. Accordingly, I find that that travel expenses should not be deducted from Canales' interim earnings after that date. Therefore, the deduction for travel expenses for the first quarter of 1972 will be reduced to $95,11 and deductions for travel expenses in subsequent quarters will be eliminated. IV. AMENDED BACKPAY COMPUTATION As a result of stipulations at the hearing it was agreed that from Canales' net backpay $602 should be deducted for payment to Respondent's pension fund and that $58 which was received by Canales at the time of his discharge as an accrued vacation payment should be deducted as he would otherwise be reimbursed twice for it. In addition, in accord with section II, above, Canales' gross backpay for the second quarter of 1970 has been reduced by $174 to reflect the period that Canales was visiting his sister in Dilley. In accord with section III, the deduction for travel expenses in the fourth quarter of 1970 has been reduced to $ 120, the deduction for travel expenses for the first quarter of 1972 has been reduced to $95, and deductions for travel expenses for the subsequent quarters have been eliminated. These changes result in the following amounts of backpay to which Canales is entitled; Gross Interim Net ctr. • Back a arninlys Dads . lsac ay 70-1 $ 210 $ 0 $ 0 $ 210 70-2 956 0 0 956 70-3 1,131 446 161 846 70-4 1,236 945 120 411 71-1 1,052 783 247 516 71-2 1,685 1,026 247 906 71-3 1,197 781 247 663 71-4 1,512 1,085 247 674 72-1 1,179 989 95 285 72-2 1,645 1,333 0 312 72-3 1,405 1,033 0 372 72-4 1,366 1,065 0 301 73-1 1,384 987 0 39' 73-2 632 521 0 _Ill Total $6,960 Less Stipulated Deduction _ 660 Net Backpay $6,300 As a consequence of the amendment of Respondent's answer at the hearing an additional amount of backpay due Canales remains to be computed by the Regional Director to reflect the difference between what Canales was paid upon his reinstatement and what his wage rate should have been as alleged in the complaint and admitted in the amended answer. Furthermore, as a consequence of the findings in section II, above, as to Canales' absences transportation dunng this quarter, the correct deduction is $120. 11 Based on 190 miles travel a week for 5 weeks. GARY AIRCRAFT CORP. 559 from work during the second, third, and fourth quarters of 1972 and the first quarter of 1973, it is left to the Regional Director to calculate the amounts, if any, to be deducted from his backpay during those quarters. RECOMMENDED ORDER 12 Upon the basis of the foregoing fmdings and conclusions it is ordered that Respondent Gary Aircraft Corporation, its officers, agents, successors, and assigns, shall pay to Guadalupe R. Canales as net backpay the amount awarded to him as set forth in section IV of the Decision, above, which amount shall accrue interest at the rate of 6 percent per annum, computed in the manner set forth in ,Isis Plumbing & Heating Co., 138 NLRB 716. There shall be deducted therefrom social security taxes, income tax withholding, and such other deductions as may be required by the laws of the United States or the State of Texas. 12 In the event no exceptions are filed as provided by Sec 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.