Atlantic Marine, Inc.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlantic Marine, Inc., and Atlantic Drydock Corpora- tion and International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case 12-CA-4891 June 7, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 29, 1971, the National Labor Relations Board issued a Decision and Order in the above- entitled case,' finding that the Respondents violated the National Labor Relations Act, as amended, and ordering the Respondents, inter alia, to make whole Condon Boggs, David Johnson, and Roy Potter for any loss of earnings they may have suffered because of the discrimination practiced against them. On April 30, 1973, the Regional Director for Region 12 issued a backpay specification and notice of hearing for the purpose of determining the amounts of backpay, if any, due and owing and making whole the said discriminatees, Condon Boggs, David Johnson, and Roy Potter. Upon appropriate notice issued by the Regional Director, a hearing was held on June 26, 27, and 28, 1973, before Administrative Law Judge Thomas A. Ricci. On August 15, 1973, the Administrative Law Judge issued the attached Decision in which he found that the claimants were entitled to the amounts of backpay therein set forth. Thereafter, the Respon- dents filed exceptions. 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, findings, and conclusions of the Administrative Law Judge as modified herein to correct mathematical and other factual inadvertences: 2 1. We agree with the Administrative Law Judge's finding that an appropriate measure of the earnings of Condon Boggs would comprise the average of the earnings of his fellow welders, Anderson and Howard, but would exclude the average earnings of Hunter, found to be a supervisor in the earlier Board proceeding. In reviewing the Administrative Law Judge's computation of Boggs' backpay on the basis of this finding, however, we find that he has made certain inadvertent mathematical miscalculations, which we herein correct pursuant to the Appendix attached to this Decision. On the basis of our computation, we find that Condon Bogg is entitled to backpay in the amount of $7,528.36, instead of 211 NLRB No. 42 $8,758.38 as stated by the Administrative Law Judge. 2. Having reviewed the Administrative Law Judge's computation of the backpay due Roy Potter, we correct his inadvertent failure to find that Potter was hospitalized on October 15, 1971, with a hernia condition which rendered him unable to work for a period of 6 weeks thereafter. Accordingly, and absent cogent evidence that Potter's disability was employment connected, we find that the sum of $1,717.21, representing Potter's potential earnings during the fourth quarter of 1971, but for his disability, should be deducted from the sum of $7,533.09. Accordingly, Potter's total backpay is $5,815.88. 3. In accord with our foregoing computations of the backpay due Boggs and Potter, we hereby strike the Administrative Law Judge's recommended Sup- plemental Order and substitute our own, as herein set forth: SUPPLEMENTAL ORDER It is hereby ordered that Atlantic Marine, Inc., and Atlantic Drydock Corporation, their officers, agents, successors, and assigns, shall pay to each of the individuals listed below the amounts set forth opposite their names, as follows: Condon Boggs-$7,528.36; David Johnson-$3,517.19; and Roy Potter-$5,815.88. i Atlantic Marine, Inc., and Atlantic Drydock Corporation, 193 NLRB 1003. 2 We correct the following inadvertent factual misstatements of the Administrative Law Judge which, however, have no effect on the backpay calculations . That for 9 weeks Boggs averaged less than 40 hours of work a week at U.S. Natural Resources , when in fact he averaged less than 40 hours a week for 10 weeks; that Boggs worked overtime during 10 weeks at U.S. Natural Resources, when in fact he worked overtime for only 9 weeks; that Potter, rather than Boggs, was employed at U S . Natural Resources; and that Boggs' hospitalization on December 21, 1970, and his inability to work for a month thereafter were due to a herma operation. APPENDIX Schedule of Backpay Due Condon Boggs Cal. Gross Net Interim Net Qtr. Backpay Earnings Backpay 70-3 $1,990.85 $1,735.07 $ 255.78 70-4 1,814.11 1,188.23 625.88 71-1 1,829.89 894.78 933.11 71-2 2,028.65 649.49 1,379.16 71-3 1,520.01 2,073.02 --- 71-4 2,022.31 1,298.10 824.21 72-1 2,741.95 1,401.50 1,340.45 72-2 2,789.11 1,084.25 1,704.86 72-3 2,815.74 1,492.42 1,323.32 72-4 2,830.51 2,458.90 371.61 Total Net Backpay $8,758.38 ATLANTIC MARINE, INC. 231 DECISION THOMAS A. Ricci, Administrative Law Judge: This is a backpay proceeding, in which a hearing was held on June 26, 27, and 28, 1973, at Jacksonville, Florida. The sole questions to be decided are the amount of make-whole compensation due three employees of the Respondent who were unlawfully discharged. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT Preliminary Statement Condon Boggs was discriminatorily discharged on July 10, 1970, and David Johnson and Ray Potter were similarly discharged on July 11, 1970. In accordance with applicable Board Regulations, the Regional Director served a backpay specification on the Respondent. It fixes the backpay period for Johnson as ending on March 25, 1972, Boggs on December 5, 1972, and Potter on January 12, 1973. It also sets out, for each of the three men, and for each of the quarterly 3-month periods included in the backpay periods, what their gross earnings would have been with the Respondent had they not been discharged, what their interim earnings were, and what expenses they incurred in their search for work. The end result of these calculations says that the Respondent now owes approxi- mately $20,000 in total to the three men. The Respondent's answer to the specifications admits certain factual assertions and denies others; it also disputes certain assumptions, but without articulating precisely what the Company's contrary position might be. The answer then sets out a completely different set of numerical calculations about backpay, ending with a conclusion that none of the employees is entitled to any backpay at all. For the most part the Respondent's contentions, or attacks upon the validity of the Regional Director's specifications, must be gleaned from the testimony of the plant manager, Edward Dougherty, when he explained how and why he went about calculating the picture as he did in the answer. The Respondent did not file a brief to explain any of its theories. Certain major contentions, or what seemed to be major contentions, must be disposed of first. Cutoff Dates for the Backpay Periods There is no issue with respect to Johnson on this score; his period goes from July 11, 1970, to March 25, 1972. As to Boggs and Potter, the Respondent claims their backpay period ended at the latest on April 4, 1972, instead of 8 or 9 months later. Considering the entire record, I find this contention without merit. In March of 1972 Boggs and Potter were living, and working, in the State of Oregon. By letter dated March 20, 1972, the Respondent wrote each of them "we hereby offer you reinstatement to your former position," adding they had 10 days to report and that if they did not do so within the allotted time it would be assumed they had declined the offer. Boggs and Potter flew east on March 25, and at 8 o'clock Monday morning, March 27, presented themselves at the yard to Manager Dougherty and offered to go to work. Dougherty told them he had no idea how to reinstate them, he would have to talk to his lawyer about it. Each man was staying with his mother, and each gave Dougher- ty his mother's address and telephone number in Jackson- ville. They were back on Wednesday, March 29, and again offered to work. This time Dougherty asked them to fill out a form setting out what work they had done since the discharges, what experience they had acquired. Potter refused to fill it out; he called the procedure improper in the circumstances. Again the two men left emptyhanded. No one on behalf of the Respondent ever communicated with them. On April 3 and 4, now 10 or 11 days after they had left their family members behind, they offered to forego all claims in return for the necessary money to get home again. Potter's testimony is that when he called Dougherty by phone on the 3rd he first asked the manager "did he have any idea when we could go back to work," and then proposed that if the Company would give him roundtrip plane fare he would decline the reinstatement offer. Dougherty said he must first check with the lawyer. The next day, when Potter again telephoned to press the matter, Dougherty sent him to Coffman's office. Boggs' testimony is not different. According to him, when on the 29th he asked Dougherty "did he have any idea as to when we could go to work, he [Dougherty] said, "Well, you know how long these things take,' said it might take six months or longer." On April 4, he accompanied Potter to the lawyer's office. Dougherty's testimony conflicts with that of Potter, and of Boggs, in only one respect. He denied they left any address or telephone number where they could be reached. It is virtually incredible that after leaving their jobs with no intention of returning to them, crossing the entire country at their own expense, presenting themselves ready to work 2 days later as they did, and then being confronted with the purest stalling tactic, they would do anything other than tell the Company where they could be reached there in the city. But there is more to discredit Dougherty. The record leaves no doubt the Respondent had no intention of offering reinstatement to either of the men. Dougherty said he was "shocked and surprised" to see them arrive, that the letters of invitation had been sent because the Company had heard the men would surely decline the offer. The clearest fact, admitted quite candidly by the manager, is that throughout the period of Boggs' and Potter's stay in Jacksonville, the Respondent never offered them work at all. I certainly credit their testimony that they left their phone numbers and addresses, and that Dougherty never communicated with them. We come to their visit to the lawyer's office. Coffman appeared at the hearing as a witness for the Respondent. He explained the invitation letters on the ground that when he inquired of a Board agent he was told "all three 8(a)(3)s did not desire reinstatement." He added he too was surprised when Boggs and Potter came back for their jobs. (Johnson received a like letter and he did decline the written offer; he lived in Jacksonville, and his backpay is therefore tolled as of March 25, 1972.) Coffman added it was he who advised Dougherty to have the men give 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements as to their interim experience , and that he did not advise his client to reinstate them. When Potter arrived at Coffman's office the lawyer asked his desire , and Potter said clearly he would forego reinstatement in return for his cash outlay in making the trip to Jacksonville because he had to get home. Coffman recalled Potter's words somewhat ambiguously: ". . . I think that he-he said he would settle the whole case, consider it all of his backpay, for three hundred and some dollars ...." Whatever words were used, the lawyer prepared a very exact release and waiver of all claims by Potter, and Potter signed it. Coffman then gave him $364.50. Coffman also talked to Boggs, who signed a like document, literally waiving reinstatement and compromis- ing all claims for backpay; he was paid $324. It is these documents on which the Respondent now grounds an argument that both Boggs and Potter are not entitled to any money at all in this proceeding. The fundamental object of all backpay proceeding is to remedy unfair labor practices committed, to effectively undo the wrong done by one party or another-in this case the Respondent Employer, to compensate the person or persons who have suffered monetary damages because they were the object of unlawful activity found. Another phrase for all this would be to say that the purpose is to see that justice is finally done. To hold this Respondent free of any further obligation to Boggs and Potter now because of what happened in March and April of 1972 would do violence to that concept. The two men found themselves in Jacksonville-jobs abandoned and families far away-on- ly because the Company had misled them into believing they would be put to work immediately upon arrival. It had no intention of rehiring them; whatever might ultimately have been the outcome had Boggs and Potter had the financial means to await the Respondent's pleasure, the critical truth is it never did offer them reinstatement. It is a lawyer's play on words to say they "declined" reinstatement. There never was any reinstate- ment offer to decline.' The Respondent placed them in an impossible position . When Coffman first spoke to Boggs in his office on April 4, he said, as Boggs testified without contradiction, "I guess you guys know you threw us a curve . . . . We didn't expect you to come all the way back here from Oregon." It would be as fair to hold the curve was thrown in the other direction . If, in desperation, with not even a promise of actual employment by the Respon- dent, the men conceived the notion of getting whatever they could in cash in order to be able to restore themselves to whatever their condition had been before leaving Oregon, the idea was as much the product of the Respondent's doing as it could be called a voluntary act on the part of the claimants. The true import of these realities I Potter said Coffman had the legal document all prepared when he arrived , and that he was in the lawyer's office only 5 minutes Coffman took pains to detail at the hearing how the work to prepare the formal releases was all done after the two men came . This is a small question and of no importance at all, for there is no claim any work was offered either Potter or Boggs that day by anyone. More pertinent, because it fits the undisputed facts with illuminating clarity, is Boggs' testimony that in his conversation with the lawyer that day Coffman asked how did he feel about signing a release - "And, I told him, at this time-I said, 'Well, evidently we're not gonna get ourjob back, and you guys can hold out a lot longer than we can, so I guess I'll sign it, too' " is not changed, as the Respondent would have it, by the fact Potter became reconciled with his wife while in Jacksonville. He had moved to Oregon with only two of his three small children , and said he returned essentially to resume his old job, and not for any other purpose. There is no reason for disbelieving this. He would hardly have left two little children behind otherwise, and certainly if his purpose was not to work in Jacksonville he could not have counted on the Respondent to pay for his travel cost in either direction. Whatever may then have developed in his family life, it had nothing to do with the Respondent and its lawful obligation to reemploy him and make him whole under the Board Order. It was the Respondent that put him in a position of having to do something extreme and desperate financially, and it cannot now enjoy a benefit from the weakness it forced upon its old employee. Nor is there merit in the Respondent's further assertion that the ostensible settlement of the whole case with respect to these two men was approved by the Board's authorized agent. At more than one step between the Board's remedial Order and the time of this hearing there was talk of settlement, but such talk cannot affect or reduce the legal liabilities of a respondent in a Board proceeding. Coffman said that he talked to a Board agent by telephone during April 4 while he was preparing the two general release documents for Boggs and Potter to sign, asking about the right kind of language to use . The agent was in Tampa and Coffman in Jacksonville. There is no reason for assuming the lawyer told the Board agent no jobs had ever been offered the claimants. Compliance with Board remedial orders requires substantive and fair action by the respondent; it must make its peace formally with the government, which looks after the public interest , and not with charging party or with individual discharged employ- ees. Gross and Interim Earnings2 Before considering the many criticisms voiced by Manager Dougherty of the conventional specifications used by the Regional Director, it will be well to state certain general principles applicable to all backpay proceedings. To start with, the entire calculation rests upon a retroactive restructuring of what would have happened had the employees not been discharged. Of necessity, therefore, there is always an element of doubt , if only in establishing what amounts they would have earned had they continued to work for the Respondent. They might later have quit of their own accord ; they might have been discharged for cause during the backpay period. As to the vicissitude of their lives in their later search for replace- ment work, unconventional conditions are often revealed From Potter's testimony : "The kind of position I was in, I was over a barrel-I mean, I had to get back to my kids My brother had called me and told me that my kids was carrying on , and I had to get back there , or either send for them, or something. That was my intentions when I came to Florida, was to go to work and send for my kids . But, I was here nearly two weeks, there, and I was flat busted, so I had to do something." 2 There is no need for comment upon the Respondent's contention that the Supreme Court decision in N.LR.B. v. Seven-Up Bottling Company of Miami, Inc, 344 U.S. 344 (1953), should be reversed in this case and backpay be computed on a total single period basis instead of on a quarterly basis. ATLANTIC MARINE, INC. 233 when one looks back on how they may have gone from one job to another, an unnatural strain is placed on them in consequence of the discharge. It is difficult precisely to prove every step they took throughout the backpay period, for them to recall each and every attempt to find work, or exactly what happened each and every time they changed jobs. Such uncertainties out of the past are only to be expected. But regardless of where these uncertainties he, it always remains true they were brought about by the Respondent's misconduct, by its unlawful act. And this is why the Board has long held, with court approval, that once the Regional Director has shown the gross amounts of backpay due ". . . the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability." N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447 (C.A. 8, 1963). And whenever in the total picture there do appear uncertainties or ambiguities ". . . the backpay claimant should receive the,benefit of any doubt rather than the Respondent, the wrongdoer responsible for the existence of any uncertainty and against whom any uncertainty should be resolved." United Aircraft Corpora- tion, 204 NLRB No. 131; see also J. H. Rutter-Rex Manufacturing Company, Inc., 194 NLRB 19, and N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 1966). These basic principles, essentially aimed at reaching a fair resolution of backpay issues, are illustrated when applied to one of the many contentions made by the Respondent here. On one of the jobs Boggs found during his backpay period-U.S. Natural Resources, in Jackson- ville-he worked for about 5 months, May through September of 1972. He worked less than 40 hours during 9 of the 20 weeks he remained there; during 10 others he worked overtime. The Respondent asks that Boggs be charged-as an interim earning-with what he would have earned had he worked a full 40 weeks during those 9 weeks when he did fewer, and in support offered the testimony of the personnel manager of Natural Resources, who said his company "normally" scheduled 40 hours each week during that period, and he knew no reason why Boggs should have done less, although sometimes employees have valid reasons for doing so . As it happened Boggs worked more overtime hours on this job than he lost when he did less than 40-72.3 hours compared to 64.5. And of course it brought him more money as interim earnings, for the overtime must have been paid at time and a half. But the Government's specifications give the Respondent full credit for Boggs' overtime earnings as an offset against what the earnings with the Company would have been. In the circumstances, it cannot be said that the Respondent has satisfied an affirmative burden of proving Boggs incurred any willful losses during his tenure with Natural Resources. With these as basic elements of Board law applicable to this case also, we come to the many contentions raised by the Respondent. 1. Boggs, discharged on July 10, 1970, had been hired during the week ending May 10. He had also worked for the Respondent twice in 1968 and once during 1967. Assuming I understood Dougherty correctly while he testified, he was saying that if the periods of Boggs' successive hires with the Respondent-including the last, which ended by decision of the Company-be averaged out, it appears he only works 6 or 7 weeks and no longer on any job he ever begins. From this, Dougherty continued, as he noticed how many other jobs Boggs had then held during his backpay period, he, Dougherty, made a "guesstimate" and concluded that the man would have left the Respondent's employ maybe 8 weeks after July 10, anyway, and therefore never mind any claim for loss of earnings thereafter. I reject the argument, and the principal reason is because what would have happened had the Company not discharged the man is a now pure specula- tion. All we know with certainty is that Boggs stopped work here because the Company forced him to it. If the Respondent wished to take advantage of what it now assumes as predictable probability, all it had to do was simply let nature take its course, and not commit unfair labor practices. Moreover, employment with this company is not a steady thing; the complement of employees in its yards fluctuates from 15 up to as high as 80, depending upon the ebb and flow of available work. Who knows but that Boggs on earlier occasions may have sought work elsewhere after being laid off in the normal course of events with this same company. Indeed, there is also clear evidence of comparable layoffs at another shipyard where he worked later, and where low seniority hirees go home first. 2. There is also a related argument, still aimed at Boggs, grounded on the fact that during his employment with this Company-again figuring his 1967 and 1968 time together with 1970-he worked an average of only 27 hours weekly. Dougherty said that were he preparing the backpay specifications in this case, he would assume that, had he not been fired, Boggs would have worked no more than 27 hours per week throughout whatever the backpay period might be. I do not see sufficient evidence in this record to support the assumption and therefore will not alter the Regional Director's specifications to reflect it. There is nothing to indicate why Boggs worked less than 40 hours at any time during his employment. While the evidence does not reveal how many hours he worked each week while on his later jobs, the Respondent's own exhibit relative to the Natural Resources Company shows that for 5 months there he averaged over 40 hours weekly. There is no reason for assuming he would have worked less with the Respondent. The same argument, in a sense, is made with respect to Potter. Dougherty said that from his study of old records, he found that during the 82 weeks Potter had been with the Company before he was discharged he worked a total of 2,877 hours, which is an average of 35 hours a week. He also said that Talbot, Perry, and Hunter (these are the three shipfitters like Potter, who worked throughout the backpay period and whose gross earnings are used for comparison in the specifications) each worked 3,490 hours during the same 82 week period-or an average of 40 hours weekly each. In a shipyard of this kind, where the flow of work is irregular and the number of employees needed from time to time varies so greatly, there is no definitive way for knowing why one shipfitter may put in more hours 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than another. Certainly the Respondent has offered no objective evidence to support a retroactive finding that whatever variables may have affected the earnings of these four persons in the past of necessity would have reoccurred in precisely the same pattern in future years. In short, there is no valid reason for finding now that Potter surely would have worked less than the other three. As the burden is on the Respondent for proving its assertions, I find this attack on the specification unconvincing. 3. As already set out above, the Respondent did not at the hearing, either through its principal witness, Yard Manager Dougherty, or its consel, clearly state its position or positions, or pinpoint its contentions as to why the Regional Director's specifications are unreliable. The many faceted defense to the entire bill for backpay only emerges obliquely from Dougherty' s testimony, and in many details is overlapping and indirect . And there is a direct relationship in the basic facts among many of the defense assertions , whether called lesser earning opportuni- ties with the Respondent or willful refusal to work for anyone else during the backpay period. For example, Jacksonville Shipyards, Inc., is a large yard in the Jacksonville area where work comparable to that of the Respondent is done. At one time or another all three of the claimants worked there. In his examination of the claimants at the hearing, counsel for the Respondent had both Potter and Boggs say they had once, or more than once, "quit" the Jacksonville Shipyard Company. From this one descriptive word in the record, taken in isolation and completely out of context , the Respondent argues willful loss incurred by the claimants . The fact is that the Jacksonville Company Shipyard, like that of the Respon- dent, lays off large groups of employees as a regular aspect of its activities, and the direct, uncontradicted and perfectly credible testimony of the two men is that by the word "quit" they meant a necessary abandonment of unreliable, short term hire, to look for or quickly accept, other immediate employment. The real story was told with particular clarity by Boggs at one point: ". . . I recall I got laid off [from Jacksonville shipyards] about a dozen times. I don't recall voluntarily quitting. Last time I got laid off I didn't go back to work, and was terminated because I didn't answer a telegram, because they only had a few days' work and there wouldn't be any point in going back .... I went to another company, and I was making less money, but I was making a paycheck every week." At another point Boggs said that when he then quit the 3 Again from Boggs' testimony: Q. Now, when you say you left Jacksonville Shipyards, why precisely did you leave the shipyards? I'm talking now about the second quarter of 1971, when you left the shipyards. What was the problem? A. Well, just so many layoffs I couldn't you'd work a week and be off a week, and .... If I make $200 this week I can't save a hundred of it to live on next week-you know. I like to get a paycheck every week, regardless even if its smaller, and that's not the way it is down there. You may work a week, and you'll be off 2 weeks. Q. All right. Now, Canada Dry Bottling Company-you worked therein the second quarter of 1971. A. Right, sir. Q. Why did you leave there? Jacksonville Shipyard, by failing to respond to its call to resume work after a layoff, he had already found and was at work on another job 3 Potter's testimony tells the same story. "When I first went there, [Jacksonville Shipyard ] with no seniority, I'd get laid off-I'd get to work a week or 2 weeks, and I'd get laid off two weeks or so-three weeks or so-a couple weeks, at times, just depending you know-three or four days at the time, sometimes longer-my layoffs." 4 There is an item of expense in his search for work by Potter; he traveled to Mobile, Alabama , without success. Still more from his testimony : "If-if I recall it, I think it was during a layoff at the Jacksonville Shipyards-yeah, I'm sure it was during a layoff at the Jacksonville Shipyards that I went to Mobile Drydock , and took a Navy test. And, I didn't bum too many rods till the man stopped me and said-you know-that he didn't think I could pass the test." Against this the Respondent offered the testimony of John Stewart, the personnel clerk of Jacksonville Shipyard. He produced a document saying that in October of 1970 Boggs had "quit." In fact Potter had substantial earnings at this shipyard during every quarter from the time of his discharge to the fall of 1971 . Stewart said nothing to contradict the testimony of the employees that periodic layoffs were a common occurrence there. It was also shown that five times between April of 1971 and June of 1972 Jacksonville Shipyard placed an ad in the Jacksonville newspaper saying it "Has Requirements For" the usual category of shipyard employees. I do not deem this fact probative evidence that any of the three employees here involved failed to make adequate search for work, or deliberately did less work than was available for them. The frequent newspaper calls for help fit logically into the nature of employment in this, and, apparently, other shipyards. With repetitive layoffs of personnel, of course the employer is in constant need of new employees . It does not follow that any single craftsmen must be held to have refused to work each and every day. This same idea of inevitable on and off work opportuni- ties fits Dougherty's companion argument that the gross amounts the claimant would have earned is not as high as set out in the specifications. He said these figures must be reduced, because during the backpay period there were lulls in business even with the Respondent. A. I found out that I wasn't a soft drink salesman; I couldn't make any money. Q. All right. Was the reason you left Canada Dry a financial reason? A. Yes, sir, it was. I couldn't make enough money to live on because I couldn't sell enough drinks. 4 Also from Potter's testimony: JtmoB Ricca Go back to Jacksonville Shipyards . Are you saying that it was not steady employment? 'Ilia Wilms : No, sir, it is not steady employment. Jvnoe Ricci: You didn't have seniority, so they would let you go and call you back sometimes . Is that what happened? THE wimass: Sure, but I couldn't make it on layoffs like that .... I couldn't make it on layoffs. I mean, I was making hardly enough money to take care of my family. ATLANTIC MARINE, INC. 235 Q. Was there any other period of time , other than this summer period of 1970, when you had a reduction in work force? - A. It fluctuates all the time. I can't nail it down now. Q. Well, was there any period of time in which you had enough of a reduction whereby Boggs, Potter and Johnson would not have had work available, during any of this backpay period contended by the Board?I A. Sure, because our work rule varies, particularly with our repair work . When Atlantic Marine has a job at Mayport they'll hire 80 or 90 people, and they'll work 90 days to 100 days, and then there'll be a big reduction in force. These contracts come and go. Q. Okay. Is there any definite time that you know this would have happened? A. There were some periods, but I don't have them available to me. Dougherty even said that the men should be awarded no backpay through August of 1970 because "Atlantic Marine had a reduction in force in June of 1970 ... we were averaging ... around 70-some-odd people; we went down to about 40 or 50 people. In August 1970. . . our labor force increased considerably at that time to well over 100." All this is no more than descriptive comment about how people work at the Respondent's shipyard or at any other of like kind, including Jacksonville Shipyard. The three claimants worked until their illegal discharge in July of 1970. Of course that particular summer long lull can have no bearing upon what backpay is due now, to say nothing of the fact that in the unfair labor practice case itself the Board has already found the 1970 need for layoffs, whatever it was, had nothing to do with these particular employees. The total picture of successive layoffs does serve, however, to explain much of changing of jobs by the claimants. Insofar as the Respondent's attack upon the Regional Director's specification is concerned, I find no significance in the fact that these employees may some- times have used the word "quit" in their recital of the past, that the word may appear in a notation kept by some later employer or other, or that layoffs occur as a regular aspect of certain employers. 4. As in every proceeding of this kind the first figure that must be established is the amount the discharged persons would have earned had they not been dismissed. In keeping with established and long accepted Board practice, here too it was fixed as the amount which employees in the same category who were not discharged in fact earned through the backpay period. Boggs is a welder, Johnson a carpenter and Potter a shipfitter . Ordinarily it is enough to start with the earnings of only one man in the category, but here, because the period was relatively long, three persons in each category were selected for each discriminatee, and the average earnings of the three was taken as gross interim earnings lost by the claimants . And of course the only reliable, objective evidence to support the figure are the Company's records . The timecards were used, three marked welders, three marked carpenters and three marked shipfitters. The selection of employees for compar- ison also drew those persons in the three categories who worked throughout the entire backpay period. In one or two instances the employees selected did not work throughout; in those cases further craftsman was selected for him to complete the picture. Dougherty quarreled with this method for selecting comparison figures and establishing gross earnings lost. His sole argument in support was that some of the employees whose timecards were used had worked more hours than the three claimants would have worked, because they-the comparison employees-were "techni- cians," or "mold loftsmen," or had passed "navy certifica- tion test," or were "key" employees, or were "part-time supervisors." He said this of Hunter and Williamson, two welders whose records were used, and of Perry, a shipfitter, also used for comparison. He produced no objective evidence from company records to support his off-hand conclusionary statements; he conceded there was nothing in the Company's records that could have been discovered by an investigating Board agent to prove his assertions. Dougherty added the only external indication of special status in the employees he spoke about is the higher rate of pay they received. It is to be noted, however, that in every instance where the comparison craftsmen, whose earnings were examined, were paid at a higher hourly rate than the discriminatees were earning while on the job, adjustment was made in the specifications. The gross interim earnings now charged to the Respondent have been recalculated as though the comparison employees had been paid at the same hourly rate that Boggs, Potter, and Johnson received in July of 1970. And when the rate of the comparison employees were raised during the backpay period, those of the discriminatees were adjusted upward accordingly, i.e., in percentage ratio accorded to their own wage scale. There can be no contention that this last correction was improper, for Dougherty himself said that the raise that came later was "an across-the-board increase . . . every- one in the yard got a increase." In its Decision and Order the Board found Hunter is a supervisor within the meaning of the Act, and held the Respondent responsible for his illegally coercive conduct. In view of this specific finding of the Board, I think it was a mistake, or an oversight, to have used Hunter's earnings for comparison. I will therefore look to the earnings of only the other employees, designated straight welders on their timecards, to calculate Boggs' gross interim earnings. As to Dougherty's remaining statement at the hearing, aimed at removing Williamson's and Perry's earnings from the specifications, I find them insufficient evidence to prove either that they are supervisors as defined in the Act, or that they of necessity worked more hours than the discriminatees would have worked. His statements are no more than general conclusion, self-serving and unsupport- ed by any objective truth. I think this is what is meant by the principle that uncertainties are resolved against the wrongdoer whose conduct made uncertainty possible. 5. When he was fired Johnson, the carpenter, went to Jacksonville Shipyard; there he worked for less than with the Respondent. He was laid off and went to a cabinet company. Now he decided to work for an insurance company, as a debit agent and insurance salesman. He remained with the insurance company throughout the remainder of his backpay period, about a year and a half. During every one of the quarterly periods after joining the 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insurance company he earned considerably more than he earned during the entire third quarter of 1970, the one during which he was discharged. It seems to be a contention of the Respondent that Johnson should be cut off from any backpay compensation from the day he changed from carpenter to insurance salesman. No persuasive reason is advanced to support this position. The situation is quite comparable to a man going into business for himself in the search for making a better living after being illegally deprived of his regular employment. There is nothing to indicate he would have earned more had he continued to look for carpentry work, or that he refused to accept any kind of other employment that would have enabled him to earn more money than the insurance job brought him. 6. Another attack upon the validity of the specifica- tions involved Potter. During the fourth quarter of 1971 he left Jacksonville and accepted employment in Oregon, where he remained (except for his trip back in March in response to the Company's abortive reinstatement offer) until the end of his backpay period . His last employment in Jacksonville was with the Jacksonville Shipyard. The Regional Director's specifications, as served upon the Respondent, do not set out what earnings Potter in fact had in Oregion ; in their place , instead, are listed the earnings of another welder, a man named Brandon, employed by Jacksonville Shipyards, in the same category and with the same seniority as Potter, but who remained there throughout the time of Potter's remaining backpay period. Potter did work in Oregon, but so far as the record shows, he earned less than he might have made had he remained with Jacksonville Shipyard. There are three Wage and Tax Statements from 1972, called forms W-2, which show that during the year he earned $2132 with one company, $760 with another, and $1322 with a third. The specifications concede , in fact expressly state, that Potter "for personal reasons, quit his job at Jacksonville Ship- yard." The theory underlying this approach by the Regional Director is that the Respondent is entitled, and an offset against Potter's gross backpay, to what Potter would have earned had he remained at Jacksonville Shipyard, or, again as stated in the specification, "had he not voluntarily quit." It is not an unreasonable approach; Potter is entitled to be made whole, and he had a right at the same time to live his life as fortune dictated. The Respondent protests this method of calculation, but it advanced no persuasive reason why it should be rejected, or why, as it also seems to be saying, Potter should be cut off completely from the moment he left Jacksonville. The record as a whole shows quite convincingly that he did make constant effort to find work. During most of the year 1971 he persisted at the Jacksonville Shipyard; he had earned considerably less than he used to make with the Respondent. He tried to find more remunerative work elsewhere during that period but could not. He was, as stated above, frequently laid off, he needed more money for personal reasons, and at one time during 1971 he even tried to hold two jobs simultaneously in Jacksonville. But most significantly of all, he was always ready to return to his old job had the Respondent offered him reinstatement ; his quick trip home in March of 1972 fully establishes that central fact. It must therefore be found that whatever his problems were in the struggle to earn an adequate living, they might all have been avoided had the Respondent not fired him. He ran into domestic difficulties with his wife; could it be that even that situation might not have become as aggravated as it did had he continued to earn a good living? I find the Respondent has come forth with no proof sufficient for rejecting the Regional Director's specification on this point. Close study of certain exhibits offered by the Respon- dent, and of Dougherty's total testimony, suggests a further number of contentions, again not directly articulated, collectively intended to support a broadside argument that Boggs especially, and a little bit Potter too, sustained willful losses in their interim earnings, either by failing to report some work performed, or deliberately leaving jobs they had. Some of these pinpointed ideas have already been considered, such as Potter's employment with Natural Resources, and the fact that Jacksonville Shipyard placed ads in the local newspaper when it needed men. For the rest, I do not think the Respondent has carried its affirmative burden of proving any of these three men guilty of incurring willful losses, or falsely reporting their interim earnings. Failure to make a reasonable search for interim work is an affirmative defense of backpay liability; the burden of proof is on the employer. W. C. Nabors Co. v. N.L.R.B., 323 F.2d 686 (C.A. 5, 1963); N.LR.B. v. Mastro Plastics Corporation and French American Reeds Manufac- turing Company, 354 F.2d 170 (C.A. 2, 1965). The first important fact to be noticed is that in every quarter of backpay period, each of the discriminatees worked-one for 7 quarters, one for 10, and one for 11 quarters. Although they earned less than they would have made with the Respondent, their earnings were always substantial. No generalization of underlying indolence can be made here. 1. A Company called Owens Steel produced a record notation reading that Boggs on October 4, 1971, "failed to return to work." Boggs testified, without contradiction, that a few days earlier he had been hurt on the job, that the doctor had advised him to do only light work for a while, and that on October 4 he did return to Owens Steel only to be told by the manager there was no light work he could do. He also testified, again without contradiction, that the very next day he started work with another company called American Steel Co. He left American Steel because it went bankrupt. 2. During the fourth quarter for 1971 Boggs left the Ingalls Shipyard in Pascagoula , Mississippi , and went to work in Oregon. He explained, quite credibly, that living costs in Pascagoula made it impossible for him to remain there, notwithstanding the hourly rate might have been sufficient were he living elsewhere; he said the cost of living in Mississippi was double what it was in Jackson- ville. 3. In the second quarter of 1971 he quit the Jackson- ville Shipyard because he was being laid off too often. He went to a company called Fleco; he quit that one too, and then tried being a salesman for Canada Dry Bottling, only to find he earned too little as a salesman to live on. He explained that Fleco was a night job, and he had to give it ATLANTIC MARINE, INC. 237 up because with three little children he was needed at home nights. 4. One exhibit produced by the Respondent is an employment application Boggs filed with Owens Steel on 2-29-71; among the prior employments it says he worked for a southern Ohio company in Cincinnati from "12-69 to 1-71." At the hearing Boggs said this was a mistake, and testified he never worked for the Cincinnati company after his discharge. The entry had to be a mistake, if only because during 1970 he worked for the Respondent as well as two other companies, as the specifications show. 5. In order to respond to the Respondent's March 1972 putative offer of reinstatement, Boggs had to quit the job he had in Oregon; when he returned there he could not find another and therefore returned to Jacksonville again. On May 4, he filed an employment application with Natural Resources; among the past employers listed he put Nelson Construction interim earnings on the specification. Does it follow he concealed interim Co.: "date started 1-72." Nelson Construction does not appear among Boggs' earnings? I think not; I find his explanation credible. That company is not listed on the Social Security Administra- tion official report covering Boggs' earnings during the first 6 months of 1972, a document received in evidence. He testified he had been told he could work part time at Nelson-he was friendly with the man who owned the company-but because he found he could get regular employment at Natural Resources he never worked for Nelson. He added he listed Nelson to avoid listing Jacksonville Shipyards, where he had worked, because the hiring agent told him to be sure not to talk of places where he, Boggs, had been involved in union activities. "If you go in to work in a small shop, and you know they're not gonna hire you if you worked at the shipyard, you just don't put it down, because they don't hire shipyard people ... it's a fact of life in this area." 6. Lastly, Boggs quit Natural Resources to work as a card carrying member of Boilermakers Local 433, at an hourly rate of $7.13; he increased his interim earnings considerably after making the change. Changes in the Specifications It will be recalled Boggs was paid $324 by the Respondent in April 1972 when he returned to Jacksonville expecting reinstatement . No mention is made of this payment in the specification on the theory this money was reimbursement for expenses incurred, in the search for work, literally chargeable to the Respondent. Potter was paid $364.50 for the same futile trip. In his case the specifications say his travel expenses total $519, and therefore lists $154.50 as additional expenses as yet unreimbursed, and therefore to be deducted from his interim earnings. In response to an inquiry by a Board agent, in February of 1973, asking what his expenses had 5 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein been to make that trip, Potter detailed exact items totalling only $421. Asked at the hearing to explain this discrepancy between the higher and lower figures, he said he could not. Given the distance the two men had to travel, and the time they had to remain away from their homes idly awaiting the Respondent's pleasure, I think both Boggs' claimed expense-$324-and Potter's-$421, not at all unreasona- ble. But as there is no explanation for the deferential in Potter's case-the sum of $98-I think it fair to deduct that amount from the expenses claimed for him in the specifications. In December of 1970 Boggs was working for Jacksonville Shipyard. He took sick on about December 21, went to the hospital for a hernia treatment, and was unable to work again until at least January 14. A representative of that Company testified he did not return to work until January 19; Boggs worked for no other company during that month. Although Boggs said he might not have suffered the hernia had he remained with the Respondent, there is no probative basis for finding the condition was employ- ment connected. I find Boggs was ill for a month, unable to work, and therefore not to be reimbursed by the Respon- dent for earnings lost during that period. Boggs' gross backpay for the fourth quarter of 1970 is $1814.11, and for the first quarter of 1971 it is $1827.89. A fair estimate for what gross backpay should be eliminated from the specifications would be the average monthly pay for the 6- month period-or $607.00. I will accordingly deduct that amount from his net backpay for those two quarters. CONCLUSIONS As precisely detailed in the Regional Director's specifica- tions, backpay due Potter totaled $7,631.09. Deducting from that amount $98-an unwarranted item of interim expense claimed-his final total becomes $7,533.09. John- son's backpay is $3,517.19 in the specifications and remains the same. Boggs' gross backpay is recalculated, as shown on the attached Appendix [omitted from publica- tion], to reflect only the average earning of welders other than Hunter. So adjusted, his backpay is reduced to $8,758.38. On the basis of the foregoing findings of fact, conclu- sions, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, there is hereby issued the following recommended: SUPPLEMENTAL ORDERS Atlantic Marine, Inc., and Atlantic Dry Dock Corpora- tion, their officers, agents, successors, and assigns, shall pay to each of the individuals listed below the amount set forth opposite their names: Condon Boggs-$8,758.38; David Johnson-$3,517.19; Roy Potter-$7,533.09. shall, as provided in Section 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.