Gary Aircraft Corp.

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gary Aircraft Corporation and International Union, United Automobile, Aerospace and Agricultural in the said Supplemental Order. Implement Workers of America (UAW). Cases 23-CA-3672,123-CA-3702,23-CA-3733,23-CA- 1733-2, 23-CA-3733-3, and 23-CA-3733-4 June 13, 1974 successors, and assigns, shall take the action set forth 1 This case number inadvertently appears as Case 23-CA-3627 in the Administrative Law Judge's Supplemental Decision. 2 193 NLRB 108. 3 N.L.R.B. v. Gary Aircraft Corporation, 468 F.2d 951 (affd. without published opinion). 4 Chairman Miller would find that discriminatee Otero was not entitled to backpay for the month of November 1970, for the reason that Otero made no search for employment during that month. SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 14, 1971, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,2 directing Respondent to, inter alia, make whole Joel Estala, Lloyd Wright, Vincent Paredes, Victor San Miguel, Benito Perez, and Joe M. Otero for their losses resulting from unfair labor practices committed by Respondent in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Thereafter, the Board's Order was enforced by the United States Court of Appeals for the Fifth Circuit.3 Pursuant to a backpay specification and appropri- ate notice issued by the Regional Director for Region 23, a hearing was held on November 7, 8, and 9, 1973, before Administrative Law Judge Stanley Gilbert, for the purpose of determining the amount of backpay due the discriminatees. On February 7, 1974, the Administrative Law Judge issued the attached Supplemental Decision. Thereafter, Respondent filed exceptions to the Administrative Law Judge's Decision and a brief in support thereof. The General Counsel filed an answering 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 Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his Supplemental Order.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Supplemen- tal Order of the Administrative Law Judge and hereby orders that Respondent, Gary Aircraft SUPPLEMENTAL DECISION STANLEY GILBERT, Administrative Law Judge: On September 14, 1971, the National Labor Relations Board issued its Decision and Order' in the above-entitled proceeding directing Respondent herein, Gary Aircraft Corporation, its officers, agents, successors, and assigns to, inter alia, make whole Joel Estala, Lloyd Wright, Vincent Paredes, Victor San Miguel, Benito Perez, and Joe M. Otero for their losses resulting from unfair labor practices committed by Respondent in violation of Section 8(a)(1) and (3) of the Act. On November 2, 1972, the United States Court of Appeals for the Fifth Circuit by its opinion of November 2, 1972,2 and its judgment of November 24, 1972, enforced in full the backpay provisions of the Board's Order herein. A controversy having arisen over the amount of backpay due under the terms of the Board's Order, Regional Director of the National Labor Relations Board for Region 23 in the name of the Board and pursuant to Section 102.52 of the Board's Rules and Regulations, Series 8, as amended, issued the backpay specifications in this proceeding on September 12, 1973. Respondent, by its answer, raised various issues with respect to the computation of the net backpay set forth in said specifications. Pursuant to notice, a hearing was held in this supplemen- tal proceeding in San Antonio, Texas, on November 7, 8, and 9, 1973, before me, duly designated as Administrative Law Judge. Briefs were filed on behalf of the General Counsel on December 21, 1973, and on behalf of Respondent on December 20, 1973. Upon the record in this supplemental hearing and from my observation of the witnesses who testified, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW There is no dispute as to the backpay periods for each of the discriminatees or with respect to the formula upon which the gross backpay is computed. The periods for each of the discriminatees are as follows: Joel Estala-July 20, 1970, through May 14, 1973. Lloyd Wright-September 4, 1970, through May 25, 1973. Vincent Paredes-June 4, 1970, through July 10, 1970. Victor San Miguel-July 9, 1970, through May 23, 1973. Benito Perez-September 3, 1970, through May 14, 1973. 1 193 NLRB 108. Corporation, San Antonio, Texas, its officers, agents, 2 468 F.2d 951 (1972) (affd. without published opinion). 211 NLRB No. 65 GARY AIRCRAFT CORP. Joe M. Otero-September 14, 1970, through May 22, 1973. Following is the computation of the net backpay due to each of the discriminatees for the periods set forth hereinabove. Joel Estala-Based upon the stipulation of the parties, the total net backpay due to Estala is $2,415. Lloyd Wright-Wright did not appear at the hearing, although he was subpenaed. Therefore, he was not available for examination by Respondent. It was agreed by the parties that the tentative amount of net backpay due to him for the third quarter of 1970 is $226 to be held in escrow by the Regional Director subject to his examination on the interim backpay he earned during the third quarter of 1970 (in addition to that set forth in the specification). The parties agreed that he was not entitled to any backpay after said quarter. It will be recommended in the Order hereinbelow that the Respondent be ordered to pay to the Regional Director for Region 23 the amount of the tentative backpay ($226) to be held in escrow for a period not exceeding 1 year from the date of this Supplemental Decision. It is further recommended that the Regional Director be instructed to make suitable arrangements to afford the Respondent, together with the General Counsel's and the Charging Party's representatives, an opportunity to examine Wright and any other witnesses with relevant testimony and to introduce any relevant and material evidence bearing on the amount of backpay due to Wright. It is further recommended that the Regional Director make a final determination whether any interim earnings or any amounts in excess of those shown here or any other factors are revealed which may alter the amount of backpay due under existing Board precedent . In the event the Regional Director determines that deductions are warranted, it is recommended that the amount so deducted be returned to the Respondent. In addition, it is recommended that the Regional Director, when this matter has been finally resolved, promptly and no later than 1 year from the date of the Supplemental Decision report to the Board the status of this matter. Vincent Paredes-The parties stipulated, and it is found, that the total amount of net backpay due to Paredes is $148. Victor San Miguel-It appears from Respondent's brief that the only issue with respect to the amount of backpay due San Miguel is whether or not monies which he received from International Union, United Automobile, Aeorspace and Agricultural Implement Workers of America (UAW), hereinafter referred to as the Union, constiuted interim earnings in mitigation of the "net backpay" amounts set forth hereinbelow.3 These figures ar° based upon the stipu- lation of the parties and representations in the record. 3 In stipulating to the net backpay for the calendar quarters set forth hereinbelow, Respondent reserved the affirmative defense that the monies San Miguel received from the Union "should be counted as additional interim earnings " 3d Qtr. 1970 $537.00 4th Qtr. 1970 815.50 1st Qtr. 1971 500.00 2d Qtr. 1971 531.00 3d Qtr. 1971 733.00 4th Qtr. 1971 592.00 1st Qtr. 1972 421.00 2d Qtr. 1972 0 3d Qtr. 1972 0 4th Qtr. 1972 116.00 1st Qtr. 1973 19.00 2d Qtr. 1973 0 24 add, @30i^ per hrs. hr. 5/21-5/23/73 7.00 555 Total $4,271.50 It appears that San Miguel received a total of $4,880 from the Union (constituting $40 a week for a period of 122 weeks from the latter part of July 1970 to November 20, 1972). Receipts and cancelled checks were produced which totalled the sum of $3,840, the first of which is dated January 19, 1971, and the last of which is dated August 11, 1972. Obviously, an additional sum of $1,040 is not accounted for by any receipts or cancelled checks. There is nothing in the record to explain these omissions . However, there is no dispute that he did receive a total of $4,880. These payments to him were not always regularly made; for example, on January 19, 1971, he received $400; on January 21, 1971, he received a check dated January 19, ,1971, for $120; and the next dated receipt is that of April 19, 1971, for $520. Also, it is noted that on August 10, 1972, there was a check issued to him for $160, but also on ,August It, 1972, he apparently executed a receipt for a check issued earlier in the sum of $240. It is noted that the ,Inext earlier receipt was for $160 dated May 30, 1972. Thus, the somewhat sporadically received checks for amounts in 'various multiples of $40. 1 San Miguel testified that he was told by a representative iof the Union that a loan of $40 a week could be arranged for him. While there is some discrepancy in his testimcny as to when this conversation took place , no significance is attached thereto. It is noted that the first eight receipts in the record signed by him dated from January 19, 1971, to September 9, 1971, contained the following language or words to the same effect: I, Victor San Miguel, hereby acknowledge receipt of Check # in the amount of $ , from the International Union, UAW. I understand that the amount of this check and all monies that I receive from the UAW Strike Fund are given to me on the basis of a loan. In the event I am reinstated with back pay to my job at Gary Aircraft, Inc., I will repay the UAW Strike Fund in the total amount that I receive from it. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commencing with the receipt dated October 8, 1971, the wording was that of a simple receipt as follows: TO WHOM IT MAY CONCERN: I received from Juan Diaz on this day, the day of , 197 , International Union, UAW, Check # in the amount of It is inferred from the language of the earlier receipts that the same conditions that were set forth in the earlier receipts (that the money is given on the basis of a "loan" with the provision of repayment in the event of reinstate- ment with backpay) were applicable to the monies received subsequently. It is found that the total amount of $4,880 was considered by the Union and San Miguel to be a "loan" to him to be repaid in the event of his reinstatement with backpay. Respondent argues that the said sum of $4,880 was actually paid to San Miguel for services rendered to the Union. The only evidence to support this position is San Miguel's testimony as to some organizational work he did for the Union. Said testimony is correctly outlined in Respondent's brief as follows: With respect to assisting and/or performing services for or on behalf of the Union, Mr. San Miguel testified to the following: 1. Approximately one and one-half to two months after his discharge, San Miguel traveled to the Company's plant in Victoria, Texas to pass out leaflets encouraging the Company's employees to sign UAW authorization cards. Mr. San Miguel testified that he passed out leaflets at the Victoria plant on two occasions for "two days or something like that." 2. Mr. San Miguel testified that following his discharge from the Company's San Antonio plant and to the present time he has actively encouraged employees at the San Antonio plant to sign Union authorization cards. Mr. San Miguel stated, however, that he was not actively working on behalf of the Union, but, rather, was actively working on behalf of the people themselves. In this connection, Mr. San Miguel testified that he "would go and talk to the people, and [he ] would ask the people to ask Roy [Hernandez ] for the cards." 3. Mr. San Miguel admitted performing Union organizational work at Comanche Steel. He testified that approximately three weeks after he commenced working for Comanche Steel he contacted UAW Organizer Juan Diaz and set up a meeting with his co- workers. At the meeting San Miguel's co-workers signed Union authorization cards. It has been stipulat- ed that the UAW petition for an election at Comanche Steel was filed August 16, 1971, and that August 17, 1971 was the last day that San Miguel worked for Comanche Steel. It was further stipulated by the parties that San Miguel started working for Comanche Steel on July 12, 1971. San Miguel credibly testified that the type of job he had consisted of cutting steel which was more onerous work than that he performed for Respondent, that he received $1.70 an hour from Comanche, and that he quit because he was offered a job as a carpenter's helper at $3 an hour. It is found that the fact that he quit his job the day after the petition was filed was a mere coincidence. It is concluded that there is insufficient evidence to permit the inference that the monies paid by the Union were compensation for services rendered to the Union. As General Counsel pointed out in his brief, considering the amount of time San Miguel spent in organizing efforts for the Union to conclude that the $4,880 were paid to him for engaging in such activity would have "surely established San Miguel as one of the highest paid organizers of all time." Obviously, the sums of money received by San Miguel had no relationship to the efforts he spent on behalf of the Union and therefore could not have been intended as compensation to him for services rendered. Respondent further argues that the monies could not have been a loan, because under the "Labor Management Reporting and Disclosure Act" the Union was required to make a report of loans made to its members and it is stipulated that such a report was not made under said Act. Respondent contends that in view of the failure to make the report, the Union did not consider the monies paid to San Miguel to be a loan. There is no testimony in the record from a representative of the Union as to why such a report was not made. Whatever the reason, it does not appear that the failure to make the report in anyway altered the understanding between the Union and San Miguel that the money would be repaid in the event he was reinstated with backpay by Respondent. True, the ad- vances made to San Miguel did not bear all of the characteristics of a normal loan in that interest was not required and repayment was not unconditional. What they appear to have been, however, are advances of monies against recovery of backpay from Respondent. It is noted there is no evidence that the Union treated them as wages or compensation for services, since there is no showing that it made the required withholdings applicable to earnings, such as for taxes and social security. In all of the circumstances, it is concluded that the advances totalling $4,880 made by the Union to San Miguel cannot be considered as interim earnings, My Store, Inc., 181 NLRB 321, 326, 329. Therefore, it is concluded that the net backpay due to Victor San Miguel is the amount of $4,271.50, as set forth hereinabove. Benito Perez-No purpose would be served in setting forth a summary of the backpay computation for Perez in view of the findings and conclusion herein below. Perez testified that about a week after he was discharged he started to look for employment. It appears that he found work immediately. The General Counsel accurately sum- marizes in his brief the facts material to the issue with respect to the backpay due to Perez. In his brief the General Counsel states: The record reflects that Benito Perez went to work at B. B. Saxon Company, Inc. the week after he was discharged; that he had worked [there] prior to going to work for Respondent; and that he quit his employment after working one week for Saxon. Perez gave as his GARY AIRCRAFT CORP. reason for quitting his employment with Saxon, "I just didn't like to work there". The record further reflects that Perez was perform- ing substantially equivalent work at Saxon as he did with Respondent, and that he was earning $1.90 per hour at Saxon .4 In his brief, General Counsel argues as follows: It is clear that Benito Perez voluntarily quit substantially equivalent employment with B. B. Saxon Company, Inc. It does not follow, however, as Respondent contends that Respondent's liability to Perez is forevermore cut off thereafter. The Board has held in East Texas Steel Castings Company, Inc., 116 NLRB 1336, 1347-48 (1956) that: Assuming, however, that (claimant] quit some of these [interim] jobs without a justifiable reason, we still cannot subscribe to the Respondent's theory that a voluntary quitting of employment ... necessarily constitutes a loss willfully in- curred which bars the claimant from recovery of any back pay for a whole period of discrimination rather than for the periods of the voluntary idleness of the discriminatee during which he was out of the labor market. In that case the discriminatee was barred from recovery of backpay only for the period of voluntary idleness that he was out of the labor market, and backpay resumed when he reentered the labor market. Here it is undenied that Perez immediately reentered the labor market, actively sought employment and was employed in a training program where he not only earned wages but also developed craft skills enabling him to eventually secure a higher rate of pay than he ever had with Respondent. Accord: Associated Trans- port Company of Texas, Inc., Etc., 194 NLRB 62, 73-74 (1971). On the other hand, Respondent argues as follows: In sum, it is respectfully submitted that Respondent Company's backpay obligation is tolled to the extent of the earnings that Claimant Benito Perez would have earned had he not quit his interim employment with B. B. Saxon; ... . It appears that, had Perez not quit his employment at Saxon, he would have continued to earn more than he would have earned had he remained in the employ of Respondent. General Counsel apparently misunderstands the issue. The issue is not whether, or how long, Perez' backpay is completely tolled because he unjustifiably quit his interim employment at Saxon and took himself out of the labor market, rather, it is whether or not for the duration of the backpay period the gross backpay computations for each quarter should be offset by the amount of money he would have earned had he remained in the employ of Saxon. It appears to be well established that when a claimant unjustifiably quits an interim job, as Perez did, there is an 557 offset for the remainder of the backpay period of the amount he would have earned had he retained his interim employment. This is clearly set forth in Knickerbocker Plastic Co., Inc., 132 NLRB -1209, 1215. In said case the Board states as follows: We further find that, as a result of such quitting, each of these claimants shall be deemed to have earned for the remainder of the period for which each is awarded backpay the hourly wage being earned at the time such quitting occurred. Therefore, an offset computed on the appropriate rate per hour will be deducted as interim earnings from the gross backpay of each of these claimants. This offset shall be made applicable from the date of the unjustified quitting throughout the remainder of the backpay period for each particular claimant. In this connection, where the claimant has secured other employment during the time the offset is applicable, and if, on a quarterly basis, she earned a greater amount than the offset, the offset will not be applied, but the actual interim earnings will be deducted from gross backpay. If she earned less than the offset at employment secured subsequent to the quitting, also on a quarterly basis, the amount of the offset will be applied. Thus, it is concluded that throughout the backpay period for Perez an offset is applicable for each quarter against his gross backpay of the amount he would have earned had he remained at Saxon. Since the offsets are in excess of the amounts of the gross backpay set forth in the specification for each quarter there is no money due to Perez for backpay. Joe M. Otero-The Respondent raised two issues with respect to the computation of the backpay due to Otero. First, Respondent argues that he did not make an "honest good faith effort" to secure interim employment subsequent to his discharge on September 14 for the remainder of the third quarter 1970 and the fourth quarter of 1970 and that, therefore, the backpay should be tolled during said periods. It appears from Otero's testimony that he started looking for work shortly after his discharge and sought employment with reasonable diligence at a number of places in September, October, and December. However, there is little evidence of any attempt on his part to secure employment during the month of November. When questioned about what he did in November, he testified that he did not recall what he did during that month to obtain employment. His testimony as to that month is extremely vague. It appears appropriate, however, to find that during the backpay period from September 14, 1970, to the end of the fourth quarter of 1970, as a whole, Otero exercised diligence in seeking interim employment. There- fore, it is found that the Respondent has not sustained the burden of proof that during said period the claimant did not make a good-faith effort to seek employment. Cornwell Company, Inc., 171 NLRB 342, 343. The second issue involves his discharge from interim employment. In February 1971 Otero obtained employment 4 It is noted that he was earning $1 .75 per hour at the time he was discharged by Respondent. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Jorrie's Furniture Company as a furniture refinisher. He was hired as a refinisher and worked at that job for 1 1/2 months, but then was transferred to the job of truckdriver's helper (assisting the truckdriver in delivering furniture). Otero credibly testified that he weighs only 130 lbs. and was unable to match the work of the heavier truckdrivers. Apparently he was terminated for his inabili- ty to cope with the job . Said job of assisting in the delivery of furniture was obviously not substantially equivalent to the one from which he was discharged by Respondent and it is found that he lost his job not because of any willful conduct on his part but because of his lack of physical qualifications for the work . Although in the course of the hearing the Respondent indicated that because of his termination by Jorrie's backpay should be tolled until he obtained other employment, in its brief the Respondent does not urge this contention . In any event, in view of the fact that his termination was from a job which was not comparable to the one from which he was discriminatorily discharged and that he did not willfully cause his discharge from Jorrie's, it does not appear that there is any basis for tolling Otero's backpay for the period after his discharge from Jorrie's until he secured other employment, as contended by Respondent. There is no dispute with respect to the computation of backpay for Otero for the remainder of his backpay period. Otero's backpay is therefore computed as follows: 3d Qtr. '70 Gross Backpay Due (2-3/5 wks. only) 130 hrs . @ $ 1.60 = $208 3d Qtr. '71 Net Backpay $148 4th Qtr. '71 Net Backpay $287 1st Qtr. '72 Net Backpay $ 9 2d Qtr. '72 Net Backpay $ 0 3d Qtr. '72 Net Backpay $ 80 4th Qtr. '72 Net Backpay $ 39 1st Qtr. '73 Net Backpay $ 86 2d Qtr. '73 Net Backpay $ 0 16 add. hrs. @ 30c per hr. 5/21-5/22/73 $ 5 TOTAL NET BACKPAY $2,633 Less Interim Earnings 0 Net Backpay $208 4th Qtr. '70 Upon the foregoing findings of fact, conclusions of law, Gross Backpay Due and upon the entire record, and pursuant to Section 10(c) 733 hrs. @ $1.60 = $1,173 of the Act, I hereby issue the following recommended: Less Backpay for Nov. 0 SUPPLEMENTAL ORDERS Net Backpay $1,173 1st Qtr. '71 Gross Backpay Due 79 hrs. @ $1.60 = $126 435 hrs. @$1.70 = 740 $866 Less Interim Earnings Jorrie's Furniture Co. 304 Net Backpay $562 2d Qtr. '71 Gross Backpay Due 241 hrs. @ $1.70 = $410 280 hrs. @ $1 . 75 - 490 $900 Less Interim Earnings Jorrie's Furniture Co. $224 Springfield Maintenance 640 864 $ 36 Respondent, Gary Aircraft Corporation, its officers, agents, successors, and assigns, shall: 1. Pay each of the discriminatees named herein as net backpay the amounts set forth below: Joel Estala, $2,415; Vincent Paredes, $148; Victor San Miguel, $4,271.50; and Joe M. Otero, $2,633. 2. Pay to the Regional Director for Region 23 the sum of $226, the tentative amount of backpay found to be due to Lloyd Wright, to be held by said Regional Director in escrow pursuant to the recommendations set forth hereina- bove. 3. In addition to the above amounts , pay interest at the rate of 6 percent per annum computed on the basis of each 1 S In the event no exceptions are filed as provided by Sec. 102.46 of the 'Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Supplemental 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. GARY AIRCRAFT CORP. 559 quarterly amount of net backpay due less any tax backpay due to Benito Perez, the Respondent is not withholding required by law. 'ordered to pay any money to said discriminatee. It having been found hereinabove that there is no