McCann Steel Co., Inc.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCann Steel Company, Inc. and Shopmen's Local Union No. 733 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and J. C. Hindsley. Cases 26-CA-3661 and 26-CA-3717 June 28, 1974 DECISION ON REVIEW BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 23, 1971, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding,' finding, inter aba, that Respondent had discriminatorily discharged J. C. Hindsley in vio- lation of Section 8(a)(1) of the National Labor Rela- tions Act, as amended. Respondent was directed to make an offer of immediate and full reinstatement to Hindsley to his former or a substantially equivalent position and to make whole Hindsley for any loss of earnings resulting from the discrimination. On July 6, 1972, the United States Court of Appeals for the Sixth Circuit entered its judgment enforcing in full this as- pect of the Board's Order. Thereafter, pursuant to a backpay specification and appropriate notice of hearing issued by the Acting Regional Director for Region 26, a hearing was held before Administrative Law Judge Thomas S. Wilson for the purpose of determining the amount of backpay due Hindsley. On January 18, 1973, the Administra- tive Law Judge issued his Supplemental Decision in which he found that Hindsley was entitled to the amount of money set out in the specification, i.e., $4,967, upon which interest was to be paid at the rate of 6 percent per annum, minus the tax withholding required by Federal and state laws. Thereafter, Re- spondent filed exceptions to the Supplemental Deci- sion and a supporting brief, and counsel for General Counsel filed an answering brief. The Board on May 18, 1973, issued its Supplemen- tal Decision and Order in which it affirmed the Ad- ministrative Law Judge's decision that Respondent owed Hindsley $4,967 in backpay, while modifying the Administrative Law Judge's rationale for so find- ing? Thereafter, Respondent filed with the United States Court of Appeals for the Sixth Circuit a petition for review of the Board's Supplemental Decision and Or- der, and the Board filed a cross-application for en- forcement of its Supplemental Decision and Order. On January 8, 1974, the court of appeals remanded ' 190 NLRB 12 '203 NLRB No 115 the case to the Board for,clarification of its decision in two pertinent parts,' and on March 12, 1974, the court denied the Board's petition for rehearing. Thereafter, on April 18, 1974, the Board notified the parties that it had decided to accept the remand from the court of appeals and to clarify its order consistent therewith. The parties were notified they would re- ceive copies of whatever order the Board issued in light of the court's remand. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reconsidered the record, including the Administrative Law Judge's Supplemental Deci- sion, the exceptions and briefs filed with respect there- to, and its own Supplemental Decision and Order, and hereby reaffirms the conclusions reached in its Supplemental Decision and Order and reaffirms that the amount of backpay owed J. C. Hindsley by Re- spondent is $4,967. In its order of remand, the court of appeals stated: . . . the Board found the Company to be indebt- ed to J. C. Hindsley in the amount of $4,967, with interest, less tax withholdings, for backpay. The Company contended that Hindsley willfully incurred a loss of earnings by failing to work the full number of hours he could have for his inter- im employer and by taking a leave of absence from that employer. The Board correctly im- posed the burden of proof upon the Company to show the amount by which the gross backpay should be diminished because of the claimed willful loss of earnings, and found that it had failed to meet its burden of showing that Hindsley's interim employer had work available that Hindsley declined to perform. From the record, viewed as a whole, it is un- clear whether [1] the Board considered the fact that Hindsley's fellow draftsmen worked over- time during several pay periods [presumably the court was referring to the third and fourth quar- ters of 1971 and the first quarter of 1972] when he failed to work the basic 40 hours, and whether [2] any credit against the gross backpay was al- lowed for self-employment when the same activi- ty would be compensated if performed for another employer. With regard to the first issue raised in the court's remand order, the Board in its Supplemental Decision and Order did specifically consider the fact that other 3 489 F 2d 1328 (C A 6, 1974) 212 NLRB No. 39 McCANN STEEL CO., INC. 395 draftsmen at Englert worked overtime during several pay periods when Hindsley did not work 40 hours. Specifically, the Board stated that Englert's records showed that Hindsley "worked a lower number of straight-time hours than the other employees in his job category during the latter part of 1971 and the first quarter of 1972, and that Hindsley worked no over- time during this period while his fellow employees did." Nevertheless, the Board concluded that this fail- ure to work a 40-hour workweek while others may have worked overtime did not indicate, in the circum- stances of this case, that Respondent's backpay liabil- ity should be lessened. We here reaffirm this conclusion. We must, of course, start with the basic premises: (1) that the burden of proof to show the amount by which the gross backpay should be diminished be- cause of a claimed willful loss of earnings rests with Respondent,4 and (2) that any uncertainties in the record must be resolved against the wrong-doer.' Considering the evidence in this light, we find the record fails to show whether work with Englert was available to Hindsley at those times he was not pres- ent and therefore fails to show that Hindsley willfully incurred a loss of earnings that should be subtracted from the gross backpay figure. Specifically, we note, as we did in our Supplemental Decision and Order, that Respondent presented no direct evidence that Hindsley ever refused to do an available straight-time job or that there was work available for Hindsley at those times he was not pres- ent at Englert. We note again that, although Respon- dent called Hindsley's supervisor at Englert as its witness, it did not attempt to elicit from him answers to these issues which we deem crucial, but rather con- fined itself to questions which elicited only general responses that the work in the backpay period was a "steady amount" and that work was assigned in a rotation manner wherein when one finished one job he was assigned "the next available job." While Hindsley himself incorrectly testified that he thought he had worked "close to" a 40-hour week at Englert up to January 1972,6 he was never confronted with his time records nor asked why he did not work full straight time in the latter part of 1971 and in the first quarter of 1972. He did respond to a question as to why he did not desire to work overtime during this period,' but no questions were presented as to his reasons for not working full straight-time; whether he was ever reprimanded for not doing so;8 or whether there was work for him on a straight-time basis that he ever refused .9 We are left then with an uncertain record regarding the availability of work for Hindsley in September through December of 1971 and the first quarter of 1972. In such circumstances, we do not think Re- spondent has sustained its burden of proving a willful loss of earnings on Hindsley's part ,as it has alleged. With respect to the second point raised in the court's remand order, we note that in April 1972 Hindsley requested a leave of absence from his inter- im employer, Englert Engineering Co., in order to become self-employed. Hindsley remained self-em- ployed until June 29, 1972, the time of his reinstate- ment at Respondent. The backpay specification shows that in the second quarter of 1972 Hindsley received $102.69 in wages from Englert and that he earned $922.20 during that period working for him- self.1° Further, the backpay specification shows that both of these sums were duly credited against the backpay owed in arriving at a sum of $4,967. We reaffirm here our Supplemental Decision and Order that the backpay owed Hindsley is the sum of $4,967, with interest less tax withholdings. 6 The records indicate that from September 1971, when overtime was reinstated, until April 1972, when Hindsley took his leave of absence Hmds- ley averaged about 25 hours per week , and the other employees who worked there over that 7-month period averaged about 40-1/2, 48, and 51- 1/2 hours per week. ' His wife was ill and the doctor recommended someone be with her during this time S In this regard, we note that Hindsley's supervisor at Englert recommend- ed him for raises in January 1971 and 1972. 9 In this regard, we think it highly unlikely that Englert would have tolerat- 4 Marlene Industries Corporation, et a! v. N.L.R.B, 440 F.2d 673 (C.A. 6, ed for some 7 months a situation where Hmdsley's failure or refusal to do 1971). available work compelled it to pay overtime to others as it did. 5 NL.RB. v Mianu Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 10 Respondent does not dispute the accuracy of Hindsley's reported earn- 1966) ings from his entry into self-employment in 1972.