Valley Mold Co., Inc.

VALLEY MOLD COMPANY Valley Mold Company, Inc. andDistrict Lodge No. 13 of the International Associ„ition of Machinists and Aerospace Workers, AFL-CIO. Cases 9-CA-5745 and 9-CA-5811 December 3, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 24, 1971, the National Labor Relations Board issued its Decision and Order directing that Re- spondent make whole certain employees for their losses resulting from Respondent's unfair labor practices in discharging or laying them off in violation of Section 8(a)(3) of the National Labor Relations Act, as amended.' On December 16, 1973, the Regional Di- rector for Region 9 issued a backpay specification and notice of hearing, to which Respondent duly filed an answer. A hearing was held before Administrative Law Judge George J. Bott on January 29 and 30, 1974, at Moraine, Ohio, for the purposes of determining the amount of backpay due the discriminatees. On May 13, 1974, Administrative Law Judge Bott issued the at- tached Supplemental Decision, in which he found that the discriminatees were entitled to backpay as set forth opposite their names in the Administrative Law Judge's recommended Order. Thereafter Respond- ent filed exceptions and a supporting brief. 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 considered the record and the at- tached Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, find- ing:,, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Valley Mokl 1 191 NLRB 498 2 In adopting the Administrative Law Judge's conclusion that Respondent was not denied due process, we note especially the fact that as an &d- Iudicated wrongdoer, the burden was on the Respondent to show any reduc- tion in its backpay obligation The Board's rules provide an adequate proce- dure to protect Respondent's rights Having failed to seek a continuance at the close of General Counsel's case to seek further evidence other than through the deposition procedure and having demonstrated an unwilling- ness to abide by the procedures provided by the Board, Respondent cannot now convincingly argue that it has been denied due process in any way, or that it has been prejudiced by the application of the Board's rules in this proceeding 211 Company, Inc., Englewood, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. SUPPLEMENTAL DECISION STATEMENT OF THE CASE GEORGE J. Borr, Administrative Law Judge: On June 24, 1971, the Board issued its Decision and Order directing that Respondent make whole certain employees for their losses resulting from Respondent's unfair labor practices in dis- charging or laying them off in violation of Section 8(a)(3) of the National Labor Relations Act, as amended.' The Board's Order was subsequently enforced by the United States Court of Appeals for the Sixth Circuit on October 26, 1972. Controversy having arisen over the amounts of backpay due under the terms of the Board's Order, on December 16, 1973, the Regional Director for Region 9 issued a backpay specification and notice of hearing. On December 28, 1973, Respondent filed an answer. A hearing was held before me at Moraine, Ohio, on Janu- ary 29 and 30, 1974. Briefs have been received from General Counsel and Respondent. Upon the entire record in the case and upon my observa- tion of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I PROCEDURAL MATTERS AND RESPONDENT'S DUE PROCESS CONTENTION The case involves 8 backpay claimants who were found to have been discriminatorily discharged by Respondent in Au- gust 1970 and 17 claimants who were found to have been discriminatorily laid off for a short period of time in June 1970.2 The backpay specification issued on December 14, 1973, and on December 28, 1973, Respondent filed an answer in which it stated in regard to ill the claimants that it was "without knowledge or information sufficient to form a belief as to the amounts of net interim earnings, the extent to which the attempt to mitigate loss of earnings was timely, and the extent to which the amounts claimed represent other than a willful failure to minimize loss of earnings...." On January 4, 1974, Respondent filed with the Regional Director for Region 9 an application for the taking of deposi- tions of the eight persons who had been found to have been discriminatorily discharged.' The application noted a desire to take the depositions before a notary public in the office of Respondent's counsel, and stated that the persons sought to be deposed would be examined on interim earnings and their efforts to mitigate loss of earnings. The Regional Director issued an order denying Respon- dent's application to take depositions on January 10, 1974, on the ground that good cause for the taking of depositions had 1 191 NLRB 498 2 Six of the dischargees were also laid off in June and are included in the 17 3 Glen Bowen, Mary Dafler, Shirley Hangen, Joanne Innis (Knox), Do- rothy Johnson, Arthur E . Strange, Kathelene Strange, and Lana Woodgeard (Moore). 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not been shown as required by Section 102.30 of the Board's Rules and Regulations, Series 8, as amended, in that the application did "not appear to be based on the illness or unavailability of the witnesses," and the witnesses "reside within reasonable proximity of the place of hearing **'' 1 1 The Regional Director in his order also stated that what Respondent was actually seeking was "full pre-trial discov- ery," which the Board has held, with court approval, it will not permit in unfair labor practice cases.' As already indicated, the heanng took place before me on January 29 and 30, 1974. At the commencement of the hear- ing, Respondent reiterated its objection to proceeding with the hearing based on the Regional Director's denial of its request to depose the claimants. General Counsel advised me that all of the claimants were present and were available for cross-examination, and I overruled Respondent's objection. At the hearing General Counsel called as his witnesses all of the eight claimants whom Respondent had sought to depose and, having examined them briefly on their interim earnings and efforts to find employment, turned them over to Respondent's counsel for cross-examination. On cross-exami- nation the claimants testified to having made unsuccessful attempts to obtain employment at 29 different businesses.' After General Counsel had rested. his case-in-chief, Re- spondent moved for a continuance in order to take deposi- tions from the employers whom the claimants had named as employers where they had sought employment, and also moved that, at a later date, after said employers had been deposed, the hearing be reconvened and the claimants brought back for further cross-examination.6 General Counsel opposed Respondent's motion, and I de- nied it. In denying Respondent's motion I commented that the motion was being considered in "its broadest aspects" as counsel had stated it, noting further that Respondent now wanted to depose all persons named by the claimants and have the claimants return for further examination on the basis of what might be discovered through the deposition procedure. Upon denial of Respondent's motion, counsel for Respondent declined to go forward on the ground that he felt that he could not adequately defend Respondent because he had been denied a reasonable opportunity to present a de- fense. Respondent filed a brief with me in which it repeated its arguments that it had been deprived of due process of law by being refused an opportunity to take depositions and to have the hearing continued, and it asked me to reconsider my ruling. Although Respondent had not asked only for time to investigate the claimants' assertions that they had looked for work at various establishments and for an opportunity to present evidence on that issue at a reopened hearing, but had instead reiterated its claim to a deposition procedure, never- theless, on February 27, 1974, I wrote counsel for Respond- ent and advised him that I would entertain a motion to reopen 4 On January 23, 1974, Respondent filed with the Regional Director objections of Employer to order denying application to take depositions, to which counsel for the General Counsel responded on January 25, 1974 5 The claimants also noted the existence of two union staff members and two other persons who could corroborate their testimony about their job- seeking efforts 6 Counsel also included in his motion a request that the hearing be con- tinued to such time as the testimony could be transcribed and counsel had an opportunity to read what the claimants had testified to. the record for "a limited purpose," that is, to take evidence from any employer named by the claimants. I also stated that although a deposition procedure requested by Respondent would not be followed, subpenas would be available to Re- spondent, if the hearing were reopened, to insure the attend- ance of employer witnesses at the hearing. On March 14, 1974, Respondent filed a motion to reopen the record, which I denied in a ruling made on March 20, 1974, on the ground that Respondent's motion to reopen and the motion it made at the close of General Counsel's case-in- chief were essentially identical.7 In my ruling I repeated that I would, however, reopen the record to take admissible evidence from any person or employer involved in, or claimed to be involved in, the claimants efforts to secure employment. I pointed out that the additional hearing, if held, would be pursuant to the Board's Rules and Regulations, and that subpenas would be available to Respondent prior to the hear- ing. I also indicated that at the hearing I would consider Respondent's request to recall the claimants if it were made after Respondent had introduced any evidence it had bearing on the claimants efforts to secure interim employment. On March 27, 1974, Respondent filed a motion to reopen the record "under protest," and it indicated in an accom- panying letter that it would petition the Federal district court, at Dayton, Ohio, for injunctive relief On April 2, 1974, I issued an order reopening the record for additional hearing to be held at Moraine, Ohio, on April 16, 1974, for the limited purposes previously stated by me. On April 5, 1974, Respondent filed a complaint in the Federal District Court for the Southern District of Ohio, Western Division, and sent me a copy of it along with a motion to suspend hearing date. In its complaint and applica- tion for injunctive relief, Respondent asks the court to issue an injunction ordering that "the Administrative Law Judge (1) postpone the reopening of the hearing for a reasonable time in order to accord Plaintiff sufficient time in which to accomplish the requisite investigation, (2) permit the taking of depositions in the matter, (3) issue subpoenas to all claim- ants requiring their appearance at the re-opened hearing." On April 11, 1974, for the reasons stated therein, I issued an order withdrawing order reopening record for additional heanng and closing record. A copy of that order is attached hereto as Appendix. Respondent contends that it has been deprived of its consti- tutional right to a fair trial by the action of the Regional Director in denying its application to take depositions from the claimants prior to trial and by my denial of its motion for a continuance at the end of General Counsel's case to enable it to take depositions from employers or any other person having evidence bearing on the claimant's efforts to secure interim employment. I find no merit in this contention for the following reasons: First. Parties to judicial or quasi-judicial proceedings are not entitled to pretrial discovery as a matter of constitutional right,' and the Regional Director's action was in accord- 7 One of the purposes for reopening stated in the motion was, "To author- ize the issuance to Respondent of subpoenas for the purpose of discovery in the nature of that allowed under the Federal Rules of Civil Procedure, including the taking of depositions " 8 NL.R B. v Interboro Contractors, Inc, 432 F 2d 854 (C A 2, 1970) VALLEY MOLD COMPANY ance with Board policy approved by the courts.' Since the witnesses (claimants) whom Respondent wished to depose were not unavailable and all lived reasonably close to the hearing site, it would be no burden on anyone to have them present at the hearing if necessary to testify . As appears, infra, they did appear and were cross -examined by Respond- ent. I find that the Regional Director did not abuse his discre- tion by denying Respondent's application. Second . Respondent was not prejudiced by the rulings of the Administrative Law Judge but was in fact afforded more opportunities to prepare its defense than the law requires. As stated, each of the principal claimants whom Respondent sought to depose appeared and each of them was cross-exam- ined at length 10 After the claimants had disclosed the names of the employers at which they sought work after they had been discharged by Respondent, the most that Respond- ent was entitled to was a continuance for a reasonable period of time to enable it to investigate the witnesses' claims, but it was not entitled to depositions after the close of General Counsel's case for essentially the same reasons on which I have found the Regional Director 's denial of discovery proper, that is, (1) discovery through depositions is not a required practice in Board proceedings , and (2) there was no showing that the employers or other persons the witnesses had contacted in their efforts to get work would not be availa- ble for trial." Respondent did not, however, request a continuance to conduct an investigation, but asked instead for a continuance to take depositions from employers of other persons who might have some evidence relating to the claimants ' efforts to secure employment, a procedure it was not entitled to as a matter of right . A motion that the hearing be continued for a reasonable period of time so that Respondent might investi- gate what the claimants had testified to would have been granted, but, in my opinion , the motion made, including as it did a requirement that depositions be taken and the claim- ants be recalled at some indefinite time for additional exami- nation, was properly denied. Although Respondent did not make a specific , unqualified request for a continuance for investigative purposes , neither did I offer Respondent that opportunity . That Respondent's failure to limit its choice was not an oversight is apparent from its later actions , as described above, including its quali- fied motions to reopen the record and its action in the Federal court, but, in any case, subsequently I twice offered Respond- ent an opportunity to call any employer or other person to a reopened hearing, with subpenas available to insure their attendance, to testify on the subject of the claimants' efforts 9 NL R B v Interboro Contractors, Inc, supra, 858, Globe Wireless, Ltd., 193 F 2d 748, 751 (C A 9), Richard W Kaase Company, 162 NLRB 1320 (1968), 1321 fn 3, B B SA., d/b/a Burger Boy Food-O-Rama, 164 NLRB 975 (1967) See also Raser Tanning Company, 276 F 2d 80, 83 (C A 6, 1960) 10 All of the persons discriminatorily laid off were also available in the courtroom for cross-examination, and some were called to testify by Gen- eral Counsel on another issue 11 NLR.B v Interboro Contractors, Inc., supra See also N.L.R B v Miami Coca-Cola Bottling Company, 360 F 2d 569, 576 (C A 5, 1966) One of the claimants worked at an unidentified "body shop" in Tampa, Florida, before he was reinstated by Respondent, but this is an insignificant detail in the broader picture of Respondent's insistence on a general right to have discovery Moreover, as appears below, I have allowed Respondent a credit for the wages which that claimant earned at said employer 213 to find work, and I also indicated that the claimants might be required to testify again under certain conditions. But these terms did not satisfy Respondent, as its whole course of conduct shows, and finally, convinced that Respondent is unwilling to participate in a reopened hearing without first going the deposition route, I revoked my order reopening the hearing. I am in total agreement with Respondent that procedural due process requires a "meaningful hearing," 12 but we di- verge at the point where Respondent maintains that only through a deposition procedure in a backpay case can it receive a fair hearing. Insistent on such a procedure, Re- spondent has neglected another method, namely, a continu- ance for a reasonable time and the use of subpenas Having elected to maintain its position on depositions in disregard of another no less meaningful way of proceeding, Respondent cannot fairly contend that it was deprived of a fair hearing. Third Respondent's argument that a deposition procedure must be used because the alternative is more inconvenient, inefficient, and costly is not impressive." According to Re- spondent, if depositions are not permitted it would have to subpena to the hearing every individual in every company named by the claimants who "might" be a person contacted by a claimant or have information about which of his fellow employees might have been contacted. Respondent does not make it clear why it cannot investigate first and subsequently subpena to the hearing the actual person who has admissible evidence to offer. Respondent also maintains that a large number of compa-' nies whose personnel might have been deposed on the com- pany premises at a convenient time will be put to the expense and inconvenience of having their personnel appear under subpena at a hearing if depositions are not allowed, but this argument overlooks the fact that the General Counsel and each claimant are also entitled to appear at any deposition taking, an inconvenience and expense greater by far than that which would be incurred by any single company whose re- presentative appeared under subpena. Finally, the contention ignores an important consideration, namely, that the persons deposed would still have to appear before the Administrative Law Judge if credibility resolutions are necessary, a needless duplication of effort and expense. In my opinion, whatever merit there may be in the sugges- tion that Respondent be given before hearing more informa- tion than it is normally supplied about the claimants' efforts to secure interim employment, a discovery practice after the claimants have testified is certainly no less expensive and no more efficient than the Board's present practice, and it is no doubt slower. For the reasons stated, and on the basis of the whole re- cord, including Respondent's failure to request a continuance for investigative purposes at the end of General Counsel's case, its election twice not to unqualifiedly request that the hearing be reopened under the terms that I had laid down in my various communications and rulings, and its continued insistence on obtaining a broad deposition procedure, all of which factors have unduly delayed a final disposition of the case, I find that Respondent has not been deprived of due 12 Morgan v United States, 304 U S 1, 18-19 13 This contention is found in Respondent's letter to me dated March 27, 1974, which accompanied its motion to reopen the record 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD process of law by the rulings of the Administrative Law Judge in not granting Respondent's requests to take depositions 11 CONTENTIONS AFFECTING MORE THAN ONE CLAIMANT A. Accuracy of the Computations The backpay specification set forth a formula for measur- ing the average weekly earnings of discriminatees Glen Bowen, Mary Dafler, Shirley Hangen, Joanne Innis (Knox), Dorothy Johnson, Arthur E. Strange, Kathelene Strange, and Lana Woodgeard (Moore). It also gives a detailed breakdown of the gross backpay each of said discriminatees would have earned from Respondent absent the unlawful discrimination, as well as the interim earnings of these employees, and con- cludes with the net backpay alleged to be due each individual. At the hearing, counsel for Respondent stated that, using the same method the Board had used in determining weekly average pay, his computations revealed that Bowen's weekly average was $118.93 instead of $133.80, as set forth in the specifications, resulting in a deduction of $952.88 in Bowen's net backpay. Counsel also claimed that the specifications incorrectly stated the third quarter of 1970 estimated earn- ings of Dorothy Johnson, Arthur Strange, Kathelene Strange, and Mary Dafler in that they worked fewer weeks in that quarter than stated in the specification. Respondent having specifically disputed the accuracy of General Counsel's figures and having been permitted to amend its answer accordingly, an issue was raised as to the accuracy of the specification in that regard, and it was then General Counsel's burden to go forward with evidence to show, if he could, that the amounts set forth in the specifica- tion were correct. Having failed to do this, I will deduct appropriate amounts from any backpay due said claimants." B. Discriminatees Who Engaged in the Strike From August 27 through September 14, 1970, union ad- herents at Respondent's plant were on strike. The record indicates that discriminatees Johnson, Arthur Strange, Kathelene Strange, Dafler, Bowen, and Hangen, who were discriminatorily discharged prior to the strike, participated in the strike, and Respondent contends that since they would not have been available for work during the strike, their backpay should be tolled for that period. Respondent's con- tention is contrary to established Board policy, and I reject it.15 C. Employees Discriminatorily Laid Off between June 23 and June 29, 1970 This group of 17 employees lost 3 or 4 days' work during the week in question as a result of the discrimination against them, but Respondent claims that because the Respondent installed a 6-day week and continued it after they were re- turned to work, all discriminatees recouped their lost time 14 Sec 102 54 and 102 57, Board's Rules and Regulations, Series 8, as amended Mastro Plastics Corporation, 136 NLRB 1342, 1346 (1962) 15 Winn Dixie Stores, Inc, 206 NLRB 777 (1973), Sunshine Hosiery Mills, 1 NLRB 664 and money within 3 or 4 weeks. It claims that on that account nothing is due them. I find no merit in Respondent's contention. Since the,em- ployees lost wages as a result of the discrimination, the proper measure of their loss is the wages they would have earned if they had not been discharged, less net earnings . Moreover, Respondent's contention is completely inconsistent with the terms of the Board's Order which was enforced by the court of appeals.16 III THE INDIVIDUAL CLAIMS A. Controlling Principles The law is well settled that the "finding of an unfair labor practice . is presumptive proof that some backpay is owed,"" and the General Counsel' s burden is limited to showing "what would not have been taken from [the employees] if the Company had not contravened the Act."18 Another court described the allocation of the bur- den as follows: ... in a backpay proceeding the burden is upon the General Counsel to show the gross amounts of backpay due. When that has been done, however, the burden is upon the employer to establish facts which would nega- tive the existence of liability to a given employee or which would mitigate that liability.19 The failure of a discriminatorily discharged employee to make a reasonable search for employment constitutes an af- firmative defense to backpay liability.20 To carry his burden successfully in this area an employer must prove "losses which [the employee] willfully incurred" and `clearly unjus- tifiable refusal to take desirable new employment."21 The burden has also been described as showing that an employee "fails diligently to search for alternative work,"22 or "Fail- ure . . . to make a reasonable search for interim work,"23 or did not make an "honest good faith effort" to find it.24 In seeking to mitigate his loss of income, an employee is held "only to reasonable exertion in this regard, not the highest standard of diligence. 1121 Respondent contends that Glen Bowen, Dorothy Johnson, Arthur E. Strange, and Kathelene Strange are not entitled to any backpay because they did not diligently seek to obtain interim employment. 16 Valley Mold, Inc., 191 NLRB 498 , 501, 502 (1971) 11 NL. R.B. v. Mastro Plastics Corporation, 345 F.2d 170, 178 (C.A. 2, 1965), cert denied 384 U S 972 (1966). l8 Virginia Electric & Power Co v NL.R.B, 319 U S. 533, 544 19 N.L.R B. v. Brown & Root, Inc., 311 F 2d 447, 454 (C A 8, 1963) 20 Marlene Industries Corporation v N.L.R.B., 440 F 2d 673, 674 (C A 6, 1971); N.L.R.B. v. Reynolds, 399 F 2d 668, 669 (C A 6, 1968), N.L.R.B. v Miami Coca-Cola Bottling Company, 360 F 2d 569, 575 (C A 5, 1966). 21 Phelps-Dodge Corp v NL.R B., 313 U.S 177, 198-200 22 N.L.R B v Mastro Plastics Corp., 345 F 2d 170, 174 (C A 2, 1965), fn. 3 23 N.L.R.B. v Miami Coca-Cola Bottling Company, supra, fn 20 at 575. 24 N.L.R.B. v. Cashman Auto Co, 223 F 2d 832 , 836 (C A 1). 25 NLR.B. v. Arduini Mfg. Co., 394 F.2d 420, 423 (C A. 1, 1968). VALLEY MOLD COMPANY 215 B. Glen Bowen Bowen was discharged on Ai gust 14, 1970, and offered reinstatement on March 13, 1973. After the second quarter of 1971, Bowen's interim earnings exceeded what he would have made working for Respondent and his claim, therefore, is based only on losses incurred prior to that time. In the third and fourth quarters of 1970 Bowen had no interim earnings, according to the specification, but in the first and second quarters of 1971, Bowen earned elsewhere as much or more as he would have earned at Respondent.26 Bowen testified credibly and without contradiction that shortly after his discharge he registered for unemployment compensation and applied for work at four different compa- nies in the area. He stated that he made applications only at places where he thought he had a reasonable chance of being employed, because he did not have funds for gasoline. He also testified credibly that he checked back with the four compa- nies he originally applied to. He said he turned no jobs down, and was available for employment at all times. As in the cases of the other discnmmatees, there is no evidence in the record that there were jobs available for them in the area for which they were qualified, or any evidence to contradict their testimony that they looked for work and turned none down. The facts that Bowen obtained employ- ment a little over 4 months after he was discharged and earned practically as much from that point as he would have earned if he had not been discriminated against makes Re- spondent's claim in Bowen's case appear frivolous, and I also credit his testimony that he registered for unemployment compensation, applied and reapplied for work at various companies, and was available for work. Respondent has not met its burden in Bowen's case.27 I conclude, therefore, that Bowen is entitled to $2,380.00 in backpay, with interest.28 C. Dorothy Johnson Johnson's backpay period began on August 14, 1970, and ended with an offer of reinstatement on March 13, 1973, which she accepted. She had no interim earnings during that period. yin direct examination by General Counsel, Johnson testi- fied that fromAugust 1970 to March 1973, she was available for and sought employment and turned no job down. She registered for unemployment compensation and received it. She said she found it difficult to get work in the Dayton, Ohio, area. On cross-examination Johnson added that she checked regularly with the city unemployment bureau in Moraine, Ohio, as well as the state unemployment office, during her absence from Respondent, and she listed eight employers at which she had applied for work after her discharge. She stated that she visited these companies personally and also made telephone calls to them at later times. Her contacts were spread out over the entire period of her unemployment, she said, her last application being in late December 1972. Johnson's testimony is uncontradicted, and I have no rea- son not to accept it as true Respondent's position in her case seems to be that since she had no earnings for such an ex- tended period, she could not have been looking for work. In a similar situation in Miami Coca-Cola Bottling Company, supra, the employer argued that the earnings of two em- ployees were so "incredibly low" that it made a prima facie case of wilful losses during the backpay period, and it invited the court to rule that an employer's proof of "incredibly low" earnings shifts to the General Counsel the burden of going forward with evidence that the discriminatees used reasona- ble efforts to find interim employment. The court held that it would "decline the invitation" because it was not practical, and it would significantly hamper the backpay remedy, if each discnminatee were required to prove the propriety of his efforts during the entire backpay period."29 In the instant case, Johnson testified credibly about her efforts to secure employment, and her lack of success in obtaining employ- ment does not impeach her testimony or relieve Respondent of its burden of proving facts to mitigate its liability.36 I find and conclude, therefore, that Dorothy Johnson is entitled to $12,560.18 in backpay, with interest, plus an amount of backpay for the period in June 1970, when she was discriminatorily laid off with other employees, as discussed below." D. Kathelene Strange Kathelene Strange's backpay period began with her dis- charge on August 17, 1970, and ended with an offer of rein- statement on March 13, 1973. She testified credibly that from the time of her discharge until June 1, 1972, when she and her family went to Florida looking for work, she was available for work and looked for it in the Dayton, Ohio, area. She listed five employers where she applied for work before she left for Florida, four of which took written applications She stated that she was out look_ng for work practically every week during that period and revisited the employers at which she had first applied. She listed her name with the Ohio Bureau of Employment Services and applied for unemploy- ment compensation, which she received for the full period. Mrs. Strange was unable to obtain any employment until she went to Florida on or about June 1, 1972. She remained in Florida for 9 months until she and her son Arthur were offered reinstatement by Respondent in March 1973, which they both accepted. During that period she was employed by three employers and earned $636.40. Respondent's position on Mrs. Strange is essentially the same as on Johnson's; having earned little or nothing, she could not have been diligently searching for work, but Re- spondent offered no evidence to establish this, and there was nothing in Strange's testimony or demeanor to cause me to 26 Based on Respondent's claim that Bowen's average pay at Respondent during the period used in the specification was $118 rather than $133 27 The only item that Respondent is able to point to in Bowen's case is the fact that he went hunting in Michigan with a friend in October 1970 28 Sum arrived at by deducting $952 from the amount set forth in the specification, based on Respondent's figures in regard to his average weekly rate. 29 Miami Coca-Cola Bottling Company, supra, fn 20 at 575 30 NL.R B v Cashman Auto Co, supra, fn 24, N.L.R B v Nickey Chev- rolet Sales, Inc, 85 LRRM 2826 (C A 7), decided February 27, 1974, Cornwell Company, Inc, 171 NLRB 342, 343 (1968) 31 The sum has been arrived at by crediting Respondent with $170 73 on the total set out in the specification on the basis of Respondent's figures regarding her gross backpay for the third quarter of 1970 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discredit her. I find that Mrs. Strange did make reasonable efforts to secure interim employment.32 I find and conclude, therefore, that Kathelene Strange is entitled to $11,692.68 in backpay, with interest, plus backpay for the time she lost during her layoff in June 1970." E. Arthur Strange Arthur Strange is Mrs. Strange's son. Having been fired at the same time as his mother, his backpay period runs from August 14, 1970, until he was offered reinstatement on March 13, 1973. Arthur Strange had no interim earnings from the time he was discharged until he went to Florida with his family in June 1972. While living in Florida, Strange found work at four different employers, earning approximately $2,700. When he was offered reinstatement by Respondent in March 1973, he returned to Respondent's employ, where he now works. Strange testified that he applied for unemployment com- pensation after his discharge, and also applied and reapplied for work at five different employers that he was able to name. He also testified that he "looked for more work than that" meaning, I infer, that he went to other establishments, but could not remember them. He also stated that he was looking and available for work from the time of his discharge to the end of 1971. In 1972, Strange went to Florida because his uncle told him he might find work there. The matter was not fully developed, but it appears that before he left for Florida, Strange applied to Respondent for work and actually did a small construction job for Mr. Earl Valley, Respondent's president. In addition, Strange sought work from and did odd jobs for a Mrs. Mason before he left for Florida. Respondent contends that Strange's low interim earnings establish wilful losses of earnings, but I am unwilling to so infer, contrary to his uncontradicted and credited testimony, for the reasons stated in Johnson's and Mrs. Strange's cases. I find and conclude, therefore, that Arthur Strange is enti- tled to backpay in the amount of $12,207.22, with interest." Dafler was discharged on August 14, 1970, and offered reinstatement on September 14, 1970. She testified that she was available for work and looked for it during that period. 32 Mrs Strange was a packer at Respondent. Another discriminatee (Lana Woodgeard) was hired by Hewitt Soap Company as a packer shortly after she was discharged , and Respondent argues that this indicates that Strange could also have been employed there if she really wanted a job There is no evidence in the record, however, that Hewitt Soap needed any more packers or that Strange knew that they did Actually, she testified that she did not It also appears from Woodgeard's testimony that she worked for approxi- mately a month only at Hewitt and was then laid off, an indication that the demand for labor at Hewitt was not good either 33 The figure in the specification has been adjusted by deducting $167 61 from gross backpay in the third quarter of 1970 on the basis of Respondent's figures for that period 34 The amount set forth in the specification has been adjusted to give Respondent credit for the sum of $916 which Strange earned at a "body shop" in Florida, which was not listed as interim earnings in the specifica- tion, and an additional amount of $86 34, based on'Respondent's calcula- tions, because of an error in the gross backpay listed for the third quarter of 1970 in the specification There is no evidence to contradict her testimony, and I find, therefore, that Dafler is due $238.17, with interest.36 G. Shirley Hangen Hangen registered for unemployment compensation, ap- plied for work at five different establishments, and was available for work during the period after her discharge on August 17, 1970, until she was offered reinstatement on September 14, 1970. Indicating the state of the labor market in the area in 1970, she said that she could not even get an interview at the places she applied for work There is nothing in the record to contradict Hangen's tes- timony, and I find, therefore, that she is due backpay in the amount of $277.96, with interest, plus an amount to cover the period of her layoff in June 1970. H. Joanne Innis (Knox) Discharged on August 17, 1970, and offered reinstatement on September 14, 1970, this discriminatee testified credibly and without contradiction that she applied for work at two companies and the state unemployment office, which sent her to another employer for a test. When the latter employer subsequently offered her a job, she left Respondent's employ. I find and conclude that Joanne Innis (Knox) is entitled to $299 in backpay, with interest, because of her discharge, plus a sum of money because of her layoff, as found below. 1. Lana Woodgeard (Moore) This employee was discharged on August 17, 1970, and offered reinstatement on September 14, 1970. She was also discriminatorily laid off for 3 days in June 1970. Respondent concedes that the record indicates that this discriminatee merits the full net backpay claimed. I find and conclude that she is owed $87.14, with interest, plus a sum of money to cover her layoff, as set forth below. J. The Discriminatory Layoffs Seventeen employees were discriminatorily laid off be- tween June 23, 1970, and June 29, 1970, and lost from 3 to 4 days work. General Counsel amended the backpay specifi- cation at the hearing to change the computations listed on page 9 of the specification. Sworn testimony from a number of employees was also taken supporting General Counsel's position. Respondent did not dispute the amended calcula- tions, but it has taken the position that the employees are entitled to nothing because their work week was extended after they were reinstated. I have previously rejected this contention.36 On the basis of the amended specification and on the entire record in the case, I find that the following individuals are due the amounts set forth after their names: 35 Figure in specification adjusted on the basis of Respondent's calcula- tions indicating error in gross backpay figure for third quarter of 1970 36 Sec II, C, above. VALLEY MOLD COMPANY 217 Hrs. Lost & Amount Name I Shif t Rate per Hr. Due Mary Dafler 1 22.5 @ 2.15 $48.37 Juanita Evans 2 31.5 @ 2.10 66.15 Evelyn Good 1 22.5 @ 2.15 48.37 Shirley Hangen 1 22.5 @ 2.15 48.37 Elmer Harden 3 24 @ 2.15 51.60 Joanne Innix (Knox) 1 22.5 @ 2.15 48.37 Dorothy Johnson 2 31.5 @ 2.15 67.72 Judith Mast 1 22.5 @ 2.15 48.37 Rita Mast 1 22.5 @ 2.15 48.37 Mary Meadows 3 24 @ 2.10 50.40 Ladonna Mefford 3 24 @ 2.15 51.60 Gloria Standafer 2 31.5 @ 2.10 66.15 Stella Stone 2 31.5 @ 2.15 67.72 Kathelene Strange 2 31.5 @ 2.15 67.72 Martha Williams 3 24 @ 2.15 51.60 Lana Woodgeard (Moore) 3 24 @ 2.00 48.00 Sylvia Watson 2 31.5 @ 2.00 63.00 A. As a Result of the Discriminatory Discharges Name Amount Glen Bowen $ 2,380.00 Mary Dafler 238.17 Shirley Hangen 277.96 Joanne Innis (Knox) 299.00 Dorothy Johnson 12,560.81 Arthur E. Strange 12,207.22 Kathelene Strange 11,692.68 Lana Woodgeard (Moore) 87.14 Each of the foregoing sums 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 (1962). There shall be deducted from each of the amounts 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 Ohio. RECOMMENDED ORDER37 On the basis of the findings and conclusions set forth above it is hereby ordered that Valley Mold Company, Inc., its officers, agents, successors and assigns, shall pay to the em- ployees involved in this proceeding as net backpay the amount set forth opposite their names. B. As a Result of the Discriminatory Layoffs Name Amount Mary Dafler $48.37 Juanita Evans 66.17 Evelyn Good 48.37 Shirley Hagen 48.37 Elmer Harden 51.60 Joanne Innis (Knox) 48.37 Dorothy Johnson 67.72 Judith Mast 48.37 Rita Mast 48.37 Mary Meadows 50.40 Ladonna Mefford 51.60 Gloria Standafer 66.15 Stella Stone 67.72 Kathelene Strange 67.72 Martha Williams 51.60 Lana Woodgeard (Moore) 48.00 Sylvia Wilson 63.00 37 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 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 APPENDIX ORDER WITHDRAWING ORDER REOPENING RECORD FOR ADDITIONAL HEARING AND CLOSING RECORD Following my letter dated February 27, 1974, advising Respondent's counsel that I would reopen the record in the case for a limited purpose, if a proper motion were filed, Respondent, on March 14, 1974, filed a Motion to Reopen the Record, which I denied on March 20, 1974, for the rea- sons stated therein, but in my Ruling, a copy of which is attached, I repeated that, upon request, I would reopen the record for certain purposes and under certain terms and con- ditions. On March 27, 1974, Respondent filed a Motion to Reopen the Record in which it stated, in part, that the motion was made "under protest" and "in accordance with the Ruling of Administrative Law Judge, George J. Bott, dated March 20, 1974, to reopen the record for the limited purposes described therein." In an accompanying letter, counsel for Respondent advised me, inter alta, that "Respondent will accept your invitation to move to reopen the record for the limited pur- pose and under the rules described in your letter of February 27, 1974 . . . ." However, in the letter, counsel continued to express dissatisfaction with the terms upon which I had ruled I would reopen the record and indicated that Respondent would petition the Federal District Court, at Dayton, Ohio, for injunctive relief. On April 2, 1974, I issued an Order Reopening the Record for Additional Hearing to be held at Moraine, Ohio, on April 16, in which I again tried to make it clear that the hearing would be conducted in accordance with my ruling on March 20, 1974. On April 8, 1974, I received from counsel for Respondent a copy of a complaint which Respondent had filed on April 5 in the Federal District Court for the Southern District of 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio, Western Division, and a Motion to Suspend Hearing Date. In a Memorandum attached to the Motion , Respond- ent states that it has filed "an Application for Injunctive Relief from the Ruling of the Administrative Law Judge with regard to the conditions under which a reopening of the record would be permitted in the instant case." In its Motion, Respondent asked that I suspend the reopening of the hearing pending decision of the Court on Respondent's Application for Injunctive Relief "from the limitations placed upon the reopening of the record." In its Complaint and Application for Injunctive Relief, Respondent asks the Court to issue an injunction ordering that "the Administrative Law Judge (1) postpone the reopen- ing of the hearing for a reasonable time in order to accord Plaintiff sufficient time in which to accomplish the requisite investigation, (2) permit the taking of Depositions in this matter, (3) issue subpoenas to all claimants requiring their appearance at the re-opened hearing." It is now evident to me that Respondent has no intention and is unwilling to participate in a reopened hearing under the terms and conditions described in my ruling of March 20, 1974, incorporated by reference in my Order Reopening the Record for Additional Hearing, dated April 2, 1974. Since my Order Reopening the Record was based upon my assump- tion that Respondent would comply with the conditions outlined in it and since that assumption has been proven to be ill-founded, the premise on which I ordered the rec- ord reopened is no longer valid. Therefore it is ordered that the order reopening the record for additional hearing be withdrawn and the record closed. A Decision on the merits of the case will issue in due course.