Boland Marine And Manufacturing Co., Inc.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boland Marine and Manufacturing Company, Inc. and International Brotherhood of Boilermakers, Local 37, a/w International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers. Cases 15-CA-5874 and 15-CA-6099 20 June 1986 SUPPLEMENTAL DECISION AND ORDER REMANDING BY MEMBERS DENNIS, JOHANSEN, AND STEPHENS On 5 June 1981 Administrative Law Judge Henry L. Jalette issued the attached supplemental decision. The General Counsel filed limited excep- tions and a supporting brief, the Respondent filed cross-exceptions and a supporting brief, and the General Counsel filed an answering brief to the Re- spondent's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this decision. On 4 August 1976 the Board found, inter alia, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating safety rules and rules governing employee conduct and instituting a disciplinary system to enforce the rules.2 To remedy the violations, the Board or- dered the Respondent, inter alia, to offer reinstate- ment and backpay to all employees discharged, sus- pended, or otherwise denied work opportunities "solely as a result of the unilateral promulgation" of the rules. On 14 November 1977 the Fifth Cir- cuit enforced the Board's Order.3 Subsequently, a ' The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings 2 225 NLRB 824 (1976) (Case 15-CA-5874) 3 NLRB v Boland Marine & Mfg. Co, 562 F.2d 1259 (5th Cir 1977). In addition, on 8 April 1977 the Board issued a Decision and Order in Case 15-CA-6099 (228 NLRB 1304), in which it found that the Respond- ent violated Sec 8(a)(5) and (1) of the Act by unilaterally promulgating a revised pass system On 17 June 1978 the Fifth Circuit enforced the Board's Order in that case 573 F 2d 1308 (5th Cir 1978) The Regional Director consolidated for hearing the supplemental proceedings in Cases 15-CA-5874 and 15-CA-6099, but at the hearing the General Counsel conceded that none of the backpay claimants was discharged or disci- plined pursuant to the enforcement of the revised pass system dispute arose concerning certain claimants' entitle- ment to backpay4 and the amounts of backpay due individuals discharged or suspended after the Re- spondent unilaterally adopted the rules. Thereafter, on 30 March 1979 the Regional Director issued a backpay specification and notice of hearing. The judge considered each claimant's entitlement to backpay, and found that, with the exception of 3 discharged employees and 24 suspended employees, the General Counsel failed to demonstrate that em- ployees discharged or suspended after the rules' ef- fective date were discharged "solely" as a result of their promulgation. Moreover, the judge found that the backpay period ran from an employee's date of discharge to 24 July 1977 when the Respondent completed the last of three major projects in its shipyard, and he established a formula for deter- mining backpay accrued during that period. Final- ly, the judge computed backpay owed those em- ployees discharged or suspended "solely as a result of the unilateral promulgation" of the Respondent's rules. As discussed below, we find merit in the General Counsel's exceptions to the judge's allocation of the burden of proof and his concomitant findings that certain claimants are not entitled to backpay. We also find merit in the General Counsel's excep- tion to the judge's finding that the Respondent's general backpay obligation was tolled on 24 July 1977 and that the Respondent's backpay obligation to claimant Christopher Scamardo was tolled as of 29 February 1976. In all other respects, we find no merit in the General Counsel's or the Respondent's exceptions. 1. CLAIMANTS' ENTITLEMENT TO BACKPAY The judge found that only 3 discharged claim- ants and 24 suspended claimants were entitled to backpay. In so finding, he stated that, by requiring the Respondent to make whole those claimants who were discharged or suspended "solely as a result of the unilateral promulgation of said rules," the Board departed from its usual remedial provi- sions and left to the compliance proceeding the task of deciding the threshold question of whether a claimant is a member of the class of employees protected by the Board's Order. He found further that the Board's Order in this case, read in con- junction with the Board's decision in Wright Line,5 establishes that the General Counsel has the burden of demonstrating that a claimant was discharged or suspended pursuant to an unlawfully promulgated 4 The Respondent reinstated each of the backpay claimants on or before 29 October 1978. 5 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) 280 NLRB No. 51 BOLAND MARINE & MFG. CO. rule and that the claimant would not have been treated in the same manner absent promulgation of those rules. Applying this formula to the evidence surrounding each disciplinary action, the judge concluded that, with a few exceptions, conceded by the Respondent, the General Counsel failed to show that the claimants would not have received the same discipline absent the rules . We disagree with the judge's allocation of the burdens in this case and, consequently, with his determination that certain claimants are not entitled to backpay. The Board and the courts have long held that in a backpay proceeding an unlawfully discharged or suspended employee is presumed to be entitled to backpay,6 and that the respondent bears the burden of establishing facts "which would negative the ex- istence of liability to a given employee or which mitigate that liability."7 While we agree with the judge that the terms of our Order in this case may be "a departure from the Board's usual remedial provisions,"8 we believe that the judge gave insuf- ficient consideration to the presumption in favor of claimants' entitlement to backpay and, accordingly, placed on the General Counsel an undue burden of demonstrating the absence of any facts which would show that the Respondent's actions with regard to a particular claimant were consistent with past practice. The Board does not require the General Counsel to bear the burden of demonstrat- ing the nonexistence of factors which would re- lieve a respondent of liability or would mitigate that liability, and we find no support in the lan- guage of our Order for such a departure from our past practice. Adherence to our general allocation of burdens in determining backpay is especially compelling where, as here, before implementing the unilaterally promulgated rules in July 1975, the Respondent had no formal disciplinary system and no requirement that disciplinary actions be record- ed. Thus, evidence of the Respondent's disciplinary practices before July 1975, consisting of supervi- sors' recollections and occasional memoranda span- ning a 10-year period before July 1975, are pecu- liarly in the possession of and available to the Re- spondent, and it would be inequitable to require the General Counsel to ferret out this information from those sources. Accordingly, we find that the General Counsel was required only to demonstrate that a claimant was discharged pursuant to the unilaterally promul- gated rules. If that was shown, the burden shifted 6 See, e g, NLRB v Mastro Plastics Corp, 354 F 2d 170, 178 (2d Cir 1965), cert denied 384 U S 972 (1966) ' NLRB Y. Brown & Root, Inc, 311 F 2d 447, 454 (8th Cir 1963). See Mandarin, 228 NLRB 930 (1977), enfd 621 F 2d 336 (9th Cir 1980), Us. Air Conditioning Corp, 141 NLRB 1278 (1963) See Alfred M Lewis, Inc, 250 NLRB 1392 (1980) 455 to the Respondent to demonstrate that prior to July 1975 its supervisors discharged or disciplined employees for similar conduct. The General Coun- sel may rebut such a showing by a variety of means, including that the Respondent had been in- consistent in the implementation of its disciplinary practices. We now turn to consideration of each of the discharges and suspensions at issue.9 Michael Burton Burton's discharge notice states that he was dis- charged for his negligence in leaving an area at which he was assigned to fire watch duty, with the result that a fire occurred in the area he was sup- posed to watch. The record reveals no evidence that the Respondent discharged employees prior to July 1975 for conduct similar to that engaged in by Burton. We believe Burton's discharge is analogous to our consideration, infra, of the discharge of James Williamson, who neglected his fire watch duty and allowed a fire to ignite. We note that Burton was discharged on 9 July 1975. The judge credited Industrial Relations Man- ager Peter Sears' testimony that the rules dated 1 July 1975 were not distributed until 10 July 1975 to the foremen and superintendents who have author- ity to discharge employees. The judge reasoned that Burton was not discharged solely as a result of the unilaterally promulgated rules because, based on Sears' credited testimony, the rules had not yet been distributed. We disagree. The record estab- lishes that, prior to the July 1975 rules, discharges were not effectuated through written discharge no- tices. The discharge notice used for Burton was that developed for use in enforcing the unilaterally promulgated rules and was first distributed with the rules. Under these circumstances, we find that Burton was discharged pursuant to the rules and therefore entitled to backpay. Larry Newton The judge found that Newton was discharged on 2 July 1975 before the distribution of the rules. His discharge is not noted on the discharge notice de- veloped for use with the unlawful, unilaterally pro- mulgated rules, nor was any rule cited as the basis for his discharge. The General Counsel adduced no evidence to show that the Respondent distributed the rules to its supervisors before 2 July or that its supervisors otherwise knew the content of the rules at that time. Accordingly, we find that the General 9 Absent exceptions we adopt the judge's determination that 3 dis- charged employees (Moses Lovely, Burkey Poland, and Christopher Sca- mardo) and the 24 suspended employees whose names are set forth in App C of the administrative law judge's supplemental decision are enti- tled to backpay 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel has not made a prima facie showing that Newton was discharged pursuant to the rules. Herman Carter and Franklin Mouille The judge found that Carter and Mouille were discharged for sleeping on duty in violation of rule 5. He found further that sleeping on the job is "a commonly recognized ground for discharge" and that the General Counsel adduced no evidence that these claimants were treated differently because of the rules. Applying the test set forth above, we find that the Respondent has rebutted the General Counsel's prima facie showing of backpay entitlement of these two claimants. Supervisor Joe Quinn's uncon- troverted testimony reveals that in early 1973 he discharged three employees for sleeping on the job. Absent evidence that other employees before July 1975 were not discharged for sleeping on the job, we find that their discharge was consistent with the Respondent's preexisting practice and therefore Carter and Mouille are not entitled to backpay. Frank Anderson, Roark Boyd, Hilton Burns, Paul Crane, Dean Ellis, and Paul Mire The above employees were discharged for ineffi- ciency or insufficient production. The General Counsel established a prima facie case that these in- dividuals were discharged pursuant to the unilater- ally promulgated rules. The Respondent introduced evidence that before July 1975 its supervisors dis- charged or disciplined employees for similar con- duct; however, the prior discharges for "lack of production," "lack of ability to perform boiler- maker duties," or "poor workmanship" do not detail or provide a basis for inferring production standards. The record indicates that the Respond- ent did not have production quotas or any uniform standard for determining inefficiency or insufficient production. Because the record does not provide any meaningful information concerning these em- ployees' inefficiencies or production, and in the ab- sence of evidence of specific levels of efficiency or production expected of them before or after the rules were introduced, it is impossible to determine whether the Respondent was merely continuing a past practice or was establishing new productivity rules. A respondent, not the General Counsel, should bear this burden of showing a preexisting practice which affords a defense, and that burden should be more than merely showing that a re- spondent had an ad hoc standard which was not changed by the advent of any rules. Accordingly, we find the above employees are entitled to back- pay. Patrick Heffley The judge found that Patrick Heffley was dis- charged for stealing, in violation of rule 4. The Re- spondent presented evidence that, in 1974, employ- ee James J. Aucain was discharged for stealing copper sheathing from the Respondent's yard. In her brief, the General Counsel concedes that, Aucain was so disciplined, but contends that Pat- rick Heffley nonetheless is entitled to backpay be- cause the Respondent imposed its disciplinary system to Heffley's detriment. We disagree with the General Counsel's assertion, and find that the Respondent has presented sufficient evidence of its consistent policy of discharging employees for theft. Accordingly, Patrick Heffley is not entitled to backpay. Phillip Nunez Nunez' discharge notice states that he kissed a female security guard and later returned and of- fered her a dollar for another kiss. The notice fur- ther states that, when she refused, Nunez placed his hand on the guard's face and attempted to kiss her again. According to the discharge notice, "Nunez had to be restrained by another employee to prevent the guard from being injured." This in- cident occurred while Nunez was supposed to be working. Although the Respondent cannot point to any pre-July 1975 incidents of unauthorized at- tempts to kiss security personnel during worktime, the Respondent has sufficiently shown that before July 1975 employees had been discharged for "goofing off' and assault. The General Counsel has not countered this evidence with a showing that the misconduct for which Nunez was disciplined would not have resulted in discipline prior to the implementation of the July 1975 work rules. Ac- cordingly, we find that Nunez is not entitled to backpay. Larry Courvillion, Merland Farria, Clark Gristina, Randy Moore, Lawrence Payne, Richard Seibert, William Todd, Donald Turegano, Drew Willis, and Thomas Wiltz The judge found that each of the above-named claimants was discharged for insubordination, either in refusing to do assigned work, directing profane and abusive language at a supervisor, or as- saulting a supervisor. He found that in each case the claimant's conduct "was of a type commonly recognized as grounds for discharge" and that the General Counsel adduced no evidence that in dis- charging these employees the Respondent acted differently from the way it had before adopting the BOLAND MARINE & MFG. CO. rules. Accordingly, he denied backpay to all 10 claimants. Examination of these claimants' discharge notices and record testimony shows that four claimants (Payne, Seibert, Turegano, and Wiltz) were dis- charged for insubordination accompanied by abu- sive language toward supervisors or guards and, in one case, assault on a supervisor . The Respondent presented evidence that on at least two occasions before July 1975 it discharged employees who had cursed supervisors, and threatened or struck super- visors,' ° thus establishing that, before July 1975, the Respondent generally disciplined employees for threatening and physically or verbally abusing su- pervisors. The General Counsel failed to rebut the Respondent's evidence. Accordingly, we find that Payne, Seibert, Turegano, and Wiltz are not enti- tled to backpay. The record indicates that the remaining six claimants were discharged for insubordination in refusing to perform assigned duties ." The Re- spondent presented evidence that before July 1975 employees were discharged for refusal to perform assigned work;' 2 however, the Respondent's evi- dence in support of a claimed preexisting practice of discipline for such conduct provides no basis for ascertaining that any specific standard existed. Re- garding such earlier discipline, there is no descrip- tion of the nature of the refusal or the circum- stances, such as previous warnings, which may have influenced the Respondent to discharge those employees. With respect to these six claimants, the circumstances surrounding each claimant's refusal to do his respective work assignment differed. Thus, the Respondent maintained Courvillion was capable of performing the job, but intentionally produced poor quality work. Todd's discharge notice indicates Todd stated he was hired as a welder and he was not going to do anything other to Boilermaker Superintendent Quinn testified that he discharged welder Vernon Boyington for using foul language toward Quinn and Foreman Milton Bourgeois and for striking Bourgeois after being told that his work performance had to improve, an internal memorandum Quinn prepared states that Boyington was discharged on 2 May 1975. In addition, Pipefitter Superintendent Paul Fernandez testified that, some- time between March and July 1975, he discharged Arnold Morrell for insubordination and threatening and cursing a supervisor 11 The "description of violation" section of Todd's discharge notice further states that he was absent from his work area for 3 hours without permission The record contains evidence that before July 1975 the Re- spondent had disciplined employees for unauthorized absence from a work station as discussed with respect to employees Dazet's and Le- Compte's discharges, infra. 12 Boilermaker Foreman Gibson testified that before the rules were in- stituted he - discharged a welder who refused to obey Gibson's order to remove a knife edge Labor Superintendent Benitte testified that before the July 1975 rules he discharged Fred Thomas for refusing to perform an assignment to sweep an office Similarly , Carpenter Superintendent Fredenchs testified that before July 1975 Phillip DeVille was discharged for refusing to go down into the hold of a ship to perform his work as- signment 457 than what he was hired to do. Similarly, claimant Moore testified he refused to perform the job be- cause he was being asked to do somebody else's job.'s Claimant Willis did not flatly refuse to do the work assignment, but insisted on doing it his own way. Farria's discharge notice states he re- fused to carry out a job assignment as directed by his foreman. The record failed to reveal the reason for such refusal. Claimant Gristina's discharge notice indicates that he refused to take orders from the ship superintendent, asserting he would take orders only from his own supervisor. The record revealed that prior to the unilaterally promulgated rules the Respondent did not have a flat policy of discharging anyone who refused to do a work assignment. Boilermaker Superintendent Quinn testified that he would consider reasons ad- vanced by the employee for declining a job, includ- ing sickness, lack of talent to do a job, and jurisdic- tion questions related to whether the employee is contractually required to do the job. When testify- ing about the prerule policy, Boilermaker Foreman Gibson was asked if he was testifying that he "would fire anybody who was not doing his work or was away from his work station during work time." In response to this question Gibson testified, "Not anybody." Under these circumstances, we are unable to conclude that the Respondent has shown the dis- charges would have occurred prior to the rules. Accordingly, we find that Courvillion, Farria, Gristina, Moore, Todd, and Willis are entitled to backpay. Edward Allen The judge found that Allen, who was discharged for clocking another employee's timecard, is not entitled to backpay since such conduct "is com- monly recognized as a ground for discharge" and that the General Counsel produced no evidence that in discharging Allen the Respondent treated him any differently from the way it would have before adopting the rules. The record reveals that Allen was discharged for punching out another employee's timecard, despite Allen's claim that a supervisor identified only as Gary authorized him to do so. Without determin- ing whether Allen's claim has merit, we find that he is entitled to backpay because the Respondent presented no evidence that it discharged or disci- plined any employee before July 1975 for clocking another employee's timecard. Thus, we cannot but to Boilermaker Superintendent Quinn testified Moore refused to do a grinding job which Quinn asserted is boilermaker work . Quinn testified he could not recall the reason Moore gave the foreman for his refusal to perform the assignment 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude that Allen was discharged solely as a result of the unilaterally promulgated rules which specifically prohibited such conduct. Leonard Dazet and Randy LeCompte The judge found that Dazet and LeCompte were discharged for horseplay and "goofing off." Their discharge notices referred to rule 12 which pro- vides for discharge for "a repetition of less serious offenses after warnings." The judge found that this "rule" was so vague that he could not find that in discharging these claimants the Respondent was applying a new standard of conduct or perform- ance against them. Noting that the conduct for which they were discharged is commonly recog- nized as a ground for discharge, the judge conclud- ed that Dazet and LeCompte are not entitled to backpay. We agree with the judge that Dazet and Le- Compte are not entitled to backpay, but base this fording on the uncontroverted record evidence that before promulgating the rules at least two employ- ees were discharged for horseplay and "goofing off." Carpenter Superintendent Robert J . Freder- ichs testified that sometime before 1975 he dis- charged an employee for horseplay while atop a ship mast. Pipefitter Superintendent Paul Fernan- dez testified that, before July 1975, he discharged John Murray Jr. after warning him about repeated incidents of "goofing off" and leaving his work area. As the Respondent has shown that it did mete out discipline, including discharges , against em- ployees who engaged in horseplay, and absent con- trary evidence, we find that the Respondent has successfully rebutted the General Counsel's prima facie showing that Dazet and LeCompte are enti- tled to backpay. Frank B. Autry Although the record contains no testimony con- cerning the reason for Autry's discharge, the judge found that his discharge notice indicates that the Respondent fired Autry after he operated a bull- dozer in the Respondent's parking lot, while appar- ently intoxicated or drugged, in such a manner that he caused substantial damage to the parking lot.14 14 Autry's discharge notice states, in relevant part. Operator lined up to spread shells and level dnve and parking areas. Operator dug areas up run bulldozer in circles in main dnve cutting area and leaving deep rutt [sic] in drive Requested he level area up on O.T. he said just rake it up Operator at this time went and got bulldozer in backyard brought same around to defective area. Stopped, backed up and run same behind office building parked same Came to the B.M foreman handed him the keys and staggered out of the gate. Operator was [illegible] to speech at this time and the foreman Ferro stated he had never seen anyone in this condition The judge concluded that Autry is not entitled to backpay, because his conduct is commonly recog- nized as a ground for discharge and there is no evi- dence that in discharging Autry the Respondent treated him differently from the way it would have before adopting the rules. We agree with the judge that the Respondent should not be required to provide backpay for Autry, but in so doing rely on the aggravated nature of Autry's conduct as described in his dis- charge notice and the Respondent 's preexisting policy of discharging employees whose negligence results in damage to its equipment. We find Autry's conduct sufficiently analogous to that of employees discharged for damaging equipment to warrant de- nying him backpay. Mike Purdy The judge found that Purdy was discharged, ac- cording to his discharge notice , for entering the Respondent's premises with a beer bottle, drinking from it, and throwing the empty bottle over the shipyard fence.15 The notice stated that Purdy's conduct violated rule 6, which prohibited employ- ees from bringing alcoholic beverages on the Re- spondent's premises. The judge found no evidence that Purdy was intoxicated, and found that his of- fense was not serious because he finished his beer near the shipyard's entrance. Nevertheless, the judge found that Purdy was not entitled to back- pay because the General Counsel failed to demon- strate that Purdy was treated differently from the way he would have been before adoption of the rules. The record contains no evidence that the Re- spondent discharged or otherwise disciplined any employee before July 1975 for possession of alco- holic beverages on its facilities. Thus, the Respond- ent has not rebutted the General Counsel's prima facie case, and Purdy is entitled to backpay. James Williamson The judge found that the Respondent fired Wil- liamson for damaging property in violation of rule 4. Williamson's discharge notice stated that, while Williamson was acting as fire watch for a welder, Williamson "failed to stop the burning operation which charred and burnt six (6) cables." Superin- tendent Gibson investigated the incident and found that Williamson had been at fault in failing to warn 15 Purdy testified that he did not drink from the beer bottle, but that he merely picked it up in the employees ' parking lot and was endeavor- ing to dispose of the bottle when he was confronted by management. For the purpose of determining Purdy's entitlement to backpay, we have not considered Purdy's version of the incident, but rather have assumed that Purdy engaged in the actions stated in his discharge notice BOLAND MARINE & MFG. CO. 459 the welder as soon as the cables began burning. Gibson testified that he probably would have dis- charged Williamson even absent the rules, because the Respondent had warned employees before the Williamson incident that anyone involved in con- duct resulting in damage to cables would be dis- charged. Thus, the judge found that Williamson's discharge was not based on the unlawfully promul- gated rules, but rather on the separately promulgat- ed instructions. Accordingly, he concluded that Williamson was not entitled to backpay. We disagree with the judge's finding that Wil- liamson was not discharged pursuant to the unilat- erally promulgated rules. In fact, the "instructions" to supervisors that they were to discharge employ- ees causing damage to cables, promulgated after the adoption of the rules,' a was nothing more than a clarification and explanation of the meaning of rule 4, and was not a separate and distinct directive from the Respondent's management." Moreover, Gibson testified that, before receiving these "in- structions," he would not have discharged William- son for his first offense of negligence, but felt com- pelled to do so by virtue of the "instructions." Thus, it is clear that Williamson was discharged pursuant to rule 4, as clarified by subsequent "in- structions," and, absent any contrary evidence, that the Respondent would not have discharged Wil- liamson had the rules not been put into place. Ac- cordingly, we find that Williamson is entitled to backpay. Michael Fye, Mark Heffley, Emile Meral, and Stephen Mitchell The judge found that each of these claimants was discharged for absenteeism. The Respondent had no discharge rule for absenteeism. The rule cited in Fye's discharge was rule 5 , habitual tardi- ness or absences, which pursuant to the Respond- ent's July 1975 disciplinary rules should have re- sulted in a written warning, rather than a dis- charge.' 8 The rule cited in Heffley's, Meral's, and Mitchell's discharge notices was rule 12, repetition of a less serious offense after warnings. The judge found that the Respondent did not have a rule specifying a fixed number of absences as grounds is William J Baraldi, river superintendent at the time of Williamson's discharge, testified without contradiction that the Respondent's policy to discharge immediately any employee whose conduct resulted in burning of cables was orally conveyed to supervisors in late October or early No- vember 1975. 17 We make no finding as to whether, absent the rules, the Respondent would have violated Sec. 8(ax5) by issuing such a directive without bar- gaining with the Union, as that question is not before us. is The July 1975 rules further provide that any employee receiving a second written warning for habitual tardiness or absences within 1 year of the first shall be disciplined with a layoff of 3 workdays and any em- ployee receiving a third written warning within a 1-year period shall be subject to discharge. for discipline. The judge found that because the Respondent did not have specific rules regarding absenteeism, each claimant was discharged after a supervisor considered the particular facts of each claimant's attendance record and not out of adher- ence to a "rule." Thus, he concluded that these claimants were not entitled to backpay. Contrary to the judge, we find that these four claimants were discharged pursuant to the rules. Thus, the Respondent discharged Heffley, Meral, and Mitchell for an offense specified in the unilat- erally promulgated rules (repetition of less serious offense after warning) rather than for absenteeism. Fye's discharge notice cites his earlier dismissal in August 1975 and a 31 October 1975 warning for habitual absences in addition to his absences on 11- 13 November 1975. The reference to these three in- cidents is an obvious attempt to conform with the progressive disciplinary system established for ha- bitual tardiness and absences in the July 1975 rules. The record shows, however, that before July 1975 the Respondent discharged employees, after warn- ing, for repeated or excessive absences.' 9 Thus, the Respondent has rebutted the General Counsel's prima facie showing, and these claimants are not entitled to backpay.20 Angel Alpuche, S. J. Vodanovich, and Bert West The judge found that the Respondent gave 3-day suspensions to Alpuche, Vodanovich, and West for being in line waiting for the lunch whistle to sound rather than working until the whistle sounded. He found that these suspensions were based on instruc- tions from Supervisor Gibson and therefore were not given as a result of the rules. Accordingly, the 19 Boilermaker Superintendent Quinn testified that in March or April 1975 he discharged four employees, Hebert, Castenado, Segar, and Jones, for excessive absences When questioned about the pre-rule standard for absenteeism, Quinn testified that when an employee missed 2 to 3 days per week consecutively for 3 to 4 weeks, action was warranted Discipli- nary memoranda the Respondent introduced show that on 27 May 1975 the Respondent discharged Raymond Hebert for absenteeism, after he had been warned repeatedly for poor attendance and had been given a 3- day suspension in March 1975. The memoranda also shows that Anthony Castenado was discharged , after repeated warnings for being away from work 25 days in 2 working months, including 7 through 16 April 1975, and that Brad Segar and James Williams were each given a 3-day suspen- sion in lieu of discharge after several prior oral warnings for excessive absences. Jones' attendance record reflects that during the 6-week period before his discharge he worked 2 full weeks, two 3-day weeks, and one 2-day week Pipefitter Superintendent Fernandez testified that he dis- charged Richard Smith after prior warnings for regularly missing at least I day per week for a 2-1/2- to 3-month period 20 In concluding that the Respondent has rebutted the General Coun- sel's prima facie showing, we make no finding that the Respondent main- tained a policy on employees' attendance Rather , we find that the Re- spondent has shown that, in responding to what a supervisor perceived as an employee's poor attendance, it treated employees similarly before and after adopting the rules. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD judge found that Alpuche, Vodanovich, and West are not entitled to backpay. Gibson testified that these three claimants were suspended on 25 July 1975, on his directive, pursu- ant to a notice he signed, for being away from their jobsite. He admitted that he suspended the claim- ants for conduct which violated rule 2 of the uni- laterally promulgated rules,21 and that he could have cited this rule on the suspension notice. Thus, we fmd it reasonable to infer that Gibson suspend- ed these employees for violation of rule 2, irrespec- tive of whether the suspension notices contained specific citation to that rule, which had been pro- mulgated only 2 weeks before the suspensions. Moreover, these claimants received suspension no- tices on forms identical to those distributed with the rules, thus further demonstrating Gibson's knowledge of the rules. As the Respondent has presented no evidence that it disciplined any em- ployees before July 1975 in similar circumstances, we conclude that Alpuche, Vodanovich, and West are entitled to backpay for the 3 days they were laid off. Bruce Hart The judge found that Hart was suspended for 2 days for sleeping on the job, but was not disci- plined pursuant to the rules because the rules pro- vide only for discharge or a 3-day suspension for all violations. As a result, he found that Hart is not entitled to backpay. We disagree with the judge insofar as he found that Hart was not suspended pursuant to the rules. In our view, the General Counsel has met the prima facie test by showing that Hart was suspend- ed for conduct described in the rules and the sus- pension notice is identical to the form which was distributed with the rules. Unlike Alpuche, Vodan- ovich, and West, however, we fmd that Hart is not entitled to backpay, because he was suspended for conduct for which the Respondent has consistently imposed discipline, up to and including dis- charge.22 The fact that the Respondent chose to suspend Hart rather than discharge him, as it did to Carter and Mouille, does not demonstrate deviation from its practice existing before the rule; rather, it demonstrates that the Respondent did take discipli- nary action to arrest sleeping on the job, and exer- cised its discretion both before and after promul- gating the rules to discharge employees for this in- fraction or to impose lesser forms of discipline. 21 Rule 2 states that any employee shall be discharged for "delay or stoppage of work or interfering with company operations because of an alleged grievance " 22 See discussion of the backpay entitlement of Herman Carter and Franklin Mouille, supra In summary, we fmd that, in addition to the claimants the judge found to be entitled to back- pay, the Respondent must also provide backpay to discharged claimants Burton, Anderson, Boyd, Burns, Crane, Ellis, Mire, Courvillion, Farria, Gris- tina, Moore, Todd, Willis, Allen, Purdy, and Wil- liamson, as well as to suspended claimants Al- puche, Vodanovich, and West. We now turn to the remaining questions raised in the General Counsel's and the Respondent's exceptions. II. THE BACKPAY PERIOD The judge found that the Respondent's backpay obligation ceased as of 24 July 1977 . He recognized that the Respondent offered reinstatement to indi- vidual claimants on various dates in 1975, 1976, 1977, or 1978, with the last claimants offered rein- statement on 16 October 1978.29 But the judge found merit in the Respondent's assertion that, in this case, the Board would act arbitrarily and abuse its discretion if it did not toll backpay until the date of reinstatement, because such action would not take into account the drastic reduction in its labor force due to a decline in business . The Respondent presented evidence that, as of the adoption of the rules in July 1975, the Respondent employed ap- proximately 270 unit employees, and between that time and 29 February 1976 that number increased to 400 unit employees. Employment then began to decline, and by 23 January 1977 the unit employee complement decreased to 130, with a further de- cline to only 25 unit employees on 6 November 1977. Thereafter, until 29 October 1978, employ- ment of unit employees fluctuated from a low of 30 to a high of 120. The judge found that the decrease in employment was attributable to the Respond- ent's completion of three major projects in 1977, with the last project completed on 24 July 1977. Based on this evidence, the Respondent contend- ed that all claimants would have been laid off for economic reasons before 29 October 1978 and pro- posed two alternative formulas whereby the Board could determine the statistical probability that each claimant would have worked during a particular week. The judge found that use of either of these formulas would be arbitrary and unfair, because the Respondent did not justify the criteria used to cut off the claimants' backpay. The judge found, how- ever, that it would be "grossly unfair" to permit the backpay period to run until 29 October 1978 because the Respondent has shown that, for valid 23 In the backpay specification, the Regional Director stated that back- pay was tolled as of 29 October 197$ allowing those claimants offered reinstatement on 16 October approximately 2 weeks to accept or decline the Respondent's offer The Respondent has not challenged the Regional Director's tolling of backpay in this manner BOLAND MARINE & MFG. CO. 461 economic reasons, it sustained a substantial de- crease of its employee complement during that period. Accordingly, the judge concluded that it is reasonable and equitable to toll the backpay period as of 24 July 1977 when the Respondent completed the last of its three major projects. The General Counsel excepted to the tolling of backpay as of 24 July 1977, contending that the Respondent failed to show that all claimants would have been laid off at the end of the three projects. We find merit in the General Counsel's exceptions. The Board and the courts have long held that a respondent in a backpay proceeding has the burden of demonstrating that unlawfully discharged em- ployees would have been terminated for economic reasons.24 Moreover, a respondent may not rely on statistical formulas to demonstrate that claimants would have been laid off, but rather must make a showing as to each claimant.25 The Respondent has failed to make such showing. The record lacks any evidence that the claimants were hired for a particular project or that all employees working on a project were laid off at the project's end. Nor does the record contain evidence that the Respond- ent's layoff and recall procedures were tied to em- ployees' seniority. Thus, it is impossible for us to conclude that any particular claimant would have been laid off as of a particular date. Accordingly, we fmd that claimants' backpay tolls as of 29 Octo- ber 1978 when the last of the claimants were of- fered and had an opportunity to accept reinstate- ment.26 III. BACKPAY OWED CHRISTOPHER SCAMARDO The record reveals that, before his discharge in January 1976, Scamardo had been assigned at least 90 percent of the time to work on the Respondent's U.S.S. King project, which was one of the Re- spondent's three major projects completed in 1977. In late February 1976, the Union referred Sca- mardo to the Respondent as a boilermaker mechan- ic on repair of the Delta Queen. The Respondent's payroll records indicate that Scamardo worked the night shift on 24 February and during the weeks ending on 7 and 14 March. At that time the Delta Queen job was completed, and the Respondent did not again employ Scamardo until 24 July 1976, when he began a 7-month term of employment on the military ship Neosho. We fmd, contrary to the judge, that the Re- spondent did not reinstate Scamardo to a substan- tially equivalent position when it employed him on the Delta Queen repair job. The Respondent did not offer reinstatement to Scamardo; rather, the Union referred Scamardo to the Respondent, and the Respondent's general manager had no knowl- edge of Scamardo's reinstatement until this fact was brought to his attention at a grievance meet- ing.28 Moreover, Scamardo was referred to a job on the night shift rather than the day shift he had been working. Finally, the Respondent's Delta Queen job was almost completed at the time Sca- mardo was referred, and Scamardo could have had no expectation of regular employment similar to that he had enjoyed while working on the U.S.S. King. Thus, we fmd that the Respondent did not validly reinstate Scamardo until 27 July 1976 and that his backpay entitlement is not tolled until that date. The judge found that Scamardo was unlawfully discharged pursuant to the unilaterally promulgat- ed rules on 16 January 1976.27 He found further that Scamardo's backpay is tolled as of 29 Febru- ary 1976 because the Respondent reinstated Sca- mardo on that date, and that Scamardo's interim earnings, less expenses, for the first quarter of 1976 exceeded any gross backpay due him. Thus, the judge concluded that Scamardo is not entitled to any backpay. The General Counsel has excepted to the judge's tolling of Scamardo's backpay as of 29 February 1976. We find merit in this exception. 24 Midwest Hanger Co, 221 NLRB 911, 917 (1975), enfd in part 550 F.2d 1101 (8th Cir 1977), NLRB v Mastro Plastics Corp, supra, NLRB V. Toppino & Sons, 358 F 2d 94 (5th Cu. 1966). 25 Midwest Hanger, supra. Cf Castleman & Bates, Inc, 228 NLRB 1504 (1977) $6 J. L Holtzendorff Detective Agency, 206 NLRB 483, 484 (1973). z7 The judge misspelled Scamardo 's name. The references in the judge's decision to Christopher Scarmado should read Christopher Sea- mardo. IV. CONCLUSION We have found that the judge erred in his alloca- tion of the burden of showing that claimants were discharged "solely as a result of the unilateral pro- mulgation" of the Respondent's disciplinary rules, and the judge erred in finding that certain claim- ants are not entitled to backpay. We have also found that the judge erred in tolling the Respond- ent's backpay liability as of 24 July 1977, rather than 29 October 1978, and that he erred in finding that the Respondent's backpay obligation to Chris- topher Scamardo ceased as of 29 February 1976. Because the judge did not make findings of back- pay entitlement for those claimants we have found are entitled to backpay or for claimants entitled to as The Respondent conducted a grievance meeting on 4 March 1976 where the subject of Scamardo's discharge was discussed. When the Re- spondent's officials at the meeting discovered that Scamardo was work- ing on the Delta Queen, they agreed to adjourn the meeting and remove the discharge notice from Scamardo's personnel files 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay for the period between 24 July 1977 and 29 October 1978, and because credibility determi- nations remain to be made concerning the interim earnings of such claimants, we will remand this case for determination of backpay owed to those claimants. ORDER It is ordered that this proceeding be remanded to the Chief Administrative Law Judge for designa- tion of an administrative law judge for the pur- poses of making specific factual and legal fmdings concerning backpay entitlement on the record as made before Judge Jalette, and, if the judge deems necessary, reopening the record for further hear- ing.29 The administrative law judge shall prepare a Second Supplemental Decision containing such credibility resolutions, findings, conclusions, and recommendations as deemed necessary, consistent with this remand Order. Following service of the Second Supplemental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall apply. 29 In light of Administrative Law Judge Henry L. Jalette's retirement, the Board is remanding this proceeding to the Chief Administrative Law Judge for further processing in accordance with this Order Lee J. Romero, Esq., and Clement I. Kennington Jr., Esq., for the General Counsel. Robert K McCalla, Esq., and Leonard J. Fagot Jr. (Jones, Walker, Waechter, Poitevent Carriere & Denegre), of New Orleans, Louisiana, for the Respondent. Louis L Robein Jr., Esq. (Dodd, Barker, Boudreaux, Lany and Gardner), of New Orleans, Louisiana, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge. On August 4, 1976, the Board issued a Decision and Order in Case 15-CA-58741 wherein it found that the above- named Respondent had violated Section 8(a)(1) and (5) of the Act by unilaterally promulgating safety rules and rules governing employee conduct and instituting a dsci- plinary system for its employees . To remedy these viola- tions, the Board ordered Respondent to offer reinstate- ment and backpay to all employees discharged , suspend- ed, or otherwise denied work opportunities "solely as a result of the unilateral promulgation of said rules." On November 14, 1977, the United States Court of Appeals for the Fifth Circuit entered judgment against Respond- ent enforcing the Board's Decision and Order. Thereaf- ter, a dispute having arisen about the application of the terms of the Board's Decision and Order and the amount of backpay due to individuals who had been discharged 1 225 NLRB 824 (1976) or suspended after Respondent's unilateral adoption of the rules in question, the Regional Director caused a backpay specification and notice of hearing to be issued on March 30, 1979.2 On October 1 through 4 and 15 through 18, 1979, and on January 15, 1980, a hearing was held before me in New Orleans, Louisiana. On the entire record, including my observation of the witnesses and after due consideration of the briefs, I make the following FINDINGS OF FACT 1. THE REMEDIAL ORDER This supplemental backpay proceeding does not in- volve only the question of how much backpay is due the named claimants, which is the question usually presented in backpay proceedings; rather, it presents a threshold question whether the claimants are entitled to any back- pay. This situation arises out of the fact that unfair labor practices which Respondent was found to have commit- ted was not a fording of discrimination and unlawful dis- charges, but rather a finding of unlawful unilateral con- duct. As earlier noted , for this violation the Board or- dered reinstatement and backpay to those individuals who were discharged or suspended "solely as a result of the unilateral promulgation of said rules." The Board did not specify the test to be applied in deciding whether or not a claimant's discharge or suspension was solely as a result of the unlawfully adopted rules, and it is notewor- thy that in Alfred M. Lewis, Inc., 250 NLRB 1392 (1980), where the Board had occasion to review a similar reme- dial order, the Board referred to such an order as "a de- parture from the Board's usual remedial provisions."g In any event, a review of the Board's analysis of the evidence in that case indicates that the use of the word "solely" was not a mere rhetorical flourish, but rather it controlled the determination as to whether or not a claimant was entitled to reinstatement and backpay. However, as herein, the Board did not specify what test it was using to determine whether or not the claimant had been discharged "solely" as a result of the unlawful- ly adopted rule. More specifically , it left unanswered the question as to who has the burden of proof that a dis- charge was "solely" as a result of the rules and what quantum of proof is necessary . Since issuance of that de- cision, the Board has issed a decision in Wright Line, 251 NLRB 150 (1980), wherein it adopted the Mt. Healthy test4 in dual-motive discharge cases. Under that test, the Z On April 8, 1977. the Board had issued a Decision and Order against the Respondent in Case 15-CA-6099 (228 NLRB 1304), in which it had found that Respondent violated Sec 8(a)(1) and (5) of the Act by undat- crally promulgating a revised pass system To remedy that violation the Board ordered Respondent to reinstate and make whole all employees discharged "solely as a result of the unilateral promulgation of the re- vised pass system." On June 17, 1978, the United States Court of Appeals for the Fifth Circuit entered judgment enforcing the Board 's Decision and Order The Regional Director consolidated the two cases for hear- ing, but it was conceded at the hearing that none of the backpay claun- ants was discharged or suspended pursuant to the enforcement of the re- vised pass system s In that case the Board had used the word "solely" in the make-whole portion of its order and the court of appeals had added it to the reinstate- ment portion. 4 Mt Healthy Board of Education P Doyle, 429 U S 274 (1977) BOLAND MARINE & MFG. CO. General Counsel must first make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected con- duct. In my judgment, this is the test appropriate for use in this case. In this case, the only evidence adduced by the General Cousel to establish a prima facie case was a showing that the discharge notice prepared by Respondent noted, in nearly all cases, the rule which the claimant had violat- ed. For example, rule 4 of the unilaterally adopted rules provided for discharge for stealing. (Claimant Patrick Heffley was discharged for stealing and his discharge notice bore the legend "Violation of Rule No. 4.") In my judgment, such evidence, standing alone, is insufficient to establish a prima facie case. The reference to the rule can be viewed, by way of analogy, as the equivalent of proof that an employee has engaged in protected conduct. But a prima facie case consists of more than that. For exam- ple, in Wright Line, supra, the General Counsel had shown, in addition to the alleged discriminatee's protect- ed conduct, that the employer had never previously dis- charged an employee under the circumstances for which it discharged the alleged discriminatee. In this case, the General Counsel adduced no evdience on the matter. The General Counsel's perception of the case appears to have been that inasmuch as Respondent had adopted the rules unlawfully it was precluded from discharging employees for any of the reasons described in the rules. Obviously, such a perception has no merit. As I see it, the flaw in the General Counsel's approach to the case is that she viewed the rules as establishing rigid, specific, and formalized grounds and procedures for discharges and suspensions. The facts are otherwise. For exmaple, rule 7 provides for discharge for "incompetency and in- efficiency, including intentionally producing poor quality of work." The rule does not quantify the amount of pro- duction, nor does it set standards of quality.6 Rule 12 provides for discharge for "A repetition of less serious offense after warnings." Query: How many offenses, what are less serious offenses, how many warnings? A rule this vague is no rule at all. In short, the fact that an employer has not codified any rules of discipline does not mean that it does not ad- minister discipline. An employer need have no rules to discharge for stealing, absenteeism, inefficiency, or insub- ordination. It is a matter of common knowledge that em- ployers do discharge for such conduct, and the Board's remedial order cannot reasonably be interpreted to have deprived Respondent of its right to discharge employees for reasons it deemed valid. The General Counsel disclaims any purpose to deprive Respondent of such a right, but asserts that it is for Re- spondent to "disentangle the effects of its own unfair labor practices." Murphy Diesel Co., 184 NLRB 757, 765 (1970). 1 do not quarrel with that principle, but it is note- 6 Compare Alfred M Lewis, Inc, supra , where the unilaterally adopted system provided for a daily production standard of 95 percent of the crew average 463 worthy that it was stated in a case with a rigid, specific, and seven-step formalized procedure which dealt with only one aspect of employee behavior, namely, absentee- ism and tardiness . Absenteeism and tardiness were also part of the warning rules here, but there was no stand- ard. In any event, it is reasonable to assume that in Murphy Diesel, the employer did not have to do any dis- entangling until the General Counsel first showed that the unilaterally adopted procedure had been followed. In this case, I conclude that, except as otherwise herein noted, the General Counsel had to do more than show that the conduct on which the language was based was conduct covered by one of the rules. II. THE DISCHARGES A. Michael Burton Burton was discharged on July 9, 1975. Respondent contends that it was before the rules became effective and that his discharge cannot therefore be a result of the rule, much less solely a result. This assertion is based on the testimony of Industrial Relations Manager Peter Sears that the rules dated July 1, 1975, were not distrib- uted to the foremen and superintendents who do the dis- charging until July 10, 1975. Even more, according to Sears, it was the incident that led to Burton's discharge which caused the issuance of directions that he get the rules into the hands of the supervisors. Despite the fore- going, inasmuch as the supervisors who signed Burton's discharged used the discharge notice which was devel- oped for use with the rules, the General Counsel con- tends a finding is warranted that the rules were in effect on the date of this discharge. Sears impressed me as a truthful witness and I credit his testimony that the rules were not distributed until July 10, 1975, and they could not therefore have been relied on as the reason for discharge on July 9. Apart from the foregoing, there is no probative evi- dence that the rules played any part in the discharge of Burton. The discharge notice was signed by Jessie Cour- ville and Superintendent LaNata, but only Courville tes- tified and he was not the one who fired Burton. It does not even appear that he recommended Burton's dis- charge. While he did state that Burton was discharged for violating safety rules, he did not indicate on what he based that statement, and it is evident from a review of his entire testimony that he did not know on what LaNata based his decision to discharge Burton and that his testimony that it was for violating safety rules was a reference to Burton's unsafe conduct and not to the rules as such. In any event, there is no evidence that in dis- charging Burton Respondent treated him differently be- cause of the rules. B. Larry Newton Newton was discharged on July 2, 1975. I have earlier credited Peter Sears that the unlawfully adopted rules were not distributed to supervisors until July 10, 1979. Accordingly, they could not be said to be in effect at the time of Newton's discharge and I find that his discharge was not as a result of the rules. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Frank Anderson, Roark Boyd, Hilton Burns, Paul Crane, Dean Ellis, and Paul Mire The above-named individuals were all discharged es- sentially for inefficiency and insufficient production.6 I conclude that the General Counsel did not make out a prima facie case that their discharges were solely as a result of the rules, and therefore these individuals were not entitled to reinstatement. As noted above, it is a matter of common experience for an employer to dis- charge employees for inefficiency or low production. In this case, Respondent did not adopt a rule which set a standard of production and then apply the rule to these claimants. Instead, each claimant's case appears to have been weighed on its own facts by the particular supervi- sor involved . Accordingly, in the absence of evidence of different standards being used, it cannot be held that they were discharged solely as a result of the rules. D. Herman Carter and Franklin Mouille These individuals were discharged for sleeping on duty.7 This also is a commonly recognized ground for discharge and the General Counsel adduced no evidence these individuals were treated differently because of the rule. E. Patrick Heff ley As noted earlier, Patrick Heffley was discharged for stealing. 8 The General Counsel adduced no evidence that he was treated differently because of the rule. More- over, in September 1974, Respondent had discharged an- other individual for the same reason . (R. Exh. 22-R.) F. Phillip Nunez Nunez was discharged for malicious mischief;9 namely, trying to kiss a female security guard . The incident does not to have been one of great seriousness , nor is it one for which there appears to have been any precedent. In any event, the General Counsel adduced no evidence that in discharging Nunez for this incident Respondent was treating him differently because of the rule. G. Larry Courvillion, Merland Farria, Clark Gristina, Randy More, Lawrence Payne, Richard Seibert, William Todd, Donald Turegano, Drew Willis, and Thomas Willz These individuals were all discharged for a form of in- subordination, 10 either in refusing to do assignmed work, profane and abusive language directed at a supervisor, or assault (in Wiltz' case). 11 In each case, the conduct was 6 Rules 7 and 11 Rule 5 Rule 4 Rule 8 10 Rule I 11 Courvillion's discharge notice listed rule 7, incompetency and ineffi- ciency, as the ground for discharge; however the testimony of Respond- ent's superintendent Quinn indicated that , in fact, he was guilty of a re- fusal to do work assigned. In Todd's case, no rule was specified in his discharge notice, but the conduct therein described was, in effect , a refus- al to do assigned work. In Turegano's discharge notice, rules I and 2 were cited but the conduct therein described was essentially insubordina- of the type commonly recongized as grounds for dis- charge and the General Counsel adduced no evidence that in discharging these claimants Respondent acted any differently than before the adoption of the rules. H. Edward Allen Allen was fired for clocking another employee 's time- card.12 This is conduct which is commonly recognized as a ground for discharge and the General Counsel has adduced no testimony that in discharging Allen, Re- spondent treated him any differently than before the adoption of the rules. I. Leonard Dazet and Randy LeCompte Dazet and LeCompte were discharged in effect for horseplay or "goofing off' and their discharge notices refer to rule 12 which provides for discharge for "a repe- tition of less serious offenses after warnings." I have ad- verted to this "rule" above, and expressed the view that given its vagueness it can hardly be called a rule. In Dazet's and LeCompte's case, there is no showing that a new standard of conduct or performance was being ap- plied against them and the conduct for which they were discharged is commonly recognized as a ground for dis- charge. J. Frank B. Autry There was no testimony concerning the reason for Autry's discharge, but his discharge notice stated that he was discharged for violation of rules 2, 3, and 11 and in- coherent to directions . More specifically, the notice stated: Operator lined up the spread shells and level drive and parking areas. Operator dug areas up run bull- dozer in circles in main drive uctting area and leav- ing deep rutt [sic] in drive. Requested he level area up on O.T. he said just rake it up. Operator at this time went got bulldozer in backyard brought same around to defective area . Stopped, backed up and run same behind office building parked same. Came to the B.M. foreman handed him the keys and stag- gered out of the gate. Operator was [illegible] to speech at this time and the Foreman Ferro stated he had never seen anyone in this condition. This is the full extent of the evidence relative to Autry's discharge, and it is nearly as incoherent as Autry was described to be on November 10, 1975. Thus, while the discharge notice lists a violation of rules 1 , 3, and 11, it is apparently a reference to the rules providing for written warnings, rule 2 of which relates to leaving work area or machine tool without permission, rule 3 to ne- glect of work and carelessness, and rule 11 to lack of proper effort. The rules for written warnings , which were also un- lawfully adopted, provide that "Any employee receiving non In Wiltz' discharge notice, his conduct was also cited as violation of rule 8 12 Rule 3 BOLAND MARINE & MFG. CO. a third written warning within a one-year period shall be subject to discharge." Inasmuch as Autry's discharge notice referred to the violation of three rules, there is a suggestion that his discharge was attributable to the ap- plication of the three written warning standard. Howev- er, this suggestion is largely conjectural and cannot be deemed probative of a finding that Autry was discharged "solely" as a result of the rules. The rule does not man- date discharge for three warnings, and Autry was not shown to have received three warnings. Rather, on one day he engaged in the conduct described in the dis- charge notice. Such is commonly recognized as a ground for discharge, and there is no evidence that in discharg- ing Autry, the Respondent treated him any differently than before the adoption of the rules. K. Mike Purdy Purdy was discharged for entering the premises with a bottle of beer in his possession and drinking from it. When he finished drinking it, he threw the bottle over the fence. Rule 6 provides for discharge for bringing al- coholic beverages on company property. There is no evidence that Purdy was intoxicated so his discharge was based on the fact that he finished drinking a bottle of beer inside the gate. There is no evidence anyone had ever engaged in similar conduct before, and while Respondent asserts that bringing alcoholic bever- ages on the job is universally accepted as cause for dis- charge, it seems to me to require a stretching of the facts to label Purdy's conduct as bringing alcoholic beverages on the job. He had consumed what he had and, as noted above, there is no charge that he was intoxicated. How- ever, this is not a pretext case, rather, it is one in which the General Counsel must show the discharge was solely because of the unlawful rule and the General Counsel adduced no evidence either that rule 6 represented a new ground of discharge or that Purdy was treated any dif- ferently than before the adoption of the rule. L. Moses Lovely Lovely is a missing claimant and no testimony was ad- duced relative to his discharge. However, in Lovely's case the discharge notice adverts with particularity to his violation of "working rules" and indicates on its face that his discharge was solely as a result of the application of the unlawfully adopted rules. Accordingly, I find that Lovely was entitled to reinstatement and backpay. M. Burkey Poland and Christopher Scarmado Poland and Scarmado were discharged for refusing to sign warning slips issued pursuant to the unlawfully adopted disciplinary rules. Respondent does not chal- lenge the assertion that they were discharged solely as a result of the rules. N. James Williamson Williamson was discharged for damaging property, conduct violative of rule 4. Foreman Gibson testified that it was reported to him that some cables had been damaged with a torch on a job where Williamson had been assigned fire watch. That is, a man was doing some 465 burning on one side of the bulkhead and Williamson was on the other side to see that no flame reached elelctrical cable at the work area. When Gibson learned cables had been damaged, he spoke to the welder and Williamson. He testified the welder was reliable and the welder re- ported that Williamson had not warned him. Gibson dis- charged Williamson. Gibson testified that he probably would not have dis- charged Williamson for a first offense, but that so much electrical cable had been damaged that a verbal order had been passed down that anyone involved in conduct leading to damage to cables was to be discharged. Re- spondent contends that in light of such testimony, Wil- liamson's discharge cannot be viewed as resulting solely from the rules. I agree. The conduct of Williamson was one of the negligence, conduct which may or may not result in discharge, and Gibson's testimony indicates clearly that in deciding to discharge Williamson he acted pursuant to instructions independent of the unlawfully adopted rules. 0. Michael Fye, Mark Hef}ley, Emile Meral, and Stephen Mitchell These individuals were discharged for absenteeism. There is no discharge rule for absenteeism, and the rule cited in their discharge notices was rule 12, repetition of less serious offenses after warnings. Of course, absentee- ism is a commonly recognized ground for discharge. fre- quently, the frequency of absenteeism or tardiness is the subject of very specific rules. Such was not the case here. Respondent did not have a rule specifying a fixed number of absences as grounds for discipline, either in the form of warnings, suspensions, or discharge, and it is evident from an examination of the discharge notices of these individuals that the supervisors decided each case on its own particular facts and not out of adherence to a "rule." This is well illustrated in the case of Fye who was discharged by Superintendent Quinn and reinstated on the plea of Fye's father that his son be given another chance. Quinn agreed, demonstrating thereby the discre- tion in the handling of abseteeism. In summary, I conclude that in the cases of all the claimants except Lovely, Poland, and Scarmado, the General Counsel has failed to adduce sufficient evidence to warrant a finding that the claimants named in the backpay specification were discharged solely as a result of the rules. As indicated earlier, in my judgment the burden was on the General Counsel to show that the claimants were treated differently because of the rules and she failed to adduce any evidence to that effect. In the analysis of the cases, I have not adverted to the fact that despite the General Counsel's failure of proof, in most of the cases, Respondent adduced testimony which I deem credible that the discharges accorded with past practice in similar situtations. Thus, were the burden of proof on Respondent, I would still conclude that the dis- charges of all but the three claimants named above were not solely as a result of the rules. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. THE BACKPAY PERIOD General Counsel contends the formula is unrealistic, unfair, and arbitrary . I am persuaded the formula is arbi- trary and unreasonable because it tolls backpay when the work force in each control group is less than a majority employed on the date of the discharge. As the General Counsel notes, no explanation is given to justfy such a cuttoff. True, a similar formula was utilized in the case cited by Respondent, but no explanation was given for its use there. (It appears the formula was not disputed.) Absent some basis for tolling backpay when less than a majority of the employees in the control group worked, the formula must be rejected. Respondent proposed an alternative formula to that described above. The formula is one derived from the science of statistics and is based on "universally accepted formulas for determining mathematical probability," that is, the "product rule for joint probability of successive events and the addition rule for probability of exclusive events." This formula suggests a precision for determin- ing backpay which is attractive . Yet, it is based on seven assumptions, each of which needs to be evaluated, and, in the final analysis, all it produces is a mathematical probability that a claimant would have been discharged for lack of work on a given date. Putting aside the ques- tion of the validity of the assumptions, I deem unaccept- able that aspect of the formula which I deemed unac- ceptable in Respondent's first formula; namely, that each claimant's backpay period would be tolled as of the date the boilermaker work force was less than a majority em- ployed on that date of the discharge. Thus, Lovely's backpay period would be tolled as of the 10th week of 1977, although Respondent still employed 97 boilermaker mechanics the following week. One of the assumptions leading to this result is that all boilermaker mechanics are alike. But Lovely is not like all other boilermaker mechanics. He is perhaps better, even worse, than others, but nevertheless different . For that reason, he might well have been retained as 1 of the 97 in the 11th week of 1977. In any event, except for its probability formula, Respondent, on whom the burden lies, has offered no evidence that he would not have been retained and I know of no case where the Board has accepted such a method of tolling backpay. To the contrary, the Board has consistently rejected such an approach . In Midwest Hanger Co., 221 NLRB 911, 917 (1975), enfd. 550 F.2d 1101 (8th Cir. 1977), the Board adopted a supplemental decision wherein the judge had stated that "Statistical probability is not enough and it must be determined what would have occurred regarding employment of each of the claimants based on the policies of Respondent. Re- spondent must make the showing and mere conclusion are not sufficient." In my judgment, this observation is applicable to Respondent's alternative formula. On the basis of the foregoing, as Respondent never did adduce evidence applicable to any particular claimant, it would appear that the General Counsel's formula is an appropriate formula. Yet, I am persuaded that it is gross- ly unfair. No matter how you try to explain it away, the fact of the matter is that Respondent's labor force de- creased drastically in the period from the adoption if the unlawful rule until October 29, 1978. As Respondent's There is a substantial dispute between the parties rela- tive to the backpay period, a dispute not easy of solution. In light of my conclusions above eliminating 32 claim- ants, the dispute to a great extent is moot . Nevertheless, to avoid a remand in the event the Board disagreed with my conclusions relative to the claimants , I have under- taken to set forth my conclusions as to the appropriate backpay period. The 35 individuals named as claimants were dis- charged on various dates after July 1, 1975. Thereafter, a number of them were offered reinstatement on various dates in 1975, 1976, 1977, and 1978, but not until October 16, 1978, were all claimant offered reinstatement. As to those offered reinstatement before October 16, 1978, the Regional Director tolled backpay as of the date of rein- statement; as to those not offered reinstatement until Oc- tober 16, the Regional Director tolled backpay on Octo- ber 29, allowing approximately 2 weeks for the claimants to accept or decline. Respondent contends that a backpay period which does not toll backpay until an offer of reinstatement is, in this case, arbitrary and an abuse of discretion, because it does not take into account the drastic reduction which occurred in Respondent's labor force due to a steady de- cline in business. Thus, the record indicates that at the time of the unlawful adoption of rules in July 1975, Re- spondent employed approximately 270 outside boiler- maker mechanics and temporary pushers . Between July 6, 1975, and February 29, 1976, the number fluctuated from week to week but was on an increasing scale with over 400 employees as of February 29, 1976. Thereafter, employment began to decline. By January 23, 1977, the employee complement was down to approximately 130 employees; by March 6, 1977, to approximately 110; by July 24, 1977, to approximately 50; and by November 6, 1977, to its lowest point of approximately 25. Thereafter, employment increased, but only slightly so, to a brief peak of approximately 115 on February 26, 1978, which lasted 2 weeks and declined to approximately 30. There- after to October 29, 1978, employment fluctuated from a low of 30 to a high of 120. The drop in employment during that period was attributable to the completion of three contracts: SSTV on February 1, 1977; U.S.N. King on March 9, 1977; and Litton Stacks on July 24, 1977. In light of the foregoing, Respondent contends that all the claimants would have been laid off for economic rea- sons long before October 29, 1978, and it proposes a for- mula whereby all employees in each classification (me- chanics, helpers, apprentices, permanent pushers, and permanent foremen) employed during the week of the discharge would be identified. Each claimant would be entitled to backpay for each week, defined as a work- week, during which a majority of the boilermakers thus identified worked. Backpay would be tolled whenever less than a majority of the boilmakers thus identified worked. Thus, under Respondent's formula claimant Moses Lovely's backpay period would end the week of March 6, 1977, whereas it would end on October 29, 1978, according to the General Counsel's formula. Respondent's formula has been derived from Boil- makers (Babcock & Wilcox), 121 NLRB 26 (1958). The BOLAND MARINE & MFG. CO. 467 Exhibit 9 graphically demonstrates employment rose from about 270 in July 1975 to about 400 in March 1976, after which it commenced a decline to about 50 in July 1977 and even lower thereafter. These are facts, not probabilities, and to hold that despite these facts Re- spondent is liable for backpay to October 29, 1978, is, in my judgment, an improper application of valid principles established in other factual situations. Accordingly, I reject the General Counsel's formula. As noted earlier, during the period after July 1975 Re- spondent worked on three substantial contracts: The SSTV, the U.S.N. King, and Litton Stacks. All the work on these vessels was completed and the vessels were de- livered by July 24, 1977. The record indicates that all, or most of the claimants, were employed on one or other of these projects. It seems reasonable and equitable, accord- ingly, to toll the backpay period as of the July 24, 1977, the date of the completion of the last project. IV. THE BACKPAY FORMULA The backpay specification, as amended, alleges the fol- lowing formula for computing backpay: 1(a) An appropriate measure of the hours each of the discharged discriminatees would have worked is best represented by the collective experience of the average hours, including overtime paid at premium pay, worked by all hourly paid employees (Journey- men Mechanics, Boilermakers and Boilermakers Helpers) excluding Craft "30" Shop Employees and Foremen employed by Respondent at its operation at New Orleans, Louisiana, during the backpay period of each discriminatee (herein referred to as the control group). Respondent denies the appropriateness of the formula, but its denial is predicated on a formula derived from a "work week" concept which is part and parcel of its proposal for determining the backpay period, proposals which I have rejected. In my judgment, the General Counsel's proposed formula as applied to the claimants who were journeymen mechanics or boilermakers is ap- propriate. It is essentially an average hours formula which has long been approved . NLRB v. East Texas Steel Casting Co., 225 F.2d 284 (5th Cir. 1958). The in- clusion of hours worked by boilermaker helpers is not appropriate and diminishes to a degree the backpay due journeymen mechanics and boilermakers; however, the helpers were so few in number in proportion to the me- chanics and boilermakers that any reduction is not of such substance as to warrant an amended formula and computation. As to the helpers, the backpay specification as amend- ed, alleges an alternative formula for computing backpay, as follows: (b) Alternatively, commencing on January 1, 1977, an appropriate measure of the hours each of the dis- charged Boilermaker Helper discriminatees would have worked is best represented by averaging/- proportionalizing the weekly hours, on a quarterly basis including overtime paid at premium pay, worked by all hourly paid Boilermaker Helpers em- ployed by Respondent as its operation at New Orle- ans, Louisiana, during the period from January 1, 1977 through July 31, 1977 (herein referred to as the Helper Sub-control group). The backpay period of Boilermaker Helpers ends on July 31, 1977. For the same reasons given above for finding the Gen- eral Counsel's formula appropriate, I find this formula appropriate for computing the backpay of the helpers. V. THE COMPUTATION Moses Lovely: Lovely was a journeymen mechanic and he was discharged on July 13, 1976. In accordance with the conclusions above, relative to the backpay period, I find that his backpay period continued to July 24, 1977. Using the formula described above, that is, multiplying the adjusted average hours worked as set forth in Appendices 3A-1 through 3A-4 attached to the General Counsel's Exhibit 1(w) by the applicable rate of pay during the quarter, Lovely's gross backpay is set forth in attached Appendix A. The credits to the benefit funds were computed from Appendices 3B-1 through 3B-4, and 3C-1 through 3C-4. Burkley Poland: The General Counsel contends, and I find, that Poland's backpay period extends from Decem- ber 5, 1975, to June 13, 1977, the date Poland was rein- stated. The General Counsel contends that Poland is entitled to a total net backpay of $10,459 and that Respondent is obligated to pay benefit funds pursuant to the terms of its collective-bargaining agreement a total of $1068. These net figures, Poland's gross backpay, interim earnings, and expenses are all set forth in Appendix 27 to the General Counsel's brief, which is appended here as Appendix B and which I find are the amounts of backpay and benefit fund credits owed by Respondent. The gross backpay figures were computed on the basis of the adjusted average quarterly house of hourly paid employees as set forth in Appendices 3A-1 and 3A-2, multiplied by the applicable rate of pay during the back- pay period. The interim earnings figures appear in Appendices DD-1 through DD-7, as amended by Appendices DD- 6A and DD-7A. In connection therewith, it should be noted that at the hearing Respondent examined Poland relative to earnings from a music store he operated during the backpay period; however, in its brief it has not adverted to such testimony. Its failure to do so may be attributable to the fact that there was no showing Poland had any earnings from the music store and/or the fact that Poland had owned and operated the store while employed by Respondent so that any earning therefrom would not be regarded as interim earnings. Whatever the reason, Respondent adduced no evidence of interim earn- ings in excess of those conceded by the General Counsel in the appendices referred to. The expenses listed on Appendix B were derived either from Appendices DD-1 through DD-7 or modi- fied on the basis of Poland's testimony. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The credits to the benefit funds were computed from Appendices 3B-1 and 3B-2, 3C-1 and 3C-2, appended to the General Counsel's Exhibit 1-W, and Appendix XXXX-A, appended to the General Counsel's Exhibit 1- A. Christopher J. Scarmado : The General Counsel con- tends that Scamardo's backpay period begins on January 17, 1976, and terminates on July 27, 1976. The record indicates that after his discharge on Janu- ary 16, 1976, Scamardo was referred to Respondent by the Union on February 24 and he worked 8 hours. The record reflects further that in the week ending February 29, Scamardo worked for Respondent and earned $27.28; for the week ending March 7, $330.32 plus holiday pay of $54.32; and for the week ending March 14, $325.92. In addition, Sears testified that on March 4 a grievance hearing was held on Scamardo's discharge and he learned at that time that Scamardo was back working for Respondent. Sears testified that in light of this Scamar- do's discharge was revoked. On the basis of the foregoing , Respondent contends Scamardo's backpay should be tolled as of February 23, 1976. The General Counsel disagrees, but it is not entire- ly clear why. Sears' testimony that the discharge was re- voked on March 4 is uncontradicted and there is no dis- pute Scamardo was employed by Respondent at that time and through March 14, 1976. In the circumstances, it was incumbent on the General Counsel to show why this did not constitute reinstatement. On the basis of the foregoing, I shall toll Scamardo's backpay as of February 29, 1976. 1 do not toll backpay as of February 23, because it does not appear Scamardo was hired for more than 1 day; however, his earnings for the weeks ending March 7 and 14 reflect full-time em- ployment. The record indicates that Scamardo's interim earnings, less expenses, for the first quarter 1976, exceeded any gross backpay due him. Accordingly, I find that he is not entitled to any backpay. As to pension training and health and welfare credits, Appendices 3B-1 and 3C-1 , attached to the General Counsel's Exhibit 1(w), indicate that the average quarter- ly hours worked for credit during the first quarter 1976 were 404 or 4.49 hours per day . As Scarmado's backpay period extended 44 days his total hours were 198 . His in- terim employment was with employers who made contri- butions for a total of 48 hours . Accordingly, the pension contribution owed is for 150 hours at 25 cents per hour, or $37; the training fund contribution at 5 cents per hour is $7; and the health and welfare fund contribution at 30 cents per hours is $45. VI. THE SUSPENSIONS The backpay specification alleges that 28 individuals were issued warning notices and suspended for 3 days solely as a result of the unlawfully adopted rules. Re- spondent denies the allegation. For proof of the allega- tions, the General Counsel relies on the notices that were issued in connection with the suspensions. The question presented is whether or not such notices were sufficient to warrant a finding that the suspensions were solely as a result of the rules. In the cases of Angel Alpuche, S. J. Vodanovich, and Bert L. West, no disciplinary rule was referred to in the notices of suspension. The suspension notices themselves indicate that the suspensions were meted out for being in line waiting for the lunch whistle to sound and were the result of instructions by Supervisor Pat Gipson without dependence on any of the rules found to have been un- lawfully adopted. Accordingly, I conclude that the evi- dence does not warrant a finding that the three named individuals were suspended as a result of the unlawfully adopted rules. The suspension of Bruce Hart must also be deemed not to be solely the result of the rules . He was suspended for 2 days. The rules on warnings and suspensions do not provide for a 2-day suspension for any of the misconduct described. More importantly, he was suspended for sleeping on duty, a discharge offense under rule 5. How- ever, the supervisor, evidently exercising independent judgment, as supervisors were wont to do prior to the rules, chose to discipline Hart by a 2-day suspension. As to the remaining individuals suspended , the conclu- sion is warranted that their suspensions were solely at- tributable to the unlawfully adopted rules for a number of reasons. First, except for Adam Meyer and Lawrence Payne, a dsiciplinary rule was cited on the warning notice. Second, one (Jose Cambon's) indicates clearly on its face that the supervisor was invoking the rules on warnings; six (Joseph Meyer's, Edward Phipps', Frank Tijerina's, James Williams', David Zeringue Jr.'s, and David Zeringue Sr.'s) refer specifically to the issuance of a prior written warning (one of the conditions for a 3- day suspension). Third, all provide for a 3-day layoff. When one considers all these circumstances, including the absence of any evidence that 3-day suspensions for the conduct described was in accord with the practice before the adoption of the rules, t 3 the conclusion is war- ranted that the suspensions were solely the result of the unlawfully adopted rules. It may seem inconsistent to find that the suspensions were solely as a result of the rules, when I have found above that discharges for the very same conduct were not solely as a result of the rules. As I see the situtation, the circumstances recited above relative to the suspen- sions justify the different result. In the final analysis, the findings and conclusions can only be understood when one recognizes that the uhlawfully adopted rules of dis- charge were not rigid, specific, and formalized rules, whereas the rules on suspensions were to a degree rigid and formalized. In accordance with the foregoing conclusions, I find that the 24 individuals whose names are set forth in Ap- pendix C attached hereto and made a part hereof are en- titled to backpay and Respondent is obligated to reim- burse the benefit funds as set forth in Appendix C. 'g The record indicates two instances of 3-day suspensions prior to July 1, 1975, one in March 1975, another in April 1975. Given the size of Respondent's work force, and the number of years it has been in oper- ation, it cannot be said that these two instances, shortly before the unlaw- ful adoption of the rules, establish a company practice of 3-day suspen- sion BOLAND MARINE & MFG. CO. 469 VII. SUMMARY Summarizing, I conclude that Respondent's obligation to remedy the unfair labor practices heretofore found shall be fulfilled by paying to Burkey Poland the amount of $10,459, and by paying to the individuals named in Appendix C the amounts set opposite their names, with interest thereon. In the case of Moses Lovely whose whereabouts were unknown, Respondent shall be direct- ed to pay the amounts set forth in Appendix A to the Regional Director to be held in escrow for a period of I year. In the event Lovely is located, suitable arrange- ments shall be made to accord Respondent the opportu- nity to examine Lovely as to his interim earnings and ac- tivities during the backpay period. The Regional Direc- tor shall make a final determination on any amounts which shall be properly deductible from Lovely's back- pay award under existing Board precedent. When so de- termined, the Regional Director shall make such deduc- tions and return the amounts deducted to Respondent. In the event Lovely is not located within the 1-year period, then the amounts placed in escrow shall be returned to Respondent. With regard to the amounts due to the benefit funds provided for in the collective-bargaining agreement, be- cause the provisions of the benefit fund agreements are complex and variable the Board does not provide for in- terest at a fixed rate, leaving the determination to the compliance stage.'' The matter of interest, or other ad- justments, was not raised by the General Counsel in this the compliance stage, and in her brief she makes no re- quest for interest. In the circumstances, Respondent's ob- ligation to remedy the unfair labor practices heretofore found shall be fulfilled by payment to the various benefit funds $89 in connection with Christopher Scarmado's loss of employment end the amoutns set forth in Appen- '' Merryweather Optical Co, 240 NLRB 1231, 1216 (1979) dices A, B, and C, except that those payments associated with Lovely's loss of wages shall be made part of the escrow arrangement earlier described. On the basis of the foregoing findings and conclusions, I recommend that the Board issue the following SUPPLEMENTAL ORDER The Respondent, Boland Marine and Manufacturing Company, Inc., its officers, agents, successors, and as- signs, shall make whole Burkey Poland and the individ- uals named in Appendix C by paying to Poland the amount of $10,459 and to the individuals named in Ap- pendix C the amounts set opposite their names, plus in- terest thereon accured to the date of payment less tax withholdings required by Federal and state law; and by paying to the benefit funds established by the collective- bargaining agreement $98 in connection with Christo- pher Scarmado's loss of unemployment, and the amounts specified in Appendices B and C. Respondent shall remit to the Regional Director the amount of backpay for Moses Lovely set forth in Appendix A, without exclud- ing tax withholdings as required by Federal and state law, and the amounts specified in Appendix A, as due to the benefit funds, such amounts to be held in escrow by the Regional Director until Lovely is located, in which event the Regional Director shall make suitable arrange- ments to accord Respondent an opportunity to examine Lovely as to his interim earnings and activities during the backpay period, and the Regional Director shall make a final determination as to the net backpay due Lovely and the amounts owed the benefit funds in accord with existing Board precedent. In the event Lovely is not located by the end of the 1-year escrow period, the total amount placed in escrow shall be re- turned to Respondent. The Regional Director is further directed to report the status of the case to the Board no later than 1 year from the date of the Board's Supplemental Order. APPENDIX A Name: Moses Lovely r. & Qtr. Gross Backpay Intenm Earnings Net Interim Expenses Earnings et Backpay Credit to Claimant for Pension and Training Fund Credit to Claimant for Health and Welfare Fund Quarterly Totals to Funds Quarterly Backpay Totals to Claimants 1975: 3 4 1976: 1 2 3 .............................................. $2,614 unknowns unknown3 $2,614 $110 $110 $220 $2,614 4 ............................................. 3,354 3,354 131 131 262 3,354 1977: 1 ............................................. 12,686 1 109 1109 218 2,686 2 ........................................... 3,306 3,306 121 121 242 3,306 3 ............................................. 2670 2,535 26 25 31 670 Totals ................................. $973 $12,630 1 The record indicates that from February 17 to March 3, 1977 , or for a period of 14 days, Lovely was committed to Odyssey House. A psychiatrically oriented facility for the treatment of drug abuse, pursuant to court order . During that period he was not permitted to leave without being supervised by a member of the staff. Accordingly, 14 days have been deducted from his quarterly backpay period. 2 July 1 to 24, 1977. 3 Since Lovely was a missing claimant, his interim earnings and expenses , if any, are unknown. 0 APPENDIX B Name: Burkley 0. Poland Yr. & Qtr. Gross Interim Backpay Earnings Expenses Net Interim Earnings Credit to Credit to Claimant for Claimant for Quarterly Net Backpay Pension and Health and Totals to Training Welfare Funds Fund Fund Quarterly Backpay Totals to Claimants 1975: 3 4 ............................................ $755 $755 $35 $35 $70 $755 1976: 1 ........ ...................................... 2749 $1483 $10 $1473 1276 85 85 170 1276 2 ............................................ 3096 2466 21 2445 651 34 34 68 651 3 ............................................ 3055 1526 13 1513 1542 65 65 130 1542 4 .............................................. 3354 634 5 629 2725 106 106 212 2725 1977: 1 .............................................. 330 2013 2013 1317 115 115 230 1317 2 ... ......... ................................. 2723 530 530 2193 94 94 188 2,193 Totals.................................................................................................................................................................................................................. $1068 $10,459 3 4 1978: 1 2 3 4 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C Hourly Net Rate Back- of Pay pay Robert H. Ambrose ............... $6.79 Jose Cambon............ 6.24 John DeWald Jr...... 6.79 Alfred Dorsey ......... 6.24 Steven Elkins ........... 6.79 W. E. Forster Jr...... 6.79 C. Hanson ................ 6.79 Richard Hilton Sr.... 6.79 W. R. Johnson ......... 6.79 Gary Loyd ............... 6.79 Alphonse J. Pen- sion Train- ing Health & Wel- fare $163 $6 $1 $7 150 6 1 7 163 6 1 7 150 6 1 7 150 6 1 7 163 6 1 7 163 6 1 7 163 6 1 7 163 6 1 7 163 6 1 7 Hourly Net Rate Back- of Pay pay Pen- sion Train- ing Health Wel- fare Adam H. Meyer ...... 6.79 163 6 1 7 Joseph H. Meyer ..... 6.79 163 6 1 7 Henry Monroe ......... 6.79 163 6 1 7 Lawrence B. Payne .................... 6.79 163 6 1 7 Michael O. Padilla... 6.79 163 6 1 7 Edward Phipps....... 6.79 163 6 1 7 George Purcell ........ 6.24 150 6 1 7 Robert F. Riley ....... 6.79 163 6 1 7 Irvin C. Rocher Jr.. 6.79 163 6 1 7 Frank A. Tijerina.... 6.24 150 6 1 7 James Williams ....... 6.24 150 6 1 7 David Zermgue Jr... 6.79 163 6 1 7 David Zeringue Sr.. 6.79 163 6 1 7 Lumetta ................ 6.79 163 6 1 7