American Casting Service, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 105 (N.L.R.B. 1969)

AMERICAN CASTING SERVICE , INC. 105
American Casting Service , Inc. and International
Molders' and Allied Workers' Union of North
America , AFL-CIO. Cases 25-CA-1877 and
25-CA-1878
June 26, 1969
SUPPLEMENTAL DECISION AND
ORDER
Bl CHAIRMAN MCCULEOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 18, 1965, the National Labor
Relations Board issued a Decision, Order, and
Direction of Second Elections, finding inter alia that
Respondent had discriminated against Thomas
Mason, Jewell Stafford, George W. Bryant, Jr., Joe
Jackson, Wayne Johnson, Ralph Nelson, Theron
Carter, Isaiah Young, and Joe McGarrah in
violation of 8(a)(3) and (1) of the National Labor
Relations Act, as amended, and directing
Respondent to make whole these individuals for any
pay losses they may have suffered thereby.'
Thereafter, on August 8, 1966, the Board 's Order
was enforced by the United States Court of Appeals
for the Seventh Circuit.'
On September 3, 1968, the Regional Director for
Region 25 issued and served on the parties a
backpay specification and notice of hearing, and
Respondent filed an answer to the backpay
specification. Pursuant to notice, a hearing was held
before Trial Examiner Benjamin B. Lipton from
October 28 to 30, 1968, for the purpose of
determining Respondent ' s backpay obligation to
Joseph H. McGarrah, Ralph E. Nelson, Thomas E.
Mason, Jewell T. Stafford, George W. Bryant, Jr.,
Wayne T. Johnson, Theron Carter, and Isaiah
Young.
On March 18, 1969, the Trial Examiner issued
the attached Supplemental Decision , in which he
found the discriminatees herein to be entitled to
backpay in the amounts specified. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Supplemental Decision and a supporting brief, and
the General Counsel filed limited cross-exceptions,
and a brief in support of the Trial Examiner's
Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
Act, as amended , the Board has delegated its powers
in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Trial Examiner at the supplemental hearing and
finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has
considered the entire record in this case, including
the Supplemental Decision and the exceptions and
151 NLRB 172
'N L R B v. American Casting Service, Inc., 365 F . 2d 168.
briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with
the limited modification below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended order of the Trial Examiner, and
hereby orders that Respondent, American Casting
Service, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommendations, as herein modified:
Delete from the indented paragraph of the Trial
Examiner's Conclusions and Recommendations the
name Joseph H. McGarrah and the amount of
$924.47 opposite said name.'
'The Board reserves Decision as to the amount of backpay due Joseph
H McGarrah, pending receipt of evidence and a further Supplemental
Trial Examiner's Decision pertaining to his interim earnings, as required
by order reopening record and remanding proceeding To Regional Director
dated May 29, 1969
TRIAL EXAMINER 'S SUPPLEMENTAL
DECISION
BENJAMIN B. LIPTON, Trial Examiner: This supplemental
proceeding was instituted , pursuant to the Board ' s Rules
and Regulations, for the purpose of deciding the amounts
of backpay due certain employees under a prior Board
Decision and Order' which was enforced by the Court of
Appeals for the Seventh Circuit.' From October 28 to 30,
1968, hearing was held before me in Princeton , Indiana, at
which all parties participated and were afforded full
opportunity to present relevant evidence and to argue
orally on the record. After the close, briefs were filed by
General Counsel for the Board and by Respondent, and
certain additional data- were submitted as provided for at
the hearing. The briefs have been accorded careful
consideration , and the posthearing data , to the extent they
constitute stipulations or admissions, are hereby included
in the record.'
Upon the entire record in the cases, and from my
observation of the witnesses on the stand , I make the
following findings and conclusions:
A. Gross Backpay Formula
To determine the gross backpay for each of the eight
claimants involved,' the General Counsel's backpay
specification asserts and utilizes the following formula:
The average hours actually worked during the appropriate
backpay period by certain "representative employees,"
holding substantially the same job classification as the
particular claimant, multiplied by the wage rate the
claimant would have received during such period,
computed on a quarterly basis . Stipulations were reached
at the hearing in which Respondent does not dispute the
'151 NLRB 172.
'N L.R B. v. American Casting Service. inc., 365 F.2d 168.
'General Counsel ' s statement and attachments are marked and admitted
as TX Exh. 1, and Respondent's statement, TX Exh. 2.
'Joseph H. McGarrah , Ralph E Nelson, Thomas E . Mason , Jewell T.
Stafford , George W Bryant , Jr., Wayne T . Johnson, Theron Carter, and
Isaiah Young
177 NLRB No. 5
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"representative employees" and the wage rates set forth in
the specification. However, Respondent does not accept
the "appropriate measure of hours" described in this
specification. It proceeds on the theory that only a fixed
amount of work was available during the period following
the termination of the eight claimants . In substance,
Respondent proposes that the number of hours for each
claimant during the backpay period be computed by
taking all the hours actually worked in the backpay period
and prorating equally this total amount of hours (or work)
among all the employees , including the claimants,
according to job classification and calendar quarters.'
In effect, Respondent disputes the established Decision
and Order in the unfair labor practice proceeding. There,
it was found that, although a general reduction of
employees was economically justified, Respondent had
discriminatorily selected the claimants in the layoff.
Further , the findings were, inter alia , that Respondent
failed to recall these laid off employees when numberous
job openings occurred in the 6 months following their
separation; that it retained employees junior in status; and
that it hired about 25 new employees and terminated 20
employees at the Owensboro plant alone between
February and August 1964. In that case, as in the present,
it is evidenced that Respondent's general practice was to
apply the seniority rule when all other factors were equal.
Therefore, it is futile for Respondent now to argue upon
the same facts that the backpay should be computed by an
equal distribution of the available work among all the
employees, without the elimination of the discriminatory
conditions affecting the claimants.'
It is fairly settled that in computing gross backpay, the
sole requirement upon the Board is that it select a method
which "cannot be declared to be arbitrary or unreasonable
in the circumstances involved."' Applying this broad test,
I find the method used in the Specification for computing
the quarterly adjusted average hours for each claimant is
clearly appropriate.
B. Nature of Remaining Issues
in this type of proceeding, the general backpay liability
of Respondent is already established, and the questions
relate only to a determination of the specific backpay to
be awarded the claimants. With the essential responsibility
of General Counsel diligently to assist in assembling the
evidence and to show the gross amounts of backpay due,
the burden rests upon Respondent to prove "facts which
'However , Respondent 's brief makes no mention of any question
concerning the backpay formula
'While it would in no event alter the ultimate findings, the record does
not bear out Respondent ' s claim that it had a fixed amount of work during
the general backpay period beginning November 11, 1963. Inter alga.
President Jack Davis testified that he received an order for pipe fittings in
January 1964 which created a need for additional employees , and that he
instructed his foremen to contact laid off employees to return to work. He
also admitted that he could have expanded his production , for which he
had ample capacity , and hire even more employees had he received
profitable orders during such period.
'E g., N L R B v Brown A Root, Inc. 311 F 2d 447, 452 (C A 8) In
the same context, the court stated " In solving the problems which arise in
backpay cases , the Board is vested with a wide discretion in devising
procedures and methods which will effectuate the purposes of the Act
Obviously, in many cases it is difficult for the Board to determine precisely
the amount of backpay which should be awarded to an employee In such
circumstances the Board may use as close approximations as possible and
may adopt formulas reasonably designed to produce such approximations."
And compare in the same opinion the court' s rejection of the " lump sum
formula" there advanced by the respondent Id at 453
would negative the existence of liability to a given
employee or which would mitigate that liability."' For
example, the allegation that a claimant engaged in willful
loss of earnings is an affirmative defense to be carried by
Respondent.' The investigatory evidence of General
Counsel, which include social security reports, standard
Board backpay questionnaires filled out by the claimants,
and data obtained from interim employers, was made
available to Respondent before and during the hearing,"
and certain further evidence was allowed to be admitted
by agreement following the hearing. In pretrial discussions
on the record, stipulations were taken and the issues were
defined. Apart from Respondent's position concerning the
gross backpay formula, supra, it indicated that no specific
issues were raised as to Stafford, Bryant, and Nelson,
subject to its inspection of social security records. As to
McGarrah and Johnson, it disputed the interim earnings
for certain calendar quarters stated in the specification. It
reasserted the contentions in its Answer that Carter and
Young were validly offered reinstatement on dates prior to
those indicated in the specification. And it alleged that no
work was available for Mason as of the date of his
termination because his grinding operations were
transferred to another plant. The mathematical
computations in the specification are not contested, and
are set forth in Appendix A hereto. However, revisions
will be made in the text of this decision to conform with
the findings infra
1. McGarrah
This claimant's backpay period runs from November
11, 1963 to November 20, 1964, at the hourly rate of
$1.30. He was employed with Tobe A. Field & Co. Inc.,
from sometime in the second quarter of 1964 until the end
of the backpay period, and his interim earnings on this job
were sufficient to offset all backpay concurrently due from
Respondent. McGarrah testified that from mid-November
1963 until mid-April 1964, he performed work
intermittently for William White and received
compensation solely in the form of salvage materials, as
described below. During this entire period until he
obtained regular employment with Field, I find on the
evidence that McGarrah engaged in a continuous search
for work."
The Specification lists interim earnings from White
Construction Co., appearing only in the fourth quarter of
1963, in the amount of $200. The testimony of McGarrah
may be summarized, viz: On unspecified dates in the
fourth quarter of 1963, he helped White on a job at the
Ohio Street bridge, and in payment he received salvage
lumber, which White told him was worth $200.
Subsequently, McGarrah sold most of the lumber in small
quantities and realized about $200, as he broadly
estimated. McGarrah had no receipts, was unable to
provide more specific information, and did not indicate
the dispostion or value of the lumber which was not sold.
He also worked, without pay, for 2 or 3 days helping John
Vickers in overhauling one of White's trucks in a garage
owned by Mr. Barrett . Between February 18 and March
'E g , US Air Conditioning Corp., 141 NLRB 1278, 1280, and court
cases cited
'Florence Printing Company v N L R B, 376 F 2d 216 (C A 4)
"Such material , contained in the exhibit files, were utilized by
Respondent in examining the claimants on the witness stand
"On six occasions beginning in 1963, he visited the Indiana Employment
Security Division , and he also applied for jobs with employers in the local
area , among whom he specified six company names.
AMERICAN CASTING SERVICE, INC.
18, 1964, he assisted White in wrecking on old building at
the site of the present Gibson County Bank He was given
no wages, but was permitted to take salvage materials
which White was going to destroy. He sold some of it and
received "a very small amount" of money. Between April
I and mid-month, he and Vickers assisted White in
leveling land for an orchard at the farm of one
Churchman. He received no remuneration . The social
security information filed by White (who did not testify)
shows that in the period from November 15, 1963 to June
I, 1964, McGarrah received salvage from razed property
valued at $300.
In its brief, Respondent contends that the foregoing
periods of work by McGarrah constitute a total of 2
months' employment for White, and that these 2 months
should be deducted as interim earnings from the gross
backpay due McGarrah.'r McGarrah's testimony
concerning these interim earnings is at best vague and less
than persuasive as to the value of the salvage materials.
Those which were unsold, and the small quantity he sold
from the Gibson Bank job, represent emoluments of value
and valid interim earnings not reflected in the
specification In the circumstances, I accept, as covering
all the disputed items, the amount of $300 reported by
White in the social security record, and will accordingly
deduct an additional $100 representing the difference.
Therefore, the total net backpay due McGarrah is reduced
to $924 47
2. Nelson
The backpay period begins November II, 1963, and
ends November 20, 1964, at the hourly rate of $1.40. The
considerable testimony and argument concerning Nelson
may be substantially curtailed.
By reason of his full employment with the City of
Princeton, the net backpay from Respondent computed in
the specification consists of $42.18 in the first quarter of
1964, and none thereafter. During a 2-week period in
February, Nelson was employed "on and off" at Ray's
Auto Repair "working out" a debt to this firm of $50 for
a previous repair bill on his own car. The fact that he was
not paid in cash for such work does not eliminate or
reduce the indicated value of his employment as interim
earnings to be applied in mitigation of Respondent's
backpay liability. Thus, the earnings of $50 erase all net
backpay for the entire year of 1964.
For the fourth quarter of 1963, the specification lists
net backpay of $261.03, and expenses in the amount of
$605. The expenses were purportedly incurred on extended
trips by Nelson in search for employment in Chicago,
Illinois, Louisville, Kentucky, and Evansville, Indiana. As
there were no interim earnings during this period, these
expenses were not actually computed in the net backpay."
It is clear in the specification that Respondent's liability
was in no way increased by these expenses.
As the expenses are not a factor, the evidence that
Nelson undertook the trips to Chicago and Louisville
before seeking employment in Princeton or Evansville
scarcely serves to establish , as Respondent contends, that
he made no reasonable effort to find work during the
partial quarterly period in question . While Nelson's
"it is certainly not clear , and I would doubt from the evidence , that as
much as 2 months full time work was involved
"Such expenses may be allowed only to the extent of interim earnings
during the quarterly period E.g., Mastro Plastic Corporation, etc.. 136
NLRB 1342, 1348
107
general credibility may be subject to challenge, his
testimony and reports submitted to the Board concerning
his quest for work cannot entirely be discarded, absent
any countervailing evidence. The numberous specified
employers and places at which he sought employment
locally and in the various cities he visited, and
consideration of his early success in obtaining permanent
employment with the City of Princeton, are sufficient in
my opinion to hold that Nelson's efforts were reasonable
during the fourth quarter of 1963. Accordingly, the total
net backpay of $261.03 is awarded.
3. Mason
Mason 's backpay period extends from December 9,
1963, until August 14, 1964. He had been employed at
Owensboro as a grinder at the minimum rate of $1.25 an
hour. Respondent's position here is that Mason was the
only grinder at the Owensboro plant; that on December 9,
1963, it transferred all its grinding operations to the
Princeton plant, 65 miles distant; and that consequently
there was no available work for Mason beginning on such
date. The agreed "representative employees" in the
specification are laborers. Mason was reinstated on
August 14, 1964, as a laborer." It is also noted, as
reported in the prior Board decision, that Respondent
there contended Mason, among several others, was a
"casual laborer," and that he was temporarily laid off and
would be called back. Nor does it appear that Respondent
raised the discontinuance of grinding operations at
Owensboro as a defense in the unfair labor practice case.
The record amply shows that many of the lower or
minimum paid classifications, e.g., grinders, apprentice
molders, and laborers, performed mixed or interchangable
functions, which included common laborer work. This
position of Respondent is rejected.
Respondent contests the expenses for bus fare totalling
$17.50 for the approximate year that Mason worked at
Martin's Barber Shop, located about a mile from his
home. While employed with Respondent, Mason regularly
drove to and from work in the car of another employee. I
find this expense is clearly permissible. There appears no
dispute by Respondent as to Mason's search for
employment - which I find was adequate. Accordingly,
Mason is awarded $852.82.
4. Stafford
In Respondent's brief, detailed as to the other
claimants , no specific questions are posed as to Stafford.
At the hearing, the parties agreed that his backpay period
ended 4 days prior to the date originally indicated in the
Specification. Appropriate adjustment was made by
General Counsel in his brief by a deduction of $28.38.
Stafford' s ultimate net backpay is therefore reduced to
$299.12.
5. Bryant
His backpay period runs from November 18, 1963, to
August 14, 1964, when he was offered reinstatement at the
"He worked for approximately 2 weeks The testimony is conflicting as
to whether he quit or was sent home General Counsel makes no claim for
backpay following August 14. Mason testified he did some grinding work
upon his reemployment I do not accept Respondent ' s uncorroborated
assertion that Mason voluntarily left because he was unable to perform the
duties of a laborer
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior Board hearing . Bryant was a molder at Owensboro,
paid $1 .25 an hour . Respondent contends that he had
interim earnings at Peters Brothers for 2 weeks, which are
not allowed in the specification . It cites Bryant's
testimony on August 11 at the previous hearing in which
he stated that he worked " last week" at "Peeler Brothers"
for a period of 2 weeks . It is plain, and not disputed, that
the intended reference was to "Peters Brothers," an
Owensboro company . At the instant hearing , Bryant could
not remember and was not sure whether such employment
occurred in July and August 1964. However, he was
specific in describing the locations and nature of such
work for Peters . A posthearing stipulation and affidavit
indicate that the records of this firm do not reflect the
employment of Bryant at any time in 1963 or 1964. The
evidence by Respondent at least presumptively establishes
that Bryant worked for Peters Brothers in July and
August, 1964. It is sufficient, I find, to shift the burden of
going forward to General Counsel, to show that such
employment occurred before or after the backpay period,
or otherwise to justify the exclusion of the interim
earnings from the Specification . By inadvertence , Bryant
was not asked to submit reports of his interim
employment on the standard backpay questionnaire of the
Regional Office. Therefore, on the record as it stands, I
must conclude that Respondent is entitled to the deduction
of 2 weeks as interim earnings at $1.25. The adjusted
average hours , taken from Appendix C of the
specification, for the penultimate 2 weeks in the third
quarter of 1964 affecting Bryant are 73.83 hours. This
figure multiplied by $1.25, or $92.29, is deducted from the
final net backpay, leaving the total award $1,292.48.
6. Johnson
Johnson ' s backpay period runs from November 15,
1963 to July 17, 1964 . He was employed at Owensboro as
a molder at the hourly rate of $1.50. After his
termination , Johnson ' s activities may be described, as
follows: About November 17, he left Owensboro, Ky., to
stay with his parents at Lawrenceville, III. (a distance of
30 miles) while he searched for employment, as he
specified . About "a week or so" before Thanksgiving, he
came back to Princeton , Ind. where he stayed with his
brother-in-law. On November 23, he registered with the
Indiana Employment Security Division at Vincennes.
Subsequently , he went back to Illinois From November
27 to 29, he was incarcerated in Lawrenceville. On the
latter date, he was convicted of theft and placed on
probation for I year , on condition , inter a/ia, that he will
not depart from the State of Illinois during his probation
without the consent of the court, and that he will regularly
support his wife and children . For a week, he was
employed with Craig D X Service. Sometime after
Christmas, or about a month after his conviction, he
received permission from the court probation officer to
leave Illinois, because he could not find work there, and
return to Princeton . Thereafter , he reported to the
probation officer in Illinois once a month . At Princeton,
he stayed on the farm of his father-in-law , Earl Lyles,
where Johnson ' s wife and two children had been residing.
In January on the farm , he performed occasional light
maintenance work , or "odds and ends." Beginning with
the warm weather in March , he assisted in actual farm
work for 2 months and was paid by Lyles in cash for 4
weeks at $30 per week . The degree that Lyles' daughter
and grandchildren were housed and fed as a family
gratuity is unclear . Johnson stated that his work on the
farm also represented room and board for himself, wife,
and children, but that he did not get along too well with
Lyles. Between May 2 and 6 , Johnson was arrested and
jailed in Princeton . Johnson repeatedly admitted that
during his entire stay at the Lyles' farm, from January to
July," he considered himself "already at work " and made
no attempt to search for other employment. I am
convinced that Johnson endeavored to be as accurate as
he could in his testimony , perhaps resolving doubts
against his own interest . He could not remember specific
dates and details 5 years back . For the period subsequent
to his stay with Lyles until he was reinstated by
Respondent on July 17, the testimony shows that Johnson
made extensive efforts to obtain employment. "Right after
spring," he applied at the Oldsmobile dealer in Princeton,
then at City Motors, Ford Motors, Montgomery Ward,
Goodyear, and Brown Shoe. He visited the Indiana
Employment Security Division at Vincennes 2 or 3 times,
and also at Princeton ." There is an ambiguity in the
evidence as to whether he worked for Lyles until July or
just for 2 months after he started the farm work in
March . As a reasonable accommodation on the state of
the evidence , I find that Johnson failed to maintain with
Indiana Employment Security his active registration
initially made November 23, 1963, and that he effectively
removed himself from the labor market from January 1 to
June 17, 1964; i .e., until 4 weeks prior to his reinstatement
by Respondent.
Respondent' s argument is plainly lacking in merit that,
under the court order, Johnson was forbidden to leave the
State of Illinois, and that he was therefore "unavailable
for employment . . from the beginning of December till
the time he received permission from his probation
officer" to leave the State." Johnson was not restricted
from looking for work in Illinois; indeed he was in effect
ordered to do so by the court. He did make reasonable
search, and in fact found some employment during this
time with Craig
General Counsel, in his brief, computes the appropriate
adjustments in the specification to deduct from net
backpay the period of incarceration from November 27 to
29, amounting to $24. Accordingly, Johnson's net backpay
for the fourth quarter of 1963 is reduced to $252 80. For
the remainder of the backpay period, he is entitled to only
4 weeks until his reinstatement on July 17, 1964 Under
Appendix C of the specification, the adjusted average
hours for these 4 weeks in the second and third quarter of
1964 are 153.08. At $1.50 per hour, this amounts to
$229.62. Added to the reduced $252.80 in the fourth
quarter of 1963, his total net backpay is $482.42
7 Carter
The specification carries the backpay period from
November II, 1963, to June 5, 1964, when Carter was
reinstated . He was a molder at Princeton and paid $1.40
an hour . The sole issue, involving an alleged prior offer of
"This period of time is also specified in Johnson's backpay
questionnaire
"Johnson drew unemployment insurance checks consecutively for 7
weeks ending January 11, 1964
"This reflects a change in Respondent's position , at the hearing it
apparently contended that only the court, and not the probation officer,
could give such permission
AMERICAN CASTING SERVICE, INC.
reemployment , presents a direct credibility conflict."
Betty Barrett , a secretary , testified in substance, that
sometime before March 6 , 1964, someone telephoned on
Carter ' s behalf inquiring for work and was told to send
him in . Carter appeared about noon that day, a timecard
was made out for him, and he was sent back to work for
Foreman Perry. Shortly thereafter, Perry indicated Carter
had been drinking and he did not want him to work in
such condition . President Davis came in and told Carter
to come back in the morning when he was in a little better
shape. Carter said he would; but he failed to return. He
actually did no work that day, and his timecard was
"probably destroyed." Davis gave testimony as to two
visits by Carter to the plant, in both of which he allegedly
offered Carter employment. Concerning the second visit,
Davis substantially corroborated Barrett. Carter at first
insistently denied in effect that he had been to the plant at
any time from his termination until his reinstatement in
June , and that he had ever been sent home for being
intoxicated . On rebuttal , he recalled that once during the
backpay period he had been to the Owensboro plant when
it was being remodeled . Carter was greatly confused as to
dates , and his testimony indicates that his memory is
unreliable . He admitted that he was a heavy drinker at
one time , but he is no more . The general account given by
Barrett and Davis as to this incident is accepted.
However , both were uncertain and unconvincing as to
their recollection of the precise date . Barrett said it must
have been before she entered the hospital on March 6. No
records were produced . Respondent' s formal answer to the
Specification alleges that the offer was made
approximately the beginning of March 1964. In the
circumstances , I find that the backpay period was cut off
March 1, 1964.
Based upon the representative data shown in Appendix
B to the Specification , and eliminating 4 weeks in March,
the adjusted average hours for the first quarter of 1964
affecting Carter are revised to 243.47. This figure
multiplied by $ 1.40 results in the amount of $340.86.
Additionally, I find that Carter worked for a farmer,
Robert Key, for only I day, in February 1964, during the
backpay period . General Counsel's brief makes the
appropriate adjustment by deducting $9 from the backpay.
Accordingly, the net backpay for the first quarter of 1964
is $331.86, and the grand total awarded is $592.89.
8. Young
The backpay period alleged in the specification begins
December 16, 1963, and ends June 5 , 1964, when Young
was reemployed. He worked at Princeton as a grinder at
$1.55. The issue concerns an alleged prior offer of
reinstatement.
'There is sufficient evidence that he made reasonable effort to find
work, and Respondent makes no contention in its brief to the contrary
109
Young had occasion to visit the plant in January 1964
to pick up an insurance compensation check. Barrett
testified that Davis then asked Young if he was employed,
and Young said he was not, but he had two good
prospects, one at Whirlpool. Davis inquired "would he
like to come back to work," as they were shorthanded in
the machine shop. Barrett did not hear Young's answer.
Davis testified he used the occasion "as a ruse" to ask
Young back to work. When he requested that Young be
at work the next morning , Young said he had two other
offers which were better, and mentioned Whirlpool.
Young firmly fixed the date of his visit as February 26.
He testified that only Barrett and Mrs. Jack Davis" were
there. Mrs. Davis asked him what he was doing, and he
said he had a couple of good prospects, one of which was
at Whirlpool. No one from Respondent offered him his
former job back at this time or at any time prior to June
5. He actually started work at Whirlpool in December
1964. On cross-examination , he denied that his brother,
Paul Young, a foreman at Respondent, had contacted him
to come back to work in January or February or at any
time . As noted supra, Davis testified elsewhere that he
had instructed his foremen to recall laid off employees in
the early part of 1964. No foreman testified. No records
of any kind were offered. Isaiah Young impressed me as a
forthright witness . On the total picture, I credit him.
There is apparently no contention relating to his search
for work, which I find on the record was sufficient. His
total net backpay, as computed in the Specification, is
$1,390.67, which will be awarded.
CONCLUSIONS AND RECOMMENDATIONS
Upon the basis of the foregoing findings, and the entire
record in the cases, it is concluded that the employees
named below are entitled to backpay in the amounts listed
opposite their names, with interest at 6 percent per annum
on each of the quarterly sums found due herein from the
end of each calendar quarter," less the tax withholding
required by Federal and State Laws.
Joseph H. McGarrah $ 924.47
Ralph E . Nelson 261.03
Thomas E. Mason 852.82
Jewell T. Stafford 299.12
George W. Bryant, Jr. 1,292.48
Wayne T. Johnson 482.42
Theron Carter 592.89
Isaiah Young 1,390.67
It is recommended that the Board adopt these findings
and conclusions , and order the Respondent , its officers,
agents, successors, and assigns , to pay the sums indicated.
"Mrs Davis was present in the hearing room , but did not testify
"Isis Plumbing & Heating Co. 138 NLRB 716. Local 138 . International
Union of Operating Engineers . AFL-CIO, et a!. 151 NLRB 972
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Net
Calendar
Quarter Remarks
Interim
i
Hours and Gross Interim Net
Earn ngs Expenses Pay Rates Backpay Earnings Backpay
ose-1. J h H . Mc rr h
1963-IV Employed at:
White Construction Co . $200.00 None 222.62 at $1 . 30 $289 .41 $200.00 $89.41
1964-I Unemployed
None None 439.89 at $1.30 $571 . 86 -- $571.86
1964-II Employed at:
Tobe A. Field & Co. Inc. $354.73 None 552.25 at $1.30 $717.93 $354.73 $363.20
1964-III Employed at:
Tobe A . Field & Co. Inc. $823 . 87 None 529.32 at $1.30 $688 . 87 $823.87
1964-IV Offered reinstatement
effective November 23, 1964
Employed at:
Tobe A . Field & Co. Inc. $645 . 84 None 328.06 at $1.30 $426.48 $645.84 -
$1024.47
II. Ra l h E . Nelso n
1963-IV Unemployed:
Travel and other
expenses seeking
employment None $605.00 186 .45 at $1 .40 $261 . 03 -- $261.03
1964-1 Employed at:
City of Princeton $481.70 None 374.20 at $ 1.40 $523 . 88 $481 . 70 $42.18
1964-II Employed at:
City of Princeton $925.65 None 483.20 at $1.40 $675 . 48 $925 65 --
1964-III Employed at:
City of Princeton $887.70 None 467.10 at $1 . 40 $653 . 81 $887.70 --
1964-IV Employed at:
City of Princeton $448.40 None 298.01 at $1 .40 $417.21 $448.40 --
Offered reinstatement $303.21
effective November 23, 1964
III. Thomas E. Mason
1964-I Employed at:
Martin's Barber Shop $40.00 105 .02 at $1 .25 $131.28 $53.50
Elite Cigar Store
(Robert F . Grady) $ 14.50
Bus fare to and from
work $1 . 00 $77.78
1963-IV Employed at:
Martin's Barber Shop $260.00 400 . 80 at $1 . 25 $401.00 $253.50
Bus fare to and from
work $6. 50 $247.50
1964-II Employed at:
Martin's Barber Shop $260.00 475 . 47 at $1.25 $594.34 $253.50
Bus fare to and from
work $6 . 50 $340.84
1964-111 Employed at:
Martin 's Barber Shop $ 140.00 258 . 56 at $ 1.25 $323.20 $136.50
Bus fare to and from
work $3.50 $186.70
t tementOff d r iere nse a
effective on August 17,1964 $852.82
AMERICAN CASTING SERVICE, INC. 111
Calendar
Quarter R k
Interim Hours and Gross
Net
Interim Net
emar s Earnings Expenses Pay Rates Eackpay Earnings Backpay
IV. Jewell T. Stafford
1963-IV Employed at. 196.59 at $1.25 $245.74 $221.79 $23.95
Robert Motor Co. $210.29
Evansville Country Club $11.50 None
1963-1 Employed at:
Owensboro Block Co. $188.13 407.14 at $1.25 $508.93 $205.38 3$ 03.55
Field Packing Co. $9.75 $327.50
Wright Motor Co. None
Offered reinstatement
effective March 27, 1964
V. George W. Bryant, Jr.
1963-IV Unemployed None None 196.59 at $1.25 $245.74 -- $245.74
1964-I Unemployed None None 407.14 at $1.25 $508.93 -- $508.93
1964-II Employed at:
Vogue Cleaners $102.25
A & P Tea Co. $131.67 None 471.41 at $1.25 $589.26 $234.92 $354.34
1964-111 Employed at:
Poland Realty Co . $50.00 None 260.61 at $1.25 $325.76 $50.00 $275.76
Offered reinstatement
effective on August 17, 1964
VI. Wayne T . Johnson
1963-IV Employed at:
Craig D X Service $30.00 None 204.53 at $1.50 $306.80 $30.00 $276.80
1964-1 Unemployed None None 407.12 at $1.50 $610.71 -- $610.71
1964-II Employed by:
Earl Lyles $120.00 None 471.41 at $1.50 $707.11 $120.00 $587.11
1964-111 Unemployed None None 114.33 at $1.50 $171.50 -- $171.50
Offered reinstatement
effective July 20, 1946
VII. Theron Carter
1963-IV Unemployed None None 186.45 at $1 .40 $261 . 03 $261.03
1964-I Unemployed None None 374.20 at $1 . 40 $523 . 88 $523.88
1964-11 Unemployed None None 375.90 at $1.40 $526 . 26 5$ 26.26
offered reinstatement $1311.17
effective June 8, 1964
112
Calendar
Quarter
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remarks
Interim
Earnings Expenses
VIII. Isaiah Young
Hours and
Pay Rates
Gross
Backpay
Net
Interim
Earnings
Net
Backpay
1963-IV Unemployed None None 38.50 at $1 .55 $59.68 $59.68
1964-I Unemployed
travel and other
expenses seeking employment None $48 .00 449. 50 at $1 .55 $696.73 $696.73
1964-II Unemployed
offered reinstatement
effective June 8 , 1964 None None 409.20 at $1.55 $634.26 6$ 34.26
$1390.67