Avon Convalescent Center, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1975

219 N.L.R.B. 1210 (N.L.R.B. 1975)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Avon Convalescent Center, Inc. and National Union
of Hospital and Nursing Home Employees, Local
1199H, an affiliate of Retail , Wholesale, Depart-
ment Store Union, AFL-CIO. Cases 9-CA-6316
and 9-CA-6529
August 22, 1975
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On May 5, 1975, Administrative Law Judge John
F. Corbley issued the attached Supplemental Deci-
sion' in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief and the Gen-
eral Counsel filed limited exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
Backpay claimant Annette Gibbs was discrimina-
torily discharged from her position as a nurses aide
on October 8, 1971. Thereafter, Gibbs applied for
unemployment compensation at the local employ-
ment service agency but was told she did not qualify
for compensation. Gibbs did not register with the
agency for job referrals? In early November Gibbs
applied for a position at Jewish Hospital. She was
told that she was going to be hired for a job in the
hospital's dietary section at $1.70 per hour (com-
pared with her $1.60 per hour wage with Respon-
dent). However, when she reported for work on the
day specified by the hospital she was informed that
the hospital no longer had any openings . Thereafter,
Gibbs applied for work at the Avon Cosmetic plant
and at the Keebler Company. At the suggestion of
her brother who told her that the company was hir-
ing, she also applied at Anchor-Hocking . The dates
of her applications with these- employers were not
established at the hearing . She obtained no employ-
ment during the backpay period but accepted rein-
'Original Decision 200 NLRB 702 (1972).
2 Gibbs was not questioned at the hearing as to her reason for not regis-
tering with the agency . Accordingly, it is not clear on this record whether
her failure to register was intentional or was occasioned by the mistaken
belief that because she was not entitled to compensation payments she was
not entitled to register.
statement with Respondent on May 22, 1972.3
On the basis of this record, and particularly in
view of Gibbs' testimony that she was looking for "a
better position and a better job" when she applied at
Keebler and Anchor-Hocking, the Administrative
Law Judge concluded that Gibbs had failed to make
a "reasonable effort" to secure equivalent employ-
ment and hence was not entitled to backpay. In sup-
port of his conclusion the Administrative Law Judge
also relied on Gibbs' failure to register with the em-
ployment office and on her failure to apply for the
specific position of nurses aide at any area nursing
home.
Contrary to the Administrative Law Judge we are
not satisfied that Respondent has met its burden of
showing that claimant Gibbs did not exercise due
diligence in seeking work during the period covered
by the specifications. It is uncontroverted that Gibbs
sought employment with several employers and, in
fact, was promised employment by Jewish Hospital.
Nothing in the record supports the inference appar-
ently drawn by the Administrative Law Judge that
Gibbs' efforts to find interim employment were di-
rected solely at finding a "better" job rather than
suitable employment equivalent to the position from
which she was discharged. Thus the only basis on
which the Administrative Law Judge could conclude
that the dietary position sought by Gibbs at Jewish
Hospital was not equivalent employment is that the
dietary position paid 10 cents per hour more than
Gibbs' former job as a nurses aide. Clearly this is not
a sufficient basis on which to predicate such a find-
ing. As for Gibbs' application at Avon Cosmetics,
the Administrative Law Judge conceded that this was
a "possible exception" to his finding that Gibbs did
not seek equivalent employment.
Finally, in connection with Gibbs' statement that
she was seeking "a better position and a better job"
when she applied at Keebler and Anchor-Hocking,
we have carefully examined all of Gibbs' testimony
and we are satisfied that she did not mean that she
had out-of-hand rejected nurses aide or comparable
work for "better" work. Rather, we are convinced
that Gibbs merely meant that at the time she applied
for work with these two employers she under-
standably hoped that any position she might secure
with them would prove to be a "better" job from a
longterm viewpoint .4 Indeed, on cross-examination
Gibbs specifically denied that her statement concern-
ing a "better" job meant that she did not want or
would reject a nurses aide position. If further proof
3 No backpay is claimed for Gibbs for the period of February 1 through
April 30, 1972, when she was unavailable for work because of illness in her
family.
4 Cf., B. B. S. A., Inc., d/b/a Burger Boy Food-O-Rama, 164 NLRB 975,
977, fn. 5 (1%7).
219 NLRB No. 191
AVON CONVALESCENT CENTER 1211
of Gibbs' willingness and inclination to work as a
nurses aid is required , we cannot ignore her accep-
tance of Respondent 's offer of reinstatement as a
nurses aide or the fact that she continued in
Respondent's employ up to the time of the supple-
mental hearing.'
Under these circumstances we cannot say that
Gibbs did not exercise due diligence in searching for
comparable work. Accordingly, we shall modify the
Administrative Law Judge's recommended Supple-
mental Order to provide for the payment of backpay
to claimant Gibbs in accordance with the specifica-
tions.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Supplemental Order of the Administrative Law
Judge, as modified below, and hereby orders that Re-
spondent, Avon Convalescent Center, Inc., Cincin-
nati, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in said
recommended Supplemental Order as so modified:
Substitute for "0" opposite the name of Annette
Gibbs the sum of $1 ,254.55.
5 As pointed out previously, the Administrative Law Judge also relied on
Gibbs' failure to register with her local employment service and her failure
to apply at local nursing homes in support of his finding that Gibbs did not
make a reasonable effort to find comparable employment . Although regis-
tration or the failure to register will be considered by the Board , it is not
determinative of the issue of willful loss of earnings . See Southern Silk Mills,
Inc., 116 NLRB 769, 770. Under the circumstances here, and particularly in
view of the Respondent's failure to show that area nursing homes were
generally hiring during Gibbs' backpay period , we attach little weight to
Gibbs' failure to register or to apply at area nursing homes . Indeed, with
respect to the failure to seek employment as a nurses aide , the Administra-
tive Law Judge elsewhere in his supplemental Decision correctly pointed
out that, as a general proposition , entitlement to backpay does not turn on
a showing that the discharged employee sought precisely the same type of
interim employment as that from which he was discharged.
6 As modified by the Administrative Law Judge to reflect his finding that
there was no 5-cent-per -hour general wage increase on January I, 1972.
SUPPLEMENTAL DECISION
JOHN F. CORBLEY, Administrative Law Judge: This sup-
plemental proceeding to determine the amount of backpay
due 12 individuals , whose employment was discriminatori-
ly terminated by the Respondent,' was heard before me on
February 3, 1975, at Cincinnati, Ohio, on the backpay
specification issued by the Regional Director for Region 9
of the National Labor Relations Board on November,6,
1974, and Respondent 's answer thereto received in the of-
fice of said Region 9 on December 13, 1974.
The backpay specification was amended on the record at
1200 NLRB 702, enfd . 490 F.2d 1384 (C.A. 6, 1974).
the hearing as was Respondent's answer.2
At the hearing the General Counsel and Respondent
were represented by counsel. The parties were given full
opportunity to examine and cross-examine witnesses, to in-
troduce evidence, and to file briefs. The parties waived the
opportunity to make closing statements. Briefs have subse-
quently been received from the General Counsel and from
Respondent and have been considered.
Upon the entire record made before me in this case, in-
cluding the briefs and from my observation of the witness-
es, I make the following:
FINDINGS OF FACT
Preliminary: The 12 discriminatees covered by the back-
pay specification, as amended, are Mary Allen, Wanda Al-
len, Jeanette Barksdale, JoAnn Bell, Ivra Brown, Jessie
Farmer, Annette Gibbs, Icilda James, Janell McCoy, Vic-
toria Selvia, Charlotte William, and Letha Woodard. These
employees were discriminatorily discharged on various
dates in August and October 1971.
The backpay specification fixes the backpay period for
each individual as beginning on the date of her discrimina-
tory discharge and ending in May 1972, on the date of her
acceptance or refusal of an offer of reinstatement by Re-
spondent. The specification also sets out for each employ-
ee, in each of the quarterly 3-month segments of the back-
pay periods, what the gross earnings of each employee
would have been (if the employee had not been discrimina-
torily discharged by Respondent and had worked for Re-
spondent during her backpay period' ), what the interim
earnings of each employee were, and the net amounts now
claimed to be owing to each discriminatee. As the result of
these calculations, some of which were amended at the
hearing," it is averred that Respondent owes the discrimi-
natees an amount totaling approximately $11,000.
2 The General Counsel , who represented the Regional Director, moved at
the hearing that Respondent 's original answer be stricken based on the
claimed failure of said answer to meet with the requirements of specificity
set forth in Sec . 102.54(a) and (b) of the Board's Rules and Regulations.
This motion was resisted by Respondent as untimely (in view of the passage
of some 7 weeks between the time the original answer was filed with the
Regional Office and the date the hearing opened). Respondent also opposed
the motion as lacking in merit , contending that its failure to supply specific
facts (in support of its claim that the hours worked by discnminatees were
less than those appearing in the specification) was due to a fire which had
destroyed its records . The occurrence of this fire and its destruction of
Respondent's records was then proved by Respondent on the basis of the
undisputed testimony of Mrs Ruth Eldridge , the accounting supervisor for
Nursing Home Consultants, an organization which prepares the payroll for
Respondent and other nursing homes . Respondent , however, agreed to am-
end the original answer on the record to aver specifics consistent with an
exhibit , introduced at the earlier unfair labor practice hearing , which sets
forth the hours of some of the discnminatees for several months prior to
their unlawful discharge. This amendment was permitted and, on the basis
of all of the foregoing , the motion to strike the original answer as non-
specific was denied at the hearing.
The General Counsel also moved to strike , as insufficiently specific, the
answer 's allegation that each discriminatee was disqualified for backpay, due
to nonavailabihty for, or failure to seek , interim employment. This motion
was denied because Respondent 's failure to plea4 specifically in this regard
was adequately explained on the basis that the specific facts were not in
Respondent's special knowledge.
3 When available for employment.
° In one instance the specifics of the amendment are set forth in the
Continued
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's answer does not take issue with the dates
of the backpay period nor is there any disagreement in
respect to the prediscrimination earnings of employees nor
their interim earnings when employed during the backpay
period .5 The answer , as amended, does, however, dispute
the specification's formula for gross earnings , averring a
different computation of hours which would have been
worked by the discriminatees if they had continued in
Respondent's employment during the backpay period; de-
nies the specification's claim for 5-cent-per-hour wage in-
creases for the employees after January 1, 1972, and fur-
ther denies that certain employees are entitled to vacation
pay moneys included in their gross earnings computations
in the specification . The answer, as amended, also denies
that each employee was available for, or made reasonable
efforts to obtain, employment during the backpay period.
Because three of the discriminatees did not appear at the
hearing a further question has been raised by Respondent
as to the manner in which the backpay claims of these
individuals may be disposed of. These matters will be con-
sidered below , seriatim. First, I will take up Respondent's
contentions in respect to the gross earnings allegations of
the specification and then I will treat with the problem of
the three individuals who did not appear at the hearing.
Lastly, I will consider the question of the adequacy of each
discriminatee 's search for interim employment, dispose of
miscellaneous questions , and set out the appropriate com-
putations for the gross earnings, interim earnings , and net
backpay due to each individual.
Gross Earnings
A. Hours Which the Discriminatees Would Have Worked if
They had Been Employed by Respondent During the
Backpay Periods
The formula used in the backpay specification, as
amended , to establish the gross earnings of each individual
is based on quarterly periods of 13 weeks each multiplied
by 40 hours per week and multiplied further by the
individual's hourly pay. Respondent urges that the hours
per week figure should be the average hours per week 6
which the employee worked during the period covered by
the aforementioned exhibit from the unfair labor practice
hearing (also received in evidence herein). The General
Counsel opposes this alternative method on several
grounds which I find , essentially, to be meritorious.
It is now well settled that in preparing a backpay spec
ification any reasonable formula is sufficient to approxi-
mate the losses to discriminatees of pay they would have
earned if they had not been unlawfully discharged and had
continued to be employed during the backpay period.7
General Counsel 's brief to me-an arrangement agreed to by Respondent at
the hearing.
s These figures were established by social security records for each discn-
minatee which were introduced by the General Counsel without objection
at the hearing.
6 More properly one half of the hours worked in each 2 -week period.
7 Flora Construction Company and Argus Construction Company, d/b/a
Flora and Argus Construction Co., 149 NLRB 583, 586, enfd . 354 F.2d 107
(C.A. 10, 1965).
And the use and extension of prediscrimination earnings as
a measure of such lost earnings has been held by the Board
to be just such a reasonable formula .8 The quarterly break-
down of the backpay periods is the law of this case 9 -in-
deed , it is normal Board policy.
Respondent does not quarrel with the foregoing . It mere-
ly insists that the prediscrimination earnings be extended
in terms of average hours worked by each employee during
the period immediately preceding her discharge as shown
by its exhibit in this regard.
This exhibit, culled, as noted , from the unfair labor prac-
tice record, shows the hours worked by each discriminatee
(except Icilda James and Mary Allen) for the biweekly pe-
riod ending July 3, 1971, through the biweekly period end-
ing October 23, 1971, by which latter date the last discrimi-
natee had been discharged . These average periods would in
each instance be less than 40 hours per week for each dis-
criminatee covered by the exhibit.1°
Before dealing with, and rejecting , Respondent 's propos-
al, it must be pointed out that none of the discriminatees
was shown to have been a part-time employee (although
other employees are designated part-time , i.e., "p.t.," on
the exhibit) and most of the discriminatees worked for 80
hours (40 hours average for a 2-week period ) at least one
time during the time frame covered by the exhibit. All the
discriminatees were nurse's aides and those , who were
asked the question and recalled their schedule , testified
without dispute that they were normally scheduled to work
a 40-hour-week or worked full-time 5 days per week.
In these circumstances several inequities to the employ-
ees are manifest from Respondent 's proposal to reduce
their hours worked consistent with the exhibit. The 4-
month (July to October 1971) period covered by the exhibit
is not, of course , a quarterly period . Further it would ex-
clude from consideration the hours worked by those indi-
viduals employed prior to July 1971.11 As to other employ-
ees, their employment was so brief (several weeks) that
their predischarge experience of hours worked for Respon-
dent is insufficient to establish , as Respondent would seek
to show, that they could be expected not to work a full
40-hour week , regardless if so scheduled thereafter .12 Also,
in view of the dates of their discharges (prior to the end of
their 2-week pay periods) I would have to count against
several discriminatees , for averaging purposes , a final peri-
od of less than 80 hours (less than two 40-hour weeks)
where their failure to complete an 80 -hour period at such
times was due at least in part to their unlawful discharges."
While it is true that there were weeks within the 4-month
period covered by the exhibit that employees failed to com-
plete the 80-hour work period, the record is barren of any
6 Trinity Valley Iron and Steel Company, A Division of C. C. Griffin Manu.
facturing Company, Inc., 158 NLRB 890 (1966).
9 200 NLRB 702, 721 (1972)
10 The exhibit actually continues past the latter date but no entries con-
cerning the discriminatees appear thereafter.
11 E.g., Barksdale , Bell, Brown , Farmer, Gibbs, Selvie, and Woodard. 200
NLRB at 715 , et seq.
12 E.g., Wanda Allen, Mary Allen, and Charlotte William.
13 E.g., Wanda Allen, Bell , Barksdale, Brown , Farmer, Gibbs, Selvie, and
Woodard.
AVON CONVALESCENT CENTER
explanation 14 of the hours shortfall of any discriminatee.
Thus , it is not known whether the failure to make 80 hours
during any given 2-week period was due to the employee's
tardiness , excused absence for nonrecurring illness or per-
sonal business , or whether the employee was scheduled to
work a short workweek on given occasions regardless of
her willingness to work a full 40 hours.
Further , while it is apparent that Respondent has taken
the best position in respect to hours worked which it could
have taken in the light of the destruction of all the perti-
nent records at its payroll service company and the availabil-
ity of the limited exhibit from the unfair labor practice
hearing, I am not satisfied that Respondent was otherwise
unable to prove its shortfall contentions. For no rec-
ords-either personnel or pay records-have been pro-
duced for Respondent's facility itself nor did any of
Respondent's supervisors or other officials testify in the
proceeding . Indeed , no attempt was made to explain why
these Respondent agents were not produced to testify at
the hearing . Nor was any satisfactory explanation given as
to why no other records, were produced from Respondent's
facility itself . " In these circumstances an inference adverse
to Respondent arises-and I draw it-that, if appropriate
officials had been called to testify or if its facility records
had been produced, the evidence thus obtained would not
support Respondent 's position in the matter.16
I, accordingly , reject Respondent's alternative proposal
for determining the hours worked element of the gross
earnings allegations of the specification and affirm the Re-
gional Director's method for determining such hours.17
14 Except for the imprecise testimony of one employee that she may have
been late and another that her attendance was not perfect.
15 As noted, Respondent 's only witness was Mrs. Eldridge , who is not an
employee of Respondent but is rather employed by its payroll service com-
pany. Her testimony on the matter of records kept at Respondent 's facility
is inconsistent and confusing . Thus, at one point , she testified that she did
not know whether Respondent kept any other records at its own location.
Elsewhere, however, she testified that Respondent's exhibit of hours worked
for the instant 3-1/2-month period had been produced from Respondent's
facility. At another point in her testimony she said that a cumulative sum-
mary of hours worked by Respondent's employees was sent by Eldndge's
employer to Respondent's facility each week and was maintained there
Later she testified that she did not know whether records like the aforemen-
tioned exhibit (which was a summary of hours worked) were sent by
Eldridge's company to Respondent's facility . Ultimately she testified that an
employee of Respondent , of whose identity she was unsure , could not find
any other documents dealing with employees' hours worked except for the
instant exhibit.
16 Cf. Interstate Circuit, Inc., et at. v. U.S. [Paramount Pictures], 306 U.S.
208 226 (1939).
1i In analyzing Respondent's proposal and rejecting it, I have given the
backpay claimants the benefit of any doubt which may exist-consistent
with Board doctrine (accepted by the courts ) that since Respondent is the
wrongdoer responsible for the existence of any uncertainty the uncertainty
must be resolved against it . United Aircraft Corporation, 204 NLRB 1068, p.
3 (1973) and cases cited therein. I have further been guided by the very
obvious consideration that a purpose of this inquiry is to establish a rational
basis for approximating (Flora and Argus Construction Company, supra) what
hours employees would have worked after their discharges (i.e., during the
backpay period) if they had continued to work for Respondent at such
times . Atlantic Marine, Inc., 211 NLRB 230 (1974). And I detect no pattern
in the work history of any claimant involved herein of working less that 40
hours per week at any job obtained and retained during the backpay period
where the individual was not kept from work by nonrecurring illness.
In rejecting Respondent's proposal , I am not unmindful of the Board's
decision in Winn-Dixie Stores, Inc., 170 NLRB 1734, In. 2, 1736-37 (1968),
where the hours worked element of the gross backpay computation was
reduced from 40 hours based on the extension of predischarge absenteeism
1213
B. Hourly Wage Element of Gross Earnings
The backpay specification alleges that a general pay in-
crease of 5 cents per hour was granted by Respondent on
January 1, 1972, and an adjustment to reflect this claimed
increase has been made in the gross backpay allegation for
each of the discriminatees for the two quarters in the back-
pay period after January 1, 1972. The answer denies that
any such general wage increase was given by Respondent
to its employees on that date.
At the hearing the General Counsel introduced no evi-
dence in support of this claimed wage increase." The un-
disputed testimony of Eldridge was that Respondent had
no policy for granting automatic wage increases on the first
of the year in 1972.19 Eldridge further testified without dis-
pute that increases on January 1 of previous years were
granted to bring the wages up to the legal minimum of
$1.60 per hour.
Accordingly, I conclude that no such general wage in-
crease was given by Respondent on January 1, 1972, and I
shall readjust the gross backpay findings as to each em-
ployee.
C. Vacations
The backpay specification also makes a claim for 1-week
paid vacations for certain discriminatees (Bell, Brown, and
Woodard) where the service of the discriminatee (actual
service plus constructive service during the backpay peri-
od) would qualify the individual for the 1-week paid vaca-
tion . This element is an appropriate part of the backpay
specification because the 1-year anniversary for each of
these employees fell within the backpay period.
The evidence is undisputed that at the time in question
Respondent had a policy of ,ranting I week's paid vaca-
tion for each year of service. vi Respondent concedes that
Woodard is entitled to 1-week paid vacation but asserts
that Bell and Brown are not because-under the hours
worked formula proposed by Respondent and previously
of discnminatees . That case is, however, distinguishable on its facts. There,
unlike here , the evidence showed a record of the work history of the back-
pay claimants for a year preceding their discharges . There was evidence,
significantly lacking here , affirmatively establishing that the claimants were
absent from work, when scheduled , apparently, to be at work , and further
explaining such absenteeism in circumstances which placed the responsibil-
ity for it on the claimant's shoulders, e.g., unexplained personal reasons and
babysitting problems. Even in that case , however, the Board refused to
exclude periods of absenteeism caused by demonstrable illness (1734, In. 2)
18 Discnminatee Gibbs, who had been earning $1 .60 per hour when dis-
charged , testified that she was reinstated in May 1972 at an hourly rate
which she believed was "between $ 160 and $1 .65." But this testimony does
not tell us which of the two rates she received upon reinstatement and no
other employee testified probatively on the subject
19 I consider the testimony of Eldridge to be competent on this point for
the reason, as she testified , that she was required to be familiar with
Rescpondent's pay policies in order to prepare its payroll.
2 Each discriminatee was already earning $1 .60 or more when dis-
charged.
21 Gibbs was so informed by Supervisor Mary Angst in June 1971; Mc-
Coy was so informed by Supervisor Donald Craft and Bell, Farmer (in May
1971), and Selvie (in April 1971 ) were so advised by Supervisor Marge Os-
home . Angst, Craft, and Osborne were all found to be supervisors within
the meaning of Sec. 2(11) of the Act by the Board in its decision in the
unfair labor practice case . 200 NLRB 702, 703, 705, 706. As previously
mentioned , none of these supervisors testified at the hearing.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rejected by me herein-the average biweekly hours worked
by each of these employees was less than 74 hours. The
significance of the "74 hour" figure is Eldridge 's undisput-
ed testimony that Respondent 's vacation policy was 1
week 's paid vacation after 1 year of service for full-time
employees and her further undisputed testimony that a
full-time employee was defined by Respondent as one em-
ployed an average of 74 hours per (2-week) pay period over
the previous 12 months.
Having already rejected Respondent 's contention that
the average hours of Bell and Brown (and the other dis-
criminatees) should be computed at less than 40 hours for
the backpay period, I hold that neither Bell nor Brown is
disqualified for the vacation benefit . That is, since I have
credited each with 40 hours per week of service for all
weeks falling during the backpay period and since I shall
give them the same credit, in effect, for all pay periods they
worked before the time of Respondent's exhibit (in their
instant vacation year prior to the pay period ending July 3,
1971), their average hours worked in their respective vaca-
tion years (during that part of their vacation year preced-
ing the exhibit, that part covered by the exhibit and that
part occurring after the exhibit) exceed 74 hours on a bi-
weekly basis.
It is, of course , settled law that vacation pay is properly
included in a backpay award 22 I shall, accordingly, include
a requirement in the awards to Bell, Brown , and Woodard
that each be paid for 1 week 's vacation.
The Brown and Root Issue
As previously pointed out, three discriminatees (Wanda
Allen, Mary Allen, and Jeanette Barksdale) did not testify.
The General Counsel requests that the moneys alleged to
be due them in the backpay specification be paid by Re-
spondent into escrow and that further proceedings be di-
rected for final adjudication of their backpay consistent
with the procedure established by the Board in its decision
in Brown and Root, Inc., 132 NLRB 486 (1961).
Respondent opposes this request pointing out that here,
unlike the situation in Brown and Root, each of these dis-
criminatees was subpenaed and failed to appear . There-
fore , says Respondent , Brown and Root does not apply and,
in any event , the escrow payment required under Brown
and Root would be inequitable in the circumstances of this
case.
I reject these contentions.
In Brown and Root the Board provided a posthearing
opportunity (which I shall also recommend here to estab-
lish the backpay due to claimants covered by a backpay
specification where said claimants did not appear at the
hearing on such specification . In rejecting Respondent's
argument that its effort and the General Counsel's effort to
subpena the missing employees here obviates the necessity
for such a procedure , I will assume , arguendo, that the
Brown and Root decision turned on the failure of the parties
therein to make a like effort.
Respondent, according to its representation at the hear-
22 The Richard W. Kaase Company, 162 NLRB 1320, 1325 (1968).
ing, attempted to subpena two of the discriminatees, but
Respondent did not subpena Mary Allen who is in the
military service. As to Wanda Allen and Jeanette Barks-
dale, it is not clear that there was a return of service on the
subpena issued by the Respondent . It is clear that there
was no return of service on the General Counsel's subpe-
nas for these same individuals, according to his representa-
tion . In any event, no return of service of the subpenas
issued by either side was included in the record herein.
In these circumstances I cannot say with certainty that
these three claimants have been given notice and the op-
portunity to appear in support of their backpay claims. By
the same token Respondent has not been afforded the
chance to show evidence in mitigation of its backpay liabil-
ity towards them. I therefore deem it appropriate to recom-
mend the Brown and Root procedure herein.
I likewise reject Respondent's contention that the escrow
aspect of this procedure is inequitable in the circumstances
here present. The short answer to this argument is that the
equities go the other way . That is, since the Respondent is
the wrongdoer responsible for the existence of any uncer-
tainty arising from the unlawful discharge of these employ-
ees, the uncertainty must be resolved against the Respon-
dent and not against the employees. And it would be
inequitable for the discriminatees to be required to risk the
uncertainty that their backpay claims will be paid in the
future . The escrow arrangement provides assurance against
this uncertainty 23
I shall now dispose of Respondent 's miscellaneous con-
tentions in respect to the discriminatees who did not show
up at the hearing and I shall set forth the amounts which
should be paid into escrow accounts to insure coverage of
Respondent's backpay liability towards them. These fig-
ures are revisions (reductions) of the allegations of the
backpay specification, based on my above-mentioned con-
clusion that no 5-cent pay increase was automatically
granted by Respondent on January 1, 1972.
Mary Allen: Respondent contends that no backpay
should be awarded to Mary Allen from November 1, 1971,
until February 25, 1972, when Allen went into military ser-
vice . This contention is based on testimony at the hearing
of Allen's sister, Charlotte William, another discriminatee,
that Allen spent a period of "some months" losing 40
pounds in order to be acceptable for induction. I find this
contention to be without merit.
For William's full testimony was that Allen continued to
go around seeking work from several (unnamed) employers
after being told by a recruiting sergeant that she had to lose
the instant 40 pounds. And I know of no reason why an
individual cannot look for work while trying to lose weight.
Indeed the uncertainty of success which attends a weight
zs I do , however, reserve to the Respondent the right to request the Re-
gional Director to deposit the escrow moneys in interest-bearing accounts at
thrift institutions where savings are insured by an agency of the United
States Government . If this is done said interest will be divided between the
discnminatee and Respondent consistent with the final determination of
Respondent's backpay liability. The escrow account interest is not, of
course , to be confused with the 6-percent interest (Isis Plumbing & Heating
Co., 138 NLRB 716 (1962)) which is already included in the backpay due
under the Board 's Order (200 NLRB at 720) and said backpay due includ-
ing Isis interest will be the amount paid into the escrow account by Respon-
dent.
AVON CONVALESCENT CENTER
reducing effort would indicate the need to keep looking for
other employment which has no such prerequisite. In any
event, I believe the proper way to resolve these questions
about what happened is to give Allen a chance to speak for
herself at a future time within the limits of the Brown and
Root procedure.
The revised figures for Allen are set forth below:
Qtr .
firs.
&
Rate
Gross
Ba a
Interim
Net
Earnings
Net
Backpay
1971 (4) 480 hrs. 768 .00 U 768.00
at $1.60
per hr.
1972(1) 312
hrs. /
499.20 0 499.20
at $1.60
per hr.
Totals 1267 .20 0 1267.20
Wanda Allen: Respondent's contentions with respect to
Wanda Allen are that her backpay should be calculated at
less than 40 hours per week and that no escrow payment be
made for her, because Respondent sought to subpena her
but was unsuccessful in the effort. I have already rejected
these contentions. The revised figures for Wanda Allen,
are, therefore , as follows:
tire. Interim
& Gross Net Net
Qtr * elate Bac a karninus Bac a
1971(4) 408 hrs . 780.80 0 780.80
at $1.60
per hr.
1972(1) 496 hrs. 793.60 350.00 / 443.60
at $1.60
per hr.
1972(2) 296 hrs. 473.60 0 473.60
at $1.60
per hr.
Totals 2048.00 350.00 1698.00
Jeanette Barksdale: Here again Respondent raises its es-
crow payment objection and its reduced hour contention
for backpay computation-matters I have already disposed
of. The revised figures for Barksdale are:
24 The specification seeks no backpay after February 25, 1972, the date
that Allen entered military service.
25 The specification concedes that Wanda Allen was unable to work for 3
days in February due to minor surgery and no claim is made for the 3-day
period. Wanda Allen also had interim employment with Parkmoor Cincin-
nati, Inc., at Kittering, Ohio, during this quarter.
26 Barksdale obtained interim employment at Hamilton County OES
Home Inc ., Cincinnati, Ohio.
t&rs.
&
Qtr. Rate
1971(4) 488 sirs.
at $1.60
per hr.
1972(1) 520 hrs.
at $1.60
per hr.
1972(2) 296 hrs.
at $1.60
per hr.
Totals
1215
Gross
Backpay
Interim
Net
karnings
Net
Bac a
780.80 0 780.80
832.00 193.25 26/ 638.75
473.60 0 473.60
2086.40 193.25 1893.15
I will now take up the backpay claims in respect to those
employees who appeared to testify in the Supplemental
proceeding.
Jo Ann Bell: In addition to contentions already disposed
of, Respondent argues that Bell should be disqualified for
backpay during the fourth quarter of 1971. In this regard
Respondent relies on Bell's testimony that she made no
effort to find comparable employment in a nursing home
after her discharge by Respondent for the reason that she
did not want any more employment in such institutions.
Respondent says that since there are a large number of
nursing homes in the area (in fact 23) and since Bell had
experience as a nurse's aide, Bell was obliged to seek em-
ployment in that field in order to have a reasonable mea-
sure of success in obtaining interim employment.
I reject this contention, in all the circumstances of the
case. For, as a general proposition, a discharged employee
is not obliged to seek the same type of interim employment
as that from which he was discharged in order to show his
entitlement to backpay.27 An apparent exception to this
rule arises where a discriminatee is trained in a highly spe-
cialized skill in which he has had extended work experi-
ences But this exception does not apply herein, for the
reasons that Bell's nurse's aide status was not shown to be
highly skilled (her $1.65 salary would suggest the contrary)
and she worked at it for only 6 months. Further, her social
security records indicate she had nonnursing home em-
ployment before working for Respondent in 1970 and
1971.
Accordingly, and in view of the fact that Bell found
other employment in November 1971 29 (after her dis-
charge on October 7, 1971) at which she is still employed, I
conclude that she exercised due diligence in obtaining in-
terim employment and that she is entitled to backpay for
this quarter.
27 Venetian Blind Workers' Union Local No. 2565, affiliated with the United
Brotherhood of Carpenters and Joiners of America, AFL (Ambassador Vene-
tian Blind Company, Consolidated Interiors, Inc.) 110 NLRB 780, 788 (1954).
23 Knickerbocker Plastic Co., Inc. 132 NLRB 1209, 1219 (1961).
29 She was employed in November 1971 for I day with National Service
Industries and, on or about November 12, 1971, she began work with Supe-
nor Towel and Linen Service in Cincinnati , which now continues to be her
employer.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also contends that the specification is in er-
ror because it does not exclude a 3-week hospitalization
and recuperation period for Bell in the second quarter of
1972 (when Bell had a miscarriage). I also reject this con-
tention.
The specification makes no claim for Bell from May 15,
1972, when, it says, Bell was hospitalized at least until May
22, 1972 , the end of her backpay period . The only evidence
on this question is her testimony that she was out of work
for 3 weeks (thereafter returning to work with the same
employer, Superior Towel) and her social security record
which shows that she received $333.14 from her interim
employer during the whole quarter (April, May, and June).
Inasmuch as this entire amount is conceded to be interim
earnings (as covered by the specification for the first 6-1/2
weeks of this quarter) and in view of the specification's
cutoff date of May 15 and Bell's instant testimony, I find
no warrant here to conclude that the specification is in
error. If, in reality , it is, the error is in Respondent's fa-
vor.30
The revised figures for Bell are , therefore, as follows:
Qtr .
Iirs.
&
date
Gross
Backpay
Interim
Net
Barn s
Net
Backpay
1971(4) 488 hrs . 805.20 247.93 557.27
at 41.65
per hr.
1972(1) - - - U L1 /
1972(2) 24U lira .
at $1.t+5
per hr.,
462.00 333.14 128.86
$396; 1
week
vacation
4U hrs.
at $1.65
per hr..
$66.00
'ota1s 1267 . 20 581.07 636.13
Ivra Brown : In addition to arguments already disposed
of generally, Respondent argues specifically as to Brown
that she should be disqualified for backpay because she
only made application to one nursing home of the 23
homes in the area and, says Respondent , this indicates a
lack of due diligence on her part in searching for equiva-
lent employment . I reject this contention.
As with Bell I find no such extensive experience or
30 Respondent argues that , at Bell 's then rate of $ 1.98 per hour, her pay
for six 40-weeks (April I-May 15 , 1971) would have exceeded the instant
$333.14 . Hence, says Respondent, her entire 3-week absence occurred dur-
ing the backpay period . However, totally aside from the facts recited, supra,
this argument must be rejected , because it assumed facts not in evidence
which it was incumbent upon Respondent to show . That is , to prevail in this
contention Respondent should have proved that Bell earned $1.98 per hour
in all 6 weeks , was not laid off during said period for lack of work , etc. But
Respondent submitted no such proof.
3 No backpay is due for this period due to excess net interim earnings.
skilled training as to have required that Brown devote all
her job-seeking efforts to health care institutions. On the
other hand, I am satisfied that she exercised due diligence
in seeking interim employment . She signed up for unem-
ployment after her discharge on October 21, 1971. Unem-
ployment authorities referred her to Lane Bryant but she
was unsuccessful at obtaining employment there. On her
own she sought work at St. Elizabeth Hospital , Hopple
Plastic, Duro Paper Bag, Burger Chef, and Teppen Nurs-
ing Home . She obtained work at Garden of Eden Nursing
Home but she left there after 3 days because , according to
her undisputed testimony , the place was "filthy." 32 Within
3 days after leaving Garden of Eden, in November 1971,
she obtained work at Hamilton County OES. I accordingly
conclude that she is entitled to backpay for the entire back-
pay period.
The revised figures for Brown are as follows:
cr.
1971(4)
Firs.
&
Rate
408 hrs.
at $1.70
per hr.
Gross
Back a
Interim
Net
Earnings
Net
Backp ay
693.60 408.40 285.20
952.00 917.00 35.00
0 33/
1645.60 1325.40 320.20
1972(1) 520 hrs.
at $1.70
$884; 1 wk.
vacation,
40 hrs.
at $1.70
$68
1972(1)
Totals
Jessie Farmer: With respect to Farmer, Respondent in its
brief advances no contention not already disposed of in
this decision. However, at the hearing, Respondent, from
its questions, took the further position that Farmer had
sustained a willful loss of interim earnings and this position
has not apparently been abandoned by Respondent.
Farmer was discharged on October 8, 1971. She was
pregnant at the time. She signed up with unemployment
authorities but received no referrals from them. On her
own she sought work, unsuccessfully, at two hospitals and
"Snow Fabric." Her child was born on January 22, 1972,
and no backpay is claimed for her for 3 months before or
after that date up through April 22, 1972. She obtained no
interim employment after April 22 but she accepted rein-
statement with Respondent when it was offered on May
22, 1972.
Considering her condition and the consequent limited
chances of her obtaining interim employment just after her
discharge, I conclude that she exercised due diligence in
seeking work during the period covered by the specifica-
tion prior to 3 months before the birth of her child.
Subsequent to 3 months after the birth of her child and
specifically during the month preceding her reinstatement
32 In these circumstances her action in quitting is not a willful loss of
earnings . See UnitedAircraft Corporation, 204 NLRB 1068 (1973), (Menard).
33 No backpay is due because of excess interim earnings.
AVON CONVALESCENT CENTER
(for which month backpay is claimed) she made no effort
to obtain work nor did she again register with unemploy-
ment authorities . 34 The General Counsel urges nevertheless
that she should not be disqualified for this last period but
should be entitled to backpay for it based on an examina-
tion of her efforts during the backpay period as a whole.
In support of his argument the General Counsel relies on
Cornwell Company, Inc., 171 NLRB 342, 343 (1968). That
case is, however , distinguishable . There, while the Board
considered the backpay period as a whole and ignored a
discriminatee 's failure to seek work in certain calendar
quarters , it did so in the circumstances that to hold other-
wise would have required the discriminatee in that case to
go through the motions of repeating job applications (in
such calendar quarters) which she knew from her past ef-
forts were foredoomed to futility . Here , unlike there, I ;ind
no indication of past efforts on the part of Farmer which
would be sufficient to support the conclusion that further
attempts would be futile . Moreover, she was no longer
hampered by pregnancy and 6 months had passed since
her last availability for employment . On these facts, I con-
clude that her failure to make any effort to obtain interim
employment in the second quarter of 1972 constituted a
willful loss of earnings.
Pursuant to this determination and the concession that
she was entitled to no backpay for the period 3 months
before and 3 months after the birth of her child, I conclude
that she is entitled to backpay only for a part of the fourth
quarter of 1971, i.e ., $ 132 (80 hours at $1.65 per hour minus
zero net interim earnings.)
Annette Gibbs : In addition to contentions already dis-
posed of, Respondent argues as to Gibbs that she should
be disqualified from backpay because her efforts to find
interim employment were directed to finding a better job
rather than suitable employment comparable to the nurse's
aide position from which Respondent discharged her. I
find merit in Respondent's contentions here.
Gibbs was discharged by Respondent on October 8,
1971. She went to the local unemployment agency where
she was told that she was not entitled to unemployment
compensation . Unlike some of the other discriminatees,
she did not register with this agency for job referrals. In the
first part of November she applied for work at a hospital in
Cincinnati and indeed thought she had obtained a job in
that hospital's dietary section at $1.70 per hour (compared
with her last wage of $1.60 with Respondent) but was told,
after being processed for employment, that they had no
openings. She also applied for work at Anchor Hocking,
the Avon Cosmetic plant, and Keebler's. The dates of her
applications at these employers were not known. At
Keebler's and Anchor Hocking she testified that she was
looking for a better position and a better job. She admit-
tedly made no effort to find a job as a nurse 's aide, al-
though , as has been found, there were some 23 other nurs-
ing homes in the same area where Respondent was located.
Indeed, she obtained no employment of any kind during
the backpay period.
34 Such registration or the failure to register will be considered by the
Board in determining whether an employee has sustained a wilful] loss of
earnings . Southern Silk Mills, Inc., 116 NLRB 769, 770 (1956).
1217
No backpay is claimed for Gibbs during the period Feb-
ruary 1, 1972, through April 30, 1972, when she was un-
available for work due to illness in her family. She accept-
ed reinstatement with Respondent on May 22, 1972.
The Board and the courts have held that the obligtation
of a discriminatee to minimize his loss of earnings is satis-
fied if he makes reasonable efforts to find new employment
which is substantially equivalent to the position from
which he was discharged and is suitable to a person of his
background and experience 35 What is a "reasonable ef-
fort" has been held to be "reasonable exertions in this re-
gard, not the highest standard of diligence." 36 Said "rea-
sonable exertions" have been given yet further dimension
by the Board as follows:
... it can be said that in broad terms a good faith
effort requires conduct consistent with an inclination
to work and to be self-supporting and that such incli-
nation is best evidenced not by a purely mechanical
examination of the number or kind of applications for
work which have been made, but rather by the sincer-
ity and reasonableness of the efforts made by an indi-
vidual in his circumstances to relieve his unemploy-
ment. Circumstances include the economic climate in
which the individual operates, his skill and qualifica-
tions, his age , and his personal limitations.37
As has been pointed out, still another index of the good-
faith efforts of an individual to find interim employment is
whether or not he has registered with local governmental
employment services for job referrals.38
Here Gibbs did not register with the unemployment au-
thority. She did not seek equivalent employment except
possibly in one instance (Avon Cosmetics) and, in all, she
only sought employment at four places during the approxi-
mately 4 months for which the backpay claim is made.
Finally, while I have not held elsewhere in this decision
that the discriminatees herein were required specifically to
seek interim employment as nurses aides, Gibbs' failure so
to do (even though some 23 nursing homes were in the
area) serves at least to provide another indicator of the
weakness of her effort to obtain interim employment .39
In the light of the precedents cited above, I am satisfied
on these facts that Respondent has sustained its burden of
showing that Gibbs' conduct constituted a willful loss of
earnings and I find that she is not entitled to backpay.
Icilda James: In its brief Respondent states that it does
not contest the backpay specification in respect to James.
I, accordingly, uphold the allegations of the backpay
specification in respect to her and conclude that she is enti-
tled to $256.80 in backpay.
Janell McCoy: In addition to other contentions already
disposed of, Respondent argues as to McCoy that she is
not entitled to any backpay in the fourth quarter of 1971
35 E.g., Southern Silk Mills, Inc., supra, N L.R.B. v. Miami Coca Cola
Bottling Company, 360 F.2d 569, 575 (C.A. 5, 1966).
36 N.L.R.B. v. Arduim Manufacturing Corporation, 394 F.2d 420,422-423,
(C.A. 1, 1968).
77 Mastro Plastics Corporation, 136 NLRB 1342, 1359 ( 1962).
31 Southern Silk Mills, Inc., supra.
39 It does not appear that she has experience at any other work . Neither
her testimony nor her social security records indicate any other employment
except with Respondent
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(the only quarter for which backpay is sought) because
McCoy did not seek any employment at a nursing home
until December 14, 1971, when she sought and promptly
obtained a position with Glass Nursing Homes.
I reject this contention for the same reasons I rejected it
in respect to Bell and Brown.
McCoy made substantial efforts to obtain interim em-
ployment during the fourth quarter of 1971. She was dis-
charged on October 14, 1971. Thereafter, she went to the
unemployment authority and, on her own, sought work at
Miller's Shoe Company, went to several factories, tele-
phonically answered newspaper job advertisements, and
sought work through relatives living in the area . She had no
success until she was hired by Glass.
I conclude, therefore, that McCoy is entitled to backpay
for the fourth quarter. The revised figures in respect to
McCoy are, as follows:
ttrs. Interim
& Gross Let Net
Qtr. sate Bac a Earnings Backpay
1971 (4) 448 hrs. $716.80 $54.86 $661.94
at 51.60
per hr.
Victoria Selvie: In addition to arguments already dis-
posed of, Respondent contends that Selvie is disqualified
from backpay because she did not seek interim employ-
ment as a nurse's aide . I reject this contention for the same
reason that I rejected it in the cases of McCoy, Bell, and
Brown .40 Moreover, although Selvie stated at one point in
her testimony that she wasn 't interested in nurses aide
work , the fact remains that she applied for work at two
nursing homes and four hospitals after Respondent dis-
charged her.
Respondent further argues that Selvie should be disqual-
ified from backpay because she quit one interim job, Na-
tional Service Industries , at Florence , Kentucky, because,
according to her, it was too far to drive for the amount she
was being paid.41
Respondent, citing Knickerbocker Plastics, Inc., supra,
contends that an employee may not refuse or quit suitable
employment because of personal convenience , preference,
or accommodation unrelated to the suitability of the job.
According to Respondent , Selvie's reasons for quitting Na-
tional were likewise unrelated to the suitability of that job.
I disagree.
I am rather convinced, as was Selvie , that the job was
not "suitable" interim employment . To begin with, it was
not equivalent to her nurse's aide position for the reason,
among others , that it paid less than what she was earning
with Respondent . Also her net earnings from National
would have been yet further diminished-had she kept the
40 1 also note that Respondent has benefited from the efforts made by
Selvie to obtain nonnurses aide employment in that her interim employment
during the second quarter of 1972 (also within the backpay period) exceeded
her gross backpay , hence no backpay is claimed for her in that quarter
41 In this same connection Respondent points out that Selvie later went to
work for another employer , Wadsworth Electric Mfg. Co., Covington, Ken-
tucky, which Respondent contends is in the same general area . However,
Wadsworth , according to the undisputed testimony of Selvie, is 10 miles
closer to her home than was National.
job-by the increased cost of transportation to it since Re-
spondent would have been liable for such excess costs 42
And if she kept this job at less earnings and with excess
transportation costs she would have made herself vulnera-
ble to the charge that she had "lowered her sights" in seek-
ing interim employment before first exhausting all reason-
able opportunities to obtain substantially equivalent
work 43
On the other hand , Selvie made significant efforts to ob-
tain interim employment after her unlawful discharge on
October 7, 1971. She registered with unemployment au-
thorities , sought work at a number of nursing homes and
hospitals , as has been mentioned , and she ultimately found
work with Wadsworth. I, accordingly, conclude that Re-
spondent has failed to show that Selvie wilfully lost earn-
ings during the backpay period and I find her eligible for
backpay during the periods covered by the Specification.
The revised figures for Selvie are as follows:
Hrs.
&
Qtr. Rate
1971(4) 488 hrs.
at $1.70
per hr.
1972 (1) 520 hrs.
at $1.70
per hr.
1972(4)
Totals
Gross
Backuav
Interim
Net
Earnings
Net
Bac a
$829.60 $9.90 $819.70
$884.00 $579.17 $304.83
0
$1713.60 $589.07 $1124.53
Charlotte William: In its brief Respondent states that it
makes no contentions in respect to William other than
those already disposed of.44 The revised figures in respect
to William are, therefore , as follows:
Hrs.
&
Qtr. Rate
1971(4) 488 hrs.
at $1.65
per hr.
1972(1) 520 hrs.
at $1.65
per hr.
1972 (2) 296 hrs.
Gross
B a
Interim
Net
Earnings
Net
Bac a
$805.20 $384.00 $421.20
$858.00 $870.40 0
$488.40 $473.60 $ 14.80
at $1.65
per hr.
The applicable totals for 1971(4) and 1972(2)
are:
$1,293.60 $857.60 $436.00
Letha Woodard: In addition to contentions already dis-
42 See The Richard W Kaase Company, supra at 1326-27.
43 For a discussion of the "lowering of sights" issue see N L R B. v. The
Madison Courier, Inc., 472 F.2d 1307, 1321 (C.A.D.C., 1972).
w William immediately began to seek work after her discharge on Octo-
ber 7, 1971. She applied at several nursing homes , eventually obtaining work
at one in November 1971.
AVON CONVALESCENT CENTER
posed of, Respondent contends that Woodard should be
disqualified from backpay in the fourth quarter of 1971
because she did not sign up with employment authorities
and made no job applications until she obtained interim
employment with Windsor Park Nursing Home in Novem-
ber 1971.
Woodard testified that she did not file for unemploy-
ment compensation after being discharged by Respondent
on October 8, 1971, because she had worked too briefly to
be entitled to it. She further testified that she only applied
for interim work with Windsor Park Nursing Home where
she obtained employment "right away" about November
15, 1971.
On these facts, I find some merit in Respondent's posi-
tion. For Woodard's lack of qualification for unemploy-
ment benefits does not excuse her failure to seek job refer-
rals from that unemployment agency. And no explanation
appears for Woodard's failure to seek work on her own for
some 5 weeks after her discharge. However, since she did
ultimately obtain work at a nursing home during that quar-
ter I perceive no justification to disqualify her from back-
pay for the entire quarter.
I conclude, therefore, that Respondent has satisified its
burden of showing that she incurred a willful loss of earn-
ings for 5 weeks during this quarter. I shall therefore re-
duce her entitlement to backpay for those 5 weeks by sub-
tracting 200 hours from the number of hours worked
element of her gross backpay figure as recited in the spec-
ification.
The revised figures for Woodard are as follows:
lirs. Interim
& Gross Net Net
Qtr . Rate Backpay Rarnings Backpay
1971(4) 280 hrs. $448.00 $332.00 $116.00
at $1.60
per hr.
1972(1) 0 45
1972(2) 296 hrs.
at $1.60
per hr.,
$473.60;
1 week
vacation
40 hrs.
at $1.60
per hr.
$ 64 $537.60 $500.24 $ 37.36
Totals $985.60 $832.24 $153.36
Upon the foregoing findings and conclusions of law, and
upon the entire record in this proceeding, I hereby issue the
following recommended:
45 Woodard had excess interim earnings during this quarter.
SUPPLEMENTAL ORDER 46
1219
The Respondent, Avon Convalescent Center, Inc., Cin-
cinnati, Ohio, its officers, agents, successors, and assigns
shall satisfy its obligation to make whole the discriminatees
here involved by payment of the amounts of net backpay
set forth opposite their names:
Mary Allen $1,267.20
Wanda Allen 1,698.00
Jeanette Barksdale 1,893.15
JoAnn Bell 686.13
Ivra Brown 320.20
Jessie Farmer 132.00
Annette Gibbs 0
Icilda James 256.80
Janell McCoy 661.94
Victoria Selvie 1,124.53
Charlotte William 436.00
Letha Woodard 153.36
Each of the foregoing amounts shall be paid plus interest
thereon accrued to the date of payment at the rate of 6
percent per annum, computed in the manner specified in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), minus
any tax withholdings required by Federal or State laws.
The specified amounts (including the Isis interest) will be
paid to the discriminatees, respectively, except the amounts
for Mary Allen, Wanda Allen, and Jeanette Barksdale for
whom the amounts shall be paid to the Regional Director
for Region 9 to be held in escrow.
The Regional Director for Region 9 is hereby directed to
place in escrow the amounts of backpay awarded the
claimants who did not testify (Mary Allen, Wanda Allen,
and Jeanette Barksdale) and to made suitable arrange-
ments to accord Respondent, together with the General
Counsel's representative, an opportunity to examine them
as to their interim earnings and activities. The Regional
Director shall make a final determination whether any in-
terim earnings or other amounts in excess of those shown
in the Administrative Law Judge's Decision are revealed
which are properly deductible from the backpay award of
each of these three claimants under existing Board prece-
dent. When so determined the Regional Director shall
make such deductions and return the amounts deducted to
Respondent. The Regional Director is further directed to
report to the Board, when these matters have been finally
resolved and in any event no later than 1 year from the
date of the Board's Supplemental Order herein, the status
of these cases at such time.
46 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein , shall, as provided in Sec. 102
.48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes k